Irish Centre for Human Rights

Irish Centre for Human RightsIrish Centre for Human Rights

Summer Course on the Summer Course on the International Criminal CourtInternational Criminal Court

20112011

Modes of LiabilityModes of Liability

Territorial and Temporal Territorial and Temporal Jurisdiction - ICTYJurisdiction - ICTY

The International Tribunal shall have The International Tribunal shall have the power to prosecute persons the power to prosecute persons responsible for serious violations of responsible for serious violations of international humanitarian law international humanitarian law committed in the territory of the committed in the territory of the former Yugoslavia since 1991 (ICTY former Yugoslavia since 1991 (ICTY Statute Art 1)Statute Art 1)

(161 persons indicted)(161 persons indicted)

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Territorial and Temporal Territorial and Temporal Jurisdiction - ICTRJurisdiction - ICTR

The International Tribunal for Rwanda The International Tribunal for Rwanda shall have the power to prosecute shall have the power to prosecute persons responsible for serious violations persons responsible for serious violations of international humanitarian law of international humanitarian law committed in the territory of Rwanda and committed in the territory of Rwanda and Rwandan citizens responsible for such Rwandan citizens responsible for such violations committed in the territory of violations committed in the territory of neighbouring States, between 1 January neighbouring States, between 1 January 1994 and 31 December 1994… (ICTR 1994 and 31 December 1994… (ICTR Statute, Art. 1)Statute, Art. 1)

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Criminal Liability - ICTYCriminal Liability - ICTY

““An interpretation of the Statute An interpretation of the Statute based on its object and purposebased on its object and purpose leads to the conclusion that the leads to the conclusion that the Statute intends to extend the Statute intends to extend the jurisdiction of the International jurisdiction of the International Tribunal to Tribunal to allall those ‘responsible for those ‘responsible for serious violations of international serious violations of international humanitarian law…humanitarian law…

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Thus, all those who have engaged in Thus, all those who have engaged in serious violations of international serious violations of international humanitarian law, humanitarian law, whatever the whatever the manner in which they may have manner in which they may have perpetratedperpetrated, or participated in the , or participated in the perpetration of those violations, must perpetration of those violations, must be brought to justice.be brought to justice.

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If this is so, it is fair to conclude that If this is so, it is fair to conclude that the Statute does not confine itself to the Statute does not confine itself to providing for jurisdiction over those providing for jurisdiction over those persons who plan, instigate, order, persons who plan, instigate, order, physically perpetrate a crime or physically perpetrate a crime or otherwise aid and abet in its planning, otherwise aid and abet in its planning, preparation or execution. The Statute preparation or execution. The Statute does not stop there.” does not stop there.” Prosecutor v. TadicProsecutor v. Tadic Judgement (IT-94-1-A) (Appeals) (15 July 1999) par Judgement (IT-94-1-A) (Appeals) (15 July 1999) par 189-190)189-190)

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ICTY StatuteArticle 7 (Individual criminal responsibility)

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

Territorial and Temporal Territorial and Temporal Jurisdiction - ICCJurisdiction - ICC

An International Criminal Court is hereby An International Criminal Court is hereby established. It shall be a permanent established. It shall be a permanent institution and have the power to exercise its institution and have the power to exercise its jurisdiction over persons for the most serious jurisdiction over persons for the most serious crimes of international concern… (Rome crimes of international concern… (Rome Statute, Art. 1)Statute, Art. 1)

Complementary to 115 States PartyComplementary to 115 States Party Investigations ongoing in 6 States (Uganda, Investigations ongoing in 6 States (Uganda,

DRC, CAR, Sudan, Kenya and Libya (plus a DRC, CAR, Sudan, Kenya and Libya (plus a potential 7potential 7thth – Cote d’Ivoire) – Cote d’Ivoire)

Preliminary examinations in 8 other StatesPreliminary examinations in 8 other States

Criminal Liability - ICCCriminal Liability - ICC

Art 22 (2) The definition of a crime Art 22 (2) The definition of a crime shall be strictly construed and shall shall be strictly construed and shall not be extended by analogy. In the not be extended by analogy. In the case of ambiguity, the definition shall case of ambiguity, the definition shall be interpreted in favour of the be interpreted in favour of the person being investigated, person being investigated, prosecuted or convicted.prosecuted or convicted.

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Criminal LiabilityCriminal Liability

In dubio pro reoIn dubio pro reo When in doubt, decide in favour of When in doubt, decide in favour of

the accusedthe accused ““It is a universal principle that if a It is a universal principle that if a

penal provision is reasonably capable penal provision is reasonably capable of two interpretations, that of two interpretations, that interpretation which is most interpretation which is most favourable to the accused must be favourable to the accused must be adopted.” adopted.” Sweet v. ParsleySweet v. Parsley [1969] 2 [1969] 2 W.L. R. 470 at 474 (H.L.)W.L. R. 470 at 474 (H.L.)

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Individual LiabilityIndividual Liability

““Crimes against international law are Crimes against international law are committed by men, not by abstract committed by men, not by abstract entities, and only by punishing entities, and only by punishing individuals who commit such crimes individuals who commit such crimes can the provisions of international can the provisions of international law be enforced.” law be enforced.” France et al v. France et al v. Goering et al., Goering et al., (1946) 22 IMT 203(1946) 22 IMT 203

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“Additionally, by holding individuals responsible for the crimes committed, it was hoped that a particular ethnic or religious group (or even political organisation) would not be held responsible for such crimes by members of other ethnic or religious groups, and that the guilt of the few would not be shifted to the innocent.” Prosecutor v. Momir Nikolic (IT-02-60/1-S) (2 Dec. 2003) par. 60

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The case as presented by the United States The case as presented by the United States will be concerned with the brains and will be concerned with the brains and authority back of all the crimes. These authority back of all the crimes. These defendants were men of a station and rank defendants were men of a station and rank which does not soil its own hands with blood. which does not soil its own hands with blood. They were men who knew how to use lesser They were men who knew how to use lesser folk as tools. We want to reach the planners folk as tools. We want to reach the planners and designers, the inciters and leaders and designers, the inciters and leaders without whose evil architecture the world without whose evil architecture the world would not have been for so long scourged would not have been for so long scourged with the violence and lawlessness, of this with the violence and lawlessness, of this terrible war terrible war Justice Jackson’s Opening Address for Justice Jackson’s Opening Address for the US at Nurembergthe US at Nuremberg http://avalon.law.yale.edu/imt/chap_05.asphttp://avalon.law.yale.edu/imt/chap_05.asp

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Art 25Art 25Individual Criminal ResponsibilityIndividual Criminal Responsibility

Article 25 1. The Court shall have jurisdiction

over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.

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Article 25 (3)(a)Article 25 (3)(a)Principal LiabilityPrincipal Liability

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an

individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

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Control over the CrimeControl over the Crime

Par 330:Par 330: The concept of control over the The concept of control over the crime … is that principals to a crime are crime … is that principals to a crime are not limited to those who physically carry not limited to those who physically carry out the objective elements of the offence, out the objective elements of the offence, but also include those who, in spite of but also include those who, in spite of being removed from the scene of the being removed from the scene of the crime, control or mastermind its crime, control or mastermind its commission because they decide whether commission because they decide whether and how the offence will be committed. and how the offence will be committed. Situation in the Democratic Republic of the Congo, Situation in the Democratic Republic of the Congo, P. v. P. v. Thomas Lubanga DyiloThomas Lubanga Dyilo, ICC-01/04-01/06, 29 January 2007, ICC-01/04-01/06, 29 January 2007

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Art 25(3)(b)Art 25(3)(b)Accessory LiabilityAccessory Liability

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

Person in authority uses that position to order/convince someone to commit an offence (Akayesu IRTR Judgment (Sept 1998) par 483; Blaskic ICTY (March 2000) par 601)

Simply passing along an order is sufficient to ground a guilty finding (Kupreskic ICTY (Jan 2000) par 862)

Mens Rea: person giving order was aware of the substantial likelihood that a crime would be committed (Blaskic Appeal (July 2004) par 42)

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Art 25(3)(c)Art 25(3)(c)Aiding and AbettingAiding and Abetting

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

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Aiding and AbettingAiding and Abetting

““The aider and abettor carries out acts The aider and abettor carries out acts specifically directed to assist, encourage or specifically directed to assist, encourage or lend moral support to the perpetration of a lend moral support to the perpetration of a certain specific crime … and this support certain specific crime … and this support has a has a substantialsubstantial effect upon the effect upon the perpetration of the crime … the requisite perpetration of the crime … the requisite mental element is knowledge that the acts mental element is knowledge that the acts performed by the aider and abettor assist performed by the aider and abettor assist the commission of a specific crime by the the commission of a specific crime by the principal.” principal.” TadicTadic appeal judgment (1999) par 229 appeal judgment (1999) par 229

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Art 25(3)(d)Art 25(3)(d)JCE Rome StyleJCE Rome Style

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the

criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

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Art 25(3)(e)Art 25(3)(e)GenocideGenocide

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

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Art 25(3)(f)Art 25(3)(f)AttemptsAttempts

(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

See P. v.. Katanga Decision on the Confirmation of the Charges (ICC-01/04-01/07, 30 Sept. 2008 pars 458-460

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Modes of LiabilityModes of LiabilityCase LawCase Law

Situation in the Central African Republic, Situation in the Central African Republic, P. P. v. Jean-Pierre Bemba Gombov. Jean-Pierre Bemba Gombo, Decision , Decision Adjourning the Hearing pursuant to Article Adjourning the Hearing pursuant to Article 61(7)(c)(ii), ICC-01/05-01/08, 3 March 200961(7)(c)(ii), ICC-01/05-01/08, 3 March 2009

Situation in the Central African Republic, Situation in the Central African Republic, P. P. v. Jean-Pierre Bemba Gombov. Jean-Pierre Bemba Gombo, Decision , Decision Pursuant to Article 61(7)(a) and (b) … on Pursuant to Article 61(7)(a) and (b) … on the Charges of the Prosecutor Against the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 200901/08, 15 June 2009

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Command ResponsibilityCommand Responsibility

Annex to Hague Convention IV Respecting the Laws Annex to Hague Convention IV Respecting the Laws and Customs of war on Land (1907)and Customs of war on Land (1907)

Art 1: The laws, rights, and duties of war apply Art 1: The laws, rights, and duties of war apply not only to armies, but also to militia and not only to armies, but also to militia and volunteer corps fulfilling the following conditions: volunteer corps fulfilling the following conditions: 1. To be commanded by a person 1. To be commanded by a person responsible for his subordinatesresponsible for his subordinates;;

2. To have a fixed distinctive emblem 2. To have a fixed distinctive emblem recognizable at a distance;recognizable at a distance;

3. To carry arms openly; and 3. To carry arms openly; and 4. To conduct their operations in accordance with 4. To conduct their operations in accordance with

the laws and customs of war. the laws and customs of war.

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Command ResponsibilityCommand ResponsibilityICTY TestICTY Test

Prosecutor v. Sefer HalilovicProsecutor v. Sefer Halilovic, Case , Case No. IT-01-48-T (16 November 2005), No. IT-01-48-T (16 November 2005), Appeal (16 Oct 2007Appeal (16 Oct 2007

Prosecutor v.Prosecutor v. Hadžihasanović et Hadžihasanović et Kubura Case No. IT-01-47-T (15 Kubura Case No. IT-01-47-T (15 March 2006), Appeal (22 April 2008)March 2006), Appeal (22 April 2008)

Prosecutor v. BlaskicProsecutor v. Blaskic (March 2000) (March 2000) Prosecutor v. Delalic et al.Prosecutor v. Delalic et al. (Celebici) (Celebici)

(Nov. 1998)(Nov. 1998)

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Modes of LiabilityModes of LiabilityCommand ResponsibilityCommand Responsibility

Article 28

28. In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

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(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

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(b) (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior;

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Things to prove:Things to prove:11 That there was a superior / subordinate relationship. That there was a superior / subordinate relationship.

(doesn’t have to be direct or immediate in nature)(doesn’t have to be direct or immediate in nature) De facto vs. de jure (prove de facto, but prove de De facto vs. de jure (prove de facto, but prove de

jure and force other side to prove otherwise) jure and force other side to prove otherwise) Effective command and controlEffective command and control (the issue in (the issue in

Halilovic) (test: who stands up and salutes when the Halilovic) (test: who stands up and salutes when the guy comes into the room)guy comes into the room)

Authority to give an order, and the power to punish Authority to give an order, and the power to punish those who disobey (or at least instigate a proper those who disobey (or at least instigate a proper investigation) (“material ability to prevent or punish investigation) (“material ability to prevent or punish criminal conduct” criminal conduct” Celebici Celebici Appeal (Feb. 2001) par Appeal (Feb. 2001) par 256)256)

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Modes of Liability ConditionsModes of Liability ConditionsMens ReaMens Rea

Rome Statue Article 30

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

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Modes of Liability ConditionsModes of Liability ConditionsMistake of FactMistake of Fact

Rome Statute Article 32

1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33 (superior orders defences).

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Joint Criminal EnterpriseJoint Criminal Enterprise

Charter of the IMT (Nuremberg) Art 6Charter of the IMT (Nuremberg) Art 6Charter for the IMT for the Far East (Tokyo) Charter for the IMT for the Far East (Tokyo)

Art 5(c)Art 5(c)

6.6.Leaders, organizers, instigators and Leaders, organizers, instigators and accomplices participating in the accomplices participating in the formulation or execution of a formulation or execution of a common common planplan or conspiracy to commit any of the or conspiracy to commit any of the foregoing crimes are responsible for all foregoing crimes are responsible for all acts performed by any persons in acts performed by any persons in execution of such plan. execution of such plan.

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Three “classes” of JCE:Three “classes” of JCE:

1.1. Co-perpetration, where all of the Co-perpetration, where all of the participants in the common design participants in the common design possess the same criminal intent to possess the same criminal intent to commit a crime, and one or more of commit a crime, and one or more of them actually commits the crimethem actually commits the crime

The mThe mens reaens rea is the intent to is the intent to perpetrate a crimeperpetrate a crime

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2.2. The second is the so-called concentration The second is the so-called concentration camp cases, where the individuals know camp cases, where the individuals know of the system of abuse (such as a of the system of abuse (such as a concentration camp) and intend to concentration camp) and intend to advance or provide the opportunity for advance or provide the opportunity for the abusethe abuse

Mens reaMens rea is both personal knowledge of is both personal knowledge of the system of ill-treatment, and the the system of ill-treatment, and the intent to further the common concerted intent to further the common concerted system of ill-treatmentsystem of ill-treatment

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3.3. The third category is where the individuals intend to take The third category is where the individuals intend to take part in a joint criminal enterprise and to further the part in a joint criminal enterprise and to further the criminal purpose of the enterprise, but other crimes, criminal purpose of the enterprise, but other crimes, which are which are reasonably foreseeable,reasonably foreseeable, are committed by are committed by some members of the enterprise.some members of the enterprise.

Mens reaMens rea: intention to participate in and further the … : intention to participate in and further the … criminal purpose,criminal purpose,intention to contribute to the JCE,intention to contribute to the JCE,it was it was foreseeableforeseeable that the additional crime might be that the additional crime might be perpetrated… andperpetrated… andthe accused the accused willinglywillingly took that risk took that risk

Prosecutor vs. KrajisnikProsecutor vs. Krajisnik (IT-00-39-A) (17 March 2009) (IT-00-39-A) (17 March 2009)

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Three common essential elements of JCE:Three common essential elements of JCE:1.1. A plurality of personsA plurality of persons2.2. The existence of a common plan, design The existence of a common plan, design

or purpose which amounts to or involves or purpose which amounts to or involves the commission of a crime provided for in the commission of a crime provided for in the Statute;the Statute;

3.3. Participation of the accused in the Participation of the accused in the common design involving the common design involving the perpetration of one of the crimes perpetration of one of the crimes provided for in the Statute. provided for in the Statute. TadicTadic Appeal Appeal decision par 227decision par 227

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BibliographyBibliographyMettraux, Guenael, Mettraux, Guenael, The Law of Command ResponsibilityThe Law of Command Responsibility Oxford University Press, New York (2009)Oxford University Press, New York (2009)

Robinson, Darryl; Robinson, Darryl; The Identity Crisis of International The Identity Crisis of International Criminal Law 21 Criminal Law 21 Leiden J of Int’l Law (2008) 925Leiden J of Int’l Law (2008) 925

Talligren, I.; Talligren, I.; The Sensibility and Sense of International The Sensibility and Sense of International Criminal LawCriminal Law 13 EJIL (2002) 561 13 EJIL (2002) 561

Ohlin, Jens David; Ohlin, Jens David; Joint Intentions to Commit International Joint Intentions to Commit International Crimes Crimes 11 Chicago J Int’l L. 2 (2011) 69311 Chicago J Int’l L. 2 (2011) 693

Bayley, Deborah; Bayley, Deborah; Six Degrees of Separation: Canadian Six Degrees of Separation: Canadian Accessory Liability in Afghan War CrimesAccessory Liability in Afghan War Crimes

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