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
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