Iryna Marchuk

The Fundamental Concept of Crime in International Criminal Law

This book examines the rapid development of the fundamental concept of a crime in international criminal law from a comparative law perspective. In this context, particular thought has been given to the catalyzing impact of the criminal law theory that has developed in major world legal systems upon the crystallization of the substantive part of international criminal law. This study offers a critical overview of international and domestic jurisprudence with regard to the construal of the concept of a crime (actus reus, mens rea, defences, modes of liability) and exposes roots of confusion in international criminal law through a comprehensive comparative analysis of substantive criminal laws in selected legal jurisdictions.

Grounds Excluding Criminal Responsibility in International Criminal Law

The substantive part of criminal law distinguishes between excuses and justifications. The harm caused by the justified behaviour remains a legally recognised harm that breaches certain fundamental values protected by criminal law, however, the infliction of that harm is motivated by the need to avoid an even greater harm. In other words, justificatory defences apply in rather exceptional situations that require a proportional and necessary response. If such triggering conditions are non-existent, a person engages in illegal conduct that entails criminal responsibility. The classic example of a justificatory defence is the exercise of the right to self-defence. The right is triggered by the imminent attack or a threat of violence directed against an individual, which gives him a legitimate right to protect himself or others. The right to self-defence is not absolute and has certain boundaries. The two mandatory conditions are that the response towards any form of violence is necessary and proportional. This warrants against the arbitrary use of violence towards others. One can hardly justify stabbing another person with a knife if one was merely slapped in the face.

Evolution of the Mens Rea Doctrine in International Criminal Law

The first pivotal legal instruments of the Nuremberg and Tokyo Tribunals did not elaborate on the mens rea attributable to the crimes within their jurisdiction. The victorious Allied powers had appointed justices, who were entrusted with broad judicial discretionary powers, to settle the nature of mens rea in relation to the crimes charged. A number of thorny issues on the interpretation of the mens rea concept emerged during trial proceedings at Nuremberg, among others, the interpretation of knowledge as to the lawfulness or unlawfulness of conduct, the inference of intent, the interrelation between mens rea and defences etc. Defendants in Nuremberg were particularly keen on denying knowledge of the widespread scale of crimes, and invoking defences of superior orders and duress. The judges made it clear that the fact that defendants were assigned to their tasks by Hitler did not absolve them from criminal responsibility. By cooperating with Hitler, with knowledge of his criminal aims, they made themselves parties to the plan that he had initiated.

Modalities of Criminal Liability in the Jurisprudence of International Criminal Courts and Tribunals

The discipline of international criminal law deals with the most serious crimes of concern to the international community, for which the responsible individuals shall bear criminal responsibility. Being firmly entrenched in substantive laws of national legal jurisdictions, the principle is not novel in international criminal law and is traceable to the celebrated Nuremberg Judgment. At the outset of the trial in Nuremberg, it was challenging to argue that the precedent of individual criminal responsibility for core international crimes, which called for the universal condemnation, a priori existed. In his renowned opening statement, Robert Jackson laid down his arguments as to the relevance and necessity of the principle of individual criminal responsibility in international law:

The Concept of Crime in Common Law Jurisdictions

In common law jurisdictions, criminal law is a melting pot of statutory and precedent laws. A particular peculiarity of English criminal law is the origin of many serious criminal offences in precedent law rather than statutory provisions. While it is difficult enough to work with old judicial pronouncements, there is as well a lack of unanimity in the criminal law theory as to the definition and construal of some fundamental concepts. As it was rightly penned by Fletcher “the theoretical work on general part […] is plagued by a great confusion of terminology”. The accumulated criminal law materials are voluminous and often abstruse, which makes it challenging to coalesce the judicial practice.

The Concept of Crime in International Criminal Law

Broadly, a crime is a socially harmful act or omission that breaches the values protected by a state. It is an event prohibited by law, one which can be followed by prosecution in criminal proceedings and, thereafter, by punishment on conviction. The state criminalises certain conduct due to burgeoning public pressure to proscribe certain immoral harms. However, criminality shall not be confused with immorality: they are related but not synonymous terms. A lion’s share of immoral acts is not criminalised, as well as not all criminal acts are immoral. It is within the discretion of a state to construe which acts require to be criminalised and incorporate such prohibitions into its respective criminal laws.

The Concept of Crime in Continental Law Jurisdictions

All crimes in German criminal law fall within two major categories, Verbrechen (equivalent to the old UK category of felonies) and Vergehen (akin to misdemeanours). Article 12 (1) of the German Criminal Code defines Vebrechen as “unlawful acts punished by a minimum sentence of one year of imprisonment”. Vergehen are described as “unlawful acts punishable by a lesser term of imprisonment or a fine. The criminal offence in German criminal law, irrespective of whether it constitutes Verbrechen or Vergehen, has the three-layered (tripartite) structure: