Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes

International Criminal Law Review, Vol. 13, No. 2, 2013, pp. 473–492

20 Pages Posted: 28 Jun 2012 Last revised: 14 Apr 2013

Date Written: June 28, 2012

Abstract

As long as distinct legal regimes apply to international and non-international armed conflicts, the determination of the nature of the conflict by a court of law directly impacts on the criminal responsibility of the accused for war crimes. As this article shows, the approach traditionally used in international criminal law to characterise mixed conflicts is not sufficiently reliable for the addressees of penal norms. Low-ranking perpetrators have generally little chance of being aware of the international character of the conflict. This article argues that the principle of individual guilt requires establishing the mens rea regarding the nature of the conflict. Accordingly, a mistake of fact, or alternatively, a mistake of legal element should be admissible defences. Furthermore, it is submitted that both the method of conflict characterisation and the definition of the corresponding mental element are not compatible with the requirements of the principle of legality.

Keywords: war crimes, internationalised non-international armed conflict, individual criminal responsibility, mistake of fact, mistake of law, principle of legality

JEL Classification: K14, K33

Suggested Citation

Decoeur, Henri, Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes (June 28, 2012). International Criminal Law Review, Vol. 13, No. 2, 2013, pp. 473–492, Available at SSRN: https://ssrn.com/abstract=2095614

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