International law, Sixth edition
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International Law MALCOLM N. SHAW
Suggestions for further reading
A. Cassese, International Criminal Law, 2nd edn, Oxford, 2008 R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, An Introduction to Interna- tional Criminal Law and Procedure, Cambridge, 2007 W. Schabas, An Introduction to the International Criminal Court, 3rd edn, Cam- bridge, 2007 The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, Cambridge 2006 229 Note among other relevant issues, the principle of command responsibility, whereby a superior is criminally responsible for acts committed by subordinates that he knew or had reason to know had been or were about to be committed and no action was taken: see e.g. Green, Armed Conflict, pp. 303–4; I. Bantekas, ‘The Contemporary Law of Supe- rior Responsibility’, 93 AJIL, 1999, p. 573, and Kittichaisaree, International Criminal Law, p. 251. See also article 87 of Additional Protocol I, 1977; article 7(3) of the Statute of the International Criminal Tribunal for the Former Yugoslavia, 1993; article 6(3) of the Statute of the International Criminal Tribunal for Rwanda, 1994 and article 28 of the Statute of the International Criminal Court, 1998. Note the ˇ Celebi´ci case, IT-96-21, 16 November 1998, paras. 370 ff.; the Krnojela case, IT-97-25-A, 17 September 2003 and the Blagojevi´c case, IT-02-60-A, 2007. Further, military necessity may not be pleaded as a de- fence, see e.g. In re Lewinski (called von Manstein), 16 AD, p. 509, and the claim of superior orders will not provide a defence, although it may be taken in mitigation depending upon the circumstances: see e.g. Green, Armed Conflict, pp. 305–7; Green, Superior Orders in National and International Law, Leiden, 1976; Kittichaisaree, International Criminal Law, p. 266, and Y. Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law, Leiden, 1965. See also article 8 of the Nuremberg Charter, 39 AJIL, 1945, Supp., p. 259; Principle IV of the International Law Commission’s Report on the Principles of the Nuremberg Tribunal 1950, Yearbook of the ILC, 1950, vol. II, p. 195; article 7(4) of the Statute of the International Criminal Tribunal for the Former Yugoslavia, 1993; article 6(4) of the Statute of the International Criminal Tribunal for Rwanda, 1994 and article 33 of the Statute of the International Criminal Court, 1998. 9 Recognition International society is not an unchanging entity, but is subject to the ebb and flow of political life. 1 New states are created and old units fall away. New governments come into being within states in a manner contrary to declared constitutions whether or not accompanied by force. Insurgencies occur and belligerent administrations are established in areas of territory hitherto controlled by the legitimate government. Each of these events creates new facts and the question that recognition is concerned with revolves around the extent to which legal effects should flow from such occurrences. Each state will have to decide whether or not to recognise the Download 7.77 Mb. Do'stlaringiz bilan baham: |
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