Abstract
Ordering, a very close relative of instigating, has generally been considered an accessorial mode of liability, particularly at the ICC (despite the contrary view of some commentators).1 In light of its elements, ordering could even be described as ‘aggravated instigating’. While ordering can be found in the statutes of all modern international criminal tribunals,2 its requisite elements have not been subject to significant controversy or focused academic scrutiny. These elements can be traced back to the moment the ICTY first turned its attention to modes of liability. It held, on the basis of numerous World War II modes of liability cases, that most modes (including ordering) require intent on the part of the accused and that the accused’s actions contribute to the relevant crime.3 However, subsequent jurisprudence demonstrates that, beyond this initial, generalized and undifferentiated analysis (which some cases simply relied upon by general reference),4 and unlike the case for some other modes of liability, World War II-era ordering case law and examples were generally not relied upon for the further articulation of the precise actus reus and mens rea requirements of ordering.5 Rather, the early development of ordering was largely a judge-driven endeavour, with cases relying on few, if any, explicit sources. Subsequent cases then tended to rely upon these judgments by reference.
Original language | English |
---|---|
Title of host publication | Modes of Liability in International Criminal Law |
Editors | Marjolein Cupido, Manuel J. Ventura, Lachezar Yanev |
Place of Publication | U.K. |
Publisher | Cambridge University Press |
Pages | 284-306 |
Number of pages | 23 |
ISBN (Electronic) | 9781108678957 |
ISBN (Print) | 9781108492171 |
DOIs | |
Publication status | Published - 2019 |
Keywords
- liability (law)
- international law
- international criminal law