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Caroline Fournet

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Caroline Fournet

Abstract

Due to the heinous nature of international crimes, admissible defences in the context of international criminal justice understandably constitute an issue surrounded with controversy. Yet, while International Criminal Law precludes the use of a series of defences, it also admits that certain grounds may exclude individual criminal responsibility or mitigate punishment even in the case of the most serious international crimes. The present study thus proposes to analyse the permissibility of these defences and the availability of such grounds for excluding responsibility by drawing a comparison between Public International Law and International Criminal Law and by highlighting the differences and discrepancies between the two systems. Ultimately, this analysis aims at demonstrating that International Criminal Law, one of Public International Law's children, has now surpassed its parent to become a more sophisticated and a fairer legal and judicial system, for both the defendants and the victims.

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Caroline Fournet

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Caroline Fournet and Nicole Siller

‘We demand dignity for the victims’. Such was the pledge of the Dutch Minister of Foreign Affairs following the crash of Malaysia Airlines flight mh17 in rebel-held territory in eastern Ukraine and the looting of the corpses of the 298 victims. Although not an isolated instance, the indecent disposal of the corpses of the victims seems to have escaped legal scrutiny. Drawing from this and other case studies, this article addresses the legal qualification of acts of mistreatment perpetrated against the corpses of victims of international crimes. It analyses all relevant dispositions pertaining to international humanitarian law, international criminal law and the law of trafficking in human beings. While these provisions fail to legally characterize such acts, the judiciary however tends to recognize their criminality; a recognition which, in the authors’ views, could make its way into the text of international (criminal) law.