Book contents
- Frontmatter
- Contents
- Preface
- Table of cases
- Table of treaties and international instruments
- List of abbreviations
- List of contributors
- 1 Introduction
- 2 The policy context of international crimes
- 3 Why corporations kill and get away with it: the failure of law to cope with crime in organizations
- 4 Men and abstract entities: individual responsibility and collective guilt in international criminal law
- 5 A historical perspective: from collective to individual responsibility and back
- 6 Command responsibility and Organisationsherrschaft: ways of attributing international crimes to the ‘most responsible’
- 7 Joint criminal enterprise and functional perpetration
- 8 System criminality at the ICTY
- 9 Criminality of organizations under international law
- 10 Criminality of organizations: lessons from domestic law – a comparative perspective
- 11 The collective accountability of organized armed groups for system crimes
- 12 Assumptions and presuppositions: state responsibility for system crimes
- 13 State responsibility for international crimes
- 14 Responses of political organs to crimes by states
- 15 Conclusions and outlook
- Index
8 - System criminality at the ICTY
Published online by Cambridge University Press: 08 October 2009
- Frontmatter
- Contents
- Preface
- Table of cases
- Table of treaties and international instruments
- List of abbreviations
- List of contributors
- 1 Introduction
- 2 The policy context of international crimes
- 3 Why corporations kill and get away with it: the failure of law to cope with crime in organizations
- 4 Men and abstract entities: individual responsibility and collective guilt in international criminal law
- 5 A historical perspective: from collective to individual responsibility and back
- 6 Command responsibility and Organisationsherrschaft: ways of attributing international crimes to the ‘most responsible’
- 7 Joint criminal enterprise and functional perpetration
- 8 System criminality at the ICTY
- 9 Criminality of organizations under international law
- 10 Criminality of organizations: lessons from domestic law – a comparative perspective
- 11 The collective accountability of organized armed groups for system crimes
- 12 Assumptions and presuppositions: state responsibility for system crimes
- 13 State responsibility for international crimes
- 14 Responses of political organs to crimes by states
- 15 Conclusions and outlook
- Index
Summary
Introduction
Violations of international humanitarian law connote what Rling called ‘system criminality’. Indeed, almost by nature, genocide, crimes against humanity, and war crimes occur on a mass scale or in the context of systemic violence. System criminality very often concerns a plurality of offenders, particularly in carrying out the crimes. It further presupposes an auctor intellectualis pulling the strings. This can be one person, but also a group of people gathered together in a political or military structure.
The concept of individual criminal responsibility in international criminal law comes with a certain ‘flavour’. System criminality engenders system responsibility. System responsibility borders on collective responsibility. This is evidenced by Bernays’ collective criminality theory applied in Nuremberg. System criminality can put pressure on the principle of individual criminal responsibility and can make it expand beyond the limit of personal culpability.
In this chapter I will argue that the way the ICTY has dealt with system criminality is unsatisfactory from a conceptual and legality point of view. My focus will be on two legal concepts, or modes of liability, superior responsibility and joint criminal enterprise. Describing the development of these two concepts in the case law of the ad hoc Tribunals, it becomes clear that the concepts are not the most obvious basis of liability for those in the higher echelons of government. This has lead to expanding the limit of, or reconceptualizing these modes of liability.
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- Chapter
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- System Criminality in International Law , pp. 183 - 200Publisher: Cambridge University PressPrint publication year: 2009
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