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INDIVIDUAL CRIMINAL RESPONSIBILITY. 2013/2014. Art . 7(1) Statute ICTY.

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art 7 1 statute icty
Art. 7(1) Statute 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.
what is meant by commission
What is meantby “commission”?
  • Perpetration v. accompliceliability?
  • Whatdoes it mean ‘to commit a crime’?
  • Physicalperpetrationby one’s own hands?
  • Participationwithanimoauctoris?
  • Controlovertheact?
  • Co-perpetration? Indirectperpetration?
  • Commissionbyomission? Commandresponsibility?
  • JointCriminal Enterprise?
joint criminal enterprise
JointCriminal Enterprise
  • ICTY: No “positive” lawsource
    • Notcodifiedin ICTY Statute
    • Leadingcase = Tadić (App. Ch. 1999)
      • TeleologicalInterpretationof Statute – It intends to extendcriminalliabilitytoallthose ‘responsible for violationsofinternationalhumanitarianlaw’”
      • “[The Statute] doesnotexcludethosemodesofparticipatinginthecommissionofcrimeswhichoccurwhereseveralpersonshaving a commonpurposeembark on criminalactivity….”
      • Nowcodified: ICC Statute, art. 25(d) ?
jce objective elements
JCE: OBJECTIVE ELEMENTS
  • Same for all formsof JCE
    • PluralityofPersons
    • Existenceof a Common Plan, Design or Purpose
    • ParticipationoftheAccusedinthe JCE byany “formofassistancein, or contribution to, theexecutionofthecommonpurpose”
jce i
JCE I
  • Theparticipantsparticipateinthecommondesign or purposewith a COMMON INTENTION
  • JCE I liability for Murder
    • D must voluntarilyparticipatein one aspectofthecommondesign (murder), e.g.,byinflictingnon-fatalviolence on the V or facilitatingtheactsofco-perpetrators
    • D must intendtheresult (deathofvictim)
jce ii
JCE II
  • The “Systemic” Form [ConcentrationCampCases]
    • PLANinvolvingill-treatmentandcrimesagainstprisoners
    • D must beaware (KNOWLEDGE) ofthesystem
    • D in some wayactivelyparticipatedinthesystembyencouraging, aidingandabetting or participatingintherealizationofthecommoncriminaldesign (PARTICIPATION)
jce iii
JCE III
  • “Extended” JCE Liabilityrequires:
    • Commoncriminalpurpose or plan (PLAN)
    • Defendantintended to Participateincommonpurpose (PARTICIPATION)
    • CRIME GOING BEYOND PLAN
    • Defendantliable for Co-perpetrator’s Crimeif:
      • RISK FORESEEABLE
      • RISK WILLINGLY TAKEN
jce iii1
JCE III
  • CommonPurpose is to ethnicallycleanse a villagewhereinthecourseofdoingsovillagers are killed. Evenifmurder is notanexpressedpartofthe plan, liability is imputed to D if:
    • D intended to particpateinthecommonpurpose
    • Riskofdeathwas a predicableconsequenceoftheexecutionofthe plan
    • D wasreckless or indifferent to risk
jce iii2
JCE III
  • Criticisms
    • StrictLiability
    • Co-perpetrationmayoverstatefault
    • OverlapswithAidingandAbettingand Superior Responsibility?
    • No clear authorityinpositivelaw
complicity aiding and abetting
Complicity (aidingandabetting)
  • ICTY Statute, art. 7(1)
    • “… or otherwiseaidedandabettedintheplanning, preparationorexecutionof a crime”
    • M/R = KnowledgeThatActionsWillAssistthePerpretratorintheCommissionoftheCrime
      • TwoLevels
        • As to Accessory’s Act = Intentional
        • As to Principal’s Act =
          • KnowledgethatAccessory’s ActWillAssistthePerpetrator
complicity
Complicity
  • A/R = PracticalAssistance, Encouragement, or Moral Supportwhichhas a SubstantialEffecton thePerpetrationoftheCrime
  • LeadingCase = Furundžija (Tr. Ch. ICTY 1998)
  • Examples
    • Lookouts
    • DisposingofBodies
    • Interpreter
    • Presence at scene bypersonwith Status to give Moral Support or Encouragement
    • Superior withauthority to “control, prevent or modify” principal’s act

Specificdirection (PerišićApp. Ch. 2013)

direct superior responsibility
Direct Superior Responsibility
  • OrderingSubordinates to CommitOffenses
    • M/R of Superior (Blaškić, ICTY, App. Ch. 2004)
      • “clear intentionthatmassacrewouldbecommitted” OR
      • “awarenessofthesubstantiallikelihoodthat a crimewillbecommittedintheexecutionoftheorder”
art 25 3 rome statute
Art. 25(3) Rome Statute
  • 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;
art 25 3 rome statute1
Art. 25(3) Rome Statute
  • (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 30 rs mental element
Art. 30. RS –Mental element
  • 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
art 30 rs mental element1
Art. 30. RS –Mental element
  • 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.