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Irish Centre for Human Rights

Irish Centre for Human Rights. Summer Course on the International Criminal Court 2010 Modes of Liability. Modes of Liability Criminal Liability.

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Irish Centre for Human Rights

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  1. Irish Centre for Human Rights Summer Course on the International Criminal Court 2010 Modes of Liability

  2. Modes of LiabilityCriminal Liability “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…

  3. Modes of Liability Criminal Liability 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.

  4. Modes of LiabilityCriminal Liability 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)

  5. Modes of Liability Criminal Liability 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.

  6. Modes of Liability Criminal Liability • 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.)

  7. Modes of LiabilityIndividual 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

  8. Modes of Liability 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

  9. Modes of Liability 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 http://avalon.law.yale.edu/imt/chap_05.asp

  10. Modes of LiabilityRome Statute Provisions Article 25 (Individual criminal responsibility) 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.

  11. Modes of LiabilityRome Statute Provisions 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;

  12. Modes of LiabilityControl 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 LubangaDyilo, ICC-01/04-01/06, 29 January 2007

  13. Modes of LiabilityRome Statute Provisions (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; BlaskicICTY (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)

  14. Modes of LiabilityRome Statute Provisions (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;

  15. Modes of LiabilityAiding 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

  16. Modes of LiabilityRome Statute Provisions (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;

  17. Modes of LiabilityRome Statute Provisions (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

  18. Modes of LiabilityRome Statute Provisions (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

  19. Modes of LiabilityCase 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 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

  20. Modes of LiabilityCommand 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.

  21. Modes of LiabilityCommand Responsibility • Prosecutor v. SeferHalilovic, 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)

  22. Modes of LiabilityCommand 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:

  23. Modes of LiabilityCommand 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.

  24. Modes of LiabilityCommand 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;

  25. Modes of LiabilityCommand Responsibility Things to prove: 1 That 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) • 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” CelebiciAppeal (Feb. 2001) par 256)

  26. Modes of LiabilityMens 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.

  27. Modes of LiabilityMistake of Fact Rome Statute Article 32 • 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).

  28. Modes of LiabilityJoint 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.

  29. Modes of LiabilityJoint Criminal Enterprise Three “classes” of JCE: • 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 mensrea is the intent to perpetrate a crime

  30. Modes of LiabilityJoint Criminal Enterprise • 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 • Mensrea is both personal knowledge of the system of ill-treatment, and the intent to further the common concerted system of ill-treatment

  31. Modes of LiabilityJoint Criminal Enterprise • 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. • Mensrea: 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)

  32. Modes of LiabilityJoint Criminal Enterprise Three common essential elements of JCE: • A plurality of persons • The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute; • 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

  33. Summer Course on the ICC2010 Modes of Liability 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

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