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Objective Requisites for Punishment and Objective Requisites to Proceed

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Chapter Summary

The category of necessity of punishment includes a number of heterogeneous elements that the drafters, for purely utilitarian reasons, configured as requisites for punishment or grounds for exemption of punishment. These elements are not part of the objective or subjective elements of the crime and do not fall into the categories of either unlawfulness or culpability. In the author's view, the most important consequence of considering imperative military necessity as a ground for exemption from punishment is that any destruction or seizure of the enemy's property would automatically become unlawful. Objective requisites for punishment can be distinguished from objective requisites to proceed, although some authors have pointed out that, in the final analysis, both play the same role. The objective requisites to proceed are circumstances that, without affecting the existence of a crime, must be met for its investigation and prosecution.

Keywords: imperative military; objective requisites; subjective elements



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