Crimes Against Humanity: Historical Evolution and Contemporary Application by M. Cherif Bassiouni

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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