TITLE

Problems of Participation — Unitarian, Differentiated Approach, or Something Else?

AUTHOR(S)
Vest, Hans
PUB. DATE
May 2014
SOURCE
Journal of International Criminal Justice;May2014, Vol. 12 Issue 2, p295
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
In two recent judgements handed down by the International Criminal Court, the majority’s understanding of the law and modes of participation has triggered vigorous dissenting opinions (Section 1). The debate has focused on the question of whether there is an explicit or implicit hierarchy between the different modes of participation provided for in Article 25(3)(a)–(d) of the Rome Statute. The majority of the Judges take such a hierarchy for granted, marking a categorical distinction between principal perpetration and participation on the one hand, and, in the following sequence, a differentiation between subparagraph (b), (c) and (d), on the other. The dissenting Judges contest this and opt for a plain reading of the statutory provisions. For them the Statute reveals a more flexible position enabling a solution tailored to the particular circumstances of each case, which would be curtailed by a rigid hierarchy between the modes of participation. Section 2 of this article offers a detailed description of the two positions, followed in Section 3 by a short discussion of the relevant statutory provisions and a critical discussion of the respective arguments. Section 4 takes up the difficult and more general question of the model of participation implemented by the Rome Statute. The article concludes that both conflicting approaches may have some merits that, in combination, may lead to a more nuanced solution of the issue. The debate on models, however, is only the first step towards a comprehensive understanding of the material problems posed by the law on participation (Section 5).
ACCESSION #
95903863

 

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