Irish Centre for Human Rights Summer Course on the International Criminal Court 2011 Modes of Liability

Territorial and Temporal Jurisdiction - ICTY The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 (ICTY Statute Art 1) The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 (ICTY Statute Art 1) (161 persons indicted) (161 persons indicted) 2

Territorial and Temporal Jurisdiction - ICTR The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994… (ICTR Statute, Art. 1) The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994… (ICTR Statute, Art. 1) 3

4 Criminal Liability - ICTY “An interpretation of the Statute based on its object and purpose leads to the conclusion that the Statute intends to extend the jurisdiction of the International Tribunal to all those ‘responsible for serious violations of international humanitarian law…

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

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

7 Criminal Liability - ICTY Criminal Liability - ICTY ICTY Statute Article 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 Jurisdiction - ICC An International Criminal Court is hereby established. It shall be a permanent institution and have the power to exercise its jurisdiction over persons for the most serious crimes of international concern… (Rome Statute, Art. 1) An International Criminal Court is hereby established. It shall be a permanent institution and have the power to exercise its jurisdiction over persons for the most serious crimes of international concern… (Rome Statute, Art. 1) Complementary to 115 States Party Complementary to 115 States Party Investigations ongoing in 6 States (Uganda, DRC, CAR, Sudan, Kenya and Libya (plus a potential 7 th – Cote d’Ivoire) Investigations ongoing in 6 States (Uganda, DRC, CAR, Sudan, Kenya and Libya (plus a potential 7 th – Cote d’Ivoire) Preliminary examinations in 8 other States Preliminary examinations in 8 other States

Criminal Liability - ICC Art 22 (2) The definition of a crime shall be strictly construed and shall not be extended by analogy. In the case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 9

10 Criminal Liability In dubio pro reo In dubio pro reo When in doubt, decide in favour of the accused When in doubt, decide in favour of the accused “It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.” Sweet v. Parsley [1969] 2 W.L. R. 470 at 474 (H.L.) “It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.” Sweet v. Parsley [1969] 2 W.L. R. 470 at 474 (H.L.)

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

12 Individual Liability “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

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

14 Art 25 Individual Criminal Responsibility Article 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.

15 Article 25 (3)(a) Principal 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 ;

Commits A principal offender ‘commits’ an offence when she: a. Physically carries out all elements of the offence... (direct perpetration): b. Has, together with others, control over the offence by reason of the essential tasks assigned to him... (co- perpetration); or c. Has control over the will of those who carry out the objective elements of the offence... (indirect perpetration) P. V. Katanga and Chui ICC-01/04-01/07 (30 Sept 2008) par

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

Control over Offence Objective Elements Existence of an agreement or common plan between two or more persons to commit a crime. Plan need not be explicit, but can be inferred from actions Existence of an agreement or common plan between two or more persons to commit a crime. Plan need not be explicit, but can be inferred from actions Coordinated essential contribution by each co- perpetrator resulting in the realisation of the objective elements of the crime. Only those to whom essential tasks have been assigned – and who have the power to frustrate the commission of the crime by not performing their tasks, have joint control over the crime. Essential contribution may consist of activating the mechanisms which lead to automatic compliance with their orders. Coordinated essential contribution by each co- perpetrator resulting in the realisation of the objective elements of the crime. Only those to whom essential tasks have been assigned – and who have the power to frustrate the commission of the crime by not performing their tasks, have joint control over the crime. Essential contribution may consist of activating the mechanisms which lead to automatic compliance with their orders. 18

Control over Offence Subjective Elements a. Mens Rea: knows that his or her actions will bring about the objective elements, acts with express intent to bring about the objective elements of the crime b. Suspects mutually aware and mutually accept that implementing their common plan will result in the crimes c. Suspects must be aware of the factual circumstances enabling them to control the crimes jointly 19

Activating Mechanisms The leader’s control over the apparatus allows him to utilise his subordinates as ‘a mere gear in a giant machine’ in order to produce the criminal result automatically’ The leader’s control over the apparatus allows him to utilise his subordinates as ‘a mere gear in a giant machine’ in order to produce the criminal result automatically’ The successful execution of the plan will not be compromised by any particular subordinate's failure to comply with the order. The successful execution of the plan will not be compromised by any particular subordinate's failure to comply with the order. Ensures automatic compliance with orders. Ensures automatic compliance with orders. 20

21 Art 25(3)(b) Accessory 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)

22 Art 25(3)(c) Aiding 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;

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

24 Art 25(3)(d) JCE 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;

25 Art 25(3)(e) Genocide (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

26 Art 25(3)(f) Attempts (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 pars

27 Modes of Liability Case Law Situation in the Central African Republic, P. v. Jean-Pierre Bemba Gombo, Decision Adjourning the Hearing pursuant to Article 61(7)(c)(ii), ICC- 01/05-01/08, 3 March 2009 Situation in the Central African Republic, P. v. Jean-Pierre Bemba Gombo, Decision Adjourning the Hearing pursuant to Article 61(7)(c)(ii), ICC- 01/05-01/08, 3 March 2009 Situation in the Central African Republic, P. v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) … on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 2009 Situation in the Central African Republic, P. v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) … on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 2009

28 Command Responsibility Annex to Hague Convention IV Respecting the Laws and Customs of War on Land (1907) Art 1: The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates ; 2. To have a fixed distinctive emblem recognizable at a distance; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war. 4. To conduct their operations in accordance with the laws and customs of war.

29 Command Responsibility ICTY Test Prosecutor v. Sefer Halilovic, Case No. IT T (16 November 2005), Appeal (16 Oct 2007 Prosecutor v. Sefer Halilovic, Case No. IT T (16 November 2005), Appeal (16 Oct 2007 Prosecutor v. Hadžihasanović et Kubura Case No. IT T (15 March 2006), Appeal (22 April 2008) Prosecutor v. Hadžihasanović et Kubura Case No. IT T (15 March 2006), Appeal (22 April 2008) Prosecutor v. Blaskic (March 2000) Prosecutor v. Blaskic (March 2000) Prosecutor v. Delalic et al. (Celebici) (Nov. 1998) Prosecutor v. Delalic et al. (Celebici) (Nov. 1998)

30 Modes of Liability Command Responsibility Article 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:

31 Modes of Liability Command Responsibility (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.

32 Modes of Liability Command Responsibility (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;

33 Modes of Liability Command Responsibility Things to prove: 1That there was a superior / subordinate relationship. (doesn’t have to be direct or immediate in nature) De facto vs. de jure (prove de facto, but prove de jure and force other side to prove otherwise) De facto vs. de jure (prove de facto, but prove de jure and force other side to prove otherwise) Effective command and control (the issue in Halilovic) (test: who stands up and salutes when the guy comes into the room) Effective command and control (the issue in Halilovic) (test: who stands up and salutes when the guy comes into the room) Authority to give an order, and the power to punish those who disobey (or at least instigate a proper investigation) (“material ability to prevent or punish criminal conduct” Celebici Appeal (Feb. 2001) par 256) Authority to give an order, and the power to punish those who disobey (or at least instigate a proper investigation) (“material ability to prevent or punish criminal conduct” Celebici Appeal (Feb. 2001) par 256)

34 Modes of Liability Conditions Mens Rea Rome Statue Article 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.

35 Modes of Liability Conditions Mistake of Fact Rome Statute Article A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime 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).

36 Joint Criminal Enterprise Charter of the IMT (Nuremberg) Art 6 Charter for the IMT for the Far East (Tokyo) Art 5(c) 6.Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

37 Joint Criminal Enterprise Three “classes” of JCE: 1. Co-perpetration, where all of the participants in the common design possess the same criminal intent to commit a crime, and one or more of them actually commits the crime The m ens rea is the intent to perpetrate a crime The m ens rea is the intent to perpetrate a crime

38 Joint Criminal Enterprise 2. The second is the so-called concentration camp cases, where the individuals know of the system of abuse (such as a concentration camp) and intend to advance or provide the opportunity for the abuse Mens rea is both personal knowledge of the system of ill-treatment, and the intent to further the common concerted system of ill-treatment Mens rea is both personal knowledge of the system of ill-treatment, and the intent to further the common concerted system of ill-treatment

39 Joint Criminal Enterprise 3. The third category is where the individuals intend to take part in a joint criminal enterprise and to further the criminal purpose of the enterprise, but other crimes, which are reasonably foreseeable, are committed by some members of the enterprise. Mens rea : intention to participate in and further the … criminal purpose, Mens rea : intention to participate in and further the … criminal purpose, intention to contribute to the JCE, it was foreseeable that the additional crime might be perpetrated… and the accused willingly took that risk Prosecutor vs. Krajisnik (IT A) (17 March 2009) Prosecutor vs. Krajisnik (IT A) (17 March 2009)

40 Joint Criminal Enterprise Three common essential elements of JCE: 1. A plurality of persons 2. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute; 3. Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. Tadic Appeal decision par 227

41 Bibliography Mettraux, Guenael, The Law of Command Responsibility Oxford University Press, New York (2009) Robinson, Darryl; The Identity Crisis of International Criminal Law 21 Leiden J of Int’l Law (2008) 925 Talligren, I.; The Sensibility and Sense of International Criminal Law 13 EJIL (2002) 561 Ohlin, Jens David; Joint Intentions to Commit International Crimes 11 Chicago J Int’l L. 2 (2011) 693 Bayley, Deborah; Six Degrees of Separation: Canadian Accessory Liability in Afghan War Crimes