Modes of Liability in International Criminal Law
Abstract
Cambridge Core - Criminal Law - Modes of Liability in International Criminal Law - edited by Marjolein Cupido
Current Awareness - Volume 19 Issue 4 - Katherine Read, Laura Griffiths
The scope and nature of conspiracy liability under international criminal law have long provoked controversy among scholars and practitioners alike. The questions whether this notion is a crime, or a form of criminal participation, or both, and what is its relation to the theory of joint criminal enterprise, have been at the core of these debates. The UN ad hoc Tribunals have routinely held that conspiracy is strictly an inchoate crime and is, therefore, fundamentally different from joint criminal enterprise responsibility. This line of reasoning, however, has been challenged by many in the commentariat who continue to argue that the international legislative origins of conspiracy in post-World War II documents and jurisprudence also defined this notion as a mode of liability. Far from being merely theoretical, this debate has been fuelled by a very practical consideration: the argument that since the concept of conspiracy has been shunned in international criminal law ever since the Nuremberg process, the joint criminal enterprise theory should also be repudiated. This article will thoroughly review the Nuremberg-era law on conspiracy in order to evaluate the conflicting interpretations of its legal nature. It will demonstrate that although this notion was originally construed to have a bifurcated function, it was then gradually refined and distinguished already back in those days from the underlying principles of the joint criminal enterprise theory.
The jurisprudence of the International Criminal Court (ICC) up to the
Lubanga
judgment showed definite interpretive trends on the modes of principal liability. This article aims first to make a critical assessment of these trends by focusing on methodological and substantive aspects. On the one hand, the practice of having resort to theories derived from Continental legal systems, albeit legitimate, is based on a methodology that raises some concerns as to the selection and (mis)interpretation of such theories. On the other hand, the Court has clearly adopted a wide interpretation of some critical elements in which the different modes of principal liability are grounded. This choice has caused a significant expansion of the scope of principal liability as well as a breach of the principles of legality and of individual criminal responsibility. In our opinion, the underpinning of these interpretations is a flawed understanding of the criteria for distinguishing between principals and accessories.
This perspective has been overturned by the
Katanga
judgment, on which the second part of this article will focus. This judgment correctly argues that the distinction between perpetrators and accomplices is grounded only on the autonomous or vicarious character of their contribution to the offence. Furthermore, it follows a partly different approach as to both the methodology and the interpretation of the constitutive elements of principal liability. In our view, this approach better fits both the relevant statutory provision and the basic principles of criminal law.
Individualizing accountability predicated on group crime is a recurring challenge facing international criminal law (ICL). A major aspect of this struggle involves identifying and describing the threshold degree of contribution to a group crime necessary to warrant criminal liability. This article considers three ICL modes of liability specifically oriented to account for group criminality: joint criminal enterprise (JCE) at the ad hoc tribunals and co-perpetration and contribution liability at the International Criminal Court (ICC). Through this analysis it is asserted that current jurisprudence demonstrates the necessity of utilizing a contextual approach to actus reus in order to flexibly account for group criminal dynamics while simultaneously avoiding the imposition of guilt by association. While both JCE and co-perpetration have incorporated formal contextual actus reus thresholds requiring a 'significant act' and 'essential contribution' to the relevant criminal enterprise and charged crime, respectively, contribution liability under Article 25(3)(d) of the ICC Statute currently lacks such a mechanism. In Mbarushimana, ICC Pre-Trial Chamber I held that Article 25(3)(d) requires at least a 'significant' contribution to the predicate group crime(s). On appeal, Judge Silvia Ferna{currency sign}ndez de Gurmendi advocated for an alternate approach requiring analysis of the 'normative and causal links' between the conduct of the accused and the larger group crime. Ultimately, a majority of the Appeals Chamber simply declined to address the issue, dismissing the case on other grounds. This article argues that the two competing approaches to Article 25(3)(d) outlined in Mbarushimana differ primarily in name, rather than substance, as both place contextual qualifications on actus reus and appear to provide for substantially the same results in application. As such, this article concludes that the choice between the two approaches is wholly secondary to the pressing need for the definitive adoption of either approach in order to appropriately bound actus reus underArticle 25(3)(d) moving forward. © The Author (2013). Published by Oxford University Press. All rights reserved.
Indirect perpetration is a rather novel concept in international criminal law, mentioned explicitly for the first time in
Article 25(3)(a) of the International Criminal Court (ICC) Statute. In its Katanga and Chui decision, ICC Pre-Trial Chamber I interprets the concept of indirect perpetration in a particular manner. Citing German legal
doctrine, the Pre-Trial Chamber regards as an indirect perpetrator, a person who uses a hierarchically structured organization
to induce others to carry out a criminal act. It is questionable whether this doctrine is helpful in analysing the cases of
indirect perpetration in the context of systemic crime; it might be preferable to ask what it takes to control the will of
another person to such an extent as to ‘make him’ commit a crime. The existence of an organization controlled by the perpetrator
may be no more than one factor relevant for answering that question.
In a number of cases before Latin American courts, the notion of indirect perpetration through organized structures of power
has been applied after the Juntas Trial. These include several cases relating to crimes committed during the 1976–1983 military regime in Argentina, the case
against General Manuel Contreras in Chile, the case against former national senator Alvaro Alfonso García Romero in Colombia
and cases against former Shining Path leader Abimael Guzmán and former President Alberto Fujimori in Peru. As a result, although
Spanish and Uruguayan courts continue being reluctant to apply it, the notion of indirect perpetration through organized structures
of power has come to play today in a number of Latin American jurisdictions a key role in portraying the criminal liability
of senior political leaders and high military commanders that make use of the organizations that they control to effect the
commission of the crimes.
The mode of liability of aiding and abetting by omission is fraught with analytical difficulties. It is prone to gratuitous expansion beyond more settled modes of liability, being grounded not only in a failure to act, but also in the actions of another, the principal. The International Criminal Tribunals for Rwanda and the former Yugoslavia have struggled throughout their history to present a coherent analysis of the development of aiding and abetting by omission. This article attempts to distil the incoherencies of the ad hoc tribunals’ reasoning through an examination of the fundamental philosophical principles permeating the mode of liability — namely, the legal distinction between acts and omissions and the tenuousness of counterfactuals. This article questions the suitability of the mode of liability for the varying fact patterns to which it has been applied and concludes that a precise, first principles analysis must be utilized to ensure future applications guard against the unwarranted expansion of aiding and abetting by omission.
A computer network attack (CNA) will hardly amount to a crime of aggression since Article 8bis ICC Statute requires that it is carried out by a State and, more importantly, establishes a two fold threshold, which is difficult to pass. Assuming, arguendo, that a State-led CNA amounts to a crime of aggression, the question arises who may be held individually responsible for such an attack. Here the complex leadership clause contained in Article 8bis (1) comes into play. Accordingly, criminal responsibility only arises with regard to ‘a person in a position effectively to exercise control over or to direct the political or military action of a State’. The article examines this clause in detail and applies it to the persons involved in a CNA, located at different levels of the military hierarchy. It concludes that there is no difference between a kinetic and a cyber-attack as far as the ensuing individual criminal responsibility is concerned.
In 2012, James Stewart published an article in this journal. The piece – ‘The End of “Modes of Liability” for International Crimes’ – argued for the abolition of accomplice liability in international criminal law and the adoption of a unitary model of participation in crime. This article argues that Stewart's proposal is flawed. As a matter of moral responsibility, the distinction between principals and accomplices follows from the recognition of individuals as moral agents. Turning to ordinary criminal responsibility, neither practical benefits nor expressive benefits nor the mitigating effects of the distinctive institution of criminal sentencing justifies the abolition of the distinction between principals and accomplices. Moreover, despite the collective nature of many international crimes, international criminal law ought to strive to accurately differentiate, in the attribution of responsibility, among participants. Only a differentiated model of participation can accurately and defensibly capture the different ways that individuals contribute to wrongdoing.
This article explores ICTY and ICTR jurisprudence on central aspects of aiding and abetting liability, in particular with respect to holding high-ranking military and political figures accountable for international crimes in which they were not directly involved. A close look is taken at the Tribunals’ interpretation – both in law and fact – of the actus reus of aiding and abetting (specifically substantial contribution, encouragement and moral support as well as the temporary alignment between an act of assistance and knowledge that it will contribute to crimes), mens rea (including the threshold of intent, requisite specificity of knowledge regarding crimes and a comparison with relevant case law on superior responsibility) and, finally, the controversial notion of specific direction. It is suggested that the ICTY and ICTR have at times over-expanded criminal liability.
This article unpacks the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ATS). The ATS allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations. While diverse, citations to international cases and materials in ATS adjudication cluster around three areas: (1) aiding and abetting as a mode of liability; (2) substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. The limited capacity of international criminal courts and tribunals portends that domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of US courts of general jurisdiction as receivers of international criminal law instruct upon broader patterns of transnational legal migration and reveal an unanticipated extracurricular legacy of international criminal courts and tribunals.
As affirmed by international instruments, instigation is a recognised mode of participation in international crimes. The UN Convention on the Prevention and Punishment of the Crime of Genocide made punishable the inchoate crime of direct and public incitement to commit genocide. The Statute of the International Criminal Tribunal for Rwanda (ICTR) imported this inchoate crime. Furthermore, it included instigation as a mode of participation under Article 6(1) (which would lead to the imposition of criminal responsibility for the crimes). This double appearance of instigation under the Statute of the ICTR has been problematic to both the Trial and Appeal Chambers of the ICTR. Their jurisprudence on instigation is not just flawed, but also inconsistent and does not contribute to the evolution of instigation as a mode of participation in international criminal law.
The International Criminal Court recently presented its arguments concerning criminal responsibility arising pursuant to the theory of 'control over an organization'. This theory is based on the notion of 'perpetrator-by-means' found in the Rome Statute, Article 25(3)a. The court appears to have utilized this theory to establish principal responsibility for ordering in contrast to accessorial responsibility prescribed in Article 25(3)b of the said Statute. However, it should be noted that customary international law has long established the notion of command responsibility Lato Sensu, recognizing the serious and primary nature of superiors' responsibility for ordering. This article argues that there should be some conscious sequence between the discussions of 'control over an organization' and command responsibility Lato Sensu for the sake of the integrity of the discourse in international criminal law.
Through examining the use of radio broadcasts in the 1994 genocide in Rwanda, U.S. responses to it, and the international law and contemporary policy on radio jamming, this article argues that the traditional U.S. blanket rejection of jamming as a violation of free expression is no longer fully appropriate. It proposes a narrow exception to the general international standard supporting the free flow of information for cases of incitement to genocide or mass human rights abuse where the occurrence of genocide or such mass abuse is considered imminent.
International criminal law has developed considerably in the last decade and a half, resulting in a complex and re-invigorated discipline. This has impacted directly on the popularity of the study of the subject, particularly on postgraduate law degrees. This textbook serves these courses by providing an introduction to the principles of international criminal law and processes. Written by four international lawyers with experience of teaching international criminal law, it is accessible yet sophisticated in its approach. It covers substantive international criminal law, the institutions designed to enforce it and their procedures, and the international law applicable to domestic prosecutions of international crimes. It will be essential reading for students and teachers of international criminal law. In addition, practitioners and researchers in the field (and in related fields such as criminal law), students of international law and international relations will find this introduction invaluable. © Robert Cryer Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst 2007.
On 7 March 2014, Trial Chamber II of the International Criminal Court (ICC) convicted Germain Katanga for war crimes and crimes against humanity. Katanga's conviction is based on the concept of common purpose liability as regulated in Article 25(3)(d) of the Rome Statute. This liability theory establishes criminal responsibility for wilfully or knowingly contributing to the crimes of a group of persons who act together pursuant to a common purpose. The ICC regards common purpose liability as a residual liability theory, which provides for a lower level of blameworthiness than principal forms of criminal responsibility, such as joint perpetration. This article appraises the residual and inferior status of common purpose liability by comparing the ICC's application of common purpose liability and joint perpetration. The comparison makes clear that common purpose liability in theory stipulates lower actus reus and mens rea standards than joint perpetration. However, in practice the ICC applies the requirements of both these liability theories in a context-dependent way in interplay with the particular facts of individual cases. It can therefore not be concluded in general terms that common purpose liability by definition constitutes a less serious type of criminal responsibility than joint perpetration. Instead, it is preferable to adopt a flexible approach, which recognizes that common purpose liability covers a variety of conduct entailing different levels of blameworthiness.
This article considers the early history of “control over the crime” in international legal proceedings and commentary. Despite criticism of the International Criminal Court’s reliance on certain domestic sources, the theory is essentially an orthodox reflection of how individual responsibility was dealt with at Nuremberg. In identifying the theory’s precursors in the same body of early sources as the doctrine of joint criminal enterprise developed by tribunals applying customary law, it is concluded that control over the crime is likewise a refinement of established principles, and an appropriate basis for the International Criminal Court to construe Article 25(3)(a) of the Rome Statute.
The provision in the Rome Statute of the International Criminal Court (icc) on individual criminal responsibility can be considered sufficiently elaborated. The level of detail of Article 25(3) does not, however, prevent heated debates on its practical application. The Court initially leaned towards the expanded notion of "commission", interpreted to cover instances where persons do not physically perpetrate the crime but enjoy certain degree of control over it. Underlying this trend was the premise that "commission" denotes a higher degree of blameworthiness, and is therefore more appropriate to describe involvement in mass atrocities. In contrast, the Katanga trial judgement, issued in March last year, undermined the conception of perpetration as a superior form of responsibility in international criminal law. Which position will prevail in a long run? The article explores the two convictions rendered by the Court to date and argues that the answer to this question is still unclear.
In 2011, the International Criminal Tribunal for the former Yugoslavia (icty) sentenced Momčilo Perišić, the former chief of the Yugoslav Army General Staff, to 27 years’ imprisonment for, inter alia, aiding and abetting crimes committed by the Bosnian Serb Army (vrs). Two years later, the icty Appeals Chamber (Judge Liu dissenting) acquitted Perišić, finding no evidence that his assistance to the vrs was ‘specifically directed’ towards the latter’s criminal activities. This article offers a comprehensive, critical analysis of the Perišić Appeals Judgement and fundamentally problematizes the strong emphasis that it places on ‘specific direction’. Arguing that the Judgement represents a significant departure from the icty’s jurisprudence on aiding and abetting liability, it further submits - through an analysis of two recent post-Perišić appellate judgements, namely Taylor (2013) and Šainović et al. (2014) - that the Perišić Appeals Judgement and its elevation of specific direction have fragmented international jurisprudence on aiding and abetting.
On 28 February 2013, the ICTY Appeals Chamber acquitted Momcilo Perisic, former Chief of Staff of the Yugoslav Army. He had been convicted at trial for having aided and abetted - through the provision of weapons and personnel - the crimes committed by the Army of the Republika Srpska in Sarajevo and Srebrenica. The Appeals Chamber found that, when the accused is remote from the crime, the prosecution must show that he/she specifically directed his/her assistance towards the perpetration of specific crimes and not only generally towards the realization of activities which could be either lawful or unlawful. On 23 January 2014, a different bench of the ICTY Appeals Chamber, in Sainovic et al., rejected this theory and affirmed that specific direction is not an element of aiding and abetting in customary international law. This article explores the origins of 'specific direction' and concludes that although it comes up in some ICTY judgments, it has never been applied in the sense propounded by the Perisic appeal judgment. Given that the issue remains a source of debate in the jurisprudence, the authors consider the merits of both positions and question whether the temporal or geographical location of the alleged aider and abettor should change the legal elements of the mode of liability. They examine the implications of requiring that the provision of assistance must be directed towards unequivocally unlawful activities and conclude that requiring specific direction blurs the lines between aiding and abetting - an accessorial mode of liability - and forms of principal perpetration.
Relying on the Tribunal’s inherent powers, the Appeals Panel of the Special Tribunal for Lebanon decided in two cases, New TV S.A.L. and Akhbar Beirut S.A.L., that the Tribunal has jurisdiction over corporations for the offence of contempt. They decided so despite the absence of
a clear provision explicitly granting such jurisdiction. This is the first time an international criminal tribunal asserts
jurisdiction over legal persons. The article critically presents the Appeals Panel’s findings and places them in their historical
and international context. Although limited in scope, the decisions are of great significance as business and human rights
developments at the international level have emphasized the need for enhanced corporate accountability.
How should international courts distinguish between principals and accessories? The ICC answered this question with Roxin’s
Control Theory of Perpetration; defendants should be convicted as principals if they control the crime individually, jointly
with a co-perpetrator, indirectly via an organized apparatus of power, or as indirect co-perpetrators (via a combination of
the previous doctrines). As the ICC adopted the control requirement, however, some of its decisions have allowed lower mental
states such as recklessness or dolus eventualis to meet the standard for principal perpetration under the Control Theory. Other decisions have asserted that intent or knowledge
is required though their definitions of knowledge include a risk of future events — a definition uncomfortably similar to
recklessness. The following essay argues that the ICC should reverse its approach: instead of combining the ‘essential contribution'
element with a weak mental requirement (its current doctrine), the ICC should deemphasize control by lowering the essential
contribution requirement and reinvigorating the required mental state. In short, the ICC should take a second look at subjective
theories of perpetration that define principals as those with the intention to carry out the crime (or joint intention in
the case of co-perpetrators) and who contribute to the effort. The ICC’s Control Theory represents an over-correction to the
perceived excesses of the subjective approach — excesses that could be fixed without resorting to the ICC’s current ersatz-Control
Theory.
International criminal tribunals have long grappled with the problem of attributing individual criminal acts to persons in a position of leadership. They invented concepts such as Joint Criminal Enterprise in order to cast the net of responsibility as widely as possible. In this article, the author presents the solutions that German law has to offer in that regard. Germany has by and large managed to resolve the problems of attribution in a satisfactory manner without creating lofty new concepts of attribution of collective crime. The author recommends following the approach of German courts in cautiously expanding traditional doctrines rather than inventing new theoretical models in order to expand individual criminal responsibility.
The concept of co-perpetration and its proper construction continues to be a topic that causes controversy and fragmentation in the field of international criminal law. The latest proof of this is the Lubanga Trial Judgment in which the three judges disagreed on whether this mode of liability should be based on the theory of joint control over the crime. The present article examines and further develops Judge Fulford’s arguments against the adoption of this theory in cases brought before the International Criminal Court. It analyses the Rome Statute and its drafting history, as well as customary international law and domestic jurisprudence, in order to review the contention that there is no legal basis for applying the joint control paradigm in ICC proceedings. In addition to this, several recent ICC cases are examined to underscore the practical weaknesses of the control over the crime approach to co-perpetration.
For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.
The jurisprudence of the Trial Chambers of the International Criminal Tribunal for Rwanda (ICTR) requires that criminal responsibility under Article 6(1) of the Statute of the ICTR can only be imposed where an individual’s participation substantially contributed to any of the crimes over which the ICTR has jurisdiction. Given the fact that instigation is one of the modes of participation under Article 6(1), I argue that this requirement is the outcome of a poor understanding and illogical construction of Article 6(1). This problem has been compounded by the inclusion of the crime of direct and public incitement to genocide under Article 2(3)(c) of the Statute.
The recent decision of the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia declining to recognize extended joint criminal enterprise (JCE) responsibility as customary law accords with the ambivalence of the material available. This raises corresponding doubts about a new application by the co-prosecutors for extended JCE responsibility to be recognized as an alternative mode of liability in Case 002. The doctrine was not clearly adopted during the drafting of the Charter of the International Military Tribunal, or accepted by the Tribunal itself. Subsequent trials in Nuremberg and Tokyo do not clarify the issue. This is attributed to the calculated nature of the crimes prosecuted, along with the fact that the accused typically served in the highest levels of the state over an extended period. Certain post-trial material and prosecutorial arguments in trials of minor war criminals by the US Army in Germany and Japan show that concepts analogous to extended JCE responsibility were relied upon. However, they were derived from American law. This tendency is also apparent in trials by Australian Military Forces in the Pacific. In light of recent comments of the Appeals Chamber of the Special Tribunal for Lebanon with respect to the formation of custom, it is concluded that, although this fresh case law is relevant, it is still not sufficient to establish the existence of a customary norm.
The contribution discusses co-perpetration in the Lubanga Trial Judgment. It first compares co-perpetration with joint criminal enterprise (JCE) and analyses Lubanga under JCE. It goes on to consider Judge Fulford’s — arguably, unconvincing — dissent regarding the Statute’s dualist approach.
As to the elements of co-perpetration, the article finds that it is difficult to see how the Chamber could find that all criminal
conduct attributed to Lubanga was carried out by him or his co-perpetrators. It is argued that indirect co-perpetration might
have been the more appropriate mode to hold Lubanga accountable. Further it is maintained that, under co-perpetration, it
is not necessary that each co-perpetrator has the power to frustrate the crime. Finally, the author shares the view that customary
international law mens rea standards apply under the Statute through the ‘unless otherwise provided’ formula in Article 30(1) ICC Statute. Accordingly
the mens rea for co-perpetration (and other forms of committing) is awareness of a probability or substantial likelihood.
This article seeks to investigate the question of imputation as it is understood in the law of England and Wales, and what insights it may have for international criminal law. It begins with some reflections on the (perhaps stereotyped) approach to criminal law in England and Wales, and the common law more generally, emphasizing the result-oriented, inductive approach. This way of seeing things can be seen as eschewing theory, but actually reflects unidentified theoretical commitments. From there this contribution moves on to explain the law of complicity in England and Wales, comparing it to how international criminal law, especially in the International Criminal Tribunal for the former Yugoslavia, treats general principles of liability. It then briefly mentions the other relevant crimes that exist in the law of England and Wales. The work then concludes with a plea for international criminal lawyers to overcome their national backgrounds and training, and develop reflexive principles of liability that are appropriate to, and reflect, the nature of offending in the context of international crimes. To further this it is suggested that those who are interested in international criminal law engage in a process where a series of situations are proposed, and lawyers and ethicists from across the spectrum discuss the appropriate results. From there some foundational principles may be developed that could form the basis of a more sophisticated approach to liability for international crimes.
This article considers the operation of command responsibility in irregular groups. It analyses the element of command responsibility
relating to the obligation of a superior to take the necessary and reasonable measures to prevent crimes of subordinates and
punish the perpetrators of those crimes. It focuses on two particular aspects. First, it explores the notion of a duty to
take certain measures, in particular asking where that duty emanates from in the context of irregular groups. Second, it ascertains
the content of the duty to take measures, considering measures that can be taken by superiors of irregular groups in view
of the structure, operation, and workings of irregular groups.
Whether a general rule on omission exists in international criminal law has long been fraught with controversy. It has recently met with increasing acceptance, most prominently by the ICTY Appeals Chamber's judgement of 5 May 2009 (Prosecutor v. Mrkšić et al.). In view of the likely further consolidation of the law, this study deals with the material requirements of 'commission by omission' more comprehensively. It tests several possible ways to give meaning to the offender's duty to prevent the incriminated action, as the 'duty to act' is widely seen as the key to criminal liability for omission. In particular, the present article challenges the prevailing trend in international case law and scholarship to derive individual duties to act from duties under international humanitarian law or domestic law. The alternative approach put forward herein is to derive duties to act genuinely from international criminal law. This is done by extending the 'principle of control', which according to ICC case law constitutes the underlying base for 'commission by action', to the sphere of omission. There, the overarching criterion of control can be broken down into a set of clear-cut duties to act and thus be reconciled with the requirements of legal certainty. Eventually, it is shown that pursuant to the present approach 'commission by omission', albeit not explicitly contemplated by the ICC Statute, falls within the jurisdiction of the ICC.
On 7 March 2014, the International Criminal Court (ICC) rendered its third and arguably most controversial trial judgment
in the case against Germain Katanga. It marks the first final judgment under Article 74 following the discontinuation of both
the Defence and Prosecution appeals. This article analyses the procedural and substantive implications of the decision. While
the judgment makes some important contributions to the development of jurisprudence, it departs significantly from the ‘case’
at pre-trial and contains some inherent contradictions, flawed interpretations and evidentiary weaknesses that are well known
from other Courts and tribunals. Judge Van den Wyngaert’s ‘fundamental dissent’ on key points of law and fact raises doubts
whether the decision meets the ‘beyond reasonable doubt’ standard. Ultimately, the Katanga case highlights continuing challenges related to fairness and trial management at the ICC, including an urgent need to re-consider
the relationship between pre-trial and trial. Its contentious findings leave an incomplete, and partly contradictory picture
of the role of actors in the Ituri crisis, which confirms scepticism about the fact-finding function of international criminal
courts and tribunals.
This article draws on well-established understandings of international treaty interpretation and the role of the judicial function to propose seven canons of treaty construction that may serve as the basis of a principled interpretation of the substantive law of the Rome Statute. This interpretative framework is then applied to the seemingly intractable debate within the Court and among scholars over the correct interpretation of Article 25, on modes of liability. The seven canons provide guidelines that may enable the ‘Rorschach blot’ of Article 25, capable of many divergent interpretations, to become uniformly and consistently understood and interpreted.
This article addresses the well-known problem of establishing individual criminal responsibility for the commission of international crimes. In particular, attention is devoted to an analysis of the modes of liability that are best suited to dealing with the individual criminal responsibility of high-level perpetrators. In recent years, efforts have been made at the international level to bring to justice several high-level perpetrators, including incumbent Heads of State. In this context, the modes of participation of 'joint criminal enterprise' and 'indirect perpetration' have emerged as two possible alternatives for qualifying the participation of such persons in the commission of international crimes. Whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) has almost exclusively utilized the former mode of participation, most notably in the Milosevic case, by contrast, the International Criminal Court (ICC) in its earliest decisions has rejected this doctrine, and it has resorted instead to a complex form of co-perpetration and indirect perpetration, based on the concept of 'control over the crime'. Whilst the establishment of the latter mode of participation in the case law of the ICC represents a positive development in terms of advancing general principles of criminal law, this article also highlights some of the possible weaknesses and difficulties that could emerge in the application of this theory at the international level, which has its roots in the German Dogmatik.
A major theoretical challenge for international criminal law is how to account for and adequately label the responsibility of the highest ranking leaders, often far removed from actual killings carried out through an organization or movement. This challenge is also coupled with a problem of labeling. We commonly distinguish between the person who directly committed a crime (the perpetrator/principal) and a person who assisted in the commission of the crime less directly (an accessory). On this approach leaders may seem ‘mere’ accessories. Nonetheless, given the perceived truth-telling function of international criminal trials, judges seemingly feel compelled to label leaders as direct perpetrators who have committed the crime itself and not as accessories who have ordered or incited or failed to prevent it. This requires an expanded concept of commission, a project that immediately raises questions of theory, black letter scholarship and fairness. Once we uncouple commission from the direct physical perpetrator, where do the boundaries of commission fall? A too diffuse theory of commission may inappropriately stigmatize ‘small fish’, labeling them as being equally as culpable as high-ranking leaders. This article critically reviews the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) on commission in collective responsibility cases. The conclusion reached is that the preferable view is that leaders are accessories who can nonetheless be more culpable than principals, because they are aggregators of responsibility. What we need are not new tools, but different ways of understanding existing concepts.
In 2010 in Kampala, Uganda, the States Parties to the International Criminal Court (ICC) adopted a set of amendments to the Rome Statute that define the elements and trigger mechanisms of the crime of aggression. However, significant questions remain as to what was actually agreed upon in Kampala, including with respect to the parameters of the crime itself. These questions, which include the applicability of exceptions for humanitarian intervention and anticipatory self-defense, affect not only the potential criminal responsibility of individuals charged with the crime of aggression, but also the interests of States in whether their acts are considered to amount to aggression or not. This article explores the anatomy of the crime of aggression and highlights issues that remain to be resolved.
This article analyses the recent interpretations of Articles 25 and 30 of the ICC Statute by the Pre-Trial Chambers of the International Criminal Court. The Court adopts a broad interpretation of the common plan or agreement element; in addition, it appears to distort the mental element which is provided for by Art. 30 of the Statute. Such interpretative trends permit a person to be charged as a co-perpetrator or indirect co-perpetrator in relation to crimes committed by others and which have not been agreed or ordered by the person charged. This implies a violation of the principles of responsibility for one’s own actions and of culpability. Therefore, the paper proposes a strict definition of Article 30 that highlights the requirement of the intent to engage in the conduct. This element, understood as the will to act, belongs to every kind of dolus. The paper analyses the interpretation of this requirement in cases of co-perpetration, where the joint will to act is expressed in the common plan or agreement.
In two recent judgements handed down by the International Criminal Court, the majority's understanding of the law and modes of participation has triggered vigorous dissenting opinions (Section 1). The debate has focused on the question of whether there is an explicit or implicit hierarchy between the different modes of participation provided for in Article 25(3)(a)-(d) of the Rome Statute. The majority of the Judges take such a hierarchy for granted, marking a categorical distinction between principal perpetration and participation on the one hand, and, in the following sequence, a differentiation between subparagraph (b), (c) and (d), on the other. The dissenting Judges contest this and opt for a plain reading of the statutory provisions. For them the Statute reveals a more flexible position enabling a solution tailored to the particular circumstances of each case, which would be curtailed by a rigid hierarchy between the modes of participation. Section 2 of this article offers a detailed description of the two positions, followed in Section 3 by a short discussion of the relevant statutory provisions and a critical discussion of the respective arguments. Section 4 takes up the difficult and more general question of the model of participation implemented by the Rome Statute. The article concludes that both conflicting approaches may have some merits that, in combination, may lead to a more nuanced solution of the issue. The debate on models, however, is only the first step towards a comprehensive understanding of the material problems posed by the law on participation (Section 5).
Although international criminal law is becoming increasingly harmonized, it is inevitable that differently composed panels
at the Appeals Chambers of the International Criminal Tribunal for the former Yugoslavia (ICTY) (and other international courts)
will disagree with each other. The author examines the institutional and jurisprudential reasons for an appeals chamber to
respect or revisit the prior decisions of previous appeals chambers which might be composed of an overlapping set of judges.
Although the common law doctrine of stare decisis does not apply in a formal manner at the ICTY, Appeals Chambers are still reluctant to overturn prior doctrinal pronouncements
due to concerns of stability in the law — precisely the rationale for stare decisis. This creates the wholly unsatisfactory possibility that three judges on the Appeals Chamber could decide the law even though
a majority of the Appeals Chamber judges at the Tribunal might disagree with their interpretation of the law. The author discusses
this paradoxical situation by examining, as a case study, the ICTY judgments on successor responsibility in command responsibility
cases.
As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible recharacterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.
The question whether an international tribunal created by the United Nations Security Council has the power to review its
own legality has recently been answered in the negative by the Special Tribunal for Lebanon (STL) in Ayyash, directly contradicting the much celebrated Tadić decision of the International Criminal Tribunal for the former Yugoslavia. This article critically analyses the reasoning
of the Trial and Appeals Chambers of the STL as well as that of President Baragwanath in his partially dissenting opinion.
The authors question the conclusion that an international tribunal — created via a Chapter VII resolution — has no duty to
verify whether it was lawfully established before it exercises its primary jurisdiction. Such an approach goes against existing
authorities, moves away from the general trend of exercising judicial scrutiny over Security Council action, and creates an
impression that the STL shies away from demonstrating its impartiality and independence as well as its compliance with the
highest standards of international justice. The authors argue that it would have been more judicially sound to affirm the
inherent power of the STL to rule on whether it was lawfully established (or not). They submit that President Baragwanath's
approach — although not perfect — offers the more persuasive and nuanced legal reasoning to the issue at hand. Lastly, the
practical and legal consequences of an international tribunal finding that its creation was illegal are considered.
Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that have applied indirect co-perpetration have generally failed to offer this defense and have simply assumed that modes of liability can be combined at will. In an attempt to offer the needed justification, this article starts with the premise that modes of liability are ‘linking principles’ that link defendants with particular actions, and that combining these underlying linking principles requires a second-order linking principle. The most plausible candidate is the personality principle — a basic principle that recognizes the inherently collective nature of leadership-level groups dedicated to committing international crimes. Like Roxin’s theories describing the collective organizations that can be used as a form of indirect perpetration, the personality principle treats the horizontal leadership group as an organization or group agent whose collective nature potentially justifies the attribution of vertical modes of liability to all members of the horizontal group. Although this article does not defend the doctrine of indirect co-perpetration, it does conclude that combined vertical and horizontal modes of liability, whether at the ICTY or ICC, implicitly or covertly rely on something like the personality principle in order to justify collective attribution to the horizontal collective.