Modes of liability Article 7 (1) Statute of the ICTY Article 6(1) Statute of the ICTR Article 25 (3) Statute of the ICC

Modes of Liability Forms of Participation Joint Criminal Enterprise By : Brenda Hollis Advanced Training of Human Rights for Law Enforcement Officers Jakarta, July 2006 Modes of Liability

Article 7 (1) Statute of the ICTY “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.”

COMMITTING 1. Direct (physical) perpetration The perpetrator carries out the elements of the actus reus of the crime and fulfils the elements of the mens rea of the crime. 2. Indirect perpetration The perpetrator carries out the actus reus through others. The perpetrator fulfils the elements of the mens rea. 3. Co-perpetration carrying out the crime with others jointly acting to commit a crime One person may actually be the physical perpetrator but both are considered co-perpetrators

- covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act - the commission of one of the crimes might also occur through participation in the realisation of a common design or purpose. Tadić Appeal Judgement para. 188

Joint Criminal Enterprise When two or more people jointly act to carry out a crime and they have the required intent, the question becomes whether they are acting together to achieve a common purpose or design

Joint Criminal Enterprise Three Categories 1 st – all co-perpetrators share the intent to carry out the common purpose 2 nd – systemic form, where there is an organized criminal system such as detention camps / centres

Joint Criminal Enterprise Three Categories 3 rd – an extended form of liability, where the accused is liable for additional crimes that were committed while carrying out the criminal enterprise if they were the natural and forseeable consequence of carrying out the criminal purpose.

JCE – Act Element i.A plurality of persons. ii.The existence of a common plan, design or purpose which amounts to or involves the commission of a crime. iii.Participation of the accused in the common design. Tadić Appeal Judgement para. 227

JCE – actus reus i.A plurality of persons. They need not be organised in a military, political or administrative structure.

JCE – actus reus ii.The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. No necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

JCE – actus reus iii.Participation of the accused in the common design The participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.

JCE – mens rea “By contrast, the mens rea element differs according to the category of common design under consideration” Tadić Appeal Judgement para. 228

JCE – first category “With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co- perpetrators).” Tadić Appeal Judgement para. 228

JCE – second category - “personal knowledge of the system of ill- treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment.” Tadić Appeal Judgement para. 228

JCE – third category - intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. - PLUS responsibility for a crime other than the one agreed upon in the common plan arises if under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk." Tadić Appeal Judgement para. 228

JCE I physical perpetrator member of JCE (members of JCE) XX (physical perpetrator)X X (physical perpetrator) X crime

JCE I physical perpetrators not members of JCE (members of JCE) Civilian leader + Military Commander + Police Chief physical perpetrators

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 (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime.” Vasiljević Appeal Judgement para. 102

Aiding and abetting “In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal.” Vasiljević Appeal Judgement para. 102

Aiding and abetting “[I]t is not necessary that the aider and abettor…know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.” Blaškić Appeal Judgement para. 50

Ordering “The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence. A formal superior-subordinate relationship between the accused and the perpetrator is not required.” Kordić and Čerkez Appeal Judgement para. 28

Ordering “The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering.” “[A] standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7 (1) of the Statute.[…A] person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.” Kordić and Čerkez Appeal Judgement paras. 29 and 30

Instigating “ The actus reus of “instigating” means to prompt another person to commit an offence. While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.” Kordić and Čerkez Appeal Judgement para. 27

Instigating “The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering.” “With respect to “instigating”, a person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating. Instigating with such awareness has to be regarded as accepting that crime.” Kordić and Čerkez Appeal Judgement paras. 29 and 32

Planning “The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.” Kordić and Čerkez Appeal Judgement para. 26

Planning “The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering.” “[A] person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.” Kordić and Čerkez Appeal Judgement paras. 29 and 31

Article 25 Statute of the ICC Individual criminal responsibility 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; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (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; (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;

Art. 25 (3) (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;

Art. 25 (3) (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

Art. 25 (3) (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;

Art. 25 (3) (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;