International Crime: In Context and in Contrast
STRUCTURES OF CRIMINAL LAW, R.A. Duff, Lindsay Farmer, Sandra Marshall, Victor Tadros, eds., 2010
28 Pages Posted: 23 Aug 2010 Last revised: 13 Aug 2013
Date Written: August 23, 2010
The topic of this chapter is the structure of international crimes, which differs from the structure of national crimes in two important respects. First, international crimes typically include – in addition to their conduct, result, and attendant circumstance elements – a contextual element that national crimes rarely contain. For example, the killing of a civilian will be considered a war crime if “[t]he conduct took place in the context of and was associated with” an armed conflict; a crime against humanity if “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack;” or an act of genocide if “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The first task of this chapter is to explain how this unfamiliar structure relates the values at stake in international crimes to one another. More specifically, the task will be to determine whether the contextual element of each international crime contributes to the moral wrongfulness of the offense or to the justification for subjecting the offense to the jurisdiction of international criminal tribunals.
In addition, to the extent that international crimes and national crimes display parallel structures, the parallel structures they display organize similar values in dissimilar ways. For example, international crimes such as attacking civilians are defined in terms of conduct; national crimes that implicate similar values such as murder are typically defined in terms of result. International crimes such as causing excessive civilian death include justificatory concepts in the definition of the offense; national crimes typically exclude such concepts, which instead appear in the definition of affirmative defenses. The second task of the chapter is to determine whether these international crimes place the relevant values in their proper orientation toward one another, or whether they should be restructured along the lines of national criminal law. In particular, it must be determined whether these international crimes reflect a viable alternative structure according to which crimes are constituted by or related to either an attack or an endangerment.
Keywords: war crimes, crimes against humanity, genocide, international criminal law, Rome Statute, expressive, contextual element, offense, defense, attack, endangerment, justification
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