Crimes Against Humanity: Historical Evolution and Contemporary Application by M. Cherif Bassiouni
Author:M. Cherif Bassiouni
Language: eng
Format: mobi
Tags: Foreign & International Law, Law, Education & Reference, Criminal Law
ISBN: 9781107001152
Publisher: Cambridge University Press
Published: 2011-04-24T18:30:00+00:00
Cambridge Books Online
http://ebooks.cambridge.org/
Crimes Against Humanity
Historical Evolution and Contemporary Application
M. Cherif Bassiouni
Book DOI: http://dx.doi.org/10.1017/CBO9780511976537
Online ISBN: 9780511976537
Hardback ISBN: 9781107001152
Chapter
7 - The Theories and Elements of Criminal Responsibility pp. 472-580
Chapter DOI: http://dx.doi.org/10.1017/CBO9780511976537.009
Cambridge University Press
7
The Theories and Elements
of Criminal Responsibility
In the law, it is not the obvious that needs to be
specified, but the ambiguous that must be clarified.
Introduction
All criminal justice systems of the world recognize the concept of individual criminal
responsibility. Consequently, individual criminal responsibility is a “general principle of
law” applicable to ICL. But national criminal justice systems have developed a variety of
individual criminal responsibility doctrines. The divergences that exist among families
of legal systems, and within them the differences as to doctrines of criminal responsibility
(and their corollary elements), make it difficult to identify among them that which
would constitute “general principles of law” that could be applied to ICL. As discussed
in Chapter 6, the method by which “general principles of law” can be identified in
comparative criminal law makes it difficult to reach outcomes that can be ascertained
with any degree of scientific validity.
Although it can be asserted that the general principle of individual criminal responsi-
bility exists in all of the world’s criminal justice systems, it cannot be said, for example,
that membership in a group deemed criminal by operation, and based on that group’s
purposes and/or actions, or other attempts to address collective responsibility, is so gen-
erally recognized.
The range of what legal systems include as part of individual criminal responsibility
includes several models, which are essentially based on the policies of prevention and
repression that a given legal system decided to select and apply. For example, some
states provide for criminal responsibility of legal entities as the counterpart of physical
persons. The policy supporting this doctrine is based on the fact that individuals operate
legal entities and derive benefits therefrom. It follows that if the legal entity is criminally
sanctioned by fine and the interdiction from operating, the consequent economic loss
will reach the entity’s operators and the others who also benefit as the shareholders.
Presumably, the loss of economic benefits will cause the shareholders to be diligent in
their choice of directors, and the directors more judicious in their management. The
outcome, as in all theories of prevention and deterrence, is assumed to have the effect of
enhancing compliance and reducing noncompliance.
472
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The Theories and Elements of Criminal Responsibility
473
The same reasoning exists with respect to theories of responsibility for the conduct
of others. Some of these theories partake of civil law, which includes civil liability for
harmful conduct. The social policies reflected in civil and regulatory norms are also
designed to enhance compliance and reduce noncompliance. Thus, it is not unusual to
see legal systems moving civil law doctrines of wrongful and harmful conduct into the
criminal law. Suffice it to compare national laws on vehicular accidents to see how many
have moved reckless driving resulting in death into the category of homicide. Whereas
some legal systems have done so by articulating reasons why recklessness is not a more
serious form of negligence, which in Civilist systems
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