Individual Criminal Responsibility Research Articles

Recognising Cyber Blockades as Crimes Against Humanity: Can International Criminal Law Keep Up?

As a result of the heavily digitalised world on top of our increasing online presence and interconnectedness, states and civilian populations are becoming more and more vulnerable to cyber attacks. It is thus imperative to examine the dangers large scale cyber attacks pose with respect to their contribution to potential human suffering. As such, these large scale cyber attacks, especially a cyber blockade, may be able to constitute an international crime. The Prosecutor of the International Criminal Court announced at the Digital Front Lines conference that his office is willing to investigate cyber operations as potential war crimes given that they are capable of causing severe consequences akin to kinetic warfare. (Yoon Onn, 2023) This is the first significant step towards recognising the harmful effects of malicious cyber operations as international crimes. However, not only is the Rome Statute itself silent on cyber operations as potential international crimes, the ICC has not yet seen a case concerning malicious cyber activities as either a war crime or as a crime against humanity. As such, the central question the paper seeks to answer is whether the Rome Statute could potentially encompass cyber blockades as the crime against humanity of “other inhumane acts” under Article 7(1)(k) of the Rome Statute. The paper looks at crimes against humanity for three reasons: firstly, Karim Khan KC has already touched on cyber attacks potentially prosecuted as war crimes, as mentioned above, thus the knowledge gap is gradually being bridged with respect to war crimes. Secondly, there is an absence of any regulatory framework should a cyber blockade be unleashed in peacetime, where international humanitarian principles do not apply. Thirdly, establishing a cyber blockade as a crime against humanity would lead to greater individual criminal responsibility as opposed to a war crimes conviction. This, in turn, would send a strong deterrent message in both war and peace.

The responsibility of corporate actors involved in international crimes through autonomous weapons systems (AWS) before the international criminal court (ICC)

The use of autonomous weapons systems (AWS) has led to several opposing legal opinions regarding their violations of international law. The responsibility of the state, individuals, and corporations as producers, designers, and programmers is all being taken into consideration. If the decision to kill humans without “meaningful human control” is transferred to computers, it would be hard to attribute accountability for the actions of AWS to their corporations. Consequently, this means that corporate actors will enjoy impunity in all cases. The present paper indicates that the most significant problem arising from the use of AWS is the attribution of responsibility for its violation. Corporations are not subject to liability for the legitimate use of weapons under international law. The main problem with corporate responsibility, according to article 25 (4) of the Rome Statute, is that the provision only relates to individual criminal responsibility and that the ICC shall only have jurisdiction over natural persons. Nevertheless, corporations may be held accountable under aspects of international law. The paper proposes a more positive view on artificial intelligence, raising corporations’ accountability in international law by historically linking the judging of business leaders. The article identifies aiding and abetting as well as co-perpetration as the two modes of accountability under international law potentially linked to AWS. The study also explores the main ambiguity in international law relating to corporate aiding and abetting of human rights violations by presenting the confusion on determining the standards of these 2 modes of liability before the ICC and International ad doc Tribunal. Moreover, with the new age of war heavily dependent on AI and AWS, one cannot easily and precisely ascertain who must be held accountable for war crimes because of the unanticipated facts in decision-making combined with the aiding or abetting of violations of international law. International law prioritizes the goal of ending impunity for the individual and largely neglects the need to achieve the same goal for corporate complicity. In sum, progress to regulate the use of AWS by corporate actors could be enormously helpful to the cause of ending impunity.

The Forcible Transfer of Children from Ukraine as Genocide

Abstract On 17 March 2023, Pre-Trial Chamber ii of the International Criminal Court (icc) issued secret warrants of arrest for President Putin and the Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Ms. Lvova-Belova, for the commission of the war crime of forcible transfer of children. This article argues that there are “reasonable grounds to believe”, as the icc Statute requires for the arrest warrant stage, that both Putin and Lvova-Belova bear individual criminal responsibility for the forcible transfer of Ukrainian children as a crime of genocide; however, two types of considerations – general and particular – prevented the issuing of arrest warrants for genocide crimes. In Section 2, after a short historical-legal review of the formulation of Article 2(e) of the Genocide Convention (gc), the article notes that despite the significant number of cases of children being transferred and removed from their families that have taken place since the gc was adopted, the provision has been dormant and considered anachronistic and was rarely applied by an international or a local court. Section 3 proceeds with a legal analysis of the elements of the crime of the forced transfer of children and the genocidal special intent. Section 4 parses the case study of the forcible transfer of children from Ukraine as a crime of genocide. Section 5 analyses the litigation of the crime of genocide in the icc through the only case of genocide the court has addressed so far: the arrest warrant for Sudan’s former president, Omar al-Bashir. Section 6 concludes with a forecast that despite the sufficient legal basis for issuing arrest warrants for Putin and Lvova-Belova, practical and political considerations would impede the icc from doing so.

Proving Modes of Criminal Liability in Prosecuting International Crimes: An Analysis of International Crimes Tribunal Bangladesh

is study examines how the International Crimes Tribunal Bangladesh (ICTB)- a domestic criminal court, is prosecuting and punishing international criminalities perpetrated in the Bangladesh Freedom War in 1971 through the flaw laws in proving the modes of individual criminal responsibility that hinder securing criminal justice to the parties. By applying a qualitative approach, this study firstly scrutinizes the modes of criminal responsibility in the ICTB’s Statue-the International Crimes Tribunal Act 1973 and whether such notion is supported by international customary law in 1971 and 2010. Secondly, this study outlines different modes of liabilities, such as Joint Criminal Enterprise and Superior Liability, that are extensively applied by the jurisprudence of the ICTB in more than 51 individual cases to date. Lastly, as the originality of this research, it advances ‘Two Proposals’ that need to be executed by the ICTB to secure criminal justice to the relevant bodies in improving its legitimacy to the global criminal justice system. Then, the study concludes that in any failure to uphold the customary law requirement of proving the Joint Criminal Enterprise and the Superior Liability as the particular modes of criminal liability, the tribunal will lose its legal credibility.

“Commited by Men”: Individual Criminal Responsibility for Aggression Against Ukraine

The article deals with the personal scope of criminal responsibility for the crime of aggression against Ukraine. While the Kampala amendments to the Statute of the International Criminal Court have further strengthened the crime of aggression’s leadership character, they have also limited the possibility of holding individuals accountable as accomplices. Nonetheless, this article posits that there are still avenues within the current legal framework to bring key individuals involved in the aggression against Ukraine to justice. It examines different factions within the Russian leadership and the leaders of Belarus and also explores the possibility of bringing Russian propagandists to account. The article advocates for a careful selection policy that balances international and domestic systems better to serve the cause of accountability. Pursuing investigations and prosecutions against these groups should result in an outcome that re#ects the extent of the criminality of Russia’s aggressive war.

Responsibility for Offences against Internationally Protected Persons: Contemporary Legal Aspects

The article examines complex legal aspects of the problem of responsibility, when it comes to offences against internationally protected persons (OIPP). The article reveals that, depending on the international legal qualification of the offence, OIPP can be qualified as either an ordinary crime (the one prosecuted under domestic law following the participation of the State in the relevant international conventions the key of which is the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents) or an international crime when it is a violent act against the protected person committed in the situation of an armed conflict. The authors argue that notwithstanding the fact that both cases entail individual criminal responsibility of the delinquent, individual criminal responsibility for OIPP as an ordinary crime occurs to the extent in which a State party to a relevant international convention has provided for punishment in its national legislation for the conduct criminalized thereby. At the same time, with regard to OIPP as a war crime, the article highlights that the commission of OIPP engenders the right to exercise universal jurisdiction under customary international law and the obligation to exercise quasiuniversal jurisdiction under the “Geneva law” for the purpose of bringing delinquents to justice. In the meantime, the most controversial issue is the question of international legal responsibility of a State in cases of OIPP. It is argued that such responsibility can arise, when OIPP is a war crime committed by a State agent or a non-State actor effectively controlled by the State, as well as when it fails to undertake necessary measures to ensure personal inviolability of protected persons in violation of diplomatic law, or in situations of the denial of justice.

The Desk Perpetrator, the Expert Witness, and the Role of Law: The Trial of Arthur Greiser

ABSTRACT The phenomenon of the desk perpetrator continues to pose a challenge for the law. During the sixty-odd years since the Eichmann trial, legal scholarship has mainly focused on the need to develop doctrines about participation/complicity in order to attribute responsibility to the perpetrator behind the desk. It has failed to address the more basic problem of the involvement of the law in the phenomenon of the desk perpetrator. We suggest that the difficulty stems from the dual role of law, both as an enabling platform for desk perpetration and as an institution whose design grants partial or full immunity to desk perpetrators. Based on the case of the 1946 trial of the Nazi Governor of Western Poland, Arthur Greiser, we argue that the desk perpetrator is a product of the law, and therefore the attempt to judge the individual perpetrator without simultaneously addressing the role of law is doomed to fail. We show that it was the new concept of cultural genocide, which was eventually excluded from the 1948 international convention against Genocide that allowed the Polish court to discuss directly the responsibility of the law itself for the new crimes. For this purpose, the tribunal invited a number of expert witnesses, historians, economists, and jurists. The article focuses on the testimony of the legal expert and explores how it enabled the tribunal to put the rule of law itself on trial in ascertaining the individual criminal responsibility of the defendant.

Problem-solving courts in comparative law: Combination of therapy and responsibility

This paper examines the innovative approach of problem-solving courts within the framework of comparative law, emphasizing the integration of therapeutic jurisprudence and individual criminal responsibility. By analysing various models from different jurisdictions, the study highlights how these courts effectively address underlying issues in criminal behaviour, such as substance abuse and mental health problems, through tailored interventions. The research draws on a comparative analysis to explore the effectiveness of these courts in reducing recidivism, enhancing offender rehabilitation, and promoting social reintegration. The paper also discusses the challenges and potential of this approach in balancing the goals of therapy and legal accountability. Through a comprehensive review of judicial and policy frameworks, this study provides valuable insights into the evolving role of the judiciary in addressing complex social issues and the potential of problem-solving courts as a transformative tool in the criminal justice system.

The Arab World and the International Criminal Court

Abstract This article discusses the main reasons behind the reluctance of most Arab countries to ratify the Rome Statute and to cooperate with the International Criminal Court (ICC). There are legal, political, and practical restraints, as well as cultural barriers, to incorporating principles of individual criminal responsibility for international crimes into the domestic laws of most Arab countries. Moreover, many Arab states adopt a security-based approach to war crimes and crimes against humanity, which are thus prosecuted mainly under anti-terrorist laws, rather than a rule of law-based approach to holding those most responsible for international crimes accountable. Further, when political considerations are at stake, states’ commitment to address the most serious crimes appears eroded, thus becoming inconsistent with the objective of the Rome Statute of ending impunity for perpetrators of international crimes. It is becoming ever more necessary for the ICC to gain recognition and acceptance in the Arab world by garnering effective participation of those Arab states undergoing major transitions, where international justice, arguably, is most needed.

ZLOČIN GENOCIDA U PRAVU O ODGOVORNOSTI / THE CRIME OF GENOCIDE IN LAW OF RESPONSIBILITY

The paper deals with the issue of the responsibility of the main subjects of international law for grave breaches of obligations arising from the imperative norms of general international law in relation to the commission of the crime of genocide. The focus of this paper is in certain aspects of the relationship between individual criminal responsibility and the international responsibility of States and international organizations, which should be interpreted as two separate systems of responsibility in international law. Each system has its own special fundaments, features and characteristics. Consequently, the starting point is that the responsibility of States for genocide does not depend on the responsibility of individuals for the crime, although the International Court of Justice has made extensive use of the conclusions of the chambers of the International Criminal Tribunal for the former Yugoslavia. (Judgment from 2007). The paper therefore analyzes the question of the existence of a theoretical legal possibility for the so-called indirectly proving the responsibility of States (and international organizations) for genocide through a prior examination of the criminal responsibility of leaders, but also through proving a joint criminal enterprise for the purposes of committing the crime, or do these conceptions represent a starting point for the responsibility of the main subjects of international law or they are simply "proof" of the attribution of the act to a State? In this paper, we examine whether a joint criminal enterprise could be a reflection of a State plan and/or policy for committing the crime of genocide and how a collective plan or policy for committing that crime could be interpreted. After all, are they actually a dolus specialis of this crime, that is, whether a genocidal intent is manifested in a State precisely in a plan or policy?

Pertanggungjawaban Pidana Terhadap Pelaku Pengguntingan Bendera Negara Republik Indonesia

Introduction: The crime of insulting the Red and White flag in Karawang, West Java and Malasya, the flag with a hammer picture at Hassanudin University and the flag brushed with a Water Closet (WC) brush violates the provisions of Article 66 of the Law of the Republic of Indonesia Number 24 of 2009 in conjunction with Article 24 Letter a Law Number 24 Year 2009Purposes of the Research: Analyzing and explaining whether the perpetrators of insulting the flag can be held criminally responsible and forms of criminal responsibility for the act of insulting the red and white flag.Methods of the Research: It is normative juridical, using a legal, conceptual and case approach with primary and secondary legal materials and will be analyzed qualitatively.Results of the Research: Criminal liability from the first to the third case fulfills the five elements of responsibility, namely, there are perpetrators of criminal acts; there is an action; There is a mistake; capable of being responsible and against the law. Furthermore, the fourth case cannot be held accountable because the subject who committed the crime has a mental disorder that is not in accordance with the elements of criminal responsibility in Article 44 of the Criminal Code. The form of criminal liability in the first to third cases is individual, meaning that individual criminal responsibility is the form embedded in the case.

Convicting Autonomous Weapons?

Abstract If autonomous weapon systems (AWS) cause harm beyond their legitimate military use, e.g., by killing innocent civilians, the question arises as to who can be held responsible. Due to the great number of persons involved in the construction, programming, training, and deploying of AWS, a ‘responsibility gap’ has been diagnosed. As it is neither theoretically nor practically feasible to impose criminal responsibility on AWS themselves, various doctrines of international criminal law (ICL) have been suggested with a view toward making individual persons responsible for the AWS’s malfunctioning. The mens rea requirements of ICL are, however, likely to severely limit individual criminal responsibility. The author suggests that the emphasis should not be on bending legal doctrine in a futile effort to close the ‘responsibility gap’ but on establishing specific obligations to train, test, and continually observe the operation of AWS in order to avoid malfunctioning.

Exploring the Impact of Automation Bias and Complacency on Individual Criminal Responsibility for War Crimes

Abstract With advancing technology, complex decision-making in warfare, including targeting, is increasingly assisted by machines. Although involving humans in decision-making is often seen as a safeguard against machine errors, it does not always prevent them. Machines can make incorrect determinations or delay them when time is critical. In these cases, human operators, influenced by automation bias (excessive trust in machines’ determinations, despite the availability of contradicting or different information from other sources) or complacency (excessive trust in machines’ determinations, leading to reduced vigilance), may fail to recognize machine errors, potentially resulting in conduct amounting to a war crime. Considering the role of automation bias and complacency in the determination of the criminal responsibility of systems’ operators is crucial, especially, for understanding the accountability framework for war crimes involving autonomous weapon systems (AWS). By exploring how automation bias and complacency affect the determination of criminal responsibility for humans who operate AWS, this article offers insights for lawmakers at the national and international levels to understand complexities and effectively shape legislative responses with respect to criminal responsibility. This article also examines automation bias and complacency in psychology, their relevance in military operations employing AWS, and their potential to exonerate human operators from criminal responsibility. It concludes by advocating for legislative, organizational, and technical measures to counteract automation bias and complacency.

Evaluating the Individual Criminal Responsibility of Gukurahundi Perpetrators under International Law

The aim of this article is to evaluate whether individual criminal responsibility (ICR) is attributable to perpetrators of the Gukurahundi atrocities committed in Matabeleland and Midlands, Zimbabwe, between 1983 and 1987. The criminal liability of Gukurahundi perpetrators is evaluated against the legal requirements garnered from conventions, jurisprudence of international criminal tribunals and the work of leading scholars. Firstly, the article provides an overview and historical development of the concept of ICR under international law. Second, it examines the theories of criminality under international law. Third, it analyses the forms and modalities of ICR including relevant specific crimes. Fourth, it evaluates the individual and superior responsibility of Gukurahundi perpetrators. A crucial feature of international criminal law is the legal obligation to investigate, prosecute and punish perpetrators of international crimes. The article therefore explores the different ways in which ICR could be attributed to perpetrators of the Gukurahundi international crimes. The author sets out to advance knowledge and understanding of possible mechanisms to hold perpetrators of the Gukurahundi atrocities criminally accountable under international law.

War Crimes Involving Autonomous Weapons

Abstract This article identifies and evaluates key international legal aspects concerning three notions that have figured in debates on war crimes involving an autonomous weapon system (AWS): responsibility, liability and accountability. It focuses on the general contours of the existing international law of armed conflict, also known as international humanitarian law (IHL), and related fields, concepts and institutions. Regarding responsibility, this article examines, on one hand, the international responsibility of a state for an internationally wrongful act related to a breach of a rule of IHL involving an AWS that may form the basis of a war crime and, on the other hand, individual criminal responsibility for a war crime involving an AWS. As for liability, this article outlines three international legal concepts of state liability potentially related to a war crime involving an AWS. Finally, this article sets out an, at least, legally adjacent concept of accountability that involves an explanation of the conduct related to a war crime involving an AWS and imposing political, legal, social or other consequences where such an explanation is absent or insufficient.

Prospects for State and Individual Responsibility in Cases of Aggression in the Context of Russia’s Armed Aggression Against Ukraine

Abstract Notwithstanding the war that raged through the former Yugoslavia in the 1990s, Russia’s aggression against Ukraine is admittedly the first armed conflict of such a scale to take place almost in the heart of Europe. The Russian–Ukrainian war poses a threat to the international order, and risks escalating into a Third World War, especially if Belarus sides with Russia to participate in the armed conflict. While it could seem that in the 21st century all issues and conflicts arising between states should be resolved at the diplomatic level, in accordance with the requirements and norms of relevant international pacts and treaties, humanity still turns to such a destructive and cruel way of resolving them as war. This article explores the issue of accountability prospects for crimes perpetrated in the context of Russia’s invasion of Ukraine, both from the viewpoint of State responsibility and from that of individual criminal responsibility.

AI-Based Autonomous Weapons and Individual Criminal Responsibility Under the Rome Statute

Objective: international law obligates states to prosecute those who have violated laws in armed conflicts, particularly when the international community now has International Criminal Court (ICC).That is why the aim of the paper is to discover the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC.Methods: doctrinal analysis allowed to research the positions of experts on the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC. Results: this paper argues that the ICC can only exercise jurisdiction over natural persons who allegedly have committed the crimes under its jurisdiction, as compared to autonomous weapons. This paper argues that the persons who facilitate the commission of the alleged crimes are highly likely to be criminally responsible for providing means for the alleged crimes to be committed by AI-based autonomous weapons under Article 25(3)(c) of the Rome Statute and concludes that the Rome Statute provides a solution even to AI-based autonomous weapons.Scientific novelty: this paper addresses to the highly relevant issues of the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC.Practical significance: the results achieved in the paper can be used in regulation design for AI-based autonomous weapons. It can also be used as a basis for the future research in the sphere of liability of AI-based autonomous weapons and AI in general

How to Win a Genocide Case: Analyzing the Triple Strategy of the Advocates of the Rohingya in Myanmar

The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of human rights for many decades. During the last two waves of military crackdowns in Rakhine State (October 2016 to January 2017; August to September 2017), the Tatmadaw army and civilians committed atrocities against the Rohingya that amounted to crimes against humanity and genocide. Advocates for the Rohingya's suffering took action to leverage the findings of the investigations of international mechanisms. They endeavored for an international condemnation of Myanmar at the ICJ, and they filed a complaint in an Argentinian court for the application of universal jurisdiction to prosecute the military and the political leadership responsible for ordering and committing the atrocities. They also encouraged an investigation of the atrocities in the ICC. The litigators’ main focus was set on genocide. However, while genocide carries the stigma of being the most heinous of crimes, it is also the hardest to prove, particularly the special intent to commit it. This article assesses the chances of the triple strategy applied by the Rohingya advocates. It argues that litigating the case in three different fora, assures that the forums back each other up, so that the flaws of one are compensated by the others. Thus, the chances for accountability for the crime of genocide are increased. The fora work interoperably to achieve the goal of proving the occurrence of genocide in Myanmar so as to impose state responsibility and individual criminal responsibility.

Legal Reconstruction of Criminal Accountability for Bank Employees Who Participate in the Criminal Acts of Money Laundering Based on Justice Value

The objectives of this research are to analyze and find out the weaknesses in the criminal liability of Bank employees who are participating in money laundering crime and how to reconstruct the law based on the value of justice. The method used in this study uses a normative juridical approach with a constructivist paradigm. The results of the research and discussion show that the weaknesses of the law lie in the Criminal liability in the provisions of Law no. 10/1998 concerning Banking is not in line or there is no legal synchronization with the provisions of Law no. 8/2010 concerning TPPU, specifically the provisions of Article 6 paragraph (2) of Law no. 8/2010 concerning ML, which stipulates that a Bank in its position as a corporation can also be held criminally responsible. Provisions of Law no. 10/1998 concerning Banking, although it recognizes corporations as subjects of criminal law, the criminal responsibility system implemented still adheres to the individual criminal responsibility model, which only imposes accountability on controlling personnel. Therefore, the legal Reconstruction of criminal responsibility of Bank employees who participated in committing money laundering crimes based on the value of justice can be done by not only asking for and imposing criminal responsibility on controlling personnel (in this case the Board of Commissioners, Directors, and Bank Employees) but also being able to hold accountability for Banks as corporations implement an aggregation model corporate criminal liability system.

Sharia and Criminal Liability Arising from the Emerging Corona virus (A Comparative Study)


 
 
 
 Legal systems, authorities and organizations of all kinds, and their tendencies, have tended to strive towards the issuance of preventive and legal and criminal provisions related to the serious epidemic that has swept the world and called the Coronavirus (COVID-19 TEST) .The emerging, and the serious and contagious disease in an unprecedented speed in an unprecedented manner over the successive periods of Times through the ages and history.
 Likewise, the developed countries in the world did not stand in front of him, starting with China, which started the disease first, then Iran, and other developed countries (France, Italy, Britain, Spain, Germany, and the United States of America) and lately the developed and Arab countries. Accordingly, a legal and criminal responsibility of individuals and authorities must be explained. In what case is the legal and criminal responsibility of individuals, and when it becomes shared.