국제형사법에 있어서의 정범의 개념-국제형사재판에 있어서의 ‘공동범죄계획’ 및 ‘공동범죄실행’의 개념을 중심으로-
The Concept of Co-perpetration in the Practice of International Criminal Law
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International criminal law deals with macro-crimes which are most commonly carried out by groups of individuals acting in pursuance of a common purpose. Although only some members of the group may physically perpetrate the criminal act, the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. Under these circumstances, the InternationalCriminal Tribunal for the Former Yugoslavia (ICTY) has utilized the mode of participation of ‘joint criminal enterprise’ for qualifying the participation of persons in the commission of international crimes, whereas the International Criminal Court (ICC) has resorted to the mode of participation of ‘joint perpetration’, based on the concept of ‘joint control’ over the crime. This article addresses the rules and provisions concerning individual criminal responsibility for the commission of international crimes; in particular, attention is devoted to an analysis of the conceptual tools that are acceptable for assessing the individual criminal liability of a defendant who did not commit the crime by himself and therefore cannot be considered direct perpetrators in a physical sense. This article also highlights some of the weaknesses and difficulties that could emerge in the application of those conceptual tools to the practice of international criminal law.
Abstract
International criminal law deals with macro-crimes which are most commonly carried out by groups of individuals acting in pursuance of a common purpose. Although only some members of the group may physically perpetrate the criminal act, the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. Under these circumstances, the InternationalCriminal Tribunal for the Former Yugoslavia (ICTY) has utilized the mode of participation of ‘joint criminal enterprise’ for qualifying the participation of persons in the commission of international crimes, whereas the International Criminal Court (ICC) has resorted to the mode of participation of ‘joint perpetration’, based on the concept of ‘joint control’ over the crime. This article addresses the rules and provisions concerning individual criminal responsibility for the commission of international crimes; in particular, attention is devoted to an analysis of the conceptual tools that are acceptable for assessing the individual criminal liability of a defendant who did not commit the crime by himself and therefore cannot be considered direct perpetrators in a physical sense. This article also highlights some of the weaknesses and difficulties that could emerge in the application of those conceptual tools to the practice of international criminal law.
참고문헌 (19)
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