The jurisprudence of the ICTY in determining the proper mens rea standard for the ancillary offence of command responsibility is troubling, for it reads into the offence a highly problematic objective mens rea standard which clashes with the general principles of both the civil criminal law tradition (within which such a standard does not even exist) and the common criminal law tradition (where the standard has been thoroughly discredited for serious criminal offences). Rather than using general principles of domestic law to fill the lacunae or gaps found within the command responsibility doctrine, the ICTY instead articulated a discredited and problematic objective mens rea standard for the offence. While the ICTY, as a creature of the UN Security Council charged with applying international (rather than domestic) law, was perfectly within its legitimate rights to articulate any mens rea standard it pleased, it nevertheless raised fundamental questions regarding its inherent procedural fairness by adopting an objective mens rea standard for command responsibility.
Consider the relevance of the Division Between Civil and Criminal Law
The difference between civil and criminal law is also seen on the penalties that are imposed to those that have been found guilty of the charges imposed. For civil law cases, penalties come in the form of compensation usually in the form of a sum of money that will be awarded to the victim and his or her family. In criminal law cases, compensation may also be awarded to the victim and his or her family alongside some form of punishment, usually involving a stay in prison determined and decided upon by the court.
Civil and Criminal Law Lecture I
The number of offences which can properly be called crimes, actions which the state itself forbids and seeks to stamp out, is very limited in Near Eastern law, though it is considerably augmented in the Old Testament by the large number of religious crimes. It is somewhat artificial to attempt to distinguish civil and criminal law in the Old Testament, since the whole of life is viewed as being lived under God and therefore all wrongdoing is sin. No sin can be viewed with equanimity by the community, since it is likely to provoke Gods wrath. Nevertheless if one wishes to distinguish the criminal and civil law elements, the type of penalty imposed may provide a criterion. Monetary compensation suggests that the offence should be regarded as falling within the realm of civil law, while the death penalty or corporal punishment suggests that the offence should be viewed as a crime. The prosecution of murderers, however, shows how foreign the civil/criminal law distinction is in biblical thinking. Though murder is viewed as a crime, in that the payment of damages to the victims family is prohibited, the state does not take a hand in prosecuting the criminal. It is left to a relative, the avenger of blood, to kill the murderer if he can, or if he cannot, to chase him to the city of refuge and there convince the city authorities that the homicide is a murderer. The avenger of blood must then execute him (Ex. 21:12-14; Num. 35:10ff.; Deut. 19).
036 CIVIL AND CRIMINAL LAWS IN THE US Introduction