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Law and Justice Review

Yıl 2011 , Cilt 1 , Sayı 2

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Participation in international criminal law

Yazar kurumları :
Faculty of law, University of Ljubljana1
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This article focuses on participation in international crimes. Since the early case law of the International Tribual for the Former Yugoslavia (further: ICTY) has this topic always been extremely controversial from the national criminal law point of view, especially for the civil law sys-tems. Namely, there has been a prevalent opinion in international crimi-nal law that usual forms of participation, which have been developed in national criminal jurisdictions, do not suffice for international crimes. In my opinion, the attitude of the International Criminal Court (further: ICC), to forms of participation is different to that of the ICTY and other international courts. The ICC namely deploys co-perpetration, indirect perpetration, instigation and participation in group crimes. Additionally, in some cases command responsibility is proposed and used,2 but these cases represent a smaller portion, just as in national criminal jurisdic-tions. It could be said that the ICC does use more traditional forms of par-ticipation (co-perpetration, indirect perpetration), but in a new, reformed way (like the indirect co-perpetration and the notorious Organisation-sherrschaft). It will be later argued that this difference is based also on different provisions of the statutes of these courts. It seems that the case law of ICC is slowly putting aside the differences between participation in "ordinary" crimes and participation in interna-tional crimes, because it is using forms of participation, which are in na-tional jurisdictions used for "ordinary" crimes, for international crimes. This confirms my thesis that for international crimes under the ICC‟s ju-risdiction the forms of participation from national criminal law, which usually apply for "ordinary" crimes, could and should apply. On the other hand should other branches of law or even other forms of social control take notice of the collective nature of these crimes, embrace more indi-viduals and groups and impose collective responsibility.

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