Section 13 ('Omissions'): '(1) Whosoever fails to avert a result which is an element of a criminal provision shall only be liable under this law if he is responsible under law to ensure that the result does not occur, and if the omission is equivalent to the realization of the statutory elements of the offence through a positive act. (2) The sentence may be mitigated pursuant to section 49(1).' 21 On the latter argument, see below para. 27 ss. 22 See the thorough research by A. Dan, Le Délit de commission par omission: éléments de droit suisse et comparé (Zürich: Schulthess, 2015), at 201-211. See also Ambos, Treatise, supra n. 17, at 188. 23 See below para. 10. 24 Duties that are too general conflict with the legality principle, see above para. 7. 25 Duttwiler, supra n. 5, at 8.
On 28 February 2013 the ICTY Appeals Chamber acquitted Momčilo Perišić, former Chief ofStaff of the Yugoslav Army. He had been convicted at trial for having aided and abettedthrough the provision of weapons and personnel -the crimes committed by the Army of the Republika Srpska in Sarajevo and Srebrenica. The Appeals Chamber found that, when the accused is remote from the crime scene, the prosecution must show that he/she specifically directed his/her assistance towards the perpetration of specific crimes and not generally towards the realization of activities which could be either lawful or unlawful. On 23 January 2014 a different bench of the ICTY Appeals Chamber, in Šainović et al., rejected this theory and affirmed that specific direction is not an element of aiding and abetting in customary international law. This article explores the origins of 'specific direction' and concludes that although it is mentioned in some ICTY judgments, it has never been applied in the sense propounded by the Perišić appeal judgment. Given that the issue remains a source of debate in the jurisprudence, the authors consider the merits of both positions and question whether the temporal or geographical location of the alleged aider and abettor should change the legal elements of the mode of liability. They examine the implications of requiring that the provision of assistance must be directed towards unequivocally unlawful activities and conclude that requiring specific direction blurs the lines between aiding and abetting -an accessory mode of liability -and forms of principal perpetration. crime scene, the prosecution must show that he/she specifically directed his/her assistance towards the perpetration of specific crimes and not generally towards the realization of activities which could be either lawful or unlawful. As a result, the Appeals Chamber overturned Perišić's conviction, acquitting him of all counts and vacating his 27 years sentence.
Humanitarian assistance is essential for the survival of the civilian population and peoplehors de combatin the theatre of war. Its regulation under the laws of armed conflict tries to achieve a balance between humanitarian goals and state sovereignty. This balance, reflected in the provisions of the 1949 Geneva Conventions and their Additional Protocols, is not as relevant to contemporary armed conflicts, most of which involve non-state armed groups. Even those provisions relating to humanitarian assistance in conflicts involving non-state armed groups fail to address properly the key features of these groups, and especially their territorial aspect. This article proposes a different approach, which takes into consideration and gives weight to the control exercised by non-state armed groups over a given territory. Accordingly, it is suggested that provisions regulating humanitarian relief operations in occupied territories should apply to territories controlled by armed groups. This approach views international humanitarian law first and foremost as an effective, realistic and practical branch of law. Moreover, it has tremendous humanitarian advantages and reflects the aims and purposes of the law, while considering the factual framework of these conflicts.
In 2016 Daragh Murray published his book Human Rights Obligations of Non-State Armed Groups (Hart 2016). By way of distinction from many other contributions on this widely discussed topic, Murray tries to provide the reader with a complete overview of the legal framework that enables armed groups to acquire international legal status, and preferably outside the framework of armed conflict. He walks the reader through the path of international legal personality, leading towards the acknowledgement of armed groups as addressees of the law. Murray's attempt is courageous, interesting and innovative, but it has its shortcomings. These include his reliance on international criminal law as a source for defining armed groups, and his insistence on stepping outside international humanitarian law. Nonetheless, his contribution is essential for those who wish to include even more armed groups on the international plane.
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