Transcript Irish Centre for Human Rights

Irish Centre for Human Rights
Summer Course on the ICC 2012
Modes of Liability
John McManus
Counsel & Team Leader
Crimes Against Humanity and War Crimes Section
DOJ Canada
Reflection
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Akhavan, Payam; Reducing Genocide to
Law
Cassese, Antonio (ed.); The Future of
International Law
Schabas, William; Unimaginable Atrocities:
Justice, Politics and Rights at the War
Crimes Tribunals
Scheffer, David; All the Missing Souls
Theme
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WHAT IN GOD’S NAME ARE WE DOING?!?
Theme
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or
Is ICL simply an enforcement arm of
human rights and humanitarian law,
adopting incarceration of violators as a
new remedy available to victims? Or is it
a system of criminal justice that respects
the philosophical preconditions for the
punishment and stigmatization of
individuals? Robinson, Identity Crisis, at 932
Maslow's Hierarchy of Needs
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Criminal Law - Essentially
The purposes of prosecution:
 Punish the perpetrator
 Provide victim with a measure of satisfaction
 Reduce desire for revenge
 Ensures State’s laws and underlying values, are
respected
 Demonstrates State’s (and people’s) abhorrence
for offence
 Sets precedent
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Protection of the Accused
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Presumption of innocence
Personal liability
Knowledge and intent requirements (mens rea)
Contribution to the crime (actus reus)
Nullem crimen sine lege (nulla poena sine culpa)
Fair labelling [Chalmers, J.; Leverick, F.; Fair Labelling in Criminal
Law, http://onlinelibrary.wiley.com/doi/10.1111/j.14682230.2008.00689.x/abstract]
Protection of the Accused
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In dubio pro reo
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.)
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Territorial and Temporal
Jurisdiction - ICTY
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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)
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Territorial and Temporal
Jurisdiction - ICTR
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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)
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Territorial and Temporal
Jurisdiction - ICC
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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 121 States Party
Investigations ongoing in 7 “Situations”
(Uganda, DRC, CAR, Sudan, Kenya, Libya and
Cote d’Ivoire)
Preliminary examinations in 7 other States
Criminal Liability - ICTY
189. “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…
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Criminal Liability - ICTY
190. 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.
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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 189-190)
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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.
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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.
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A Change of Pace
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
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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
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Individual Liability
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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 http://avalon.law.yale.edu/imt/chap_05.asp
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Individual Liability
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976. In the view of the Majority, both the Romano
Germanic and the Common Law legal systems have
developed principles about modes of liability. However,
at their inception, neither of these systems was intended
to deal with the crimes under the jurisdiction of this
Court, i.e. the most serious crimes of concern to the
international community as a whole. The Statute sets
out the modes of liability in Articles 25 and 28 and, they
should be interpreted in a way that allows properly
expressing and addressing the responsibility for these
crimes. P. v. Thomas Lubanga Dyilo, ICC-01/04-01/06, 14 March
2012 (Judgment pursuant to Art. 74 of the Statute)
Art 25
Individual 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)
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;
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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 ... (coperpetration); 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 488 (decision on confirmation of charges)
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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 Decision on the confirmation of
charges
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Control over the crime
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347. In the view of the Chamber, when the
objective elements of an offence are carried out
by a plurality of persons acting within the
framework of a common plan, only those to
whom essential tasks have been assigned – and
who, consequently, have the power to frustrate
the commission of the crime by not performing
their tasks – can be said to have joint control
over the crime. Lubanga confirmation decision
Contribution to the crime
999. The Majority is of the view that the
contribution of the co-perpetrator must be
essential, … . [L]owering the threshold would
deprive the notion of principle liability of its
capacity to express the blameworthiness of
those persons who are the most responsible for
the most serious crimes of international concern.
Instead, a notion of co-perpetration that
requires an essential contribution allows for the
different degrees of responsibility to be properly
expressed and addressed. Lubanga decision
Contribution to the Crime
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1004. those who commit a crime jointly include,
inter alia, those who assist in formulating the
relevant strategy or plan, become involved in
directing or controlling other participants or
determine the roles of those involved in the
offence. This conclusion makes it unnecessary
for the prosecution to establish a direct or
physical link between the accused’s contribution
and the commission of the crimes Lubanga decision
Control over the Crime
Objective Elements
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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 coperpetrator 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.
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Control over the Crime
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
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Control over the Crime
369.Consequently, the Chamber considers that the suspect could not
be said to have intended to commit any of the crimes charged,
unless the evidence shows that he was at least aware that, in the
ordinary course of events, the occurrence of such crimes was a
virtually certain consequence of the implementation of the common
plan. The Chamber's finding that the text of article 30 of the Statute
does not encompass dolus eventualis, recklessness or any lower
form of culpability aims to ensure that any interpretation given to
the definition of crimes is in harmony with the rule of strict
construction set out in article 22(2) of the Statute. It also ensures
that the Chamber is not substituting the concept of de lege lata with
the concept of de lege ferenda only for the sake of widening the
scope of article 30 of the Statute and capturing a broader range of
perpetrators. Prosecutor v. Bemba, Ariticle 61(7)(a) and (b) decision ICC01/05-01/08-424 15-06-2009 but see: Lubnaga Confirmation of charges
decision ICC-01/04-01/06-803 14-05-2007 and Lubanga Decision pars 1007
- 1017
Control over the Crime
Summation
i) There was an agreement or common plan between the
accused and at least one other co-perpetrator that once
implemented, will result in the commission of the
relevant crime in the ordinary course of events;
(ii) The accused provided an essential contribution to the
common plan that resulted in the commission of the
relevant crime;
(iii) The accused meant to conscript … [subjective elements
of crime] or he was aware that by implementing the
common plan these consequences “will occur in the
ordinary course of events”;
Control over the Crime
Summation (cont’d)
iv) The accused was aware that he provided an
essential contribution to the implementation of
the common plan; and
v) The accused was aware of the factual
circumstances that established the existence of
an armed conflict and the link between these
circumstances and his conduct [aware of the
factual circumstances enabling him to control
the crime]
Control over the Crime
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8. Specificity in pleading an application for a
warrant of arrest is also essential for the
Chamber to be properly informed why its
authority to deprive a person of his or her liberty
should be exercised. Therefore, if the
Prosecutor's Application falls short of the proper
level of specificity, the Chamber will not
effectuate its authority. Situation in the DRC – Decision on
the Prosecutor’s Application under Art. 58 (arrest warrant) ICC01/04-613 31-05-2012
Activating Mechanisms
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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.
Ensures automatic compliance with orders.
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Art 25(3)(b)
Accessory Liability
(b) Orders, solicits or induces the
commission of such a crime which in fact
occurs or is attempted;
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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)
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;
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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
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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;
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Art 25(3)(e)
Genocide
(e) In respect of the crime of genocide,
directly and publicly incites others to
commit genocide;
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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. 2008 pars 458-460
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Command Responsibility
Idylls of the King
Alfred Lord Tennyson
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From The Coming of Arthur
So when the King has set his banner broad,
At once from either side, with trumpet blast,
And shouts, and clarions shrilling unto blood,
The long-lanced battle let their horses run.
And now the barons and the kings prevail'd,
And now the King. As here and there that war
Went swaying; but the Powers who walk the world
Made lightenings and great thunders over him,
And dazed all eyes, till Arthur by main might,
And mightier of his hands with every blow,
And leading all his knighthood threw the kings…
… Then, before a voice
As dreadful as the shout of one who sees
To one who sins, and deems himself alone
And all the world asleep, they swerved and brake
Flying, and Arthur call’d to stay the brands
That hack’d among the flyers, “Ho! They yield!”
So like a painted battle the war stood
Silenced, the living quiet as the dead,
And in the heart of Arthur joy was lord.
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110
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Idylls of the King
Alfred Lord Tennyson
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From The Last Tournament
… Then the knights, who watched him, roar’d
And shouted and leapt down upon the fallen,
There trampled out his face from being known,
And sank his head in mire, and slimed themselves;
Nor heard the King for their own cries, but sprang
Thro’ open doors, and swording right and left
Men, women, on their sodden faces, hurl’d
The tables over and the wines, and slew
Till all the rafters rang with woman-yells,
And all the pavement stream’d with massacre.
Then, echoing yell with yell, they fired the tower…
… But in the heart of Arthur pain was lord
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Modes of Liability
Case Law
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Situation in the Central African Republic, P. v.
Jean-Pierre Bemba Gombo, Decision Adjourning
the Hearing pursuant to Article 61(7)(c)(ii), ICC01/05-01/08, 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
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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;
 3. To carry arms openly; and
 4. To conduct their operations in accordance with
the laws and customs of war.
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Command Responsibility
ICTY Test
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Prosecutor v. Sefer Halilovic, Case No.
IT-01-48-T (16 November 2005),
Appeal (16 Oct 2007
Prosecutor v. Hadžihasanović et
Kubura Case No. IT-01-47-T (15
March 2006), Appeal (22 April 2008)
Prosecutor v. Blaskic (March 2000)
Prosecutor v. Delalic et al. (Celebici)
(Nov. 1998)
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Command 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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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.
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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;
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Command Responsibility
Things to prove:
1 That there was a superior / subordinate relationship.
(doesn’t have to be direct or immediate in nature)
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De facto vs. de jure (prove de facto, but prove de jure
and force other side to prove otherwise)
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Effective command and control (the issue in
Halilovic) (test: who stands up and salutes when the
guy comes into the room)
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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)
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Modes of Liability Conditions
Mens 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 Conditions
Mistake of Fact
Rome Statute Article 32
1.
2.
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).
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Joint Criminal Enterprise
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.
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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
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The mens rea is the intent to
perpetrate a crime
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Joint Criminal Enterprise
2.
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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
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Joint Criminal Enterprise
3.
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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,
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-00-39-A) (17 March 2009)
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Joint Criminal Enterprise
Three common essential elements of JCE:
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A plurality of persons
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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, Brdanin, IT-99236-A (3 April 2007) pars 426 - 432
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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
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Irish Centre for Human Rights
Summer Course on the ICC 2012
Modes of Liability
John McManus
Counsel & Team Leader
Crimes Against Humanity and War Crimes Section
DOJ Canada