Reclaiming Fundamental Principles of Criminal Law in the Darfur Case

Posted: 29 Feb 2008

See all articles by George P. Fletcher

George P. Fletcher

Columbia Law School

Jens David Ohlin

Cornell University - School of Law

Date Written: July 2005

Abstract

According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide and genocidal intent, as well as that of joint criminal enterprise. The second is exposed by drawing attention to the uncertainties and ambiguities surrounding such notions as recklessness and dolus eventualis, and in addition to the frequent reliance in both international case law and the legal literature on customary international law and loose concepts such as proportionality. The authors finally point out that if the ICC tries to operate as a real criminal court under the rule of law and shows sensitivity to the rights and interests of the accused, US fears of politicized prosecution will diminish.

Suggested Citation

Fletcher, George P. and Ohlin, Jens David, Reclaiming Fundamental Principles of Criminal Law in the Darfur Case (July 2005). Journal of International Criminal Justice, Vol. 3, Issue 3, pp. 539-561, 2005. Available at SSRN: https://ssrn.com/abstract=915733

George P. Fletcher (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2467 (Phone)

Jens David Ohlin

Cornell University - School of Law ( email )

218 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
(607) 255-0479 (Phone)
(607) 255-7193 (Fax)

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