Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues 3540787801, 9783540787808

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Individual Criminal Responsibility for Core International Crimes

Ciara Damgaard

Individual Criminal Responsibility for Core International Crimes Selected Pertinent Issues

Ciara Damgaard University of Copenhagen The Law Faculty Studiestrade 6 1455 Copenhagen K Denmark [email protected]

ISBN: 978-3-540-78780-8

e-ISBN: 978-3-540-78781-5

Library of Congress Control Number: 2008929903 © 2008 Springer-Verlag Berlin Heidelberg This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable for prosecution under the German Copyright Law. The use of registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMXDesign GmbH, Heidelberg Printed on acid-free paper 5 4 3 2 1 0 springer.com

Table of Contents

Acknowledgements.............................................................................................. xiii Part I - General 1 Introduction…………………………………………………………………… 3 1.1 Opening Remarks and Objectives………………………………………... 3 1.2 Overview and Target Audience………………………………………….. 8 2 Germane Considerations…………………………………………………......11 2.1 Introductory Remarks…………………………………………………... 11 2.2 Meaning of ‘Individually Criminally Responsible’…………………….. 12 2.3 Objectives of Individual Criminal Responsibility for Core International Crimes…………………………………………………………………... 15 2.4 Sources of, and Judicial Precedent in, International Criminal Law…….. 27 2.4.1 Introductory Remarks.................................................................... 27 2.4.2 General Sources of International Criminal Law ........................... 29 2.4.2.1 Treaties….……..………….…………………………… 31 2.4.2.2 Custom .………………………………….……………. 32 2.4.2.3 General Principles of Law Recognised by Civilised Nations…….................................................................... 34 2.4.2.4 Judicial Decisions…...………………………………… 35 2.4.2.5 Teachings of the Most Highly Qualified Publicists…… 42 2.4.3 Sources of International Criminal Law Relevant to Adjudication Before the ICC and the Ad Hoc International Criminal Tribunals………………………………………………………… 43 2.4.3.1 ICC…………….……………………………………..... 44 2.4.3.2 Ad Hoc International Criminal Tribunals….………..… 47 2.4.3.3 Significance of the ICC, ICTY and ICTR Statutes other than as a Binding Source of Law…...…………… 47 2.4.4 Evaluation of other Potential Sources of International Criminal Law ................................................................................................ 48 2.4.4.1 Nuremberg Principles……………………………….… 48 2.4.4.2 Draft Code of Crimes Against the Peace and Security of Mankind…………………………………………..… 48

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2.6

2.4.4.3 CCL 10………………………………………………… 49 2.4.4.4 Resolutions of the UN General Assembly and UN Security Council………………………………………. 50 2.4.4.5 Reports of the International Law Commission……..…. 50 2.4.5 Judicial Precedent and the Ad Hoc International Criminal Tribunals, the ICC and the SCSL……………………………….. 50 2.4.5.1 Judicial Precedent and the Ad Hoc International Criminal Tribunals and the SCSL……………….…...... 51 2.4.5.2 Judicial Precedent and the ICC………………..………. 55 2.4.5.3 Conclusion…………………………………………...... 56 2.4.6 Concluding Remarks ..................................................................... 56 Definition of Core International Crimes………………………………... 56 2.5.1 Introductory Remarks…………………………………………… 56 2.5.2 Definition of ‘Core International Crimes’………………………. 57 2.5.3 Core International Crimes for which a Person can be Individually Criminally Responsible……………………………. 61 2.5.3.1 Genocide…………………………………………….….62 2.5.3.2 War Crimes……………………………………………. 64 2.5.3.3 Crimes Against Humanity…………………………….. 72 Evolution of Individual Criminal Responsibility for Core International Crimes…………………………………………………………………... 85 2.6.1 Introductory Remarks.................................................................... 85 2.6.2 Evolution of the Concept of Individual Criminal Responsibility for Core International Crimes in International Law...................... 86 2.6.2.1 Pre-Nuremberg and Tokyo……………………………. 87 2.6.2.2 Nuremberg and Tokyo up to the 1990s……………….. 98 2.6.2.3 Post Nuremberg and Tokyo………………………….. 105 2.6.2.4 ICTY and Beyond………….……………………….... 113 2.6.2.5 Conclusion….……………………………………..…. 123

Part II - Selected Pertinent Issues 3 The Joint Criminal Enterprise Doctrine: A “monster theory of liability” or a legitimate and satisfactory tool in the prosecution of the perpertrators of core international crimes?................................................ 127 3.1 Introduction and Overview……………………………………………. 127 3.2 Terminology…………………………………………………………… 130 3.3 History…………………………………………………………………. 132 3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments…………………………………………………………….. 136 3.4.1 ICTY............................................................................................ 136 3.4.1.1 Tadiü Appeals Judgment…….……………………….. 137 3.4.1.2 Application of the Principles Identified in the Tadiü Appeals Judgment……………………………………. 148 3.4.2 ICTR............................................................................................ 163

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3.4.3 ICC .............................................................................................. 167 3.4.3.1 Observations to Article 25(3)(d), ICC Statute……...... 168 3.4.3.2 Future Employment of the JCED Before the ICC….... 177 3.4.4 Draft Code of Crimes Against the Peace and Security of Mankind .................................................................................. 178 3.4.5 Special Court for Sierra Leone.................................................... 178 3.4.6 Supreme Iraqi Criminal Tribunal ................................................ 180 3.4.7 US Military Commission ............................................................ 180 Distinguishing the JCE Concept from Other Modes of Liability/Crimes…………………………………………………….. 182 3.5.1 Relevance of Making the Distinction.......................................... 182 3.5.2 Aiding and Abetting .................................................................... 183 3.5.3 Conspiracy................................................................................... 184 3.5.4 Membership of a Criminal Organisation .................................... 188 Issues Arising in Relation to the JCED from a Review of the JCED Jurisprudence………………………………………………………….. 193 3.6.1 Is The JCE Mode of Liability a Form of Principal or Accomplice Liability? ............................................................ 193 3.6.1.1 Significance of Classification……………………....... 194 3.6.1.2 Jurisprudence Supporting the Position that JCE Liability is a Form of Principal Liability...................... 198 3.6.1.3 Jurisprudence Supporting the Position that JCE Liability is a Form of Accomplice Liability……….… 202 3.6.1.4 Jurisprudence Supporting the Position that JCE Liability is Both a Form of Principal and Accomplice Liability………………………………………………. 203 3.6.1.5 Employment of Terminology……………………….... 211 3.6.2 Genocide and JCE Category 3 .................................................... 212 3.6.2.1 Case Law………………………………………...…… 213 3.6.2.2 Criticism of the Brdanin Appeals Decision………..… 216 3.6.3 The Pleading of the JCE Mode of Liability in Indictments ........ 218 3.6.3.1 Relevant Provisions of the ICTY Statute, ICTY Rules and Rules Arising From the Case Law of the ICTY, in Relation to the Form of Indictments……………..... 219 3.6.3.2 Blanket Pleading of All Modes of Responsibility Under Article 7(1) ICTY Statute …………………..... 221 3.6.3.3 Revealing the Nature of the Alleged Individual Criminal Responsibility of the Accused in the Prpsecution’s Pre-Trial Brief……................................. 227 3.6.3.4 JCE Specifically Charged, but not Specified which JCE Category is Being Charged…………....……........229 3.6.3.5 Permissibility of Charging Under Alternative Categories of JCE Liability........................................... 233 3.6.3.6 Concluding Remarks…………………………………. 234

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Critique of the JCED…………………………………………………... 234 3.7.1 Pertinent Issues............................................................................ 235 3.7.1.1 Rationale of the JCED…..………………….……....…235 3.7.1.2 Undermining the Principle of Individual Criminal Responsibility in Favour of Collective Responsibility………………………………………... 236 3.7.1.3 Infringement of the Nullum Crimen Sine Lege Principle………………………………………..…….. 238 3.7.1.4 JCE Scenarios Already Covered by Aiding and Abetting?................................................................ 242 3.7.1.5 Principal/Accomplice Debate……………..…………. 245 3.7.1.6 Genocide and JCE Category 3……………………...... 247 3.7.1.7 Pleading of the JCED in Indictments…..…...………... 248 3.7.1.8 Significant Level of Participation of the Accused in the JCE…..…………...……………………………. 250 3.7.1.9 The Application of the JCED to the ‘Little Fish’……. 253 3.7.1.10 The ICC and the JCE Mode of Liability……………... 255 3.7.2 Conclusion................................................................................... 258

4 The Defining Criteria of International Criminal Courts for the Purposes of Lifting State Official Immunity……………………... 263 4.1 Introduction……………………………………………………………. 263 4.2 Scope, Aim and Overview…………………………………………….. 267 4.3 Terminology…………………………………………………………… 270 4.4 Yerodia Case…………………………………………………………... 271 4.5 Defining Criteria of an International Criminal Judicial Body………… 273 4.5.1 Introduction……………………………………………………. 273 4.5.2 Defining Criteria of an International Judicial Body .................. 273 4.5.3 Jurisprudence and Literature on the Defining Criteria of an International Criminal Judicial Body……………………..277 4.5.3.1 Amicus Curiae Brief of Professor Philippe Sands….... 278 4.5.3.2 Amicus Curiae Brief of Professor Diane F. Orentlicher……………………………………...……. 281 4.5.3.3 SCSL Appeals Chamber’s Taylor Decision…………. 283 4.5.4 Defining Criteria of an International Criminal Judicial Body…. 284 4.5.4.1 Introduction…………………………..………………. 284 4.5.4.2 Legal Basis of an International Criminal Judicial Body………………………………………………….. 285 4.5.4.3 An International Criminal Judicial Body may not be Part of the Judiciary of One Single State……………...317 4.5.4.4 An International Criminal Judicial Body Shall Apply International Criminal Law………...…………..……..317 4.5.4.5 The Jurisdiction Ratione Materiae and Ratione Personae of the International Criminal Judicial Body Must be International……………………………….... 318

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4.5.4.6 The Decisions of the International Criminal Judicial Body are Binding…………………………………….. 320 4.5.4.7 The Judiciary of an International Criminal Judicial Body is Impartial, Independent and International…….320 4.5.4.8 The Judiciary must not have been Appointed Ad Hoc by the Parties………………………………..………... 321 4.5.4.9 Adjudication According to a Pre-Determined Set of Rules of Procedure and Evidence, which cannot be Modified by the Parties……………….…………... 321 4.5.4.10 Relationship with the Domestic Courts of a State: Concurrent/Primacy or Complementarity Jurisdiction…………………………………………… 322 4.5.4.11 Independent Financing of the International Criminal Judicial Body……………………………...…………. 323 4.5.4.12 Fulfilment of the Criteria Associated with Classical International Organisations……….………………….. 324 4.5.4.13 Existence of Chapter VII Powers…………………….. 324 4.5.4.14 Intention of the Parties to Establish an International Criminal Judicial Body………………………………. 326 4.5.4.15 Designation of a Judicial Body as International……... 327 4.5.4.16 Express Lifting of Immunity from Prosecution for Core International Crimes…...…………………...….. 327 4.5.4.17 Does an International Criminal Judicial Body have to be Permanent?...........................................................328 4.5.4.18 Jurisdiction Between States and the Equality of the Parties……............................................................. 328 4.5.4.19 The International Criminal Judicial Body shall have Jurisdiction only in Cases in which the Parties, Either in General, or by Special Agreement have Accepted the Jurisdiction of the Tribunal………………………. 330 4.5.4.20 Other Potential Criteria/Indicia of an International Criminal Judicial Body………………………………. 330 4.5.5 Summary of the Fundamental and Indicative Criteria of an International Criminal Judicial Body…………………..... 332 Analysis of Hybrid Criminal Judicial Bodies......................................... 334 4.6.1 Introduction ................................................................................. 334 4.6.2 Analysis ....................................................................................... 334 4.6.2.1 Special Court for Sierra Leone………..……………... 334 4.6.2.2 Extraordinary Chambers of the Courts of Cambodia... 339 4.6.2.3 Special Panels for Serious Crimes of the District Court of Dili (East Timor)…..………………….......... 341 4.6.2.4 ‘Regulation 64’ Panels of Kosovo………………….... 343 4.6.2.5 War Crimes Chamber of the State Court of Bosnia and Herzeggovina………………..…………………… 345

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4.6.2.6 Supreme Iraqi Criminal Tribunal…………………….. 347 4.6.2.7 Special Tribunal for Lebanon………………………... 350 4.6.3 Conclusion……………………………………………………... 354 Final Note…………………………………………………………….... 354 Conclusion…………………………………………………………….. 357

5 Individual Criminal Responsibility for Terrorism as a Crime Against Humanity: An Appropriate Expansive Adaptation of the Subject Matter of Core International Crimes? ……...…………………………… 359 5.1 Introduction and Overview……………………………………………. 359 5.2 Clarification…………………………………………………………… 361 5.3 Individual Criminal Responsibility for Terrorism: Defining the Categories of Criminalisation…………………………………....... 363 5.4 Individual Criminal Responsibility for Terrorism, as a Distinct Crime. 363 5.5 Individual Criminal Responsibility for Certain Manifestations of Terrorism………………………………………………………....… 375 5.6 Individual Criminal Responsibility for Terrorism, as a War Crime…... 375 5.7 Individual Criminal Responsibility for Terrorism, as Genocide……….. 376 5.8 Individual Criminal Responsibility for Terrorism, as a Crime Against Humanity………………………………………………………………. 376 5.8.1 History of the Crime of Terrorism and the ICC Statute.............. 379 5.8.1.1 1994 Draft Definition of the International Law Commission...………………………………………... 379 5.8.1.2 1996 Preparatory Committee Session………………... 381 5.8.1.3 1997 Definition of the Preparatory Committee’s Working Group………………………………………. 382 5.8.1.4 1998 Rome Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court………………..................................................... 383 5.8.1.5 End Result……………………………………….…… 384 5.8.2 Terrorism, as a Crime Against Humanity in Accordance with the ICC Statute and/or under General International Law?.......... 385 5.8.2.1 Literal Interpretation of Article 7 of the ICC Statute… 385 5.8.2.2 Indicia that Militate Against the Inclusion of Terrorism Perpetrated by Individuals Within the Scope of Article 7 of the ICC Statute….…….….... 389 5.8.2.3 Indicia that Acts of Terrorism Fall Outside the Scope of Crimes Against Humanity in General International Law................................................................... 391 5.8.3 Conclusion................................................................................... 392 5.9 Other Issues Relating to the Prosecution of Terrorism Before the ICC…………………………………………………………..…….. 396 5.9.1 Additional Obstacles to the Prosecution of Terrorism Before the ICC ........................................................................................ 397 5.9.1.1 Jurisdictional Obstacles…………………………….... 397

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5.9.1.2 Obstacle of Complementarity…….…………….……. 398 5.9.1.3 Other Obstacles…..………………………………....... 399 5.9.2 Should Terrorism Fall Within the Jurisdiction of the ICC?........ 400 5.9.3 Conclusion................................................................................... 401 5.10 Appropriate Expansive Adaptation of Core International Crimes?........ 402 6 Summary……………………………………………………………………. 405 6.1 Introduction……………………………………………………………. 405 6.2 Summary………………………………………………………………. 405 6.3 Significance of Conclusions…………………………………….……... 411 Bibliography…………………………………………………………………… 413 Jurisprudence ..................................................................................................... 439 Index .................................................................................................................... 453

Acknowledgements

This book is my doctoral thesis submitted to the Faculty of Law at the University of Copenhagen in September 2007. During the course of my research, I have been fortunate to receive the valuable input and support of colleagues and family. A number of persons deserve special thanks. Firstly, I extend my warmest gratitude to Professor Vagn Greve, my supervisor, for his legal incisiveness, engagement and dedication. Over and above the invaluable academic input received, I am also grateful to Professor Greve for introducing me to the civil law lawyer’s perspective on the world. Having come from a common law background, I am, no doubt, like so many other common law lawyers, at times blinkered by my own legal background. It has been refreshing to be challenged to view legal issues from outside my own frame of reference and the experience has given me a deeper understanding of the genuine difficulties which can arise in international criminal law due to different legal traditions. The experience has also, hopefully, made me a more ‘rounded’ international criminal lawyer. I also extend my gratitude to the members of my Ph.D. Committee, Professor Iain Cameron, Uppsala University, Professor William Schabas, National University of Ireland and Professor Ole Spiermann, University of Copenhagen, to Assistant Professor Christoffer Wong, Lund University, who was the opponent in my evaluation seminar on 27 April 2007, as well as to all of the participants in the seminar, for their comments and feedback. Moreover, thanks are due to Professor and Deputy Dean Jørn Vestergaard, Stéphanie Lagoutte, Researcher at the Danish Institute for Human Rights, Peter Vedel Kessing and Anders Henriksen for their valuable feedback to an internal presentation of my findings in Chapter 5 concerning terrorism as a crime against humanity. Likewise, I extend my thanks to Professor Ole Espersen, who was my supervisor in the early stages of my research, until his retirement. In connection with my research, I had the pleasure of attending the Lauterpacht Centre for International Law at the University of Cambridge in the Autumn of 2004, as a Visiting Scholar. I extend my sincere thanks to the Centre and its members for the wonderfully warm and engaging environment during my stay. My gratitude is also due to Det Finneske Legal for its generous financial support in the publication of this book. Finally, I express my deepest appreciation to my husband, Søren and to our children, Shannon and Casper, who never cease to amaze and inspire me and help me to keep sight of the important things in life.

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Part I- General

1 Introduction1

1.1 Opening Remarks and Objectives 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.2

This is, perhaps, the most renowned citation from the judgment of the International Military Tribunal at Nuremberg (“IMT”). In the six decades which have passed since the IMT judgment was handed down, the recognition of the concept of individual criminal responsibility for core international crimes has been significantly reinforced and developed, particularly since the establishment of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) in the 1990’s and most recently the International Criminal Court (“ICC”). The media has, of course, played a crucial role in increasing awareness of this concept, especially amongst the general populace. Indeed, the concept has, arguably, a much higher profile today, than ever before in its history. However, the concept of individual criminal responsibility for core international crimes is neither as straightforward nor as single-facetted, as might appear on first glance. While the general principle behind the concept does not generate too many difficulties, it is in its practical application that the more challenging aspects of the concept are brought to the fore. Each of these ‘challenging aspects’ can also be described as a ‘pertinent issue’ of the concept of individual criminal responsibility for core international crimes. This thesis analyses a number of the pertinent issues concerning individual criminal responsibility for core international crimes in international criminal law. It has, however, proved difficult to select the specific pertinent issues on which this thesis should focus. Many suitable candidates come to mind: for example, (i) the increased recognition and prosecution of gender-based crimes;3 1 2

3

This thesis encompasses material available as of 1 August 2007, unless otherwise indicated. Judgement of the International Military Tribunal, Trial of Major War Criminals before the IMT, Nuremberg, (14 Nov. 1945 – Oct. 1946), p. 41. The IMT judgment is also available at http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm (last visited 6 March 2007). In this regard, see for example, Kelly D. Askin, “Stefan A. Risenfeld Symposium 2002: Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law:

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1 Introduction

(ii) the role to be played by, and the merits of, hybrid international-domestic bodies;4 (iii) the increased employment of universal jurisdiction by national courts;5 (iv) whether international criminal prosecutions of individuals are effective in achieving the goals of international criminal justice, or whether alternative mechanisms of accountability should be seriously considered;6 and (v) the selective application of international criminal law.7 In the end, the decision was made to focus on three pertinent issues: 1. The joint criminal enterprise doctrine: A “monster theory of liability” or a legitimate and satisfactory tool in the prosecution of the perpetrators of core international crimes? 2. The defining criteria of international criminal courts for the purposes of lifting state official liability.

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Extraordinary Advances, Enduring Obstacles”, 21 Berkeley J. Int’l L. 288 (2003); James R. McHenry III, “The Prosecution of Rape under International Law: Justice that is Long Overdue”, 35 Vand. J. Transnat’l L. 1269 (2002); Jocelyn Campanaro, “Women, War and International Law: The Historical Treatment of Gender-Based War Crimes”, 89 Geo. L. J. 2557 (2001); and Ciara Damgaard, “The Special Court for Sierra Leone: Challenging the Tradition of Impunity for Gender-based Crimes?”, 73 Nordic Journal of International Law 485 (2004). For example, the Special Court for Sierra Leone, the Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili (East Timor), the ‘Regulation 64’ Panels of Kosovo and the soon to be established Special Tribunal for Lebanon. For a consideration of the legal basis of such hybrid bodies, see infra Chapter 4. For example, in Belgium (see International Justice Tribune, No. 16, 6 December 2004, p. 2 and No. 66, 16 April 2007, p. 1), Canada (see International Justice Tribune, No. 65, 2 April 2007, p. 1), France (see The Tocqueville Connection, 1 July 2005, available at http://www.ttc.org/200507011951.j61jpui09085.htm (last visited 4 July 2005)) and Spain (see International Justice Tribune, No. 24, 25 April 2005, p. 4). The English courts have also relied on universal jurisdiction in relation to the prosecution of the crime of torture. See International Justice Tribune, No. 30, 25 July 2005, p. 2. This subject is briefly considered in infra Chapter 2, section 2.3. See generally, Steven R. Ratner and James L. Bischoff (eds.), International War Crimes Trials: Making a Difference? Proceedings of an International Conference held at the University of Texas School of Law, November 6–7, 2003. For example, some argue that President Bush should be tried for the alleged illegal use of force by the USA in Afghanistan and Iraq. The ICC Office of the Prosecutor has received over 240 communications concerning the situation in Iraq, including allegations concerning the legality of the conflict in Iraq. However, as the crime of aggression is still not within the jurisdiction of the ICC (due the absence of a definition of such crime), the ICC Prosecutor has determined that he does not have the mandate to address such allegations. See Letter of Luis Moreno-Ocampo, Chief Prosecutor of the ICC, 9 February 2006, p. 4, available at http://www.icc-cpi.int/library/organs/otp/OTP _letter_ to_senders_re_Iraq_9_February_2006.pdf (last visited 24 June 2007).

1.1 Opening Remarks and Objectives

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3. Individual criminal responsibility for terrorism as a crime against humanity: An appropriate expansive adaptation of the subject matter of core international crimes? The rationale behind the choice of each of the selected pertinent issues is different. A consideration of the first pertinent issue, the joint criminal enterprise doctrine, is undertaken, as this mode of liability, the application of which can result in the imposition of individual criminal responsibility for inter alia core international crimes, raises, in the author’s view, a number of concerns. This is the case, notwithstanding its current extensive use before the ad hoc international criminal courts. The doctrine, arguably, is imprecise, dilutes standards of proof, undermines the principle of individual criminal responsibility in favour of collective responsibility, infringes the nullum crimen sine lege principle and infringes the right of the accused to a fair trial. Moreover, the research undertaken indicates a lack of agreement as to whether the joint criminal enterprise mode of liability is a form of principal or accomplice liability. Such disagreement is significant inter alia in terms of the truth-telling function of the international criminal law system, and is especially significant in the light of the ICC’s Rules of Procedure and Evidence, which could result in the accused being handed down a much harsher sentence before the ICC, on the basis of the joint criminal enterprise mode of liability, than if he had appeared before the ICTY or ICTR. In addition, it does seem prima facie desirable that the actus reus of the doctrine be altered to require the significant participation of the accused, rather than merely any level of participation. Notwithstanding the numerous criticisms which can, arguably, be directed at the joint criminal enterprise mode of liability, the literature on this subject, has, until recently, been sparse. By addressing this issue, it is the objective of this thesis to contribute to the plugging of this ‘gap’ in the literature and to stimulate a discussion of this topic by underscoring its numerous shortcomings. It is not the author’s contention that the joint criminal enterprise mode of liability should be retired completely; however, the shortcomings of the doctrine need to be addressed in order to ensure that they neither undermine the legitimacy and satisfactoriness of the doctrine as a prosecutorial tool, nor the international criminal justice system itself. The second pertinent issue to be addressed is the defining criteria of an international criminal court/tribunal, for the purposes of the rules in international law on the lifting of immunity from prosecution of state officials for core international crimes. The lifting of such immunity is central to whether or not individual criminal responsibility can be imposed on persons in official capacity, such as a Head of State or Government, a member of Government or parliament, an elected representative or a government official, who has perpetrated a core international crime. In Democratic Republic of the Congo v Belgium (“Yerodia case”),8 a majority of the bench of the International Court of Justice (“ICJ”) held 8

Case concerning Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), 2002 ICJ.

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1 Introduction

that whereas an incumbent or former Minister for Foreign Affairs enjoys absolute immunity from criminal prosecutions before national courts for war crimes and crimes against humanity, an incumbent or former Minister for Foreign Affairs may be subject to criminal prosecution for the same crimes before certain international criminal tribunals, where such tribunals have jurisdiction over the crime in question. Accordingly, the international or domestic status of a tribunal or court is, apparently, of vital importance in the context of the discussion on immunity from prosecution for core international crimes. Although, the ICTY, ICTR and ICC are generally considered to be international criminal tribunals/courts, there exists no general agreed legal definition of an international criminal court/tribunal, nor a list of the defining criteria which must be satisfied in order for a judicial body to be categorised as an international criminal court/tribunal. The plethora of hybrid international-domestic bodies has only clouded this issue further. For example, even though the Special Court for Sierra Leone (“SCSL”) is generally considered to be a hybrid international-domestic body, the Appeals Chamber of the SCSL determined that it was an international criminal court in its “Decision on Immunity from Jurisdiction” in the Prosecutor v Charles Ghankay Taylor case.9 Can other hybrid international-domestic bodies also be classified as international criminal tribunals/courts for the purposes of the rules in international law on the lifting of immunity from prosecution for core international crimes? Given the significance of this issue, this thesis will attempt to identify the defining criteria of an international criminal court/tribunal, and in this regard will consider the hybrid international-domestic bodies currently in existence, as well as the soon to be established Special Tribunal for Lebanon, to determine to what extent each can be categorised as an international criminal court/tribunal. This pertinent issue has been chosen due to the absence of agreement on the defining criteria of an international criminal court/tribunal and the ever increasing importance of this issue in the context of immunity from prosecution for core international crimes. By addressing this issue, it is the objective of this thesis to contribute to a serious consideration of the defining criteria of an international criminal court/tribunal and to highlight how the establishment of the ICTY/ICTR, both established by way of United Nations (“UN”) Security Council Chapter VII resolutions, and the SCSL, established by way of an agreement between the UN and the Government of Sierra Leone, have each challenged the traditional position that an international criminal court/tribunal can only be established by way of an international treaty. The third and final pertinent issue to be considered is that of individual criminal responsibility for terrorism, as a crime against humanity. Acts of terrorism continually beleaguer our world, and accordingly generate much discourse, including a discussion on the legal remedies which can be found in international criminal law to impose individual criminal responsibility for such acts. Subsequent to the attacks of September 11th, 2001, various stakeholders attempted, for 9

Prosecutor v Charles Ghankay Taylor, Case No.: SCSL-2003-01-I, “Decision on Immunity from Jurisdiction”, App. Ch., 31 May 2004.

1.1 Opening Remarks and Objectives

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the first time, to pigeonhole the attacks as inter alia falling within the definition of crimes against humanity and suggestions have been made that acts of terrorism can, and should, be prosecuted before the ICC. But is there any real substance behind these contentions, or do they amount to ‘wishful thinking’? Often the ICC is heralded as the panacea to the evils of international crimes, but is it really the missing key in the fight against acts of terrorism? Chapter 5 will consider these issues in detail, in particular, the categories of criminalisation of individual criminal responsibility for terrorism; the history of the crime of terrorism in relation to the ICC Statute;10 whether terrorism falls within the definition of crimes against humanity in general international law, and/or within Article 7 of the ICC Statute (which defines crimes against humanity for the purposes of the ICC Statute); the existing obstacles to the prosecution of terrorism before the ICC; whether terrorism should actually fall within the jurisdiction of the ICC; and whether imposing individual criminal responsibility for terrorism as a crime against humanity is an appropriate expansive adaptation of the subject matter of core international crimes. The proposed classification of terrorism as a crime against humanity represents a potential expansion of the subject matter of crimes against humanity, a core international crime, for which individual criminal responsibility can be imposed. Such classification is especially relevant today, bearing in mind that many contemporary acts of terrorism are not committed within the traditional confines of war or an armed conflict, and accordingly, calls for the prosecution of terrorism as a crime against humanity, which can be committed in both peacetime and war, are likely to materialise again in the future. The objective behind the consideration of this pertinent issue is to attempt to provide a detailed analysis of the contention that acts of terrorism fall within the definition of crimes against humanity in general international law and/or the ICC Statute. By doing so, the author hopes to substantively contribute to an understanding of this issue, on which there is much disagreement. The primary objectives of this thesis have been identified in the context of the pertinent issues to be addressed. However, in order to achieve these primary objectives, it has proved relevant to consider some of the more basic, yet fundamental, components of international criminal law, and more particularly of the concept of individual criminal responsibility for core international crimes. Thus, consideration is also given to the following issues: (i) the meaning of the expression ‘individually criminally responsible’; (ii) the objectives underlying the imposition of individual criminal responsibility for core international crimes; (iii) the sources of, and judicial precedent in international criminal law; (iv) the definition of core international crimes, in particular, the crime of genocide, war crimes and crimes against humanity; and (v) the evolution of the concept of individual criminal responsibility for core international crimes in international law.

10

Adopted on 17 July 1998 and entered into force on 1 July 2002. The ICC Statute is available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English. pdf (last visited 17 July 2007).

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1 Introduction

An explanation of the term ‘individually criminally responsible’ is essential in order to clarify the scope of this thesis and to set its boundaries from the outset. A consideration of the objectives of individual criminal responsibility for core international crimes has been included, as this issue underlies the whole concept of individual criminal responsibility. Why does the international community seek to impose individual criminal responsibility for core international crimes on perpetrators? Another crucial issue underlying this thesis concerns the sources of international criminal law. It is essential to identify the sources of international criminal law upon which this thesis purports to rely, particularly as the sources of international criminal law are not clear-cut and a general codification of these sources has not yet been formulated. An associated issue is the status of the principle of judicial precedent before the international criminal courts/tribunals. As will become apparent, the jurisprudence emanating from these institutions and scholarly opinions on this matter are not in complete agreement. Accordingly, a review of this issue is warranted. A consideration of the definition of core international crimes is included in order to clarify what is meant by this term, whereas the crime of genocide, war crimes and crimes against humanity are expanded upon, due to their relevance in the context of the pertinent issues addressed in this thesis. Finally, the evolution of the concept of individual criminal responsibility is considered in order to trace the development of this concept and to illustrate that it is a firmly established concept in international criminal law today.

1.2 Overview and Target Audience This thesis is divided into two parts, “Part I – General”, consisting of Chapter 1, being the current introductory chapter and Chapter 2, and “Part II – Selected Pertinent Issues”, consisting of Chapters 3 to 6. Chapter 2 concerns a number of germane considerations in relation to this thesis, i.e. (i) What does it mean to be ‘individually criminally responsible’ for core international crimes? (ii) What are the objectives underlying the imposition of individual criminal responsibility for core international crimes? (iii) Sources of, and judicial precedent in, international criminal law, (iv) Definition of core international crimes, and (v) Evolution of the concept of individual criminal responsibility for core international crimes in international law. Chapter 3 considers the first pertinent issue to be analysed in this thesis, i.e. “The joint criminal enterprise doctrine: A “monster theory of liability” or a legitimate and satisfactory tool in the prosecution of the perpetrators of core international crimes?” Chapter 4 deals with the second pertinent issue: “The defining criteria of international criminal courts for the purposes of lifting state official immunity”. Chapter 5 concerns the final pertinent issue to be analysed in this thesis, i.e. “Individual criminal responsibility for terrorism as a crime against humanity:

1.2 Overview and Target Audience

9

An appropriate expansive adaptation of the subject matter of core international crimes?” Finally, Chapter 6, entitled “Summary” recapitulates the conclusions reached on the basis of the research conducted in relation to Chapters 3–5 and considers the significance of each of the selected pertinent issues in relation to the concept of individual criminal responsibility for core international crimes in international criminal law. Aside from the obvious target audience of international criminal law academics, it is hoped that this thesis will also prove of value and interest to international criminal law practitioners, whether judges, prosecutors or defence lawyers, as well as non-governmental organisations and students of international criminal law.

2 Germane Considerations

2.1 Introductory Remarks Before beginning a consideration of the selected pertinent issues identified in relation to the concept of individual criminal responsibility for core international crimes, it is apposite to briefly examine some of the broader underlying issues of the proposed topic. Firstly, the title of this thesis refers to selected pertinent issues concerning the concept of ‘individual criminal responsibility’ for core international crimes. But what does it mean to be ‘individually criminally responsible’ for core international crimes? A brief discussion of this matter will be undertaken for clarification purposes and to define the boundaries of this thesis. Secondly, what are the actual objectives underlying the concept of individual criminal responsibility for core international crimes? Clearly an answer to this question is central to an understanding of the concept of individual criminal responsibility. Surprisingly perhaps, it is only in recent times that this topic has generated any substantial academic interest. A detailed and considered answer to the question posed cannot be achieved within the confines of this chapter, and neither is it the ambition of this thesis to provide such an answer. The aim is merely to set the background for the subsequent discussion on the pertinent issues of the concept of individual criminal responsibility for core international crimes, and to avoid the omission of many commentators, of neglecting to address this issue at all. Thirdly, the sources of international criminal law will be addressed. A consideration of these sources is warranted on two grounds. To begin with, the sources of international criminal law are not well-established, notwithstanding their affinity to the sources of international law. Much international jurisprudence and academic literature appears, however, to presume what these sources are, without any consideration being given to whether the ‘source’ relied upon is actually a valid source of international criminal law, or whether it can be said to be merely of ‘persuasive authority’. Secondly, the identification of the sources of international criminal law is, clearly, relevant to every substantive aspect of this thesis. Accordingly, it is essential to identify the sources which can be relied upon for the purposes of this thesis. Consideration will be given to the general sources of international criminal law as well as the sources relevant to adjudication before the ICC and the ad hoc international criminal tribunals. Consideration will also be given to the status of the principle of judicial precedent before the ad hoc international criminal tribunals and the ICC, as the jurisprudence emanating from these institutions, and scholarly opinions on this matter are not in complete agreement.

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2 Germane Considerations

Fourthly, the definition of core international crimes will be considered. Due to the uncertainty surrounding the key elements of the generic category of international crimes, consideration will be given to their definition and fundamental criteria. In addition, a brief description of the crime of genocide, war crimes and crimes against humanity will be undertaken, due to the relevance of such description for the purposes of the discussion of the pertinent issues addressed in this thesis. The definition of genocide is particularly relevant, both in the context of the discussion in Chapter 3 on the joint criminal enterprise doctrine and the crime of genocide, and the discussion in Chapter 5 concerning the role which the ICC can play in the prosecution of acts of terrorism. The definition of war crimes is similarly relevant in the context of the discussion in Chapter 5 concerning individual criminal responsibility for terrorism, as a war crime. Moreover, the definition of crimes against humanity is particularly relevant for the purposes of the discussion in Chapter 5 concerning individual criminal responsibility for terrorism as a crime against humanity and the role which the ICC can play in the prosecution of terrorism. As this thesis concerns individual criminal responsibility for core international crimes, the final section of this chapter will review the evolution of the concept of individual criminal responsibility for core international crimes in international law. The purpose of this section is twofold: firstly, it is to trace the evolution of the concept of individual criminal responsibility for core international crimes in international law and in this connection, to demonstrate that the concept is a firmly established principle of international law today, and as an aside, to demonstrate that contrary to popular belief, the concept of individual criminal responsibility, at least as regards crimes committed in the context of an armed conflict, was recognised in international law prior to World War II; secondly, in the context of its examination of the relevant provisions of the ICTY, ICTR and ICC Statutes for the purposes of tracing the evolution of the concept of individual criminal responsibility, its additional purpose is to provide some general guidance as to the main constituent elements of the principle of individual criminal responsibility for core international crimes, as reflected in those statutes.

2.2 Meaning of ‘Individually Criminally Responsible’ The phrase ‘individually criminally responsible’ can, for current purposes, be divided into two parts, that of ‘individually’ and that of ‘criminally responsible’. The words ‘individual’ or ‘individually’ are employed to illustrate that the subjectmatter of this thesis concerns the criminal responsibility of individuals or natural persons, as opposed to corporate entities or States. The term ‘individual criminal responsibility‘ is also commonly employed to describe the scenario where an individual is criminally responsible for his own unlawful actions, as opposed to being criminally responsible for the unlawful actions of others, which is encompassed by the term ‘collective criminal responsibility.’ One of the pertinent issues explored in this thesis is the joint criminal enterprise mode of liability, which has been criticised for inter alia undermining the principle

2.2 Meaning of ‘Individually Criminally Responsible’ 13

of individual criminal responsibility in favour of collective criminal responsibility.1 It could thus be argued, that the employment of the phrase ‘individual criminal responsibility’ is inappropriate in the current context. However, as will be seen in Chapter 3, the author is of the view that the proposition that the application of the joint criminal enterprise doctrine amounts to the imposition of collective criminal responsibility is not warranted in relation to the first and second categories of the joint criminal enterprise doctrine, commonly referred to as ‘co-perpetration cases’ and ‘concentration camp cases’ respectively. Whereas the third category of the joint criminal enterprise doctrine, concerning crimes committed outside the common purpose, is, in the author’s view, in danger of falling foul of the collective criminal responsibility concept, the author has nonetheless determined to employ the phrase ‘individual criminal responsibility’, to emphasise that this thesis concerns natural persons and not other juridical persons.2 The reference to ‘criminal responsibility’ for core international crimes in this thesis refers to the criminal (as opposed to civil) responsibility of individuals for core international crimes, as that responsibility arises under the provisions of international criminal law. By way of clarification, it does not encompass individual criminal responsibility for core international crimes resulting from the exercise, by a State, of universal jurisdiction over the perpetrator of a core international crime, notwithstanding that the concept of universal jurisdiction is a creature of international criminal law.3 Neither does it encompass individual criminal responsibility for core international crimes which is specifically provided for in domestic criminal legislation.4 This discussion begs another question: To whom, or to what, is one individually criminally responsible for the perpetration of a core international crime? Or in other words, what is the authority that a perpetrator of a core international crime must answer to, and what authority can impose penalties if an individual commits a core international crime? In many domestic criminal law scenarios, if a perpetrator commits a crime, he has to answer for that crime to the State. The victim forsakes his right to seek revenge for the crime committed to the State, who in turn establishes a legal system to prosecute the perpetrator(s). Bassiouni refers to this as the “implied social contract” between the individual and the State.5 But does such an implied

1 2 3 4

5

See infra Chapter 3, section 3.7.1.2. Ibid. See infra note 179. A growing number of States, especially those which have introduced new domestic criminal legislation in response to their ratification of the ICC Statute have specific domestic legislation which enables local domestic courts to adjudicate over the perpetrators of core international crimes, in accordance with the provisions of domestic criminal law. The ICC Statute, which is available at http://www.icc-cpi.int/library/ about/officialjournal/Rome_Statute_English.pdf (last visited 1 June 2007), was adopted on 17 July 1998 and entered into force on 1 July 2002. M. Cherif Bassiouni, Introduction to International Criminal Law, Transnational Publishers, Inc., Ardsley, New York, 2003, pp. 676–677.

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social contract exist at the international level, and if it does, who represents the State in the comparable international scenario? Bassiouni posits that the implied social contract theory also applies in international criminal law, which results in the establishment of a duty on the part of the individual to obey the norms of international criminal justice in exchange for the international community’s duty to provide security by punishing those who breach its norms.6 But on a practical level, what does this actually mean? As will be seen in sections 2.5 and 2.6, historically, the sources of international criminal law have occupied themselves with prohibiting certain acts, in order to ensure the waging of armed conflicts in compliance with the laws of war. They failed to articulate the actual criminal consequences for the perpetrators of breaching the specified prohibitions. Any enforcement of those prohibitions was left to States and not to some overarching international institution. By way of a direct comparison to the domestic scenario thus, there is no single international entity at the international level which is responsible for prosecuting the perpetrators of core international crimes and for imposing penalties on them. The international courts which have been established are all limited by their provisions concerning subject-matter and temporal jurisdiction. Even the ICC, which is hailed as a permanent international criminal court, is restrained by the numerous jurisdictional obstacles and the complementarity provisions contained in its Statute.7 Clearly, a direct comparison between the two systems does not generate a simple answer. However, bearing in mind that this thesis concerns individual criminal responsibility which arises purely on an international criminal law level, the question posed can be answered in the following manner: For the purposes of this thesis, an individual is criminally responsible for the perpetration of core international crimes, to an international criminal court/tribunal or a hybrid international-domestic body, to the extent that the constitutive documents of such tribunal/court provides for jurisdiction over such crimes.8 This thesis is not concerned with an individual 6 7

8

Ibid., p. 690. For example, the ICC currently only has jurisdiction with respect to war crimes, crimes against humanity and genocide committed after the entry into force of the ICC Statute, i.e. 1 July 2002. See supra note 4, Article 11(1). Of course, one of the complexities of international criminal law is that even the existing international criminal courts/tribunals are not totally independent of the involvement of States. For example, notwithstanding their status as international criminal courts/ tribunals, each of the ICTY, ICTR and ICC rely on States to enforce their orders and judgments. Bassiouni has identified two legal regimes of enforcement for international criminal law: (i) the direct enforcement regime which encompasses international judicial institutions which have the power to enforce their orders and judgments without relying on States or any other legal authority (e.g. the IMT and the IMFTE which each could investigate, prosecute, adjudicate, determine sanctions and enforce its sentences without State or other involvement); and (ii) the indirect enforcement regime which encompasses the enforcement of international criminal law through national legal systems. Neither the ICTY, the ICTR nor the ICC fit neatly into either category, due to their reliance on States for the enforcement of their orders and judgments. See Bassiouni, supra note 5, pp. 18–21 and pp. 333–494.

2.3 Objectives of Individual Criminal Responsibility for Core International Crimes

15

who is criminally responsible for the perpetration of core international crimes to a domestic court, whether or not such liability has its foundations in domestic or international criminal law.

2.3 Objectives of Individual Criminal Responsibility for Core International Crimes The objectives of individual criminal responsibility for core international crimes are inextricably linked with (i) the elementary objectives underlying international criminal law itself, and more particularly, (ii) the purposes of sentencing in international criminal law, as sentencing is the medium through which such objectives are expressed and hopefully, enforced. While much has been written about the objectives of domestic prosecutions, it is only in recent times that scholars have begun to focus on the objectives of punishment in international criminal law,9 and much research remains to be done. As one commentator has noted, international criminal law does not have “its own sense of why it operates” and as a result, he calls for an “intellectually honest appraisal” of the conceptual and philosophical

9

See, for example, unspecified authors, “Developments in the Law, International Criminal Law”, 114 Harv. L. Rev. 1962 (2000–2001), pp. 1961–1982; Immi Tallgren, “The Sensibility and Sense of International Criminal Law”, 12 EJIL 561 (2002); Mark A. Drumbl, “Toward a Criminology of International Crime”, 19 Ohio State Journal on Dispute Resolution 263 (2003); Ralph Henham, “The Philosophical Foundations of International Sentencing”, 1 J. Int’l Crim. Jus. 64 (2003); Paul Roberts and Nesam McMillan, “For Criminology in International Criminal Justice”, 1 J. Int’l Crim. Jus. 315 (2003); Bassiouni, supra note 5, pp. 673–740; James Meernik and Kimi King, “The Sentencing Determinants of the International Criminal Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis“, 16 Leiden J. Int’l L 717 (2003); Stephen M. Sayers, “Defence Perspectives on Sentencing Practice in the International Criminal Tribunal for the Former Yugoslavia”, 16 Leiden J. Int’l L 751 (2003); Salvatore Zappalá, Human Rights in International Criminal Proceedings, Oxford University Press, Oxford, 2003, pp. 206–207; Tzvetan Todorov, “The Limitations of Justice” 2 J. Int’l Crim. Jus. 711 (2004); Danilo Zolo, “Peace through Criminal Law?”, 2 J. Int’l Crim. Jus. 727 (2004); Mark A. Drumbl “Collective Violence and Individual Punishment: The Criminality of Mass Atrocity”, 99 Northwestern University Law Review 539 (2005); Elies van Sliedregt, “Criminal Responsibility in International Law, Liability Shaped by Policy Goals and Moral Outrage”, 14 European Journal of Crime, Criminal Law and Criminal Justice 81 (2006); Mirko Bagaric and John Morss, “International Sentencing Law: In Search of a Justification and Coherent Framework”, 6 International Criminal Law Review 191 (2006); and Robert D. Sloane, “The Expressive Capacity of International Punishment”, Colombia Public Law & Legal Theory Working Papers, Paper no. 06100, 4 May 2006, available at http://lsr.nellco.org/columbia/pllt/ papers/06100/ (last visited 28 June 2007). See also Mark A. Drumbl, Atrocity, Punishment, and International Law, Cambridge University Press, Cambridge, 2007, pp. 149–180.

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foundations of international criminal law.10 Another has posited that the practice of the ad hoc international criminal tribunals indicates a … significant lack of clarity… in addressing issues that are fundamental to any sentencing system. They concern the significance of punishment, the reasons for its imposition and its signification. Although the predominant purpose of imposing punishment in these international criminal tribunals appears to be retribution, the justification remains unclear beyond exhortations that the selected punishment is a necessary response on the part of the civilized world to gross violations of international humanitarian law.11

There are a number of factors which arguably have contributed to this state of affairs. Firstly, the nascent stage of international criminal law. Unlike domestic criminal law systems which have often developed over centuries, international criminal law is, in reality, still quite rudimentary. Secondly, international criminal law has developed in response to current events, rather than being the product of a cohesive, well-thought-out and structured policy.12 Thirdly, international criminal law has been, and continues to be, used as a means to achieve the goals underlying

10

11

12

Drumbl (2003), supra note 9, p. 279. See also generally Drumbl (2005), supra note 9; Zolo, supra note 9; “Remarks of Mark Drumbl”, at the Opening Session of the international conference “International War Crimes Trials: Making a Difference?”, 6 November 2003, printed in Steven R. Ratner and James L. Bischoff (eds.), International War Crimes Trials: Making a Difference? Proceedings of an International Conference held at the University of Texas School of Law, November 6–7, 2003, pp. 29–33; and William A. Schabas, “International Sentencing: From Leipzig (1923) to Arusha (1996)”, in M. Cherif Bassiouni (ed.), International Criminal Law, Transnational Publishers, Inc., Ardsley, New York, 2nd ed., 1999, Vol. III, p. 171 (“the goals underlying punishment are not necessarily clear, and do not always fit snugly with criminal law theory developed within the context of domestic systems”) and pp. 189–193. Henham, supra note 9, p. 72. This of course, can have many undesirable consequences, resulting inter alia in “ex post facto rationalizations” of the philosophical justifications for international punishment (see generally Henham, supra note 9, and more particularly p. 67); insufficient and/or inconsistent elaboration of the general principles of international criminal law and uncertainty and confusion in construing rules, and inconsistent sentences that are unsuitable to the goals underlying criminal justice (see Zolo, supra note 9, p. 728); and a disconnection between the ad hoc international criminal tribunals and the local communities in the former Yugoslavia and Rwanda (Drumbl, supra note 10, p. 30). Ralph Henham, moreover, posits that “the absence of penological justifications in the foundation documentation and Statute of the ICC weakens its claims to provide a rational foundation for the exercise of democratic principles of criminal justice”. See Ralph Henham, “Some Issues for Sentencing in the International Criminal Court”, 52 ICLQ 81 (2003), p. 87. Bassiouni, with whom the author agrees, does not see any change in this approach in the near future. “The international criminal justice system will not likely occur as a result of planning and sound legal techniques, but rather it will develop as a result of nonorderly processes in which fortuitous events and practical exigencies will incrementally enhance the goals intended to be attained.” See Bassiouni, supra note 5, p. 683.

2.3 Objectives of Individual Criminal Responsibility for Core International Crimes

17

realpolitik.13 A fourth factor has also been articulated, i.e. that the “abhorrent nature of ICL [international criminal law] violations and the catastrophic circumstances that serve as the principal catalyst for ICL’s development – the rupture, by war, national, religious or ethnic conflict, or otherwise, of basic social norms against brutal violence – invite “intuitive-moralistic answers”, making debate about the rationales for punishing serious human rights atrocities seem pejoratively academic”.14 Notwithstanding this, it is, possible to identify some of the apparent objectives of international criminal law and accordingly, the objectives underlying the imposition of individual criminal responsibility for core international crimes. A good starting point in our investigation is the constitutive documents of the ICC, ICTY, ICTR, SCSL, IMT and the International Military Tribunal for the Far East (“IMFTE”), each of which is/was empowered to prosecute the perpetrators of core international crimes. The Preamble of the ICC Statute provides. The State Parties to this Statute… Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole, must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes… Resolved to guarantee lasting respect for the enforcement of international justice.15

Accordingly, the ICC Statute appears to identify five objectives of individual criminal responsibility for core international crimes: (i) the prevention/removal of threats to the peace and security of the world (resulting from the perpetration of core international crimes); (ii) retribution; (iii) the ending of impunity; (iv) the

13

14 15

See Roberts and McMillan, supra note 9, p. 322, who note that “(international) legal prohibitions are the outcome of political strategy and negotiation, and therefore, in the straightforward sense, the product of political power”. In Bassiouni’s view, “contemporary international criminal justice is still locked in struggle against the practices of realpolitik, which reflect the political realist view of power’s precedence over legal legitimacy”. See Bassiouni, supra note 5, pp. 683 and 690. Furthermore, in Bassiouni’s view, the era of globalisation (which accommodates transnational crimes and the commission of international crimes) will have a significant impact upon the philosophy and policy of international criminal justice in the future. Ibid., pp. 685 and 673–740. For a general discussion of the factors resulting in international criminal law lacking its own sense of why it operates, see also Drumbl (2003), supra note 9, p. 279. He identifies three grounds for this state of affairs: (i) the relative youth of international criminal law, (ii) the urgency with which international criminal law is undertaking its task and (iii) the reality that international criminal law operates within the “chaotic state of nature of international relations”. Ibid. See Sloane, supra note 9, p. 1. Emphasis added. Preamble, §§ 2–5 and 11, ICC Statute, supra note 4.

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prevention of the perpetration of core international crimes; and (v) respect for international criminal law. Neither the Statute of the ICTY nor the ICTR expressly indicates which objectives underlie its establishment.16 However, the UN Security Council resolutions, pursuant to which these tribunals were established, identify the following objectives for the imposition of individual criminal responsibility for core international crimes: (i) the prevention/removal of threats to the peace and security of the world;17 (ii) retribution;18 (iii) the halting of the perpetration of core international crimes;19 and (iv) the restoration and maintenance of the peace.20 The constitutive documentation of the SCSL indicates that the objectives behind the establishment of the SCSL include: (i) the ending of impunity; (ii) the restoration and maintenance of peace and national reconciliation;21 (iii) compliance with international criminal law; and (iv) the prevention/removal of threats to the peace and security of the world;22 while the objectives behind the IMT and the IMTFE were less ambitious than those of their institutional successors, confining themselves expressly to the aim of judging and punishing individuals.23 Scholars24 and the case law of the ad hoc international criminal tribunals

16

17

18 19 20 21

22 23

24

Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May 1993 by UN Security Council Resolution 827, as amended, available at http:// www.un.org/icty/legaldoc-e/index.htm (last visited 17 July 2007) (“ICTY Statute”), the Statute of the International Criminal Tribunal for Rwanda, adopted 8 November 1994 by UN Security Council Resolution 955, as amended, available at http://69.94.11.53/ ENGLISH/basicdocs/statute.html (last visited 17 July 2007) (“ICTR Statute”). UN Security Council Resolution 827, U.N. SCOR, Annex, U.N. doc. S/RES/827 (1993) (“ICTY Resolution”), preamble, § 4 and UN Security Council Resolution. 955, U.N. SCOR, Annex, U.N. Doc. S/RES/955 (1994) (“ICTR Resolution”), preamble, § 5. ICTY Resolution, ibid., § 7 and ICTR Resolution, ibid., § 6. ICTY Resolution, supra note 17, §§ 5 and 7 and ICTR Resolution, supra note 17, §§ 6 and 8. ICTY Resolution, supra note 17, § 6 and ICTR Resolution, supra note 17, § 7. One commentator has posited that this is also one of the goals underlying international justice in the context of the Supreme Iraqi Criminal Tribunal. See Michael P. Scharf, “Is it International Enough? A Critique of the Iraqi Special Tribunal in the light of the Goals underlying International Justice”, 2 J. Int’l Crim. Jus. 330 (2004), p. 331. UN Security Council Resolution 1315, U.N. SCOR, U.N. doc. S/RES/1315 (2000), Preamble, §§ 6, 7 and 13. See Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis; 59 Stat. 1544, 82 U.N.T.S. 279, 3 Bevans 1238, available at http:// www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm (last visited 17 July 2007) (“IMT Charter”), preamble, § 2 and Charter of the International Military Tribunal for the Far East dated 19 January 1946, as amended on 26 April 1946; TIAS 1589, available at http://www.yale.edu/lawweb/avalon/imtfech.htm (last visited 17 July 2007) (“IMTFE Charter”), Article 1. See, for example: retribution (Bagaric and Morss, supra note 9, p. 221–222; Bassiouni, supra note 5, pp. 681, 689, 697 and 737; Stuart Beresford, “Unshackling the paper tiger

2.3 Objectives of Individual Criminal Responsibility for Core International Crimes

19

identify similar objectives to those identified above, although the tribunals appear to be primarily concerned with retribution and deterrence.25 The case law of the IMT

25

– the sentencing practices of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda”, 1 International Criminal Law Review 33 (2001), pp. 40–44; Drumbl (2003), supra note 9, p. 270; Drumbl (2005), supra note 9, pp. 577–588; Todd Howland and William Calathes, “The U.N.’s International Criminal Tribunal, Is it Justice or Jingoism for Rwanda? A Call for Transformation”, 39 Virginia Journal of International Law 135 (1998), p. 149; Meernik and King, supra note 9, pp. 721–724; Sayers, supra note 9, pp. 759–760; William A. Schabas, “Sentencing by International Tribunals: A Human Rights Approach”, 7 Duke Journal of Comparative and International Law 461 (1997), pp. 498–505; Sloane, supra note 9, pp. 47–52; van Sliedregt, supra note 9, p. 100; and Zolo, supra note 9, pp. 732–734); deterrence (Bagaric and Morss, supra note 9, pp. 219–221; Bassiouni, supra note 5, p. 737; Beresford, ibid.; Drumbl (2003), supra note 9, p. 270; Drumbl (2005), pp. 588–592; Howland and Calathes, ibid.; Meernik and King, supra note 9, pp. 721–724; Sayers, supra note 9, pp. 759–760; Schabas, ibid., pp. 498–505; Sloane, supra note 9, pp. 39–47; and van Sliedregt, supra note 9, p. 100; however, Zolo questions the “pedagogical-deterrent impact of an ‘exemplary’ international criminal sentence”. See Zolo, supra note 9, pp. 731–732); enhance accountability (Bassiouni, supra note 5, p. 690); reduce impunity (Bassiouni, supra note 5, p. 690 and van Sliedregt, supra note 9, p. 101; however, as noted by Zolo, “international criminal justice has not yet proven to be capable of remedying widespread impunity, except to a minor degree and with normative ambiguities.” Zolo, supra note 9, p. 730); incapacitation (Beresford, ibid., pp. 44–46 and Howland and Calathes, ibid., pp. 149 and 153–154); protection of society (Meernik and King, supra note 9, pp. 721–724); preservation of world order and the maintenance of peace and security (Bassiouni, supra note 5, pp. 680–682 and 737 and van Sliedregt, supra note 9, p. 101– 103); reconciliation (Bagaric and Morss, supra note 9, p. 219); educational (see supra notes 33-35); provide victims with redress (Bassiouni, supra note 5, p. 737; Meernik and King, supra note 9, pp. 721–724; and van Sliedregt, supra note 9, p. 100); rehabilitation (Bagaric and Morss, supra note 9, pp. 222–223; Bassiouni, supra note 5, pp. 681 and 697; Beresford, ibid., pp. 44–45; Howland and Calathes, ibid; and Meernik and King, supra note 9, pp. 721–724); and upholding the rule of international law (Antonio Cassese, “On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law”, 9 EJIL 2 (1998) and van Sliedregt, supra note 9, p. 101). With respect to the ICTY, see, for instance, Prosecutor v Drazen Erdemovic, Case No.: IT-96-22-T, Sentencing Judgment, T. Ch., 29 November 1996, §§ 57–66 (deterrence, reprobation, retribution, collective reconciliation and maintaining peace and security); Prosecutor v Duško Tadiü, Case No.: IT-94-1-T, Sentencing Judgment, T. Ch., 14 July 1997, § 61 (just punishment, deterrence, incapacitation, and rehabilitation); Prosecutor v Zejnil Delaliü, Case No.: IT-96-21-T, Judgment, T. Ch., 16 November 1998, §§ 1231– 1234 (retribution, protection of society, rehabilitation and deterrence); Prosecutor v Anto Furundžija, Case No.: IT-95-17/1-T, Judgment, T. Ch., 10 December 1998, §§ 288-289 (retribution, deterrence, public reprobation and stigmatisation); Prosecutor v Tihomir Blaškiü, Case No.: IT-95-14-T, Judgment, T. Ch., 3 March 2000, § 761 (retribution, protection of society, rehabilitation and deterrence); Prosecutor v Zlatko Aleksovski, Case No.: IT-95-14/1-A, Judgment, App. Ch., 24 March 2000, § 185 (deterrence and retribution); Prosecutor v Stevan Todorovic, Case No.: IT-95-9/1-S, Sentencing Judgment, T. Ch., 31 July 2001, §§ 28–30 (retribution and deterrence); Prosecutor v

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and IMFTE, as well as the post World War II military tribunals also indicate a preference for deterrence and retribution.26 It is, of course, questionable to what extent these objectives are actually served by the international criminal law system. Deterrence is notoriously difficult to measure and in many respects, it is difficult to imagine that the perpetrators of core international crimes actually make a cost-benefit analysis before committing their crimes.27 David Wippman posits that When long delays in the administration of justice are coupled with a low probability of prosecution and modest penalties, the likelihood of significant deterrence is minimal… criminals do not necessarily act rationally. That is not to say deterrence is impossible because all criminals are irrational; rather war criminals may not be motivated by a logical decision calculus”.28

As regards the objective of retribution and whether it can be said to be a feasible objective, Mark B. Harmon’s and Fergal Gaynor’s research is insightful. They have estimated that General Radislav Krstiü, who was convicted of aiding and abetting genocide, and who received a sentence of 35 years by the ICTY for his role in the murder of 7–8,000 men at Srebrenica, will spend approximately 1.825 days in prison for each murdered victim. This figure drops to 1.205 days, when one takes into account that the practice of the ICTY is to release the convicted person after serving 2/3rds of his sentence. They opine that A sentence of a day or two in prison for murder of a human being is inconsistent with any serious notion of human dignity. The startling disparity between sentences meted out at the ICTY for murdering a human being and sentences meted out in domestic jurisdictions

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Momir Nikoliü, Case No.: IT-02-60/1-S, Sentencing Judgment, T. Ch. I, 2 December 2003, § 82 (retribution and ending of impunity); and Prosecutor v Momþilo Krajišnik, Case No.: IT-00-39-T, Judgment, T. Ch. I, 27 September 2006, §§ 1134–1138 (retribution, deterrence and rehabilitation). With respect to the ICTR, see, for instance, Prosecutor v Omar Serushago, Case No.: ICTR-98-39-S, Sentence, T. Ch. I, 5 February 1999, § 20 (retribution and deterrence); Prosecutor v Georges Anderson Nderubumwe Rutaganda, Case No.: ICTR-96-3-T, Judgment and Sentence, T. Ch., 6 December 1999, § 456 (retribution and deterrence); and Prosecutor v Georges Ruggiu, Case No.: ICTR97-32-I, Judgment and Sentence, T. Ch. I, 1 June 2000, § 33 (retribution, deterrence, rehabilitation and justice). See Prosecutor v Drazen Erdemovic, ibid., §§ 58 and 62. See also Schabas, supra note 10, p. 189 and van Sliedregt, supra note 9. Sloane posits, however, that ”[d]espite a few isolated statements justifying international punishment by reference to its presumed deterrent value, the principal impetus for punishment after World War II consisted in an emotive reaction to the sheer magnitude and unconsciousability of the crimes.” See supra note 9, p. 33. See, for example, Tallgren, supra note 9, p. 584. See David Wippman, “Exagerating the ICC”, in Joanna Harrington, Michael Milde and Richard Vernon (eds.), Bringing Power to Justice, The Prospects of the International Criminal Court, McGill-Queen’s University Press, Montreal & Kingston, London, Ithaca, 2006, p. 99, at pp. 114 and 116.

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21

for the same conduct may give rise to a public perception that the sentencing objective of retribution [understood as making the punishment fit the crime] is of modest importance in the Tribunal’s sentencing deliberations.29

Moreover, Drumbl notes that many perpetrators of the violence in Rwanda are HIV positive. Prisoners at the ICTR, which have HIV, receive excellent medical care, which is far in excess of the quality of medical care which the victims of thier crimes receive, if any. Accordingly, Drumbl posits that “[t]he retributive value of this punishment appears muddied, at best”. In addition, the practice of plea bargaining at the ICTY also undermines the purpose of retribution, as the punishment meted out to the accused is dependent upon external factors, rather than assessing objectively the punishment which best fits the crime.30 Other objectives underlying international criminal law and by extension, the concept of individual criminal responsibility for core international crimes, have been identified besides the, perhaps, more obvious ones mentioned above. For instance, the ICTY Trial Chamber in Prosecutor v Drazen Erdemovic described public reprobation or stigmatisation as one of the “appropriate purposes of punishment”, particularly in relation to punishment for a crime against humanity.31 This reasoning was extended to war crimes and “other serious violations of international humanitarian law” by the ICTY Trial Chamber in Prosecutor v Anto Furundžija.32 Gerry Simpson discusses inter alia the didactic and legitimating functions of adjudication proceedings for the perpetrators of core international crimes. He notes that the purpose of such proceedings is often as much to educate the present population concerning what occurred, as it is to punish the historical criminals.33 29 30 31 32 33

Mark B. Harmon and Fergal Gaynor, “Ordinary Sentences for Extraordinary Crimes”, 5 J. Int’l Crim. Jus. 683 (2007), p. 692. See Drumbl (2005), supra note 9, pp. 579 and 583. Prosecutor v Drazen Erdemovic, supra note 25, §§ 64–65. Prosecutor v Anto Furundžija, supra note 25, § 289. See Gerry Simpson, “War Crimes: A Critical Introduction”, in Timothy L. H. McCormack and Gerry J. Simpson (eds.), The Law of War Crimes, National and International Approaches, Kluwer Law International, The Hague/London/Boston, 1997, pp. 19–21. As an example of this purpose, Simpson refers to the Eichmann trial in Israel. Scharf has also identified this as one of the purposes underlying international criminal justice in the context of the Supreme Iraqi Criminal Tribunal, i.e. to educate the Iraqi people about the core international crimes committed by the Ba’ath regime. See Scharf, supra note 21. See also Schabas, supra note 24 who notes that the “eternal contribution of the Nuremberg judgment is not so much the individual punishment of the handful of accused… but rather in its affirmation of the facts of the Nazi atrocities. The jurisprudence of Nuremberg and the subsequent national military tribunals remains the most authoritative argument against revisionists who attempt to deny the existence of the gas chambers at Auschwitz and the other horrors of Nazi rule.” Ibid., p. 499. Lawrence Douglas notes that the multiple purposes of a didactic trial often pull the courts in different directions: “For example, the clarification of the historical record and the teaching of history lessons are obviously related, though importantly distinct: the former is largely descriptive and explanatory, while the latter is ineluctably normative. The distinction is important inasmuch as collective memory may have little to do with

22

2 Germane Considerations

Its legitimating function is that of categorising the behaviour of the accused as “evil” and associating the prosecuting states with “good”; and in the case of the ad hoc criminal tribunals, perhaps, it is, he posits, an example of the West and the United Nations simply wanting “to salvage some scrap of dignity from what remains of Western prestige”.34 However, Tzvetan Todorov expresses his uneasiness with the supposed educational function of justice, of teaching the public the difference between good and evil. He questions whether the lessons learnt from international trials are of any great moral value. “Smoothly placing the public on the side of righteousness does not seem to further its education in any way.” He also takes issue with the view that the lessons taught by international justice are in reality of greater value, especially when they occur in countries far away from the place where the crimes were committed.35 The comments of Cherie Booth QC, in relation to the functions the ICC is expected to perform, also highlight another interesting objective of the imposition of individual criminal responsibility for core international crimes: creating an opportunity for truth-telling, both the provision of a “judicial truth”, as the rules of evidence before a criminal trial ensure that a complete record of history is unachievable in such circumstances, and providing the occasion to counter the “attribution of collective responsibility for acts committed by individuals”, e.g. avoiding the guilt of the Nazis being attributed to the entire German population.36 This truth-telling function has been emphasised by other commentators37 and the ICTY Trial Chambers itself:

34 35

36

37

historical accuracy.” See Lawrence Douglas, “History and Memory in the Courtroom: Reflections on Perpetrator Trials”, in Herbert R. Reginbogin and Christoph J. M. Safferling (eds.), The Nuremberg Trials, International Criminal Law Since 1945, K. G. Saur München, 2006, p. 96–104. See also Bassiouni, supra note 5, p. 737, Roberts and McMillan, supra note 9, p. 335, and van Sliedregt, supra note 9, p. 101. Simpson, ibid., pp. 21–26. See Todorov, supra note 9, p. 713. For a consideration of the extent to which international criminal trials should/can serve a pedagogic objective, see also Lawrence Douglas, “The Holocaust, History and Legal Memory”, and the accompanying “Question and Answer Session” in Ratner and Bischoff, supra note 10, pp. 107–121. See Cherie Booth, “Prospects and issues for the International Criminal Court: Lessons from Yugoslavia and Rwanda”, in Philippe Sands (ed.), From Nuremberg to The Hague, The Future of International Criminal Justice, Cambridge University Press, Cambridge, 2003, pp. 183–185. The other functions of the ICC identified by Booth are (i) a proclamation that certain conduct is unacceptable to the world community – a “public demonstration of justice” and (ii) upholding the rule of law and accordingly “exact[ing] retribution by embracing legal order”. Ibid., pp. 177–183. See Cassese, supra note 24; Lepa Mladjenovic, “The ICTY: The Validation of the Experiences of Survivors” in Ratner and Bischoff, supra note 10, pp. 59–65 who notes the importance of the truth-telling function of the ICTY as a tool to validate the experiences of the victims in an international forum; and Daniel Joyce, “The Historical Function of International Criminal Trials: Re-thinking International Criminal Law”, 73 Nordic Journal of International Law 461 (2004). See also “Address by Chief Prosecutor Carla del Ponte at the Conference on “Establishing the Truth about War

2.3 Objectives of Individual Criminal Responsibility for Core International Crimes

23

The International Tribunal, in addition to its mandate to investigate, prosecute and punish serious violations of international humanitarian law, has a duty, through its judicial functions, to contribute to the settlement of the wider issues of accountability, reconciliation and establishing the truth behind the evils perpetrated in the former Yugoslavia. Discovering the truth is a cornerstone of the rule of law and a fundamental step on the way to reconciliation: for it is the truth that cleanses the ethnic and religious hatreds and begins the healing process.38

Koskenniemi posits that the prosecution of Adolf Eichmann before the Israeli courts in 1961 was more about publicising the full extent of the “Nazi war against the Jews”, than the punishment of Eichmann.39 He notes that Recording “the truth” and declaring it to the world through the criminal process has been held important for reasons that have little to do with the punishment of the individual. Instead, it has been thought necessary so as to enable the commencement of the healing process in the victim: only when the injustice to which a person has been subjected has been publicly recognised, the conditions for recovering from trauma are present and the dignity of the victim may be restored.40

However, heed should be taken of Koskenniemi’s warning that For any major event of international politics – and situations where the criminal responsibility of political leaders is invoked are inevitably such - there are many truths and many stakeholders for them… How to understand the actions of the leaders of the Yugoslav communities – whether they were “criminal or not” - depends on which framework of interpretation one accepts…

38 39 40

Crimes and Conflicts“ held in Zagreb, Croatia on 8 and 9 February 2007, Statement, 15 February 2007, available at http://www.un.org/icty/pressreal/2007/cadelst-070215.htm (last visited 26 June 2007). Del Ponte notes that “[t]ruth can be a very complex and very subjective issue based only loosely on facts, and it could easily be seen differently by two sides or individuals. Facts, on the other hand, are indisputable. A judicial process like war criminal prosecutions… can establish facts beyond reasonable doubt. By establishing these facts criminal prosecutions contribute to a clear understanding of the crime committed and a fair understanding of the context of the conflict… Major prosecutions generate a comprehensive record of past violations… The results of the judicial process, its record and established facts are a crucial part of efforts to establish the truth, face the past and embrace reconciliation.” See also Kirsten Campbell, “The Trauma of Justice: Sexual Violence, Crimes against Humanity and the International Criminal Tribunal for the Former Yugoslavia”, 13 Social & Legal Studies 329 (2004), who opines that by establishing the truth, “criminal justice functions as a therapeutic process, where the horror is told, and the perpetrator is judged… This model figures justice as a collective act of memory that can represent collective trauma, recreate social solidarity and reconstitute a traumatized society”. Ibid., pp. 339–340. See, moreover, Drumbl (2005), supra note 9, pp. 593–595 and unspecified authors, supra note 9, p. 1973. Prosecutor v Drazen Erdemovic, Case No.: IT-96-22, Sentencing Judgment, T. Ch., 5 March 1998, § 21. Martti Koskenniemi, “Between Impunity and Show Trials”, 6 Max Planck Yearbook of United Nations Law 1 (2002), p. 3. Ibid., p. 4.

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Focusing on the individual abstracts the political context, that is to say, describes it in terms of the actions and intentions of particular well-situated individuals… But the truth is not necessarily served by an individual focus. On the contrary, the meaning of historical events often exceeds the intentions or actions of particular individuals and can be grasped only by attention to structural causes, such as economic or functional necessities, or a broad institutional logic through which the actions by individuals create social effects… The engagement of a court with“ truth” and “ memory” is thus always an engagement with political antagonism, and nowhere more so than in dealing with events of wide-ranging international and moral significance. Historians disagree on the interpretation of such events. So it is no surprise that judges may find it difficult to deal with them”.41

Finally, an objective which has gained recognition in more recent times is that of reparation, or the redress of victims.42 Article 75 of the ICC Statute specifically makes provision for reparations to victims and provides that the ICC may make an order against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. It may also order that reparations be made through the ICC Trust Fund for Victims.43 The aim of such reparations is to help victims rebuild their lives. Of the many objectives identified, retribution seems to be the most prominent objective of individual criminal responsibility for international crimes, followed by deterrence.44 Although social integration and rehabilitation are often amongst the objectives underlying domestic criminal law systems, they appear to play a minor role in the context of international criminal law and international prosecutions.45 41 42

43 44

45

Ibid., pp. 12–14 and 25. An additional sub-purpose worth noting, which has been identified in the context of the purpose to prevent future violations, is that of prosecuting as an alternative to vigilantism. See unspecified authors, supra note 9, pp. 1967–1968. Mark Lattimer and Phillipe Sands posit that two additional justifications for international criminal justice are to (i) distinguish individual from group responsibility and (ii) fill the enforcement gap created by the advance of human rights and humanitarian norms. See Mark Lattimer and Philippe Sands, “Introduction” in Mark Lattimer and Philippe Sands (eds.), Justice for Crimes against Humanity, Hart Publishing, Oxford and Portland, Oregon, 2003, pp. 20 and 22. Article 75(2), ICC Statute, supra note 4. See Drumbl (2003), supra note 9, p. 270; Bassiouni, supra note 5, p. 697; Schabas, supra note 10, pp. 189–193; Guénaël Mettraux, International Crimes and the ad hoc Tribunals, Oxford University Press, Oxford, 2005, pp. 343–346; and Sloane, supra note 9, pp. 34–35. See also Prosecutor v Drazen Erdemovic, supra note 25, § 64, and Prosecutor v Stevan Todorovic, supra note 25, §§ 28–30. Zappalá has concluded that there does not currently exist a right of rehabilitation for the convicted person under international criminal law. See Zappalá, supra note 9, pp. 206–207. Bassiouni is of the view that “[r]etribution and just desert are more appropriate as philosophical and policy bases for the punishment of international crimes, whereas rehabilitation and social integration goals are more relevant to that of national criminal justice systems”. See Bassiouni, supra note 5, pp. 681 and 697. Meernik and King note that the rehabilitation of the offender tends to be dealt with as a mitigating or aggravating factor. See supra note 9, p. 723. Sloane concludes that international criminal law, “at least as applied by international tribunals, is not particularly well-tooled to

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25

As Tallgren notes: “The context of the most serious crimes against international law made it nonsensical for some states [during negotiations on the ICC Statute] to discuss rehabilitation: how do you reform someone guilty of genocide?”46 However, one commentator posits that one of the purposes of a system of international criminal law should be the rehabilitation of the criminal and argues that if a genuine attempt is not made at rehabilitation, then “international criminal justice may be misinterpreted as a means intended to exact revenge upon the vanquished, rather than to protect the international community from crimes under international law”.47 It is also questionable whether international prosecution can ever achieve the goal of national reconciliation.48 The note of warning of Gerry Simpson that it is “important to be modest about the potential of war crimes trials and international criminal law generally” is worth bearing in mind, in this context.49 To conclude, the objectives of individual criminal responsibility for core international crimes are inextricably linked with the objectives underlying international criminal law itself and the purposes of sentencing in international criminal law.

46

47

48

49

pursue societal rehabilitation.” See Sloane, supra note 9, p. 59 and more generally pp. 56–60. Moreover, Harmon and Gaynor argue that the modest role of rehabilitation in international prosecutions is appropriate. They note that most ICTY detainees are characterised by a high average age and good social skills and are, generally speaking, not career criminals. Therefore, the offenders are already re-socialised. See supra note 29, pp. 693–694. See also Bagaric and Morss, supra note 9, pp. 222–223; Beresford, supra note 24, pp. 44–45; and Howland and Calathes, supra note 24. See Tallgren, supra note 9, p. 577. One category of perpetrators to which rehabilitation would, arguably, be applicable is child soldiers, who frequently take up arms involuntarily, due to threats or use of violence against them or their families, or due to appalling poverty. See generally, for example, Nienke Grossman, “Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations”, 38 Geo. J. Int’l L. 323 (2007). Lyal S. Sunga, The Emerging System of International Criminal Law, Developments in Codification and Implementation, Kluwer Law International, The Hague/Boston/London, 1997, pp. 324–329. See, for instance, “Remarks of Payam Akhavan” and Aloys Habimana, “Judicial Responses to Mass Violence: Is the International Criminal Tribunal for Rwanda Making a Difference towards Reconciliation in Rwanda?”, both in Ratner and Bischoff, supra note 10, pp. 76–90. Interestingly, David B. Hodgkinson notes that when the Transitional Justice Working Group in Iraq held a seminar concerning post-conflict justice, following the downfall of Saddam Hussein, not a single person turned up to participate in the breakout session concerning reconciliation. No one identified with reconciliation as part of any post-conflict justice package. See David B. Hodgkinson, “Preparations for a Precedent”, 13 Mich. St. J. Int’l L. 79 (2005), pp. 80–81. See Simpson, supra note 33, p. 29. On a similar note, Kelly Askin notes that in order to minimise unrealistic expectations and bitter disappointments with international criminal justice institutions, particularly from the perspective of the victims of core international crimes, it is important to be very specific about such institutions’ functions and limitations. See Askin, “International Criminal Tribunals and Victim-Witnesses”, in Ratner and Bischoff, supra note 10, pp. 49–59. Hodgkinson posits that “[e]xpectation management is a critical part of transitional justice and played an important part in the development of the [Supreme Iraqi Criminal Tribunal]”. Ibid., p. 82.

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A number of brief observations can be made on the objectives identified above. Firstly, the various purposes do, on occasion, overlap each other. They are also interconnected. Secondly, it is not suggested that each example of the enforcement of the principle of individual criminal responsibility satisfys every objective identified above. Different circumstances will dictate which objectives are to be achieved, although for the immediate future, it would appear that retribution and deterrence will remain the primary objectives of such enforcement. Thirdly, the objectives identified are, in many respects, very similar to those for domestic criminal law,50 particularly Western domestic criminal law.51 While, this is hardly surprising, bearing in mind the origins of international criminal law, this state-of-affairs is less than desirable. Domestic and international crimes are not similar on every level and an approach which is appropriate in the context of domestic criminal law is not necessarily as appropriate in the context of international criminal law.52 Drumbl’s concern that “international lawyers are actively and successfully developing mechanisms of international criminal justice without first developing a 50 51

52

For example, retribution and deterrence. See Bassiouni, supra note 5, pp. 676–677 and 689. Drumbl posits that Anglo-American common law, in particular, has stamped its mark clearly on the structure and functioning of international criminal law and international adjudication. As examples, he mentions inter alia, the use of precedence and inductive reasoning in reaching decisions, the adversarial process, the availability of plea bargaining, extensive cross-examination and the role of defence counsel and amici. See Drumbl (2003), supra note 9, pp. 272–275. For example, if the main objective is to restore and maintain peace, any attempt at prosecution of the perpetrators may undermine that objective. See generally, Drumbl (2003), supra note 9. Drumbl notes that, for example, in the domestic context, a perpetrator of a domestic crime is punished for breaching accepted social norms; whereas this may not always be the case as regards a perpetrator of an international crime, because the conduct in question may not deviate from the norms of the place where it occurred, at the time it occurred. In addition, he posits that whereas incarceration is the favoured punishment in domestic criminal law, it may not necessarily be the most appropriate punishment for core international crimes. Ibid., pp. 268–270. See also Drumbl (2005), supra note 9, p. 567, Drumbl, supra note 10, p. 31 and Tallgren, supra note 9, p. 575. Sloane opines that “[j]ustifications for punishment common to national systems of criminal law cannot be transplanted unreflectively to the distinct legal, moral, and institutional context of ICL [international criminal law]”. See supra note 9, p. 2. He notes that international criminal law and national criminal law are different in three respects, which an analogy with national criminal law may obscure: (i) unlike national law, international criminal law purports to serve multiple divergent communities; (ii) an analogy with national law may obscure the collective character of international criminal law crimes (which collective character aggravates the culpability of the perpetrator), which feature is distinguishable from similar national crimes; and (iii) the perpetrators of international criminal law crimes “often act in a normative universe (e.g. during war, ethnic conflict or other social breakdown) that differs dramatically from the relatively stable, well-ordered society that most national criminal justice systems take as their baseline… Rather than persist in the futile and impracticable effort to make genuinely international criminal tribunals mimic national courts by dispensing proxy justice, ICL should candidly acknowledge that these tribunals serve distinct goals and constituencies.” Ibid., pp. 2–3 and 19–20.

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criminology of mass violence, a penology for the perpetrators of this violence and a victimology for those who are affected by the violence” is not unfounded.53 Finally, while the enforcement of individual criminal responsibility for international crimes has a role to play in international criminal law, in order to achieve, for example, the restoration or maintenance of peace, approaches other than, or in addition to, international judicial adjudication need to be accommodated. The ‘one-size-fits-all’ approach is neither viable nor productive. ‘Justice’ is a subjective word and its attainment, arguably, does not require personal international criminal accountability in every case. Other alternative mechanisms may be preferable and more appropriate, depending on the cultural environment in which the crimes were committed and the objectives to be achieved.54

2.4 Sources of, and Judicial Precedent in, International Criminal Law 2.4.1 Introductory Remarks As mentioned at the outset, a consideration of the sources of international criminal law is warranted on two grounds.55 Firstly, while the sources of international law 53 54

55

Drumbl, supra note 10, p. 30. Drumbl considers this issue further in a subsequent article. See Drumbl (2005), supra note 9. For example, truth and reconciliation commissions, investigatory commissions or compensation mechanisms. South Africa is a case in point. While to the Western mentality, individual criminal accountability for crimes of apartheid would, arguably, be the only acceptable solution, a Truth and Reconciliation Commission, with its focus on the establishment of a true account of events rather than criminal prosecution seems to have had success in South Africa. See Zolo, supra note 9, p. 734; Drumbl, supra note 10, p. 32; Howland and Calathes, supra note 24, pp. 166–167; Timothy Longman, “The Domestic Impact of the International Criminal Tribunal for Rwanda”, in Ratner and Bischoff, supra note 10, pp. 33–41; Habimana, supra note 48, p. 87, Antoine Garapon, “Three Challenges for International Criminal Justice”, 2 J. Int’l Crim. Jus. 716 (2004); Sloane, supra note 9, pp. 8–9 and Tallgren, supra note 9, p. 587. For an overview of the numerous accountability mechanisms available other than international prosecutions, see Bassiouni, supra note 5, pp. 704–736 and Drumbl, supra note 10. Also of interest in this regard is Mark J. Osiel’s identification of nine “major reasons for doubting the wisdom” of criminal prosecution for crimes of mass atrocity. See Mark J. Osiel, “Why Prosecute? Critics of Punishment for Mass Atrocity”, 22 Human Rights Quarterly 118 (2000), reprinted in Gerry Simpson (ed.), War Crimes Law, Ashgate/Dartmouth, Aldershot, 2004, Vol. I, pp. 91–120. In this context, the term “sources” is intended to mean “recognised manifestations of law” (i.e. the source from which a legal rule derives its legal validity), to employ the phrase used by Maarten Bos in Maarten Bos, A Methodology of International Law, Elsevier Science Publishers B.V., North-Holland, 1984, p. 49. For a discussion of the meaning of “sources” as well as the purpose behind the desire to identify “sources”, see Bos, ibid., pp. 48–55. See also Sir Robert Jennings QC and Sir Arthur Watts QC (eds.), Oppenheim’s

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have been well-established since the 1945 Statute of the ICJ,56 the same cannot be said of the sources of international criminal law.57 International criminal law is still quite rudimentary, but its sources are frequently taken for granted, without any forethought been given as to what sources can be relied upon when considering issues arising in international criminal law. Article 21 of the ICC Statute (1998) represents the first codification of the sources of international criminal law. While this is, of course, a welcome development, its use in the current context is limited, as Article 21 only describes the sources of international criminal law relevant to adjudication before the ICC. It does not provide a precise description of the general sources of international criminal law. The lack of precision as to the sources of international criminal law requires to be addressed. Secondly, an identification of the sources of international criminal law is relevant to every substantive aspect of this thesis. For example, in order to identify the definitions of and/or the criteria for the core international crimes described herein, it is important to first establish the sources of international criminal law which can be relied upon in identifying such definitions/criteria.58 The same applies as regards the determination of whether terrorism can be categorised as a crime

56

57

58

International Law, Longman, London, 9th ed., 1992, Vol. I, p. 23 for a discussion of the terms “formal sources” and “material sources”. Bassiouni draws distinctions between the sources of international criminal law and their application to different parts of international criminal law, as follows: “(a) The basis for international criminal accountability and ratione personae [subjects] is established by international law; (b) The special part of ICL [international criminal law], the ratione materiae [norms], is established by international law… (c) The general part of ICL, the elements of criminal responsibility, are established by international law whenever an internationally created judicial body adjudicates criminal responsibility… But whenever international crimes are enforced by national criminal justice systems, it is that domestic legal system’s principles of criminal responsibility that apply… (d) The procedural part of ICL, meaning those rules of procedure and evidence applicable in criminal proceedings, also have mixed sources… (e) The sanctions part of ICL will… depend on whether the proceedings are conducted by an internationally created adjudicating body or by national criminal proceedings… (f) Enforcement of sanctions is subject to the national laws of the enforcing state… (g) Enforcement modalities of ICL… derive from mixed sources of international law and national laws…”. See Bassiouni, supra note 10, Vol. I, pp. 10–11. Applying Bassiouni’s categorisation, this thesis is primarily concerned with categories (a) and (b). See also Bassiouni, supra note 5, pp. 8–10. See Article 38(1), Statute of the International Court of Justice, 26 June 1945, Department of State publications 2349 and 2353, Conference Series 71 and 74; entered into force 24 October 1945. See generally, however, Daniel Wade, “A Basic Guide to the Sources of International Criminal Law” in Ellen G. Schaffer and Randall J. Snyder (eds.), Contemporary Practice of Public International Law, Oceana Publications Inc., Dobbsferry, New York, 1997; Vladimir-Djuro Degan, “On the Sources of International Criminal Law”, 4 Chinese Journal of International Law 45 (2005); and Ilias Bantekas, “Reflections on Some Sources and Methods of International Criminal and Humanitarian Law”, 6 International Criminal Law Review 121 (2006). See infra section 2.5.

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against humanity, war crime or genocide and similarly to what extent various documents/materials can be relied upon in the context of the author’s discussion of the joint criminal enterprise doctrine.59 Moreover, it is essential to identify the sources of international criminal law which can be relied upon for the purposes of this thesis. The sources of international criminal law are addressed in this section in the following manner: Firstly, consideration will be given to the general sources of international criminal law. Secondly, the sources of international criminal law relevant to adjudication before the ICC and the ad hoc international criminal tribunals will be addressed. Thirdly, other materials referred to in this thesis will be considered, to determine their status as sources of international criminal law, or otherwise.60 Finally, consideration will also be given to the recognition, or otherwise, of the principle of judicial precedent before the ad hoc international criminal tribunals, the SCSL and the ICC. One final note of clarification: An in-depth and authoritative study on the sources of international criminal law could easily occupy an independent thesis in its own right. It is the intention of this section merely to give the reader a general overview of the sources of international criminal law, particularly those of relevance to this thesis.

2.4.2 General Sources of International Criminal Law Unlike domestic law, international law is not the “product of statute for the simple reason that there is yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence.”61 Thus, the formation of international criminal law is substantially more complicated than that of national criminal law. As a corollary, the sources of international criminal law are also intricate. Maarten Bos, when commenting on the sources of international law, wrote in 1984: The national and the international lawyer, when compared to each other, are in very different positions. The former operates in a legal order characterized by a number of luxuries such as the presence of a legislator hierarchically placed above the subjects of law, of courts with obligatory jurisdiction, and of officers charged with the enforcement of judicial decisions. This national legal machinery considerably influences the practising lawyer’s task, and with some exaggeration it may be said that what is left to him amounts to no more 59 60 61

See infra Chapters 5 and 3 respectively. For example, as evidence of the evolution of customary international law, or its potential to be of ‘persuasive authority’ to a court. United States of America v. Josef Altstoetter et al. (Justice case), Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. III, pp. 974–975, cited in Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, Case No.: IT-99-37-AR72, “Decision on Dragoljub Ojdaniü’s Motion Challenging Jurisdiction – Joint Criminal Enterprise”, App. Ch., 21 May 2003, § 39.

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than a technical mission – which by the way, may be one of complexity. But whatever the degree of this complexity, the national lawyer, especially in codification countries, hardly ever will be in doubt on “where the law is to be found”, nor will he have to indulge in contemplating questions such as “how does law come into being”… The international lawyer, on the contrary, almost daily has to face these, and a host of other, problems, owing to the fact that no legal machinery exists in the international legal order bearing anything beyond a remote resemblance to the national legal machinery… his task is almost immeasurably more complicated than the national lawyer’s because of the existence side by side of not one or two, but a series of “sources” of international law, highly diverse inter se, and in many respects foreign to the “sources” of modern national legal orders.62

His comments are just as applicable to the sources of international criminal law. Such sources are not immediately obvious. A good starting point in our enquiry, though, is Article 38(1) of the ICJ Statute which represents the most authoritative statement of sources of general international law. As noted by the Kupreškiü Trial Chamber, the ICTY being international in nature and applying primarily international law cannot but rely upon the well-established sources of international law.63 Article 38 provides: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilized nations; d.subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.64

Article 38(1) of the ICJ Statute is, of course, not an exhaustive list of all of the sources of international law and strictly speaking the identified sources only concern the sources to be applied by the ICJ as regards adjudications before it. Notwithstanding this, it is generally accepted that Article 38(1) identifies the main sources of international law and it is “authoritative generally because it reflects state practice”.65 62 63

64 65

See supra note 55, p. 1. Prosecutor v Zoran Kupreškiü, Mirjan Kupreškiü, Vlatko Kupreškiü, Drago Josipoviü, Dragan Papiü and Vladimir Šantiü, Case No.: IT-95-16-T, Judgment, T. Ch., 14 January 2000, § 540. Similar comments can be made in relation to the ICTR and the ICC. See supra note 56. See Jennings and Watts, supra note 55, p. 24, who also note that it is “the practice of states which demonstrates which sources are acknowledged as giving rise to rules having the force of law.” There is no hierarchy between the primary sources of international law set out in Article 38(1)(a)-(c), ICJ Statute. Ariel F. Sallows argues however that there should be a hierarchy of sources in international law. See Ariel F. Sallows, “Human Rights and the Hierarchy of International Law Sources and Norms: Delineating a Hierarchical Outline of International Law Sources and Norms”, 65 Sask. L. Rev. 333 (2002).

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31

2.4.2.1 Treaties 66 Treaties and custom are the two main bodies of international law, and thus international criminal law. Treaties are of importance as they represent the agreement reached between two or more states and in accordance with the principle of pacta sunt servanda, states are obliged to perform the terms of treaties in good faith.67 However, treaties only bind the signatory states. Examples of treaties relevant in the context of international criminal law are the 1907 Hague Conventions, the four 1949 Geneva Conventions as well as Additional Protocols I and II thereto and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”).68 The ICC Statute is also a multilateral treaty. The ICTY Statute has similarly been treated as an

66

67

68

See generally Jennings and Watts, supra note 55, pp. 31–36; Rodney Dixon, Karim A.A. Khan and Judge Richard May (eds.), Archbold International Criminal Courts: Practice, Procedure and Evidence, Sweet & Maxwell, London, 2002, p. 7, § 2–7; and Antonio Cassese, International Criminal Law, Oxford University Press, Oxford/New York, 2003, pp. 27–28. Treaties are also referred to as conventions, charters, statutes, agreements and protocols. Article 26, Vienna Convention on the Law of Treaties 1969, United Nations, Treaty Series, Vol. 1155, p. 331. Adopted on 22 May 1969 and entered into force 27 January 1980. Hague Conventions of 18 October 1907: Hague III: Opening of Hostilities; Hague IV: Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (“Hague Regulations”); Hague V: Rights and Duties of Neutral Powers and Persons in Case of War on Land; Hague VI: Status of Enemy Merchant Ships at the Outbreak of Hostilities; Hague VII Conversion of Merchant Ships into War Ships; Hague VIII: Laying of Automatic Submarine Contact Mines; Hague IX: Bombardment by Naval Forces in Time of War; Hague X: Adaptation to Maritime War of the Principles of the Geneva Convention; Hague XI: Restrictions with regard to the Exercise of the Right of Capture in Naval War; and Hague XIII: Rights and Duties of Neutral Powers in Naval War. Each of the 1907 Hague Conventions entered into force on 26 January 1910. Geneva Conventions of 12 August 1949: Geneva I: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces; Geneva II: Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva III: Convention relative to the Treatment of Prisoners of War; and Geneva IV: Convention relative to the Protection of Civilian Persons in Time of War. Each of the Geneva Conventions entered into force on 21 October 1950. Additional Protocols of 8 June 1977: Additional Protocol I: Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts; and Additional Protocol II: Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts. The Additional Protocols entered into force on 7 December 1978. The Convention on the Prevention and Punishment of the Crime of Genocide, dated 9 December 1948 entered into force on 12 January 1951. All conventions/protocols are available at http://www.icrc.org/ihl.nsf/ INTRO?OpenView (last visited 17 July 2007).

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international treaty.69 Both the ICTY and ICTR Statutes were adopted pursuant to Chapter VII (Action with respect to threats to the peace, breaches of the peace and acts of aggression) UN Security Council resolutions and are, accordingly, binding on all UN member states.70

2.4.2.2 Custom 71 Custom is the oldest source of international law and rules of customary law are binding on all states. It consists of two elements, practice and opinio juris. A rule of customary international law is one which is created and sustained by the constant and uniform practice of States and other subjects of international law in or impinging upon their international legal relations, in circumstances which give rise to a legitimate expectation of similar conduct in the future… If a sufficiently extensive and representative number of States participate in such a practice in a consistent manner, the resulting rule is one of ‘general customary international law’… such a rule is binding on all States.72

Not only must such practice be settled, States engaging in such practice must do so in the belief that they are under a legal obligation to do so.73 It is not a requirement that each and every State conforms to a certain practice in order for a rule to be a rule of customary international law. It is sufficient that States, in general, conform to such practice and that where a State fails to do so, such behaviour is considered to be inconsistent with the general rule.74 Current customary 69 70

71 72 73

74

Prosecutor v Slobodan Miloševiü, Case No.: IT-99-37-PT, “Decision on Preliminary Motions”, T. Ch. III, 8 November 2001, § 47. Cassese categorises them as “secondary international legislation… in that they have been adopted by virtue of provisions contained in a treaty, the UN Charter”. See Cassese, supra note 66, pp. 26–27. See also Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, T. M. C. Asser Press, The Hague, 2003, p. 7 at footnote 21. For a consideration of the dynamic and evolutionary interpretation of treaties in international criminal law and the necessary limitations to such practice, see Bantekas, supra note 57, pp. 121–124. See generally Jennings and Watts, supra note 55, p. 25–31; Dixon, Khan and May, supra note 66, pp. 7–9, §§ 2–8 to 2–14; and Cassese, supra note 66, pp. 28–30. Emphasis added. International Law Association, London Conference, Report of 63rd Conference, p. 8, referred to in Dixon, Khan and May, supra note 66, p. 8, § 2–10. See, for example, North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 1969 I.C.J. 3. See also Attila Bogdan, “Individual Criminal Responsibility in the Execution of a “Joint Criminal Enterprise” in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia”, 6 International Criminal Law Review 63 (2006), pp. 69–71. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 I.C.J. 14. The ad hoc international criminal tribunals have been criticised for their methodology in concluding that the requirement of opinio juris has been satisfied. Degan posits: “The ICTY and ICTR… do not refer in their decisions to the former State practice and the opinio juris as the only, or even as the main, evidence of customary law. They rather rely on the practice of former ad hoc

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rules are binding on both existing and new States, notwithstanding that they may disagree with such rules. The development of rules of customary law is generally a time-consuming process. It takes time for the practice to be established, in the first instance, and then it takes additional time for States to form the view that they are legally obligated to conform to such practice. The report of the UN Secretary-General on the ICTY Statute gives some guidance as to the rules of customary international law which are relevant to international criminal law: The part of conventional international humanitarian law which has beyond doubt become part of customary international law is the law applicable in armed conflicts as embodied in: the Geneva Conventions of August 12, 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of October 18, 1907; the Convention on the Prevention and Punishment of the Crime of Genocide 1948; and the Charter of the International Military Tribunal of August 8, 1945.75

Both the ICTY and the ICTR have referred to customary international law in their judgments/decisions.76

75 76

military tribunals established by Allied Powers after World War II in occupied Germany and in the Far East, as well as to their own practice. They thus call that former judicial practice, as a whole, “customary law”. However, considering themselves as organs of the international community, these ad hoc Tribunals do not hesitate to create new “customary rules“ deducing them directly from “elementary considerations of humanity”, which are presumably their own opinio juris sive nececessitatis… they expect that States themselves will conform their practices in warfare to that judge-made “customary law” in future international and non-international armed conflicts.” See Degan, supra note 57, pp. 75–76. See also generally, ibid., pp. 73–79 and p. 82. The determination of the ICTY Appeals Chamber that the legal basis of the joint criminal enterprise doctrine is part of customary international criminal law in Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Judgment, App. Ch., 15 July 1999, (“Tadiü Appeals Judgment”), which has been the subject of much criticism, is a case in point. See infra Chapter 3, at footnotes 58 and 413. For a consideration of the emergence of international crimes as a creation of customary international law and the problems this may create with regard to the principles of retroactivity and specificity, see Bantekas, supra note 57, pp. 124–125. Report of the Secretary-General, Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 (May 3, 1993), § 35. See for example, Prosecutor v Dusko Tadiü, Case No.: IT-94-1, “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, App. Ch., 2 October 1995, §§ 86–137: The Appeals Chamber referred inter alia to customary international law to determine whether the ICTY is empowered to adjudicate alleged violations of the laws and customs of war in both international and internal armed conflicts, or just the former (as contended by the Appellant); Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Lando, Case No.: IT-96-21-A, Judgment, App. Ch., 20 February 2001, §§ 64–72: In the context of its consideration of the nationality requirements set out in Article 4, Geneva Convention IV, supra note 68, the Appeals Chamber noted that Article 31 of the Vienna Convention on the Law of Treaties, supra note 67, reflects

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2.4.2.3 General Principles of Law Recognised by Civilised Nations77 The general principles of law recognised by civilised nations are also a source of international law and hence international criminal law. Such principles can be referred to where, for example, treaties or customary law do not provide applicable rules or assistance. Their main function is primarily that of a “gap-filler”.78 It should be noted that in Article 38(1) of the ICJ Statute, general principles of law are recognised as an independent source of international law, on a par with treaties or custom and are not considered as a subsidiary source of law (like judicial decisions and the teachings of highly qualified publicists). In the determination of general principles of law recognised by civilised nations, it is not necessary that the general principles of law of each and every civilised nation be examined. Judge Stephen of the ICTY Appeals Chamber noted: I accordingly turn to those “general principles of law recognised by civilised nations”, referred to in Article 38(1)(c) of the Statute of the International Court of Justice as a further source of international law… no universal acceptance of a particular principle by every nation within the main systems of law is necessary before lacunae can be filled; it is enough that “the prevailing number of nations within each of the main families of laws” recognize such a principle. As was said in the Hostage case, if a principle “is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified”.79

Some examples of general principles of law recognised by civilised nations, which are of relevance in the context of international criminal law are 1. The principle of legality, nullum crimen sine lege, i.e., a person cannot be held criminally responsible for conduct or an omission which was not a crime at the time the conduct or omission occurred;80

77 78

79

80

customary international law; and Prosecutor v Clément Kayishema, Case No.: ICTR95-1-T, Judgment, T. Ch., 21 May 1999, §§ 87–190 (in the context of its discussions on the crime of genocide). See generally Jennings and Watts, supra note 55, pp. 36–40; Dixon, Khan and May, supra note 66, p. 10, § 2–15a; and Cassese, supra note 66, pp. 31–32. See Wade, supra note 57, p. 210 and Bogdan, supra note 73, pp. 71–72. Additional functions attributed to general principles of law are that: (i) they serve as a source of interpretation for conventional and customary international law; (ii) they are a means of developing new norms of conventional and customary international law; (iii) they may serve as a modifier of conventional and customary international law; and (iv) they serve to shape conventional and customary international law for a greater good, i.e. the use of jus cogens. See Wade, ibid., and Bogdan, ibid. Footnotes omitted. Prosecutor v Dražen Erdemoviü, Case No.: IT-96-22-A, Judgment, “Separate and Dissenting Opinion of Judge Stephen”, App. Ch., 7 October 1997, § 25. See also Bogdan, supra note 73, pp. 71–78. See Wade, supra note 57, pp. 210–211 and Cassese, supra note 66, p. 31.

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2. The nulla poena sine lege principle, i.e., a person cannot be punished for a conduct or an omission in the absence of a law criminalising such conduct or omission;81 and 3. The presumption of innocence.82 2.4.2.4 Judicial Decisions 83 As a general rule, judicial decisions are not sources of international law per se, i.e. they do not make law. They can be referred to in order to determine the content or the application of treaties, customary international law or general principles of law. Although they are not sources in their own right, they can have persuasive authority and/or be of practical utility.84 Oppenheim notes that … judicial decision has become a most important factor in the development of international law, and the authority and persuasive power of judicial decisions may sometimes give them greater significance than they enjoy formally… [decisions of international tribunals] exercise considerable influence as an impartial and well-considered statement of the law by jurists of authority made in the light of actual problems which arise before them. They are often relied upon in argument and decision. The International Court of Justice, while prevented from treating its previous decisions as binding,85 has, in the interests of judicial consistency, referred to them with increasing frequency. It is probable that in view of the difficulties surrounding the codification of international law, international tribunals will in the future fulfil, inconspicuously but efficiently, a large part of the task of developing international law.86

In the context of international criminal law and the particular jurisprudence referred to in this thesis, a number of types of judicial decisions are worthy of 81 82

83 84

85 86

See Wade, supra note 57, p. 211. See Cassese, supra note 66, p. 31. Bantekas is critical of the ad hoc international criminal tribunals’ methodology in determining the existence of general principles of international criminal and humanitarian law and posits that “[i]nternational tribunals have… abused their power to ascertain the law in an objective manner and have made a strenuous effort to distil general principles from nowhere…”. See Bantekas, supra note 57, p. 127. See generally ibid., pp. 126–129. See generally Jennings and Watts, supra note 55, p. 41–42; Dixon, Khan and May, supra note 66, pp. 10–14, § 2–15b to 2–15f; and Cassese, supra note 66, pp. 36–37. The persuasive authority and practical utility of judicial decisions from different judicial bodies depends upon a number of factors including the type of court making the determination, its constitution and composition, the circumstances surrounding a case and the problem actually being addressed. Care is required when considering the weight to be accorded to different decisions or judgments and the extent to which they should contribute to the findings and jurisprudence of international criminal courts. See Dixon, Khan and May, supra note 66, p. 10, § 2–15b. Article 59 of the ICJ Statute, supra note 56, provides: “The decision of the Court has no binding force except between the parties and in respect of that particular case.” Footnotes omitted. See generally Jennings and Watts, supra note 55, p. 41.

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individual comment: those of the ad hoc international criminal tribunals, the ICC, the ICJ, the IMT and IMTFE, post-World War II military tribunals applying Control Council Law 10 (“CCL 10”),87 national courts and the US Military Commission. As an overriding principle, the comments of the Trial Chamber in the Furundžija case are noteworthy: “For a correct appraisal of this case law, it is important to bear in mind, with each of the cases to be examined, the forum in which the case was heard, as well as the law applied, as these factors determine its authoritative value.” 88 Clearly, the jurisprudence of the “highest calibre”, for current purposes, is that emanating from an international court/tribunal applying international criminal law or international law. However, as noted above, even jurisprudence falling within this category is not a source of international law, but it can be of persuasive authority. Judicial Decisions of the Ad Hoc International Criminal Tribunals The judicial decisions of the ICTY and ICTR are not sources of international criminal law, as such, but clearly they can be of substantial persuasive authority, particularly as they emanate from an international criminal tribunal applying international criminal law and the judges that sit on the benches of these tribunals are highly respected international lawyers.89 The jurisprudence of the ICTY and ICTR has proved decisive in fleshing out the substance of certain customary rules in international criminal law. Judicial Decisions of the ICC The jurisprudence of the ICC is not a source of international criminal law per se. Article 21(2) of the ICC Statute provides that the ICC “may apply principles and

87

88 89

Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, 3 Official Gazette Control Council for Germany 50–55 (1946) available at http://www1.umn.edu/humanrts/instree/ ccno10.htm (last visited 17 July 2007). Prosecutor v Anto Furundžija, supra note 25, § 194. See also the comments set out at supra note 84. Bantekas notes, however, that the jurisprudence of the international criminal courts/ tribunals has elevated the judicial decisions of both international and domestic courts to primary sources of international criminal law. As an example of this, he cites the sole reliance of the ICTY Appeals Chamber on the judicial decisions emanating from the post World War II courts as the basis for its decision in the Tadiü Appeals Judgment, supra note 74, to formulate the joint criminal enterprise concept. He posits: “Clearly the sole employment of WW II case law to formulate the concept of joint criminal enterprise in international humanitarian law is an undisguised attempt to render as a primary source the judgment of a particular tribunal, chiefly because this fits with the judges’ line of legal reasoning. The selectivity and the use of supplementary sources and their slow elevation to primary sources is worrying, if not frightening.” See supra note 57, p. 132 and generally at pp. 129–133.

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rules of law as interpreted in its previous decisions”.90 Accordingly, while the ICC may refer and even rely on a previous decision of the ICC, it is not obligated to do so. It is likely, though, that the ICC will, in practice, follow its previous decisions and only depart from them in limited circumstances. Again, while the jurisprudence of the ICC is not a source of international law, it is likely that it will be of a highly persuasive authority, emanating from an international criminal court applying international criminal law. Judicial Decisions of the ICJ Although, the ICJ does not have jurisdiction over individuals and accordingly, cannot impose individual criminal responsibility for core international crimes, its judgments, clearly, have a bearing on international criminal law.91 Simliar to the ICTY/ICTR and ICC jurisprudence, the ICJ jurisprudence is not a source of international criminal law per se, but it can be of substantial persuasive authority, emanating from an international court applying international law. IMT and IMTFE Judgments In accordance with the general status of judicial decisions in international law, the jurisprudence of the IMT and IMTFE should not be considered a source of international criminal law. However, it has been suggested that the judgment of the IMT is arguably a source of law due to the adoption of the Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal (“Nuremberg Principles”).92 In the author’s view, however, as a general rule, the jurisprudence of these military tribunals is not a source of law, per se. Nonetheless, to the extent that some of the findings of the IMT have acquired the status of customary international law, for example, its definition of crimes against humanity, such findings are a source of international criminal law, due to their categorisation as customary international law.

90 91

92

Emphasis added. See, e.g. Case concerning Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), 2002 ICJ; Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of Genocide, 1951 I.C.J. 23; and Application of the Convention on the Prevention and Punishment on the Crime of Genocide (Provisional Measures), 1993 I.C.J. Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950, Yearbook of the International Law Commission, 1950, Vol. II, pp. 374–378, available at http://www.icrc.org/ihl.nsf/FULL/390? OpenDocument (last visited 17 July 2007). See Dixon, Khan and May, supra note 66, p. 11, § 2–15c. But see infra section 2.4.4.1 for the status of the Nuremberg Principles.

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Judicial Decisions of Post World War II Military Tribunals Applying CCL 10 The jurisprudence of post World War II military tribunals applying CCL 10 is not a source of international criminal law, as CCL 10 was in the nature of domestic legislation.93 However, this jurisprudence has the potential to be of persuasive authority, if it can be determined that the military tribunal under consideration was applying international law. There is doubt as to whether post World War II military tribunals were actually “international in character”. As noted in the Erdemovic case, the pronouncements of the military tribunals themselves as to their international character are contradictory.94 To the extent that post World War II military tribunals applying CCL 10 were held to be international, “this was merely with regard to their constitution, character and competence”.95 Archbold recommends that instead of applying a general rule to the jurisprudence of post World War II military tribunals applying CCL 10, one needs to consider three criteria: (i) the constitution of the military tribunal in question, (ii) the issues raised in the case,96 and (iii) the extent to which the military tribunal viewed itself as shackled by its own national legislation or case law.97 If it is determined that the military tribunal in question applied international law, then it has a higher persuasive authority than a military tribunal which applied national law. Judicial Decisions of National Courts The jurisprudence of national courts is clearly not a source of international criminal law. It is, however, sometimes referred to by international courts, for example, in determining whether a general principal of international law exists, or whether a rule of law has become part of customary international law.98 It may also be useful in demonstrating that a principle upheld in international law has an underpinning

93 94 95 96

97 98

See infra section 2.4.4.3. See also Bogdan, supra note 73, p. 110. Prosecutor v Drazen Erdemovic, supra note 79, Joint Separate Opinion of Judge McDonald and Judge Vohrah, § 53. Ibid., § 54. For example, in Prosecutor v Erdemovic, one of the issues in question was whether the defence of duress existed under international law to the killing of innocent persons. Judges McDonald and Vohrah noted that while it was true that the IMT Charter, supra note 23, and the parts of CCL 10, supra note 87, which set out the law to be applied by the military tribunals were declaratory of the principles of international law, neither of those instruments addressed the question of duress. Thus, those military tribunals, when considering the issue of duress, were actually applying domestic jurisprudence. See Dixon, Khan and May, supra note 66, p. 11, § 2–15c. For example, Judge Hunt notes that “notwithstanding the domestic origin of the laws applied in many trials of persons charged with war crimes… the law which was applied must now be regarded as having been accepted as part of customary international law.” See Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, supra note 61, Separate Opinion of Judge David Hunt, § 18.

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in many national systems.99 However, as noted by the ICTY Trial Chamber, “one should constantly be mindful of the need for great caution in using national case law for the purpose of determining whether customary rules of international criminal law have evolved in a particular matter”.100 The persuasive authority of national courts applying national law is limited in the context of any determination of the rules of international criminal law. However, that is not to say that the role of domestic jurisprudence is totally defunct. As noted by Judge Shahabuddeen, It is possible to argue that the current state of criminal doctrine in international law approximates to that of the larger subject at an earlier phase and that accordingly a measure of liberality in using domestic law ideas is both natural and permissible in the field of criminal law. But it is not necessary to pursue the argument further. The reason is that, altogether apart from the question whether a particular line of municipal decisions is part of the law of the Tribunal, no statutory authority needs to be cited to enable a court to benefit from the scientific value of the thinking of other jurists, provided that the court remains master of its own house. Thus, nothing prevents a judge from consulting the reasoning of judges in other jurisdictions in order to work out his own solution to an issue before him; the navigation lights offered by the reflections of the former can be welcome without being obtrusive.101

Judicial Decisions of the US Military Commission Chapter 3 considers inter alia the application of the joint criminal enterprise doctrine before the US Military Commission and assesses the potential value of any jurisprudence issued by the US Military Commission concerning this doctrine.102 Accordingly, a determination of the status of the jurisprudence of the US Military Commission is necessary. Pursuant to the general rule that judicial decisions are not a source of international law, the jurisprudence of the US Military Commission is likewise not a source of international criminal law. However, it may have persuasive authority. This section seeks to determine the persuasive authority of any jurisprudence issued by the US Military Commission in relation to the joint criminal enterprise doctrine alone, as this is what is of relevance to this thesis. In this connection, the three criteria suggested by Archbold in relation to the jurisprudence of post World War II military tribunals applying CCL 10 can be usefully employed.103

99

See Tadiü Appeals Judgment, supra note 74, § 225. Prosecutor v Furundžija, supra note 25, § 194. 101 Prosecutor v Jean Bosco Barayagwiza, Case No.: ICTR-97-19-AR72, “Decision, Prosecutor’s Request for Review or Reconsideration”, Separate Opinion of Judge Shahabuddeen, App. Ch., 31 March 2000, § 44. 102 See infra Chapter 3, section 3.4.7. 103 See infra section 2.4.2.4 (Judicial decisions of post World War II military tribunals applying CCL 10). 100

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1. The constitution of the military tribunal in question The US Military Commission is a form of US military tribunal which derives its authority from the US Constitution and the powers vested in it by statutory law. Article I of the US Constitution empowers the US Congress to define and punish offences against the “law of nations”, and Article II confers on the US President the title of Commander in Chief of the Army and Navy of the United States of America, thereby authorising him to establish military commissions.104 The primary constitutive document of the US Military Commission was originally Presidential Military Order of 13 November 2001 (“PMO”),105 but this was replaced by the Military Commissions Act 2006 (“MCA”).106 The members of each Military Commission are appointed by the convening authority, which is the US Secretary of Defense or any officer or official of the United States designated by the Secretary for that purpose. Each Military Commission consists of at least five members, all of which shall be commissioned officers of the US armed forces, over which a military judge presides.107 A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court, or a member of the bar of the highest court of a State and who is certified to be qualified for duty as a military judge.108 2. The issues raised in the case In the context of the current discussion, we are only interested in any jurisprudence of the US Military Commission in relation to the joint criminal enterprise doctrine, as that term is understood in international criminal law. § 948d of the MCA provides, that a military commission shall have jurisdiction to try any offence made punishable by Subchapter I of the MCA, or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001. Pursuant to § 821 of the UCMJ, the US military criminal code, which is a 104

United States Constitution, Article I, section 8, clause 10, and Article II, section 2, available at http://www.law.cornell.edu/constitution/constitution.table.html (last visited 2 May 2005). 105 Military Order of November 13, 2001 – Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism”, available at www.dtic.mil/whs/directives/ corres/ mco.htm (last visited 1 December 2004). 106 The Supreme Court of the United States determined in Salim Ahmed Hamdan v. United States Secretary of Defense Donald H. Rumsfield et al. 126 S.Ct. 2749 (2006), that the military commissions set up in accordance with the PMO violated both the US Uniform Code of Military Justice (“UCMJ“), available at http://www.au.af.mil/au/awc/awcgate/ ucmj.htm (last visited 23 March 2007), and the four 1949 Geneva Conventions, supra note 68. Following the Hamdan judgment, the MCA, available at http://www. defenselink.mil/news/commissionsacts.html (last visited 23 March 2007), was signed into law by President George Bush on 17 October 2006. 107 §§ 948i, j and m, MCA. 108 Ibid., § 948j (b).

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US federal law, enacted by the US Congress, military commissions have jurisdiction over offences established by statute or by the “law of war”.109 The “law of war” appears to be a reference to the law of armed conflict or international humanitarian law.110 Accordingly, the US Military Commission appears to be applying, in part, international criminal law. As will be seen in Chapter 3, the constitutive documentation of the US Military Commission blends the conspiracy doctrine (a crime) and the joint criminal enterprise doctrine (a mode of liability) together.111 To the extent that the US Military Commission attempts to classify the joint criminal enterprise doctrine as a crime in its own right, such statement would have no support in international criminal law and any decision by the US Military Commission to that effect would be of no persuasive authority in international criminal law. However, any pronouncements of the US Military Commission in relation to the joint criminal enterprise doctrine as a mode of liability could potentially have some limited persuasive authority, to the extent that such pronouncements are based on the “law of war”. 3. The extent to which the military tribunal viewed itself as shackled by its own national legislation or case law. The US Military Commission is a domestic US military body, notwithstanding that it is inter alia empowered to punish offences against the law of war. It is bound by its own constitutive documentation. In addition, the US Supreme Court itself has recognised that military commissions are subject to limitations imposed by the US Constitution.112

109

UCMJ, supra note 106, Title 10, Chapter 47. For a brief history of military commissions see American Bar Association Task Force on Terrorism and the Law Report Recommendations on Military Commissions, 4 January 2002, pp. 2–6, available at www.abanet.org/leadership/military.pdf (last visited 2 May 2005). 110 For a brief discussion on the sources and principles of the “law of war”, see CRS Report for Congress, “Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions”, 11 December 2001, available at http://fpc.state.gov/ documents/organization/7951.pdf (last visited 4 May 2005). The MCA does not actually define the term “law of war” and its precise meaning is unclear. See John Cerone, “The Military Commissions Act of 2006: Examining the Relationship between the International Law of Armed Conflict and US Law”, ASIL Insight, 13 November 2006, available at http://www.asil.org/insights/2006/11/insights061114.html (last visited 9 July 2007). 111 See supra note 102. 112 See Ex parte Quirin, 317 U.S. 1 (1942). When commenting on the clause which preceded § 821 of the UCMJ (Article 15 of the Articles of War), the Supreme Court noted that the US congress had “thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals”. Ibid., p. 28.

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To conclude, the persuasive authority of any jurisprudence of the US Military Commission in relation to the joint criminal enterprise doctrine is likely to be very limited in terms of international criminal law. Notwithstanding that the US Military Commission has jurisdiction over violations of the law of war, it is a US domestic military body which is bound by its own constitutive documentation and the US Constitution.113 2.4.2.5 Teachings of the Most Highly Qualified Publicists 114 Teachings of the most highly qualified publicists are not sources of international law per se. Similar to judicial decisions, they can be referred to in order to determine the content or the application of treaties, customary international law or general principles of law. Such teachings are, however, referred to in argument before, and in decisions by, international courts. Although, they can provide clarification of the content of a particular rule of law, Oppenheim envisages that reliance on them will most likely diminish in the future.115 Cassese, on the other hand, is of the view that legal literature may “significantly contribute to the elucidation of international rules”,116 whereas Bantekas goes even further by opining that the ad hoc international criminal tribunals have actually elevated the opinions of jurists to essentially a primary source of international law today.117

113

Moreover, the mixing together of the conspiracy doctrine and joint criminal enterprise doctrine in the US Military Commission’s constitutive documentation would also seem to suggest that the understanding of the joint criminal enterprise doctrine before the US Military Commission is not the same as that under international criminal law, which limits its usefulness in the current context. See infra Chapter 3, section 3.4.7. 114 See generally Jennings and Watts, supra note 55, pp. 42–43; Dixon, Khan and May, supra note 66, pp. 14–15, § 2–15g; and Cassese, supra note 66, pp. 36–37. 115 “… with the growth of international judicial activity and of the practice of states evidenced by widely accessible records and reports, it is natural that reliance on the authority of writers as evidence of international law should tend to diminish. For it is as evidence of the law and not as a law-creating factor that the usefulness of teachings of writers has been occasionally admitted in judicial pronouncements. But inasmuch as a source of law is conceived as a factor influencing the judge in rendering his decision, the work of writers may continue to play a part in proportion to its intrinsic scientific value, its impartiality and its determination to scrutinise critically the practice of states by reference to legal principle.” See generally Jennings and Watts, supra note 55, p. 43. 116 See Cassese, supra note 66, p. 37. 117 See supra note 57, pp. 129 and 132–133. Bantekas is critical of this approach, noting that “… for the determination of more controversial and newly-emergent points of law, reliance on academic writings is most inappropriate in international criminal litigation.” Ibid., p. 133.

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2.4.3 Sources of International Criminal Law Relevant to Adjudication Before the ICC and the Ad Hoc International Criminal Tribunals Apart from the general sources of international law which can be relied upon in the determination of the sources of international criminal law, there are also certain sources of international criminal law which are binding only in connection with adjudication before the ICC or the ad hoc international criminal tribunals. Each of the ICC, the ICTY and the ICTR are obliged to comply with their constitutive instruments, i.e. their Statutes. These Statutes have priority over all other sources of applicable law before such bodies. They set out the framework within which these bodies can operate and limit their jurisdiction. However, these Statutes are only binding on the institutions to which they belong and their contracting parties. For example, although the ICC Statute is an international treaty and accordingly a source of law per se, its provisions, as a general rule, are only binding upon the states that have signed and ratified it, or acceded to it, and on the ICC itself.118 The ICTY, for instance, is not bound by any provision of the ICC Statute and vice versa. The Rules of Procedure and Evidence in relation to each of the ICC, the ICTY and ICTR119 are also sources of applicable law before such institutions, either expressly in accordance with the terms of their applicable Statutes,120 or as a matter of practice.121 In the case of the ICC, its Elements of Crime are also a source of international criminal law for the purposes of adjudication before the ICC.122 This section will consider specifically the sources of applicable law before the ICC and the ad hoc international criminal tribunals.

118

That does not mean that the provisions of the ICC Statute have no significance beyond the contracting parties to the ICC Statute and the ICC itself. In this connection, see infra section 2.4.3.3. Van Sliedregt classifies the Statutes of the IMT and IMTFE as international custom under Article 38(1)(b) of the ICJ Statute. See van Sliedregt, supra note 70, p. 7, footnote 21. In relation to the IMT Charter, supra note 23, see also supra note 75. 119 ICC Rules of Procedure and Evidence, adopted 9 September 2002, available at http:// www.icc-cpi.int/about/Official_Journal.html (last visited 17 July 2007); ICTY Rules of Procedure and Evidence, 13 September 2006, available at http://www.un.org/icty/ legaldoc-e/index.htm (last visited 17 July 2007); and ICTR Rules of Procedure and Evidence, adopted on 29 June 1995, as amended, available at http://69.94.11.53/ default.htm (last visited 17 July 2007). 120 See Article 21(1)(a), ICC Statute, supra note 4. 121 E.g. in the case of the ICTY and ICTR. 122 See the ICC Elements of Crime, entered into force on 9 September 2002, available at http://www.icc-cpi.int/library/about/officialjournal/Rules_of_procedure_and_Evidence_ English.pdf (last visited 17 July 2007) and Article 21(1)(a), ICC Statute, supra note 4.

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2.4.3.1 ICC The ICC Statute, Article 21, contains a specific provision on the applicable law before the ICC. Article 21 is worth quoting in full, not only because, as noted above, it represents the first codification of the sources of international criminal law (for the purposes of adjudication before the ICC), but also because of its content.123 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

As a starting point, it is worth noting that Article 21, unlike Article 38 of the ICJ Statute, sets out a clear hierarchy of sources.124 The ICC Statute, Elements of 123

124

See generally Alain Pellet in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II, pp. 1051–1084; Margaret McAuliffe deGuzman in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Nomos Verlagsgesellschaft Baden-Baden, Germany, 1999, pp. 435–446; and William A. Schabas, “General Principles of Criminal Law in the International Criminal Court Statute (Part III)”, 6 European Journal of Crime, Criminal Law and Criminal Justice 84 (1998), pp. 86–90. A specific article in the ICC Statute on sources was, presumably, included in order to inter alia avoid any non liquet, which is particularly inappropriate in criminal matters. Moreover, it also serves the nullum crimen sine lege principle, (articulated in Article 22 of the ICC Statute, supra note 4), as it alerts the community to the sources of international criminal law relevant to adjudication before the ICC. As regards, considerations of non liquet and Article 38(1), ICJ Statute, supra note 56, see Ole Spiermann, Moderne Folkeret, Jurist- og Økonomforbundets Forlag, Copenhagen, 3rd ed., 2006, pp. 42–43. Pellet notes that this hierarchy of sources, although prima facie sensible and comprehensible, is deceptive: “… this formal hierarchy created between the sources of applicable law is overlaid by another substantial hierarchy between the applicable norms: some are superior to others, not by reason of their formal source, but due to their subjectmatter or their veritable substance.” See Pellet, ibid., pp. 1076–1082.

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Crimes and Rules of Procedure and Evidence are the primary source of applicable law before the ICC, the pinnacle of which is the ICC Statute.125 Article 51(5) of the ICC Statute provides that in the event of a conflict between the ICC Statute and its Rules of Procedure and Evidence, the ICC Statute shall prevail. The status of the ICC Elements of Crime is made clear by the terms of Article 9 of the ICC Statute. Article 9(1) provides that the Elements of Crimes shall “assist” the ICC in the interpretation and application of Articles 6-8 of the ICC Statute, whereas Article 9(3) provides that the Elements of Crimes shall be “consistent” with the ICC Statute, indicating the hierarchical superiority of the ICC Statute. The Elements of Crimes and the Rules of Procedure and Evidence seem to have the same standing as each other. Both are adopted by a two-thirds majority of the members of the Assembly of States Parties.126 Secondly, the coherence between Article 38 of the ICJ Statute and Article 21 of the ICC Statute is not immediately obvious. Article 38 refers to international conventions, international custom and general principles of law recognised by civilised nations as the sources of international law, whereas Article 21 (apart from the primary sources) refers to applicable treaties, the principles and rules of international law and the general principles of law derived by the ICC from national laws of legal systems of the world. How do these sources tally with one another? Article 38’s reference to international conventions and Article 21’s reference to applicable treaties are arguably a reference to the same source. However, what is meant by the expression, “the principles and rules of international law, including the established principles of the international law of armed conflict”? This provision appears to be equivalent to what is referred to in Article 38 of the ICJ Statute as “international custom”, i.e. customary international law.127 Unfortunately, the travaux préparatoires do not reveal why the drafters of the ICC Statute did not just refer to international custom expressly. Perhaps delegates were of the view that this formulation was more comprehensive than a specific reference to custom, or it may be that custom was considered too imprecise for the purposes of international criminal law (because of the manner by which custom develops, that is, by way of a gradually evolving process).128 Part of the explanation may, however, also be found in the fact that the ICC Statute was drafted primarily by diplomats and not by legal experts in international criminal law. There is also some confusion created by the use of the expression “general principles of law derived by the court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime”. What is the relationship/overlap between this source of international criminal law specified in the ICC Statute and the expression “general principles of law recognized by civilized nations” in the ICJ Statute? 125

Pellet describes the ICC Statute, the Elements of Crimes, the Rules of Procedure and Evidence and the case law of the ICC as the “proper law of the ICC”. See Pellet, supra note 123, p. 1054. 126 Articles 9(1) and 51(1), ICC Statute, supra note 4. 127 See Pellet, supra note 123, pp. 1070–1072. 128 See McAuliffe deGuzman, supra note 123, pp. 441–442.

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Essentially, the same source of international law is being referred to here, the main difference being that Article 21(c) articulates more clearly from which source the general principles of law are derived, i.e. from the national laws of legal systems of the world. The expression “national laws of legal systems of the world” has been interpreted to mean that the ICC does not need to examine all national legal systems to determine the existence of a principle. It merely needs to examine the principal legal systems of the world, with an examination being undertaken of legal systems which form part of “the family of civil-law countries, the common law, and perhaps, Islamic law”.129 It should be noted that what is being applied are not the national laws themselves, but the principles underlying those national laws.130 The declaration that the national law of legal systems of the world which the ICC can review includes the “States that would normally exercise jurisdiction over the crime”, was the subject of much heated discussion at the Rome Conference.131 Why should there be a requirement that the general principle be found in the legal system of one particular country(ies)? Such a requirement has been justified on the grounds that it is necessary for the specificity of criminal law and the requirements of the nullum crimen principle.132 States that would normally exercise jurisdiction over the crime would typically be the State on whose territory the crime was committed, the State of which the accused is a national or the State, which has the accused in its custody. It should also be noted that Article 21(c) of the ICC Statute specifically requires that any general principles of law, which are derived by the ICC from national laws need to be consistent with the ICC Statute and “with international law and internationally recognized norms and standards”. Thirdly, as noted above, similar to the status of judicial decisions under Article 38 of the ICJ Statute, the jurisprudence of the ICC is not a primary source of international criminal law on which the ICC may rely. The ICC may, but is not obliged to, apply the principles and rules of law as interpreted in its previous decisions. However, as noted earlier, it is likely that the ICC will adopt the same approach as the ad hoc international criminal tribunals and will, in practice, follow its previous decisions and only depart from them in limited circumstances.133 Unlike Article 38 of the ICJ Statute, the ICC Statute does not make any reference to the “teachings of the most highly qualified publicists”, either as a subsidiary means for the determination of the rules of law, or otherwise. To conclude then, although on first glance Article 38 of the ICJ Statute and Article 21 of the ICC Statute may seem to be quite different, aside from the specific reference to the ICC Statute, Elements of Crimes and Rules of Procedure and Evidence as the primary source of applicable law before the ICC and aside from

129

See Pellet, supra note 123, pp. 1073–1074. See, for example, McAuliffe deGuzman, supra note 123, pp. 442–444. 131 See, for example, Schabas, supra note 123, pp. 87-88 and McAuliffe deGuzman, supra note 123, pp. 439 and 442–444. 132 See Pellet, supra note 123, p. 1075. 133 See infra section 2.4.2.4 (Judicial decisions of the ICC). 130

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the fact that the ICC Statute creates a hierarchy among the different sources, the overall scope of the two articles is similar. 2.4.3.2 Ad Hoc International Criminal Tribunals Unlike the ICC Statute, neither the ICTY nor the ICTR Statute contains an express provision on the sources of international criminal law which can be relied upon before it. However, the practice of the ICTY and ICTR clearly identifies the sources of international criminal law which are relevant to adjudication before each tribunal.134 As a starting point, the respective Statutes and Rules of Procedure and Evidence of the ICTY and ICTR are sources of international criminal law before the ad hoc international criminal tribunals. Neither tribunal has ‘Elements of Crimes’ to which reference can be made. The applicable law of the ICTY/ICTR includes thereafter international conventions, international custom and the general principles of law recognised by civilised nations.135 While the jurisprudence of the tribunals is not a primary source of international criminal law before the ad hoc international criminal tribunals, it is clear that it is of persuasive authority and is frequently referred and adhered to by the tribunals.136 2.4.3.3 Significance of the ICC, ICTY and ICTR Statutes other than as a Binding Source of Law As noted above, the terms of the ICC Statute are only binding upon the states that have signed and ratified it, or acceded to it, and on the ICC itself. Likewise the ICTY and ICTR Statutes are only binding on the UN member states and the ICTY/ICTR, as applicable.137 However, they do have a broader significance in the context of this discussion on sources of international criminal law. The provisions of the Statutes may, for example, reflect customary international law or may be indicative of the crystallisation of customary rules. This is, perhaps, most apparent as regards the ICC Statute, which as of 1 January 2007, has been ratified/acceded to by 104 States. The ICTY Trial Chamber in the Furundžija judgment (which was handed down before the ICC Statute entered into force) noted [The ICC Statute] was adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and was substantially endorsed by the General Assembly’s Sixth Committee on 26 November 1998. In many areas the Statute may be regarded as indicative of the legal views, i.e. opinio juris of a great number of States… Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules 134

See McAuliffe deGuzman, supra note 123, p. 438. I.e. the sources identified in Article 38(1) of the ICJ Statute. See Prosecutor v Dražen Erdemoviü, supra note 79, Joint Separate Opinion of Judge McDonald and Judge Vohrah, § 40. 136 See infra sections 2.4.2.4 (Judicial decisions of the ad hoc international criminal tribunals) and 2.4.5. 137 See infra sections 2.4.2.1 and 2.4.3. 135

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or crystallise them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States.138

In addition, while the provisions of the Statutes are not binding on any body outside the body to which they relate, they may be of persuasive authority in assisting a court, other than the court to which they relate, to resolve an issue before it.

2.4.4 Evaluation of other Potential Sources of International Criminal Law This thesis makes reference to material which does not fall within either of the above-mentioned categories. The opportunity is taken here to evaluate whether such material is a source of international criminal law, is of persuasive authority, or practical value, or none of the above. 2.4.4.1 Nuremberg Principles The Nuremberg Principles139 are not a binding source of international criminal law, but they are of persuasive authority. Their contribution to international law has been described in the following terms: The Principles are not considered binding, but with their emphasis on individual responsibility and their articulation into positive law of the category of crimes against humanity, they are an important step in the development of international law.140

2.4.4.2 Draft Code of Crimes against the Peace and Security of Mankind The International Law Commission (“ILC”) was established in 1947 by the UN General Assembly to promote the progressive development of international law and its codification. One of its set tasks was to draft a code on crimes against the peace and security of mankind. The end result was the 1996 Draft Code of Crimes against the Peace and Security of Mankind (“Draft Code of Crimes”).141 Since its 138

Footnotes omitted. Prosecutor v Furundžija, supra note 25, § 227. This evaluation has been confirmed by the ICTY Appeals Chamber in the Tadiü Appeals Judgment, supra note 74. 139 See supra note 92. 140 See Wade, supra note 57, pp. 214–215. 141 Report of the International Law Commission on the work of its forty-fifth session, 3 May to 23 July 1993 (A/48/10), available at http://untreaty.un.org/ilc/summaries/ 7_4.htm (last visited 15 July 2007). The UN General Assembly originally requested the Commission to inter alia prepare a draft Code of offences against the peace and security of mankind in Resolution 177 (II) of 21 November 1947.

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adoption, no action has been taken by the UN General Assembly, for example, to incorporate it into an international convention.142 While the Draft Code of Crimes cannot be considered a source of international criminal law, it has an esteemed status. The ICTY Trial Chamber in the Furundžija case described it in the following terms: The Draft Code [of Crimes] was adopted in 1996 by the United Nations International Law Commission, a body consisting of outstanding experts in international law, including governmental legal advisers, elected by the United Nations General Assembly. The Draft Code was taken into account by the General Assembly: in its resolution 51 (160) of 30 January 1997 it expressed its “appreciation” for the completion of the Draft Code and among other things drew the attention of the States participating in the Preparatory Committee on the Establishment of an International Criminal Court to the relevance of the Draft Code to their work. In the light of the above the Trial Chamber considers that the Draft Code is an authoritative international instrument which, depending upon the specific question at issue, may (i) constitute evidence of customary international law, or (ii) shed light on customary rules which are of uncertain contents or are in the process of formation, or, at the very least, (iii) be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world.143

2.4.4.3 CCL 10 The Allies developed the Allied Control Council at the end of World War II, which was a legislative authority over occupied Germany. CCL 10, which entered into force on 20 December 1945 and was in the nature of domestic legislation, was enacted by the Allied Control Council in order to give effect inter alia to “the London Agreement of 8 August 1945 and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal”.144 It empowered the Allies to prosecute war criminals and other similar offenders for crimes against peace, war crimes and crimes against humanity, in their respective zones of occupation. There was no similar legislation to CCL 10 in Japan as the United States was the single occupying power in Japan. CCL 10 being domestic legislation is not a binding source of international criminal law, but it is of persuasive authority, as it was modelled on the IMT Charter.

142

The ILC considered various forms which the draft code of crimes against the peace and security of mankind could take, including an international convention, whether adopted by a plenipotentiary conference or by the UN General Assembly; incorporation of the code in the statute of an international criminal court; or adoption of the code as a declaration by the UN General Assembly. In the end, it recommended that the UN General Assembly select the “most appropriate form which would ensure the widest possible acceptance of the draft Code”. See ibid., commentary, §§ 47–48. 143 Footnotes omitted. Prosecutor v Furundžija, supra note 25, § 227. 144 Preamble, CCL 10, supra note 87.

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2.4.4.4 Resolutions of the UN General Assembly and UN Security Council Neither the resolutions of the UN General Assembly nor the UN Security Council are sources of law per se. However, they may contribute to the development of international law, if, for example, a UN General Assembly resolution is supported by all of the member nations of the UN General Assembly or if all of the members of the UN Security Council vote in favour of a UN Security Council resolution.145 In addition, the explanation given by a State when voting on a resolution can provide evidence of State practice and that particular State’s understanding of the law.146 It should, of course, be mentioned that UN Security Council resolutions are, however, legally binding on all member States of the UN, including those adopted under Chapter VII (Action with respect to threats to the peace, breaches of the peace and acts of aggression) of the UN Charter.147 2.4.4.5 Reports of the International Law Commission The reports of the International Law Commission have no binding legal authority. However, they may be viewed as evidence of the evolution of customary international law.

2.4.5 Judicial Precedent and the Ad Hoc International Criminal Tribunals, the ICC and the SCSL148 International law does not generally recognise the principle of judicial precedent in relation to judicial decisions. For example, Article 59 of the Statute of the ICJ

145

146 147 148

The UN General Assembly consists of all the members of the UN, numbering 192, as of 1 July 2007. UN Charter, 26 June 1945, 59 Stat. 1031, 3 Bevans 1153, available at http://www.un.org/aboutun/charter/ (last visited 20 January 2007), Article 9(1). The UN Security Council consists of 15 members of the UN, five of which are permanent members (China, France, Russian Federation, United Kingdom and the United States). The current non-permanent members of the UN Security Council are Belgium, Ghana, Indonesia, Italy, Panama, Peru, Qatar, the Republic of the Congo, Slovakia and South Africa. See further, Malcolm N. Shaw, International Law, Cambridge University Press, Cambridge, 4th ed., 1997, pp. 89–93. Article 25, UN Charter, supra note 145. See also supra section 2.4.2.1. Judicial precedent is employed herein to refer to the scenario whereby a court/tribunal follows its own previous jurisprudence (i.e. whether emanating from a lower, higher or the same Chamber of such court/tribunal), unless otherwise indicated. For a consideration of the cases in which the ICTY and ICTR have referred to the jurisprudence of other international courts/tribunals, for example, the ICJ, see Nathan Miller, “An International Jurisprudence? The Operation of “Precedent“ Across International Tribunals”, 15 Leiden J. Int’l L 483 (2002).

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provides “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case”. Thus theoretically, previous ICJ decisions are not binding on the ICJ or on parties to its Statute. However, in practice the ICJ frequently refers to its previous decisions. What is the status of judicial precedent in relation to the ICTY, ICTR and ICC? A straightforward answer to this question is not immediately obvious and neither scholars nor the jurisprudence emanating from these institutions, are in complete agreement. However, the resolution of this issue is crucial to the daily practice of such institutions and for an understanding of what weight should attach to the jurisprudence emanating from such institutions. 2.4.5.1 Judicial Precedent and the Ad Hoc International Criminal Tribunals and the SCSL The Statutes of the ad hoc international criminal tribunals do not expressly deal with the issue of judicial precedent, however, the precedential value of ICTY decisions was directly addressed in Prosecutor v Žlato Aleksovski.149 The Appeals Chamber held that 1. Whether previous decisions of the ICTY Appeals Chamber are binding on the ICTY Appeals Chamber: The general rule is that, in the interests of certainty and predictability, the Appeals Chamber “should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice”, such as for example, where the previous decision has been decided on the basis of a wrong legal principle or where it has been given per incuriam (i.e. it has been “wrongly decided, usually because the judge or judges were illinformed about the applicable law”).150 When a previous Appeals Chamber decision is binding on the Appeals Chamber before which a current case appears, what is to be followed is “the legal principle (ratio decidendi), and the obligation to follow that principle only applies in similar cases, or substantially similar cases. This means less that the facts are similar or substantially similar,

149 150

Prosecutor v Žlato Aleksovski, supra note 25, §§ 89–114. Ibid., §§ 107–108. The Appeals Chamber noted that while traditionally common law jurisdictions recognised the principle of binding precedent, both the British and American legal systems recognise that there are exceptions to the rule. In addition, while civil law jurisdictions have not traditionally recognised the principle, as a matter of practice, their highest courts will generally follow their previous decisions, but reserve the right to depart from them in certain circumstances. Moreover, while the principle of stare decisis was not formally recognised by the European Court of Human Rights (ECHR) or the ICJ, the European Commission regarded the decisions of the ECHR “… as a matter of general practice and practical necessity… as the final authority on the interpretation” of the European Convention on Human Rights, whereas the previous decisions of the ICJ are accorded “considerable weight”. Ibid., §§ 92–96.

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than that the question raised by the facts in the subsequent case is the same as the question decided by the legal principle in the previous decision.”151 2. Whether previous decisions of the ICTY Appeals Chamber are binding on the ICTY Trial Chambers: The Appeals Chamber considered that “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on [the ICTY] Trial Chambers”.152 The reasons for this are threefold: firstly, the ICTY Appeals Chamber is mandated to settle definitively certain questions of law and fact arising from decisions of the Trial Chambers; secondly, both the accused and the Prosecution need the “assurance of certainty and predictability” in the application of the applicable law; and thirdly, the right of appeal is part of the right to a fair trial, which requires that like cases be treated alike. The ICTY was envisaged as applying a “single, unified, coherent and rational corpus of law”. It could not do this if each ICTY Trial Chamber were free to disregard the previous decisions of the ICTY Appeals Chamber. 3. Whether previous decisions of an ICTY Trial Chamber are binding on the other ICTY Trial Chambers: In the view of the ICTY Appeals Chamber, an ICTY Trial Chamber is free to follow a previous ICTY Trial Chamber decision, if it finds that decision “persuasive”, but there is no obligation to do so.153 The issue of judicial precedent before the ad hoc international criminal tribunals will now be considered in greater detail, bearing in mind the findings of the Aleksovski Appeals Chamber, which findings are, arguably, not completely accurate. Are the Appeals Chambers of each of the ad hoc international criminal tribunals obliged to follow the previous decisions of their own Appeals Chambers? The judgment of the ICTY Appeals Chamber in the Aleksovski case on this issue makes an interesting read and its findings in relation to this matter have been adopted and applied by the ICTR in the Prosecutor v Laurent Semanza.154 However, equally of importance is the fact that a number of subsequent ICTY Chambers have failed to comply with the findings of the Aleksovski Appeals Chamber in relation to this matter.155 Notwithstanding the pronouncements of the Aleksovski Appeals Chamber, neither the ICTY nor the ICTR Appeals Chamber is, in strict law, legally bound by its previous decisions, which also has the consequence that the ICTY Appeals Chamber is not legally bound to follow its decision in the Aleksovski case that its previous decisions are binding on the ICTY Appeals Chamber. The author is in agreement with Judge Shahabuddeen who has stated:

151

Ibid., § 110. Ibid., § 113. 153 Ibid., § 114. 154 See Prosecutor v Laurent Semanza, Case No.: ICTR-97-20-A, Decision, App. Ch., 31 May 2000, § 92. 155 See generally Xavier Tracol, “The Precedent of Appeals Chambers Decisions in the International Criminal Tribunals”, 17 Leiden J. Int’l L 67 (2004). 152

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… nothing in the [ICTY] Statute can be interpreted as creating an obligation in law to follow previous decisions subject to a limited power of departure… No doubt, the provisions of the Statute may be interpreted as enabling the Appeals Chamber, if it sees fit, to adopt a practice of following its previous decisions subject to a limited power of departure; they do not go far enough to be interpreted as requiring it to act in that way as a matter of existing statutory compulsion156… [and] In my understanding – if not also the general understanding – a decision of the Appeals Chamber is in strict law not a binding authority on that Chamber; but of course it is highly persuasive on that Chamber and should only be departed from sparingly.157

Crucially of course, the position in law and the position in practice need to be distinguished. In practice the Appeals Chambers of each ad hoc international criminal tribunal appear to follow the previous decisions of their Appeals Chambers, unless they have good reason not to do so.158 Is the ICTR Appeals Chamber bound by the decisions of the ICTY Appeals Chamber and vice versa? This matter is complicated by the fact that the ICTY and ICTR share the same Appeals Chamber. The Appeals Chamber consists of seven permanent judges, five from the permanent judges of the ICTY, and two from the permanent judges of the ICTR. If the ICTY and ICTR Appeals Chamber were completely independent of one another, then a categorical answer in the negative would be possible. However, due to the relationship between the two Appeals Chambers, the question of whether decisions of each Appeals Chamber are binding on each other is still not settled.159 A 2003 review of the practice of the ICTR however “demonstrates that the ICTR Appeals Chamber often refers to, quotes, concurs with and eventually endorses the findings of the ICTY Appeals Chamber”.160 Are the Appeals Chamber decisions of each ad hoc international criminal tribunal binding on the respective Trial Chambers of each such tribunal? The holding of the ICTY Appeals Chamber in the Aleksovski case that the ratio decidendi of its decisions are binding on the ICTY Trial Chambers is accurate.161 The same principle applies as regards the ICTR. 156 157

158

159 160 161

Emphasis added. Prosecutor v Semanza, supra note 154, Separate Opinion of Judge Shahabuddeen, § 13. Prosecutor v Slobodan Miloševiü, Case No.: IT-02-54-AR73.2, “Decision on Admissibility of Prosecution Investigator’s Evidence”, Partial Dissenting Opinion of Judge Shahabuddeen, App. Ch., 20 September 2002, § 38. Tracol notes that up until late 2003, the ICTR Appeals Chamber had never directly contradicted its previous decisions while the ICTY Appeals Chamber had only done so twice. See Tracol, supra note 155, pp. 72–75. See Tracol, supra note 155, pp. 99–100 and footnote 238 of Tracol, ibid. Ibid. The Aleksovski Appeals Chamber did not define what it meant by the term ‘ratio decidendi ’. However, some judges have made statements on this issue. Judge Hunt is of the

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Are the Appeals Chamber decisions of each ad hoc international criminal tribunal binding on both the Trial Chambers of the ICTY and the ICTR? Again, this matter is complicated by the existing relationship between the Appeals Chambers of the ICTY and the ICTR. No categorical conclusion has been reached yet; however the practice of the Trial Chambers of the ICTY and ICTR demonstrates that both Trial Chambers frequently refer to the judgments of the ICTY and ICTR Appeals Chambers.162 Are the Trial Chamber decisions of each ad hoc international criminal tribunal binding on the respective Trial Chambers of each such tribunal? The Trial Chambers of the ICTY are not obliged to follow the decisions of other ICTY Trial Chambers, although they may be treated as being of persuasive authority. The same applies to the ICTR Trial Chambers. Case law of the ad hoc international criminal tribunals and the SCSL Article 20(3) of the SCSL Statute provides that “[t]he judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the Former Yugoslavia and for Rwanda.”163 Accordingly, the principle of judicial precedent is not at play between the tribunals and the SCSL. The SCSL took the opportunity in Prosecutor against Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, to expressly consider the binding nature or otherwise of ICTY/ICTR jurisprudence on the SCSL. It noted 22… the Trial Chamber emphasises that its application of the ICTY and ICTR case-law jurisprudence is not due to a statutory imperative predicated upon a binding relationship of these UN Security Council-established International Criminal Tribunals on the Special

162 163

view that the ratio decidendi of a decision is the statement of legal principle – express or implied – which was necessary for the disposal of the case, whereas an obiter dictum is a statement of legal principle which goes beyond what is necessary for the disposal of the case; Judge Shahabuddeen, on the other hand, seeks to draw a distinction between the ratio decidendi of a decision “and the authority it exerts over the way other cases are decided. Though a holding is ratio decidendi, it may well have no more authority than an obiter dictum, but this result come about by way of an exception to the authority normally exerted by ratio decidendi”. See Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, supra note 61, Separate Opinion of Judge Hunt, §§ 36-43 and Separate Opinion of Judge Shahabuddeen §§ 16-26. See also Tracol, supra note 155, pp. 69–71. Although Trial Chambers are bound by the ratio decidendi of Appeals Chamber decisions, this principle has not always been strictly followed in recent times. See Tracol, ibid., pp. 75–98. See generally, Tracol, supra note 155, pp. 100–101. Emphasis added. See Statute of the Special Court for Sierra Leone dated 16 January 2002 (“SCSL Statute”), which is annexed to the Agreement between the UN and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone dated 16 January 2002, available at http://www.sc-sl.org/ (last visited 20 January 2007).

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Court… There is, however, a special relationship envisioned between the Special Court and the International Tribunals, as each institution is established to permit prosecutions for inter alia “serious violations of international humanitarian law”. As such the International Tribunals, the Special Court and the International Criminal Court belong to a unique, and still emerging, system of international criminal justice… 25… the Special Court will apply the decisions of the ICTY and ICTR for their persuasive authority, with necessary modifications and adaptations, taking into account the particular circumstances of the Special Court. The Trial Chamber will, however, where it finds it necessary or particularly instructive, conduct its own independent analysis of the state of customary international law or a general principle of law… Additionally, in cases where the Trial Chamber finds that its analysis of a certain point or principles of law may differ from that of either the ICTY or ICTR, it shall base its decisions on its own reasoned analysis.164

Accordingly, the SCSL is not legally bound to follow the decisions of the ICTY or ICTR Chambers, but it may rely on them for their persuasive authority.165 Conclusion The practice of the ad hoc international criminal tribunals demonstrates that in many respects, the tribunals comply with the principle of judicial precedent, although not strictly required to do so in many circumstances. 2.4.5.2 Judicial Precedent and the ICC As noted above, Article 21(2) of the ICC Statute provides that the ICC “may apply principles and rules of law as interpreted in its previous decisions.”166 Accordingly, while the ICC may refer and even rely on a previous decision of the ICC, it is not under a legal obligation to do so. It is likely though that the ICC will, in practice, follow its previous decisions and only depart from them in limited circumstances. It is also likely, that at least in the ICC’s start-up phase, where there is an absence of previous ICC jurisprudence, the ICC will refer to the established case law of the ad hoc international criminal tribunals. However, as there is no hierarchal relationship between the ICC and the ad hoc international criminal tribunals, the ICC will be at liberty to come to a different conclusion than the ad hoc international criminal tribunals, if it deems fit.

164

165

166

Prosecutor against Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No.: SCSL-2004-16-PT, “Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment”, T. Ch., 1 April 2004, §§ 22 and 25. Emphasis added and footnotes omitted. The first judgment of the SCSL indicates a heavy reliance by the court on ICTY jurisprudence. See Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No.: SCSL-04-16-T, Judgment, T. Ch. II, 20 June 2007. Emphasis added.

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2.4.5.3 Conclusion The above discussion demonstrates that generally speaking while, theoretically, the principle of judicial precedent is not to be found in international criminal law,167 in practice, the reality is different. Although different courts/tribunals are not, broadly speaking, legally bound by the previous decisions of other courts/ tribunals, there is a clear advantage in the various courts/tribunals following each others decisions, as much as possible. Each court/tribunal is mandated to enforce international criminal law and as noted by the SCSL Trial Chamber, each “belong[s] to a unique, and still emerging, system of international criminal justice”.168 In the interests of justice, the “orderly development”169 of international criminal law, and the need for consistency, certainty and predictability, it is preferable that the decisions of the courts/tribunals are harmonised as much as possible. Otherwise, there is a danger of the development of diverging bodies of international criminal law.

2.4.6 Concluding Remarks As can be gauged from the above, the sources of international criminal law are diverse, frequently not immediately obvious, and are complicated by a number of factors. This makes the task of identifying and applying international criminal law particularly arduous. It is, however, necessary to identify the sources of international criminal law in order to determine what weight should actually be attached to the documentation, material and jurisprudence, which is commonly referred to in the context of international criminal law, often without any evaluation of its status as a source of international criminal law, as a mere tool of persuasive authority or practical value, or otherwise.

2.5 Definition Of Core International Crimes 2.5.1 Introductory Remarks Despite the frequent employment of the term ‘international crimes’ both by scholars and the media alike, a comprehensive definition of the same has never been agreed 167

168 169

Two exceptions are, of course, the uncertainty surrounding the questions of whether the ICTR Appeals Chamber is bound by the decisions of the ICTY Appeals Chamber and vice versa and whether the Appeals Chamber decisions of each ad hoc international criminal tribunal are binding on both the Trial Chambers of the ICTY and the ICTR. See supra sections 2.4.5.1 (Is the ICTR Appeals Chamber bound by the decisions of the ICTY Appeals Chamber and vice versa?) and 2.4.5 (Are the Appeals Chamber decisions of each ad hoc international criminal tribunal binding on both the Trial Chambers of the ICTY and the ICTR?). See Prosecutor against Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, supra note 164. To borrow the phrase employed in the Cossey Case referred to in Aleksovski, supra note 25, § 95.

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upon. Neither is there an agreed set of criteria which a particular conduct must meet, in order for such conduct to be considered an ‘international crime’.170 One of the peculiarities of international criminal law is the absence of a codified international criminal code which articulates what actions or omissions amount to crimes under international criminal law and the consequences of committing one of those crimes. As noted above, the sources of international criminal law consist of a hodgepodge of various instruments. Accordingly, in one’s quest to determine the fundamental components of a particular crime, one has to examine a mishmash of sources and frequently, those fundamental elements cannot be determined with the desired level of certainty. Even though the statutes of international criminal courts/ tribunals expand on the notions of certain crimes, such as war crimes and crimes against humanity, these formulations are, strictly speaking only relevant in determining the crimes over which the particular court/tribunal concerned has jurisdiction. They have no general application in international criminal law. Due to the uncertainty surrounding this subject, consideration will be given to the definition and criteria of international crimes. In addition, a brief description of the crime of genocide, war crimes and crimes against humanity will be undertaken, due to the relevance of such descriptions for the purposes of the discussion of the pertinent issues addressed in this thesis.

2.5.2 Definition of ‘Core International Crimes’ Prior to identifying ‘core international crimes’, it is appropriate to take one step back and to determine what crimes can be categorised as ‘international crimes’ in the first instance. As noted above, an agreed formulation of international crimes has been quite elusive for decades and continues to be so.171 This is especially interesting because

170

The absence of a clear definition and criteria relating to international crimes can be explained by a number of factors: (i) the absence of a clear, comprehensive vision of how international criminal law should be developed; (ii) the hodgepodge of sources of international criminal law; (iii) the participation of diverse and legally unskilled contributors to the formulation of international criminal law conventions and the influence of political, as opposed to legal, considerations; and (iv) the expectation that international criminal law will be incorporated into specific domestic legislation and accordingly, can afford to be vague. See Bassiouni, supra note 10, Vol. I, pp. 5, 33–34, 48–49 and 55. 171 An attempt was made at a single definition of the term ‘international crimes’ in Article 19 of the International Law Commission’s “Draft Articles on Responsibility of States for Internationally Wrongful Acts”. See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission on first reading, 1996, available at http://www.lcil.cam.ac.uk/ Media/ILCSR/articles_1996%28e%29.doc (last visited 3 July 2007). However, the category of international crimes in draft Article 19, and the consequences attaching to

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of the prolific use of such term by scholars and in particular, because none of the international instruments which are generally accepted to concern ‘international crimes’, define nor, in most instances, even use such term.172 Bassiouni, who has made the only comprehensive scholarly investigation into this subject, has identified the following ten penal characteristics, any one of which, if found in a multilateral convention, is sufficient to characterise the conduct prohibited by such convention as constituting an international crime: (1) Explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime; (2) Implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish or the like; (3) Criminalisation of the proscribed conduct; (4) Duty or right to prosecute; (5) Duty or right to punish the proscribed conduct; (6) Duty or right to extradite; (7) Duty or right to cooperate in prosecution, punishment (including judicial assistance); (8) Establishment of a criminal jurisdictional basis; (9) Reference to the establishment of an international criminal court or international tribunal with penal characteristics; (10) No defence of superior orders.173

On the basis of these 10 penal characteristics, Bassiouni’s research has identified the following 28 categories of “international crimes”.

172

173

that category in draft Articles 40 (3) and 51–53 proved very contentious both with governments and within the International Law Commission itself, and was eventually deleted following a re-examination of the whole of Chapter III (concerning the breach of an international obligation by a State) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts. See Progress Reports 1998-2000 on the second reading of the Draft Articles on State Responsibility, by James Crawford and Pierre Bodeau, available at http://www.lcil.cam.ac.uk/projects/state_responsibility_ document_collection. php#3 (last visited 3 July 2007). See also Nina H.B. Jørgensen, The Responsibility of States for International Crimes, Oxford University Press, Oxford, 2000, pp. 46–54. Neither the IMT Charter, supra note 23, the IMTFE Charter, supra note 23, the ICTY Statute, supra note 16, the ICTR Statute, supra note 16, nor the Draft Code of Crimes, supra note 141, even uses the term ‘international crime’, while the ICC Statute, supra note 4, employs such term only once in § 6 of its Preamble. Instead a variety of other terms are employed, e.g. the Nuremberg Principles, supra note 92 and the Draft Code of Crimes refer to the term “crimes under international law”, the ICTY and ICTR Statutes refer to “serious violations of international humanitarian law”, while the ICC Statute refers to “the most serious crimes of concern to the international community as a whole”. Bassiouni’s research indicates that of the 281 international instruments referred to by him in his formulation of international crimes (see infra), explicit recognition that a given conduct constitutes an international crime or a crime under international law can be found in only 57 of such instruments. See supra note 5, p. 117. Bassiouni, supra note 5, p. 115.

2.5 Definition of Core International Crimes

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

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Aggression Genocide Crimes against humanity War crimes Unlawful possession or use or emplacement of weapons Theft of nuclear materials Mercenarism Apartheid Slavery and slave-related practices Torture and other forms of cruel, inhuman or degrading treatment Unlawful human experimentation Piracy Aircraft hijacking and unlawful acts against international air safety Unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas Threat and use of force against internationally protected persons Crimes against United Nations and associated personnel Taking of civilian hostages Unlawful use of the mail Attacks with explosives Financing of terrorism Unlawful traffic in drugs and related drug offences Organised crime Destruction and/or theft of national treasures Unlawful acts against certain internationally protected elements of the environment International traffic in obscene publications Falsification and counterfeiting Unlawful interference with submarine cables, and Bribery of foreign public officials.174

The categories of international crimes identified by Bassiouni are based on five criteria identified by him as applicable to the policy of international criminalisation: (i) the prohibited conduct affects a significant international interest, in particular, if it constitutes a threat to international peace and security; (ii) the prohibited conduct constitutes an egregious conduct deemed offensive to the commonly shared 174

This categorisation builds on the 22 categories of international crimes first identified by Bassiouni in 1986, and the 25 categories of international crimes identified by him in 1999. The crimes of mercenarism, unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas, and crimes against UN and associated personnel, first appeared in Bassiouni’s 1999 classification; whereas the crimes of attacks with explosives, financing of terrorism, and organised crime, first appeared in his 2003 classification; see Bassiouni, International Crimes: Digest/Index of International Instruments 1815–1985, Oceana, New York, 1986, Vol. I, p. lv; Bassiouni, supra note 10, Vol. I, pp. 32–100, and Bassiouni, supra note 5, pp. 116–117.

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values of the world community, including conduct deemed shocking to the conscience of humanity; (iii) the prohibited conduct involves more than one state (transnational implications) in its planning, preparation or commission either through the diversity of nationality of its perpetrators or victims, or because the means employed transcend national boundaries; (iv) the conduct is harmful to an internationally protected person or interest; and (v) the conduct violates an internationally protected interest but it does not rise to the level required by (i) or (ii), however, because of its nature, it can best be prevented and suppressed by international criminalization.175 Antonio Cassese posits that the determination of a crime as an international crime inter alia depends on the values intended to be protected by criminalising such conduct and whether such values are considered important by the whole international community. Applying inter alia this criterion, he posits that piracy, illicit trafficking in narcotic drugs and psychotropic substances, and apartheid are not international crimes.176 Irrespective of this disagreement, one issue on which there is accord is that the crimes which can be categorised as core international crimes are genocide, crimes against humanity, war crimes and the crime of aggression. These crimes are considered to be core international crimes as they are the “most serious crimes of concern to the international community as a whole”.177 They are also jus cogens crimes from which, it has been asserted,178 no derogation is permitted and which are subject to universal jurisdiction.179 175 176 177 178

179

See Bassiouni, supra note 5, pp. 114–115. Criterion (iv) was not included in Bassiouni’s 1999 treatise on the subject; see Bassiouni, supra note 10, Vol. I, p. 33. See Cassese, supra note 66, pp. 23–25. Article 5(1), ICC Statute, supra note 4. See Bassiouni, supra note 5, pp. 686 and 701. See also John F. Murphy “Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution”, 12 Harvard Human Rights Journal 7 (1999). The consequences attaching to jus cogens crimes have been described in the following terms: A duty for all legal systems: (i) to prosecute or extradite, and when necessary to resort to universal jurisdiction; (ii) to provide legal assistance to national or international legal orders undertaking the investigation, adjudication or prosecution of such crimes; (iii) to not recognise or apply statutes of limitations; and (iv) to recognise and enforce penal judgments arising out of such cases. See Bassiouni, ibid., p. 701. Bassiouni notes, however, that theory and practice do not concur and that state practice does not indicate complete adherence to such duties. Ibid., p. 170. See also Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmhurst, An Introduction to International Criminal Law and Procedure, Cambridge University Press, Cambridge, 2007, who note that “[a]n argument of mandatory ‘universal jurisdiction’ (due to the ius cogens status of the crimes or otherwise) would in fact result in most States being in constant breach of the obligation, which brings into question whether State practice does indeed indicte the existence of such a custom”. Ibid., pp. 59–61. See Shaw, supra note 146, p. 471 and Christopher L. Blakesley, in Bassiouni, supra note 10, Vol. II, pp. 71–72. However, as Shaw notes this issue is politically sensitive. In his view, the extension of the universality principle to international crimes is acceptable, except when there is a danger that it will be used against e.g. American personnel,

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2.5.3 Core International Crimes for which a Person can be Individually Criminally Responsible This section attempts to briefly define the crime of genocide, war crimes and crimes against humanity, due to their relevance to the pertinent issues discussed later.180 The definition of genocide is particularly relevant, both in the context of the discussion in Chapter 3 on the joint criminal enterprise doctrine and the crime of genocide, and the discussion in Chapter 5 concerning the role which the ICC can play in the prosecution of terrorism. The definition of war crimes is similarly relevant in the context of the discussion in Chapter 5 concerning the role which the ICC can play in the prosecution of terrorism. Finally, the definition of crimes against humanity is particularly relevant for the purposes of the general discussion, in Chapter 5, concerning individual criminal responsibility for terrorism as a crime against humanity and the role which the ICC can play in the prosecution of terrorism. Whereas in this section, reference is made to numerous international instruments, e.g. the IMT and IMTFE Charters and the ICTY, ICTR and ICC Statutes, in the context of a determination of the consistency of the definitions of, and developments in, core international crimes, it should be noted that none of these instruments actually codifies international criminal law. Neither do they bind any

180

see Shaw, ibid. The purpose of the principle of universality is that the crimes over which such jurisdiction is exercised are regarded as particularly offensive to the international community as a whole and accordingly warrant universal prosecution. The principle of universal jurisdiction allows any court to assert jurisdiction over the perpetrator of an international crime, regardless of the place of commission of the crime, or the nationality of the perpetrator or the victim of such international crime. Two versions of the universality principle have been recognised. The first provides that only the state where an accused is in custody can prosecute such accused, while the second provides that a state can prosecute such accused whether or not such accused is in the custody of the state in question. See Antonio Cassese, International Law, Oxford University Press, Oxford, 2001, pp. 261–262. For a consideration of whether states are empowered or even obliged to prosecute international crimes under customary international law in the absence of domestic legislation, see Cassese, ibid., pp. 262–265. For a consideration of the universality principle generally see Shaw, ibid., pp. 470–482, Blakesley, ibid., pp. 33–105; and Cassese, ibid., pp. 260–265. While the use of force to resolve international disputes is generally considered to be unacceptable (UN Charter, supra note 145, Articles 2, 33, 39, 51 and 52), there is no single international convention that provides categorically that aggression is an international crime. Article 5 of the ICC Statute, supra note 4, provides that the ICC has jurisdiction over the crime of aggression; however, the ICC can only exercise that jurisdiction when a definition of the same has been agreed upon. See also Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR Supp. No. 22, U.N. Doc. A/50/22, pp. 13–15; Report of the Preparatory Commission on the Establishment for the International Criminal Court – Part I – Draft Statute for the International Criminal Court, Preparatory Commission for the International Criminal Court, 14 April 1998, A/CONF. 183/2/Add.1 and Giorgio Gaja, in Cassese, Gaeta and Jones, supra note 123, Vol. I, pp. 427–441.

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State, except States which are parties to the relevant instrument or the tribunal concerned. However, these instruments are useful in indicating the status and development of these crimes in international law. 2.5.3.1 Genocide Although the term “genocide” was not coined by Polish attorney and scholar Raphael Lemkin until 1944,181 acts of genocide occurred prior to the Holocaust.182 The crime of genocide was first formally recognised during the IMT trial. Notwithstanding that the IMT Charter did not specifically use the term genocide, such acts fell within the IMT Charter’s definition of ‘crimes against humanity’, as was the case with respect to the IMTFE Charter and CCL 10.183 Neither the IMT/IMTFE Charters nor CCL 10 explicitly conceived of genocide as separate from crimes against humanity. In 1946, the UN General Assembly unanimously adopted Resolution 96 (I), which inter alia affirmed genocide as a crime under international law, carrying individual criminal responsibility.184 Genocide was recognised as a distinct and separate crime in its own right by way of the adoption in 1948 of the Genocide Convention.185 Article I of the Genocide Convention confirms that “genocide, whether committed in time of peace or in time of war, is a crime under international law”, while Article II defines genocide in the following terms:

181

See Rafael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress, Carnegie Endowment for International Peace, Washington D.C., 1944. Lemkin coined the term “genocide” by combining the ancient Greek word “genos” (race, tribe) with the Latin expression “cide” (killing). 182 For example, the forced removal and elimination of American Indians in the United States of America, the extermination of Tasmanian and other Aboriginals in the 19th century and the Turkish extermination of the Anatolian Armenians in 1915. See John R. W. D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, Transnational, Irvington-on-Hudson, 2nd ed., 2000, p. 99. 183 Article 6(c), IMT Charter, supra note 23; Article 5(c), IMTFE Charter, supra note 23; and Article II(1)(c), CCL 10, supra note 87. 184 G.A. Res. 96(I), U.N. GAOR, U.N. Doc A/64/Add.1, p. 189 (1946). Resolution 96(I) has been interpreted by the ICJ as affirming that the prohibition of genocide is part of customary international law which is binding on all states, see Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23. The UN General Assembly affirmed genocide as an international crime in G.A. Res. 180 (II), U.N. GAOR, U.N. Doc A/519, p. 129–130 (1947). 185 See supra note 68. The drafting of the Genocide Convention was very much influenced by both the Holocaust and the Cold War; see Matthew Lippman, in Bassiouni, supra note 10, Vol. I, p. 596 and Ratner and Abrams, Accountability for Human Rights Atrocities in International Law, Oxford University Press, Oxford, 2nd ed., 2001, p. 42.

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Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,186 as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group, conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.187

The mens rea of genocide is very precise, that is, in addition to having the criminal intent to commit any of the acts described in Article I (a)–(e), the perpetrator must commit such acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Therefore, other mental elements such as negligence or recklessness are excluded.188 In addition to providing a specific definition for genocide, the Genocide Convention deems punishable genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempts to commit genocide and complicity in genocide,189 and provides that persons committing genocide or participating in any way with the act of genocide 186

187

188

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It was suggested in the Working Group of the Preparatory Committee of the ICC in February 1997 that the reference to the destruction in whole or in part of a group, required that there be intent to destroy more than just a small number of individuals; see U.N. Doc. A/AAC.249/1997/L.5 Annex I, p. 3, note 1. However, this was resolutely rejected by some commentators. See Antonio Cassese in Cassese, Gaeta and Jones, supra note 123, Vol. I, pp. 347–348. See also the ICC Elements of Crime, supra note 122, pp. 2–4. This definition of genocide is set out verbatim in Article 4(2), ICTY Statute, supra note 16; Article 2(2), ICTR Statute, supra note 16; and Article 6, ICC Statute, supra note 4. The concept of “ethnic cleansing” does not explicitly fall within the ambit of this definition (for an opposing opinion, see Application of the Convention on the Prevention and Punishment on the Crime of Genocide (Provisional Measures), Separate Opinion of Judge ad hoc E. Lauterpacht, 1993 I.C.J 431–432, §§ 68-70). However, the practice of the ICTY “nevertheless appears to contemplate that the practice referred to as “ethnic cleansing” may at least comprise the actus reus of genocide”; see Cassese, supra note 186, p. 341. Dolus eventualis, i.e. where the perpetrator willingly and knowingly accepts that a considerable chance that a certain result may ensue, is also excluded. But see the discussion infra Chapter 3, section 3.6.2 in relation to the joint criminal enterprise and genocide. As regards genocide, proposals have been put forward for the retention of a specific intent standard for executive decision-makers while imposing a general intent or knowledge requirement for functionaries. See Matthew Lippman, supra note 185, p. 603. Article III, Genocide Convention, supra note 68. This Article is repeated verbatim in Article 4(3), ICTY Statute, supra note 16 and Article 2(3), ICTR Statute, supra note 16. The ICC Statute, supra note 4, does not repeat this provision verbatim either because the form of participation in question falls within the ambit of general provisions set out elsewhere in the ICC Statute, i.e. direct and public incitement to commit genocide (Article 22(3)(e)); attempts (Article 25(3)(f)); complicity (Article 25(3)(c) and (d)) or, as regards conspiracy, because it was not accepted by the Rome Diplomatic Conference. See Cassese, supra note 186, p. 347.

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shall be punished whether they are constitutionally responsible rulers, public officials or private individuals.190 As mentioned above, neither the IMT nor the IMTFE Charter conceived of genocide as a distinct crime in its own right, separate from the category of crimes against humanity. However today, the crime of genocide is clearly distinguishable from crimes against humanity. Genocide is defined in legal terms by the “intent to destroy in whole or in part a national, ethnical, racial or religious group”. This ‘intent to destroy’ does not form part of the legal definition of crimes against humanity which requires that the crime be committed as part of a widespread or systematic attack on a civilian population.191 The main substantive provisions of the Genocide Convention, including the classification of genocide as a crime under international law, are now considered to be part of customary international law, binding on all states.192 The Genocide Convention, and the ICTY, ICTR and ICC Statutes each provide for individual criminal responsibility for the crime of genocide and other forms of participation in the crime of genocide.193 2.5.3.2 War Crimes The concept of war crimes was first introduced into international treaty law by way of Article 227 of the Treaty of Versailles 1919, which provided for the public arraignment of William II of Hohenzollern, formerly German Emperor, for a

190

Article IV, Genocide Convention, supra note 68. For a discussion of the imperfections and/or weaknesses of the Genocide Convention, see Lippmann, supra note 185, p. 601. 191 The requirement in the ICC Elements of Crimes, supra note 122, that the defined acts of genocide “took place in the context of a manifest pattern of similar conduct directed against that group”, seem to be introducing the crimes against humanity requirement of a widespread/systematic practice as a requirement of the crime of genocide, notwithstanding that such requirement is not required by customary international law, nor Article 6, ICC Statute, supra note 4. See ICC Elements of Crimes, supra note 122, pp. 2–4. For arguments against such a requirement, see Cassese, supra note , pp. 349– 350. For a discussion of the similarities and additional dissimilarities between crimes against humanity and genocide, see Cassese, supra note 186, p. 339. 192 See Cassese, supra note 186, p. 337, and Ratner and Abrams, supra note 185, p. 41. See also Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of Genocide, 1951 I.C.J. 23; Attorney General of the Government of Israel v Eichmann, 36 ILR 5; Prosecutor v Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgment, T. Ch. I, 2 September 1998, § 495; and Report of the Secretary-General concerning the establishment of the ICTY, UN Doc.S/25704 (1993). 193 See Articles 3 and 4, Genocide Convention, supra note 68; Articles 4 and 7, ICTY Statute, supra note 16; Articles 2 and 6, ICTR Statute, supra note 16; and Articles 6 and 25, ICC Statute, supra note 4. See also Articles 2 and 17, Draft Code of Crimes, supra note 141; Article 5, IMT Charter, supra note 23; and Article 6, IMTFE Charter, supra note 23.

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“supreme offence against international morality and the sanctity of treaties”.194 The term ‘war crime’ was introduced into international treaty law by Article 6(b) of the IMT Charter, which defined war crimes as violations of the laws or customs of war, including but not limited to “murder, ill-treatment or deportation to slave labor, or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity”.195 Clearly, although the definition was useful on some levels, it was still quite vague, for example, in what context the specified acts would actually amount to a war crime.196 Additional attempts were made to clarify and expand the concept of war crimes by way of the four Geneva Conventions and Additional Protocols I and II. The Geneva Conventions did not employ the term ‘war crimes’ but instead referred to persons committing, or ordering to be committed, “grave breaches” of the Geneva Conventions.197 Additional Protocol I provides that grave breaches of the Geneva Conventions “shall be regarded as war crimes”.198 Subsequent attempts were made to provide a definition of war crimes.199 However, Article 8(2) of the ICC Statute represents the first codification of war crimes.200 Although this formulation is, strictly speaking, only relevant in deter194

See Fred L. Israel, Major Peace Treaties of Modern History 1648–1967, Chelsea House Publishers, New York, 1967–80, p. 1265. For a commentary on the history and sources of the law of armed conflict, see generally L. C. Green, The Contemporary Law of Armed Conflict, Manchester University Press, Manchester, 2nd ed., 2000, pp. 20–53 and Ove Bring, International Criminal Law in Historical Perspective, Juridiska fakulteten ved Stockholms Universitet, Stockholm, 2nd ed., 2001, pp. 11–36. See also L. C. Green “International Regulation of Armed Conflicts” in Bassiouni, supra note 10, Vol. I, pp. 355–380, Yves Sandoz, “Penal Aspects of International Humanitarian Law” in Bassiouni, supra note 10, Vol. I, pp. 393–415, and Michael Bothe in Cassese, Gaeta & Jones, supra note 123, Vol. I, pp. 382–386. 195 The Nuremberg Principles, supra note 92, at Principle VI(b), defined war crimes in similar terms. The definition set out in Article 5(b), IMTFE Charter, supra note 23, was less specific. 196 See generally Bothe, supra note 194, p. 383. 197 See Article 50, Geneva Convention I, supra note 68; Article 51, Geneva Convention II, supra note 68; Article 130, Geneva Convention III, supra note 68; and Article 147, Geneva Convention IV, supra note 68. 198 Article 85(5), Additional Protocol I, supra note 68. 199 See Article 20, Draft Code of Crimes, supra note 141. This provision provided the basis for Article 8, ICC Statute, supra note 4. 200 The ICTY Statute, supra note 16, also contains provisions on war crimes under the headings “Grave breaches of the Geneva Conventions of 1949” (Article 2) and “Violations of the laws or customs of war” (Article 3), as does the ICTR Statute, supra note 16, under the heading “Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II” (Article 4). The reason behind the limitation of the provisions relating to war crimes in the ICTR Statute to violations of common Article 3 of the Geneva Conventions and Additional Protocol II (which relate to non-international

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mining the crimes over which the ICC has jurisdiction and has no general application, it is quoted verbatim below: firstly, because it is the only comprehensive codification of war crimes; secondly, because its terms are too complex to be summarised sufficiently; and thirdly, in order to ‘lay the land’ for the purposes of the discussion, in Chapter 5, on individual criminal responsibility for terrorism, as a war crime. Prior to doing so, two issues require highlighting. Firstly, in order to be characterised as a war crime, the prohibited act or omission must be committed during and in connection with an armed conflict.201 Secondly, war crimes can now be committed both as part of an international or a non-international armed conflict. The legal consequence of a conflict being characterised as international or non-international is significant, as the rules governing internal conflicts are fewer in number and provide less protection to the parties involved in the conflict.202 Article 8(2) of the ICC Statute provides: For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

conflicts), is that the conflict in Rwanda was considered to be a non-international conflict. See also Article 3 (Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II), SCSL Statute, supra note 163. 201 See Bothe, supra note 194, p. 388. 202 See Green (2000), supra note 194, pp. 54–69 and 317–335; Green (1999), supra note 194; common Article 3 of the Geneva Conventions, supra note 68 (which is considered to be part of customary international law); and Additional Protocol II, supra note 68. Common Article 3 of the Geneva Conventions only requires parties to the internal conflict to adhere to minimum protections and standards. The provisions set out in Additional Protocol II are far less comprehensive than those set out in the Geneva Conventions as regards international conflicts.

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(i)

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;203 (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;204 (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;205 (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;206 (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;207 (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;208 (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;209 (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;210 (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;211 (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified 203 204 205

206 207 208 209 210 211

Based on Articles 85(3)(a) and 85(3) (b), Additional Protocol I, supra note 68. See also Article 51(2). Based on Article 85(3)(b), Additional Protocol I, supra note 68. See also Article 52. Based on Articles 7 and 9, 1994 UN Convention on the Safety of United Nations and Associated Personnel, G.A. res. 49/59, 49 U.N. GAOR Supp. (No. 49) at 299, U.N. Doc. A/49/49 (1994); entered into force on 15 January 1999. Based on Articles 35(3), 85(3)(b) and 85(3)(c), Additional Protocol I, supra note 68. Based on Article 85(3)(d), Additional Protocol I, supra note 68, and Article 25, Hague Regulations, supra note 68. Based on Articles 41(1)-(2) and 85(3)(e), Additional Protocol I, supra note 68. Based on Articles 38 and 85(3)(f), Additional Protocol I, supra note 68 and Article 23(f), Hague Regulations, supra note 68. Based on Article 85(4)(a), Additional Protocol I, supra note 68. Based on Article 85(4)(d), Additional Protocol I, supra note 68 and Article 27, Hague Regulations, supra note 68.

68

2 Germane Considerations by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;212 (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault;213 (xvii) Employing poison or poisoned weapons;214 (xviii)Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;215 (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;216 (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict,217 provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;218

212 213 214 215

216 217

218

Based on Article 11(1)-11(5), Additional Protocol I, supra note 68. Based on Article 28, Hague Regulations, supra note 68. Article 8(2)(xi)-(xv) and (xvii) is based on Article 23, Hague Regulations, supra note 68. Based on the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Biological Methods of Warfare; 26 Martens Nouveau Recueil (ser. 3) 643; entered into force on 8 February 1928. See 1899 Hague Declaration 3 Concerning Expanding Bullets; 26 Martens Nouveau Recueil (ser. 2) 998, 187 Consol. T.S. 459; entered into force on 4 September 1900. Based on Article 35(2), Additional Protocol I, supra note 68, Article 23(e), Hague Regulations, supra note 68, and 1981 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects; U.N. Doc A/RES/36/93; entered into force on 2 December 1983. Article 8(2)(xxi)-(xxii) is based on Article 75(2)(b), Additional Protocol I, supra note 68 and Article 27, Geneva Convention IV, supra note 68.

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(xxiii)Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;219 (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;220 (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;221 (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.222 (c) In the case of an armed conflict not of an international character,223 serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.224

219

220

221 222

223 224

Based on Article 51(7), Additional Protocol I, supra note 68 and Article 28, Geneva Convention IV, supra note 68. This war crime is not contained in the Draft Code of Crimes, supra note 141. This is not contained in the Draft Code of Crimes, supra note 141. See generally Articles 19, 24 and 35, Geneva Convention I, supra note 68; Articles 22- 23, 25, 36 and 39, Geneva Convention II, supra note 68; and Articles 12, 15, and 21-24, Additional Protocol I, supra note 68. Based on Article 54(1)-(2), Additional Protocol I, supra note 68. This war crime is not contained in the Draft Code of Crimes, supra note 141. Based on Article 77(2), Additional Protocol I, supra note 68. See also Article 38(3), 1989 Convention on the Rights of the Child; G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); entered into force on 2 September 1990 and is categorised as a “serious violation of international humanitarian law” by Article 4(c), SCSL Statute, supra note 163. Based on, but not identical to Article 3, Additional Protocol II, supra note 68. Article 8(2)(c)(i)-(iv) is based on common Article 3 of the Geneva Conventions, supra note 68.

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2 Germane Considerations (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.225 (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; 226 (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;227 (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;228 (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;229 (v) Pillaging a town or place, even when taken by assault;230 (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;231 (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;232

225

226

227 228

229 230 231 232

Based on Article 1(2), Additional Protocol II, supra note 68. A similar provision is not found in common Article 3 of the Geneva Conventions, supra note 68. Therefore, Article 8(2)(d), ICC Statute, supra note 4, has the effect of modifying the existing application of common Article 3. See Bothe, supra note 194, pp. 419–420. Based on Article 13(2), Additional Protocol II, supra note 68 and Article 8(2)(b)(i), ICC Statute, supra note 4. The protection of civilian objects is not explicitly included in Article 8(2)(e), ICC Statute, supra note 4. Based on Articles 9, 11 and 12, Additional Protocol II, supra note 68 and Article 8(2)(b)(xxiv), ICC Statute, supra note 4. Based on Article 8(2)(b)(iii), ICC Statute, supra note 4 and the 1994 United Nations Convention on the Safety of United Nations and Associated Personnel, supra note 205, which convention is meant to apply in international and non-international armed conflicts. Based on Article 16, Additional Protocol II, supra note 68 and Article 8(2)(b)(ix), ICC Statute, supra note 4. Based on Article 4(2)(g), Additional Protocol II, supra note 68 and Article 8(2)(b)(xvi), ICC Statute, supra note 4. Based on Article 4(2)(e), Additional Protocol II, supra note 68 and Article 8(2)(b)(xxii), ICC Statute, supra note 4. Based on Article 4(3)(c), Additional Protocol II, supra note 68 and loosely based on Article 8(2)(b)(xxvi), ICC Statute, supra note 4.

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(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;233 (ix) Killing or wounding treacherously a combatant adversary;234 (x) Declaring that no quarter will be given;235 (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;236 (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.237 (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.238

War crimes are distinguishable from crimes against humanity in two respects: (i) an armed conflict must exist in order for war crimes to be perpetrated. Crimes against humanity can be committed both during periods of armed conflict and in times of peace;239 (ii) in order to be classified as crimes against humanity, the acts in question must be committed as part of a widespread or systematic attack directed against a civilian population. Acts of violence do not need to be widespread or systematic for the purposes of classification as war crimes. A single act or omission 233 234 235 236 237 238

239

Based on Article 17, Additional Protocol II, supra note 68 and Article 8(2)(b)(viii), ICC Statute, supra note 4. Based on Article 8(2)(b)(xi), ICC Statute, supra note 4. There is no corresponding provision in Additional Protocol II, supra note 68. Based on Article 8(2)(b)(xii), ICC Statute, supra note 4. There is no corresponding provision in Additional Protocol II, supra note 68. Based on Article 5(2)(e), Additional Protocol II, supra note 68 and Article 8(2)(b)(x), ICC Statute, supra note 4. Based on Article 8(2)(b)(xiii), ICC Statute. There is no corresponding provision in Additional Protocol II, supra note 68. Based in part on Article 1(1)-(2), Additional Protocol II, supra note 68. The reference to the application of Article 8(2)(e) to a protracted armed conflict between dissident groups goes further than the provisions of Additional Protocol II, which does not apply to armed conflicts between dissident groups. This extension is now considered to be part of customary international law. See Bothe, supra note 194, p. 423. For a general consideration of the problems with the formulation of the definition of war crimes in Article 8(2) of the ICC Statute, supra note 4, see Bothe, ibid., pp. 390–425. There has been some discussion as to whether a war/armed conflict nexus is required for crimes against humanity. However, most scholars are of the view, today, that such a nexus is not required under international law. See infra section 2.5.3.3 (Nexus with war or an armed conflict).

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can be deemed a war crime, once the prohibited act or the omission has been committed during and in connection with an armed conflict. The ICTY, ICTR and ICC Statutes each provide for individual criminal responsibility for war crimes.240 Although the Geneva Conventions do not contain specific provisions relating to individual criminal responsibility, they do contain a common article on the criminality of grave breaches of the Geneva Conventions, from which it can be implied that individual criminal responsibility attaches to such grave breaches.241 2.5.3.3 Crimes Against Humanity Although, the IMT Charter was the first international instrument to employ the term ‘crime against humanity’, the concept existed prior to 1945.242 The acts, which came to be categorised as crimes against humanity, originated in the 1899 and 1907 Hague Conventions.243 ‘Crimes against humanity’ was first employed as a term of art in the Armenian Declaration of 28 May 1915 by the governments

240

241

242

243

Articles 3 and 7, ICTY Statute, supra note 16; Articles 4 and 6, ICTR Statute, supra note 16; and Articles 8 and 25, ICC Statute, supra note 4. See also Articles 2 and 20, Draft Code of Crimes, supra note 141; Article 6, IMT Charter, supra note 23; Article 5, IMTFE Charter, supra note 23; and Articles 3 and 6, SCSL Statute, supra note 163. Whereby each of the parties to the Convention undertake “to enact legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed any of the grave breaches” defined therein and each party thereto is under the obligation to inter alia bring persons who have committed grave breaches before its own courts. See Article 49, Geneva Convention I, supra note 68; Article 50, Geneva Convention II, supra note 68; Article 129, Geneva Convention III, supra note 68; and Article 146, Geneva Convention IV, supra note 68. Neither common Article 3 of the Geneva Conventions, supra note 68, nor Additional Protocol II, supra note 68, explicitly provide for criminal sanctions in relation to the breach of their provisions. However, Article 85 of Additional Protocol I, supra note 68 provides that “the provisions of the [Geneva] Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol”. The Hague Regulations, supra note 68, do not provide for criminal sanctions in relation to the breach of their provisions; however the principle of individual criminal responsibility is clearly implied therein. Article 6(c), IMT Charter, supra note 23. For a discussion on the origins of the concept of crimes against humanity, see generally Geoffrey Robertson, Crimes Against Humanity – The Struggle for Global Justice, Allen Lane, The Penguin Press, London, 1999, Ratner & Abrams, supra note 185, pp. 46–79, and Kriangsak Kittichaisaree, International Criminal Law, Oxford University Press, Oxford, 2001, pp. 85–128. See Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land of 29 July 1899, preamble, which entered into force on 4 September 1900 and is available at http://www.icrc.org/ihl.nsf/INTRO/155?OpenDocument (last visited 17 July 2007) and Hague Convention IV, preamble, supra note 68

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of France, Great Britain and Russia, 244 whereas Additional Protocols I and II referred to the “principles of humanity”.245 The atrocities committed by the Nazis during World War II were the impetus for the first formal recognition, at an international level, of the concept of crimes against humanity. A number of the acts committed by the Nazis during (and before) World War II could not fall within the definition of war crimes, as such concept was defined at the time. However, the Nazi acts were considered so horrific and offensive to humanity that it was thought inconceivable that the perpetrators of such crimes should go unpunished, merely because they fell outside the legal definition of war crimes. Accordingly, Article 6(c) of the IMT Charter provided for specific jurisdiction over crimes against humanity.246 However, in order to comply with the principle of legality and concerns of ex post facto criminalisation, Article 6(c) required a nexus between the crimes specified, and crimes against peace and war crimes. Although the concept of crimes against humanity originated as an extension of the concept of war crimes, it has developed to become a separate and distinct category in its own right. Although numerous international texts refer to crimes against humanity,247 Article 7 of the ICC Statute represents the first comprehensive codification of the concept.248 Although this formulation is, strictly speaking, only relevant in determining the crimes over which the ICC has jurisdiction and has no general application, it is quoted verbatim below: firstly, because it represents the only comprehensive codification of crimes against humanity to date; secondly, because its terms are too complex to be summarised sufficiently; and thirdly, for the purposes, in Chapter 5, of the discussion of individual criminal responsibility for 244

245 246 247

248

See the Armenian Memorandum presented by the Greek delegation to the Commission of Fifteen on 14 March 1919, reproduced in Egon Schwelb, “Crimes Against Humanity”, 23 Brit. Y.B. Int’l. L. 178 (1946), p. 181. The Treaty of Peace Between the Allied and Associated Powers and Germany, concluded at Versailles, June 28, 1919, supra note 194, did not relate to crimes against humanity. See Article 2, Additional Protocol I, supra note 68 and the Preamble, Additional Protocol II, supra note 68. See Geoffrey Best, War and Law Since 1945, Clarendon Press, Oxford, 1994, p. 67. Crimes against humanity are inter alia referred to in the following instruments: IMT Charter, supra note 23, Article 6(c); IMTFE Charter, supra note 23, Article 5(c); Nuremberg Principles, supra note 92, Principle VI(c); ICTY Statute, supra note 16, Article 5; ICTR Statute, supra note 16, Article 3; Draft Code of Crimes, supra note 141, Article 18; ICC Statute, supra note 4, Article 7; and SCSL Statute, supra note 163, Article 2. See Margaret McAuliffe deGuzman, “The Road from Rome: The Developing Law of Crimes Against Humanity”, 22 Human Rights Quarterly 335 (2000) who posits that an explanation for the absence of a clear definition of crimes against humanity “may be found in the history of the development of this category of crimes… Since the Nazi crimes were so notorious, egregious, and well-documented, those who sat in judgment of these perpetrators rarely felt the need to analyze closely the bases for their culpability. The decisions in those trials, therefore, did little to clarify the definition of crimes against humanity”. Ibid., p. 346.

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terrorism as a crime against humanity in general international law and in order to set the background for the discussion of the role which the ICC can play in the prosecution of terrorism as a crime against humanity. Article 7 provides 1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population;249 (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;250 (f) Torture;251 (g) Rape,252 sexual slavery, enforced prostitution,253 forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;254 (h) Persecution255 against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international

249

250

251

252

253 254 255

Provisions similar to Article 7(1)(a)(d), ICC Statute, supra note 4, are found in Article 6(c), IMT Charter, supra note 23; Article 5(c), IMTFE Charter, supra note 23; Article II(1)(c), CCL 10, supra note 87; Article 5(a)-(d), ICTY Statute, supra note 16; and Article 3(a)-(d), ICTR Statute, supra note 16. Article 18(g), Draft Code of Crimes, supra note 141, refers to “arbitrary deportation or forcible transfer of population”. Also found in Article II(1)(c), CCL 10, supra note 87; Article 5(e), ICTY Statute, supra note 16; and Article 3(e), ICTR Statute, supra note 16. Article 18(h), Draft Code of Crimes, supra note 141, refers to “arbitrary imprisonment”. Also found in Article II(1)(c), CCL 10, supra note 87; Article 5(f), ICTY Statute, supra note 16; Article 3(f), ICTR Statute, supra note 16; and Article 18(c), Draft Code of Crimes, supra note 141. Also found in Article II(1)(c), CCL 10, supra note 87; Article 5(g), ICTY Statute, supra note 16; Article 3(g), ICTR Statute, supra note 16; and Article 18(j), Draft Code of Crimes, supra note 141. Also found in Article 18(j), Draft Code of Crimes, supra note 141 Article 18(j), Draft Code of Crimes, supra note 141, refers to “other forms of sexual abuse”. Article 6(c), IMT Charter, supra note 23 and Article II(1)(c), CCL 10, supra note 87, refer to persecutions on “political, racial or religious” grounds. Article 5(c), IMTFE Charter, supra note 23, refers to persecutions on “political or racial” grounds (no reference is made to religious grounds). Article 5(h), ICTY Statute, supra note 16, and Article 5(h), ICTR Statute, supra note 16, refer to persecutions on “political, racial and religious” grounds (note the or/and distinction between the formulations used in the IMT Charter/CCL 10 and the ICTY/ICTR Statutes). Article 18(e), Draft Code of Crimes, supra note 141, refers to persecution on “political, racial, religious or ethnic” grounds.

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(i) (j) (k)

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law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;256 Enforced disappearance of persons;257 The crime of apartheid; Other inhumane acts258 of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;259 (f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any 256

257 258

259

Article 18(f), Draft Code of Crimes, supra note 141, refers to “institutionalised discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population”. It is the only international instrument to do so. Article 18(i), Draft Code of Crimes, supra note 141, refers to “forced disappearances of persons”. A reference to “other inhumane acts” is also found in Article 6(c), IMT Charter, supra note 23; Article 5(c), IMTFE Charter, supra note 23; Article II(1)(c), CCL 10, supra note 87; Article 5(i), ICTY Statute, supra note 16; and Article 3(i), ICTR Statute, supra note 16; whereas Article 18(k), Draft Code of Crimes refers to “other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm”. The definition of torture here is broader than that used under customary international law. See Cassese, supra note 186, p. 374.

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(i)

other racial group or groups and committed with the intention of maintaining that regime; “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above…”

Article 7 is, generally speaking, based on customary international law. However, it differs from customary international law in three respects. Firstly, the definition of ‘attack directed against any civilian population’ set out in Article 7(2)(a) has the effect of blurring the distinction between ‘widespread’ and ‘systematic’.260 Secondly, the definition of ‘persecution type’ crimes in Article 7(1)(h) requires that the conduct in question be committed in connection with an act referred to in Article 7(1), or any crime within the jurisdiction of the ICC. Under customary international law, such a link is not required. Article 7(1)(h) is at the same time broader than customary international law, to the extent that it expands the grounds of discrimination on which persecution can be founded, i.e. cultural and gender grounds as well as “other grounds that are universally recognized as impermissible under international law”. Such grounds of discrimination are not found in customary international law. Thirdly, Articles 7(1)(g),(i) and (j) include as crimes against humanity, the crimes of forced pregnancy, enforced disappearances of persons and apartheid. Such crimes are not considered to be crimes against humanity under customary international law. In order to prove the commission of a crime against humanity, not only must a prosecutor prove the commission of the specific crime considered to be a crime against humanity, but he must also prove that the chapeau elements of crimes against humanity have been fulfilled, i.e. in the case of the ICC Statute, that the elements referred to in the opening sentence of Article 7(1) have been fulfilled. It is this requirement that this second tier of additional elements be present, which elevates what would normally be considered domestic crimes, subject to domestic legislation, to the realm of crimes against humanity under international law. The ICTY, ICTR and ICC Statutes each provide for individual criminal responsibility for crimes against humanity.261

260 261

See infra section 2.5.3.3 (Widespread or systematic action) commentary on widespread or systematic action. Articles 5 and 7, ICTY Statute, supra note 16; Articles 3 and 6, ICTR Statute, supra note 16; and Articles 7 and 25, ICC Statute, supra note 4. See also Articles 2 and 18, Draft Code of Crimes, supra note 141; Article 6, IMT Charter, supra note 23; Article 5, IMTFE Charter, supra note 23; and Articles 2 and 6, SCSL Statute, supra note 163.

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In consideration of the subsequent analysis concerning individual criminal responsibility for terrorism as a crime against humanity, four issues in relation to crimes against humanity warrant additional attention. Nexus with War or an Armed Conflict Some international instruments require that crimes against humanity be connected with war, or an international or internal armed conflict,262 while others do not require any such nexus.263 If international law demands such a nexus with war/ armed conflict, crimes against humanity can never be committed in times of peace. How is the inconsistency between various international instruments to be interpreted, and what is the current status of the war/armed conflict nexus under international law? An explanation for this inconsistency may be found by examining the reasoning behind the inclusion of a war/armed conflict nexus in some international instruments and its absence in others. As noted above, a war nexus was required under the IMT Charter in order to satisfy the demands of the principle of legality. Presumably, similar concerns were in mind as regards the IMTFE Charter.264 Different considerations were, however, at play as regards the ICTY Statute. Bassiouni explains Due to the uncertainty of the legally binding nature of the ILC’s 1950 report [Report of the International Law Commission on the work of its second session, 5 June to 29 July 1950, which in the context of a discussion of the Nuremberg Principles noted that crime against humanity did not require a war nexus], the Security Council adopted the SecretaryGeneral’s formulation that there should be some connection between “crimes against humanity” and a conflict of an international or internal character in the former Yugoslavia. In so doing, Article 5 ICTY avoided any possible challenges to its legality since it maintained the requirement of a link with an armed conflict (and not a war), yet extending the notion of an armed conflict to an internal one.265

The Appeals Chamber of the ICTY in Prosecutor v Dusko Tadiü recognised that customary international law does not require an international armed conflict 262 263 264 265

IMT Charter, supra note 23 (Article 6(c)), IMTFE Charter, supra note 23 (Article 5(c)) and ICTY Statute, supra note 16 (Article 5). ICTR Statute, supra note 16 (Article 3), Draft Code of Crimes, supra note 141 (Article 18), ICC Statute, supra note 4 (Article 7) and CCL 10, supra note 87 (Article II(1)(c)). Records on the discussions giving rise to Article 5(c), IMTFE Charter, supra note 23, are limited. See Bassiouni, supra note 10, Vol. II, p. 572. Cassese describes the introduction of an armed conflict nexus as evidence of the departure of Article 5, ICTY Statute, supra note 16, from customary international law; see Cassese, supra note 186, p. 365. In addition, the commentary of the Secretary General on the ICTY Statute, does not refer to the requirement of a war/armed conflict nexus, which suggests that the presence of such a requirement in the ICTY Statute is merely jurisdictional; see Report of the SecretaryGeneral pursuant to paragraph 2 of Security Council Resolution 808 (1993), May 3, 1993, UN Doc. S/25704, at 13, reprinted in 32 ILM (1993) 1163.

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nexus.266 CCL 10 did not explicitly require a war nexus. However, the wording of the preamble to CCL 10 created a jurisdictional link between CCL 10 and the IMT Charter, which did require a war nexus. The jurisprudence of CCL 10 indicates that the tribunals which applied CCL 10 were divided on whether a war nexus was required or not.267 Neither the ICTR Statute nor the Draft Code of Crimes requires a war/armed conflict nexus. The reason for the absence of such requirement in the ICTR Statute can probably be explained by the fact that most of the crimes in question were committed within Rwanda itself. The 1996 report of the International Law Commission explains the absence of such a requirement in the Draft Code of Crimes in the following terms: The definition of crimes against humanity contained in the present article does not include the requirement that an act was committed in time of war or in connection with crimes against peace or war crimes as in the Nürnberg Charter. The autonomy of crimes against humanity was recognized in subsequent legal instruments which did not include this requirement. The Genocide Convention did not include any such requirement with respect to the second category of crimes against humanity… Similarly, the definitions of the first category of crimes against humanity contained in the legal instruments adopted since Nürnberg do not include any requirement of a substantive connection to other crimes relating to a state of war, namely Control Council Law No. 10 adopted shortly after the Berlin Protocol as well as the more recent Statutes of the International Criminal Tribunals for the former Yugoslavia (article 5) and Rwanda (article 3). The absence of any requirement of an international armed conflict as a prerequisite for crimes against humanity was also confirmed by the Yugoslavia Tribunal: ‘It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict’268

Finally, the ICC Statute, does not require a war/armed conflict nexus. The majority of states agreed with this position during discussions held in relation to

266 267

268

Prosecutor v Dusko Tadiü, Case No.: IT-94-1-T, “Decision of the Defence Motion for Interlocutory Appeal on Jurisdiction”, App. Ch., 2 October 1995, § 141. See the United States of America v. Otto Ohlenforf et al. (“Einsatzgruppen” case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, Vol. IV, p. 3 and the Justice case, supra note 61, p. 974 (both of which determined that a war nexus was not required and had indeed been deliberately excluded by the drafters of CCL 10); and the United States of America v. Friedrich Flick, et al. (Flick case), ibid, Vol. VI, pp. 1212–1213 (which posited - albeit the Tribunal’s statement on this matter was obiter dictum - that a war nexus was required due to the jurisdictional link with the IMT Charter). Report of the International Law Commission on the work of its forty-eight session 6 May-26 July 1996, U.N. GAOR, 51st Sess, Supp. No. 10, Article 18 commentary no. (6), p. 96.

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the formulation of crimes against humanity in the ICC Statute.269 In addition, there no longer appears to be a justification for the inclusion of such a nexus, now that the principle of legality is no longer an issue with respect to crimes against humanity. Despite the lack of consistency between the various international instruments, most scholars are of the view, today, that a nexus to a war/armed conflict is not required under international law.270 Widespread or Systematic Action Crimes against humanity must be committed in the context of a ‘widespread or systematic’ attack against a civilian population. It is this element, in particular, which brings crimes against humanity within the realm of international law and distinguishes such crimes from ordinary violations of domestic criminal law. The ICTR Statute and the ICC Statute specifically use the ‘widespread or systematic’ terminology, while the Draft Code of Crimes refers to acts “committed in a systematic manner or on a large scale”.271 Neither the IMT/IMTFE Charters, CCL 10, nor the ICTY Statute makes use of the ‘widespread or systematic’ terminology. However, such instruments do require that in order for acts to be considered as crimes against humanity, such acts must be committed or directed against a ‘civilian population’,272 which has generally been interpreted as “qualifying the nature of the atrocities in one of two ways: either in terms of their scale –namely, that 269

270

271 272

China and some Middle Eastern States did try to argue, though, that a war/armed conflict nexus was required. However, the majority of states rejected such a requirement. See McAuliffe deGuzman, supra note 248, pp. 359–360. See Bassiouni, supra note 10, Vol. I, p. 573. See also Article 1(b), 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, G.A. Res. 2391 (XXIII), annex, 23 U.N. GAOR Supp. (No. 18) at 40, U.N. Doc. A/7218 (1968); entered into force on 11 November 1970. See also Article 1 of the 1974 European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, Europ. TS No. 082 Jan. 25, 1974, reprinted in 13 ILM 540 (1974); not yet in force. State practice, as evidenced by national legislation and national prosecutions, evidences some support for the removal of the war/armed conflict nexus, e.g. French and Belgian domestic laws do not require a nexus between a war/armed conflict and crimes against humanity. See Ratner & Abrams, supra note 185, pp. 52–54. Article 3, ICTR Statute, supra note 16; Article 7(1), ICC Statute, supra note 4; and Article 18, Draft Code of Crimes, supra note 141. See Article 6(c), IMT Charter, supra note 23; Article 5(c) IMTFE Charter, supra note 23; and Article II(1)(c), CCL 10, supra note 87. There is also some debate as to the meaning of the term ‘civilian population’ (which is explicitly referred to in most relevant international instruments, except the Draft Code of Crimes, supra note 141). Although it is generally accepted that crimes against humanity are committed against civilians and not combatants, the distinction between combatants and non-combatants is unclear, especially in the context of internal conflicts. See McAuliffe de Guzman, supra note 248, pp. 360–364. See also Ratner & Abrams, supra note 185, p. 59 and infra Chapter 5, at footnote 135.

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they be against a large number of civilians; or alternatively in terms of their methods – namely, that they be committed in a planned, systematic manner insofar as they are directed against a specific ‘population’ and not merely random individuals”.273 Accordingly, notwithstanding that these instruments do not specifically use the ‘widespread or systematic’ terminology, the end result is the same.274 The ICTR Trial Chamber has differentiated the terms ‘widespread’ and ‘systematic’ in the following terms: The concept of ‘widespread’ may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of ‘systematic’ may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy.275

While the ‘widespread or systematic’ element of crimes against humanity is generally not contentious, there has been some debate as to whether this element should be interpreted as being conjunctive or disjunctive. Article 3 of the ICTR Statute, which was the first binding international instrument to specifically refer to the widespread/systematic element, provides for a disjunctive interpretation, i.e. ‘widespread or systematic’. Article 18 of the Draft Code of Crimes also supports a disjunctive interpretation. However, the contributions of participants at the Rome Conference indicate that not every state concurs with this disjunctive interpretation.276 Notwithstanding this, the Rome Conference agreed to the adoption of a disjunctive interpretation in Article 7(1) of the ICC Statute. However, Article 7(2)(a) has been criticised for blurring the distinction between a ‘widespread’ attack and a ‘systematic’ attack, by requiring that an attack against a civilian population be committed pursuant to or in furtherance of a State or organisational policy to commit such attack.277 Kittichaisaree posits 273 274

275 276 277

See Ratner & Abrams, supra note 185, p. 58. See also Prosecutor v Dusko Tadiü, Case No.: IT-94-1-T, Judgment, T. Ch. II, 7 May 1997, § 646. Interestingly, Article 5 of the ICTY Statute, supra note 16, refers to crimes “directed against any civilian population”, but makes no reference to a requirement of a “widespread or systematic attack”; whereas Article 3 of the ICTR Statute, supra note 16, refers to crimes committed “as part of a widespread or systematic attack against any civilian population”. The different requirements are hard to explain. However, in practice it does not seem to have created too many problems as the ICTY Tribunal has interpreted Article 5 of the ICTY Statute as requiring that the acts in question be part of a widespread or systematic attack. See Prosecutor v Dusko Tadiü, ibid., §§ 645-649. Prosecutor v Jean-Paul Akayesu, supra note 192, § 580. France, India, Japan, Russia and the United Kingdom all indicated their preference for a conjunctive interpretation. Ratner & Abrams note that Article 7(2)(a) of the ICC Statute could, depending on the interpretation of such article by the ICC, have the effect of actually restoring a conjunctive interpretation of the term ‘widespread or systematic’. See Ratner & Abrams, supra note 185, p. 60. See also Kittichaisaree, supra note 242, pp. 96–97.

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To reconcile the provision under Article 7 of the ICC Statute with established international jurisprudence, it is hereby submitted that the difference between the two types of attack is one of degree or organisation of the attack. A widespread attack is proved when it is directed against a multiplicity of victims as part of a course of conduct involving multiple commissions of acts in pursuance to or in furtherance of a State or organizational policy to commit such attack, as in the case of the policy of persecution of Jews under Nazi Germany. A systematic attack shares the same elements as a widespread attack just mentioned, with the exception that a systematic attack is orchestrated, coordinated, or organised by a group of people so that the attack is carried out in a systematic manner. In other words, systematicity is a higher threshold test than widespreadness because the latter involves unorganised, uncoordinated, and unorchestrated multiple commission of acts that somehow serve a policy to commit a crime against humanity.278

A disjunctive interpretation of the widespread or systematic element of crimes against humanity is in conformity with international criminal law.279 In addition, international jurisprudence confirms that one single act by a perpetrator against a single victim,280 or a limited number of victims,281 can qualify as a crime against humanity, once there is a link with a ‘widespread or systematic’ attack against a civilian population. Discriminatory Intent/Grounds Required for Each Crime Against Humanity? A third issue which has given rise to some debate, is whether discriminatory intent or discriminatory grounds are required for the purposes of each crime against humanity.282 Each of the IMT/IMTFE Charters and CCL 10 distinguish between 278

See Kittichaisaree, supra note 242, p. 97. This disjunctive interpretation has also been supported by the case law of the ICTY. See Prosecutor v Dusko Tadiü, supra note 273, §§ 645–649. The ICTY Trial Chamber cites various international law sources in support of its conclusion that the widespread/ systematic element of crimes against humanity should be interpreted disjunctively. 280 For example, the act of denouncing a Jewish neighbour to the Nazi authorities, if committed against a background of widespread persecution, has been regarded as amounting to a crime against humanity. See Prosecutor v Zoran Kupreškiü, Mirjan Kupreškiü, Vlatko Kupreškiü, Drago Josipoviü, Dragan Papiü and Vladimir Šantiü, supra note 63, § 550. See also Prosecutor v Dusko Tadiü, supra note 273, § 649 which cites the Vukovar Hospital Rule 61 Decision, in which ICTY Trial Chamber I recognised that a single act by a perpetrator can constitute a crime against humanity. 281 Ratner & Abrams refer to the execution by Soviet authorities of Hungarian leader Imre Nagy in 1956, as an example of a crime against humanity in the absence of a large number of direct victims: “… because the killing of a political (or religious) leader is systematic insofar as it is meant to intimidate the entire ‘civilian population’ of his supporters (or coreligionists), it would represent a crime against humanity”. See Ratner & Abrams, supra note 185, p. 61. 282 The discrimination element of crimes against humanity has been interpreted in two ways: (i) Discriminatory intent, i.e. each perpetrator of a crime against humanity must 279

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two categories of crimes against humanity: (i) ‘murder type’ crimes, i.e. murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population,283 and (ii) ‘persecution type’ crimes, i.e. persecutions on political, racial or religious grounds.284 A discriminatory element is generally only required in relation to ‘persecution type crimes’. The ICTY Statute also requires evidence of a discriminatory element only in relation to ‘persecution type’ crimes, as does the Draft Code of Crimes and the ICC Statute.285 The ICTR Statute, Article 3, however, requires that each and every crime against humanity be committed “as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”. It is the only international instrument to require a discriminatory element for every individual crime against humanity and this development is hard to justify, as it represents a step backwards.286 However, some clarification as to the

283

284

285

286

commit such crime with a specific intent to discriminate. Here the mens rea of the individual perpetrator is relevant. If there is no intent to discriminate, notwithstanding the severity of the crime, it cannot be classified as a crime against humanity. (ii) Discriminatory grounds, i.e. the discrimination element relates to the widespread and systematic attack. If the broader attack to which the individual crime is related, is targeted against a particular group, then the discriminatory element of crimes against humanity has been satisfied (notwithstanding that the individual perpetrator may have had personal motives for the commission of his crime). Therefore, the meas rea of the individual perpetrator is irrelevant. See Ratner & Abrams for a consideration of the requirement of discriminatory intent under certain domestic laws, supra note 185, pp. 63–64. Article 6(c), IMT Charter, supra note 23; Article 5(c), IMTFE Charter, supra note 23; and Article II(1)(c), CCL 10, supra note 87. CCL 10 refers additionally to imprisonment, torture and rape. Article 6(c), IMT Charter, supra note 23; Article 5(c), IMTFE Charter, supra note 23; and Article II(1)(c), CCL 10, supra note 87. Article 5(c) of the IMTFE Charter excludes the ground of persecution on religious grounds, “probably because persecutions on religious grounds had not been committed on a large scale in connection with the Japanese war effort”. See Kittichaisaree, supra note 242, p. 88. Article 5(h), ICTY Statute, supra note 16; Article 18(e), Draft Code of Crimes, supra note 141, which extends the grounds of persecution to include ethnic grounds; and Article 7(1)(h), ICC Statute, supra note 4, which broadens the grounds on which persecution can occur to include the additional grounds of national, ethnic, cultural and gender “or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. The International Law Commission did consider (and subsequently dismissed) including a requirement of discriminatory intent in its definition of crimes against humanity in its 1991 Draft Code of Crimes Against the Peace and Security of Mankind, see Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission, U.N. GAOR 46th Sess., Supp. No. 10, U.N. Doc A/46/10 (1991), Article 12, commentary no. 1. The issue also arose at the ICC Preparatory Committee meetings but was rejected in the final draft of the ICC Statute, supra note 4; see Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., Supp. No. 22, U.N. Doc. A/51/22 (1996), § 87.

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discriminatory element of crimes against humanity has been provided by the ICTY Appeals Chamber in the Tadiü Appeals Judgment.287 The Trial Chamber in that case had determined that all crimes against humanity required a discriminatory intent.288 On appeal, the Prosecution argued that a requirement of discriminatory intent only applied to ‘persecution type’ crimes and not to all crimes against humanity. It relied on the specific absence of such a requirement in the ICTY Statute and customary international law and submitted that the rules of statutory interpretation also militated against such a requirement.289 The Appeal Chamber agreed with the Prosecutions submissions noting that a discriminatory intent is “an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required”, that is, for Article 5(h) of the ICTY Statute.290 This interpretation would seem to be in-keeping with customary international law.291 State Action or Policy The final issue, which has been the subject of much discussion, is whether in order for a crime to be considered as a crime against humanity, the attack against a civilian population has to be the result of State action or a State policy.292 The purpose of this requisite of State action or policy is that crimes against humanity cannot be committed without it, because of the nature and scale of the crime.293 The IMT Charter refers to the power of the IMT to try and punish persons who, “whether as individuals or as members of organisations” committed the crimes referred to therein.294 Accordingly, there is some inference of State involvement in the IMT Charter. Neither the IMTFE Charter, the ICTY/ICTR Statutes, nor CCL 10 refer directly or indirectly to a requirement of State involvement for the purposes of proving the commission of crimes against humanity. Both the Draft Code of Crimes and the ICC Statute specifically refer to such a requirement, although such requirement is not absolute. Article 18 of the Draft Code of Crimes refers to crimes against humanity being “instigated or directed by a Government or by any organisation or group”, whereas Article 5(2)(a) of the ICC Statute refers 287 288 289 290

291 292 293 294

See supra note 74. Prosecutor v Dusko Tadiü, supra note 273, § 652. Tadiü Appeals Judgment, supra note 74, §§ 273–277. The Appeal Chamber in reaching its conclusion, considered the interpretation of Article 5 of the ICTY Statute, customary international law, the report of the UN Secretary-General and statements made by certain states in the UN Security Council after the adoption of the ICC. See supra note 74, §§ 282–305. Important policy considerations also support this approach. See McAuliffe deGuzman, supra note 248, pp. 367–368. For a consideration of a requirement of State involvement in domestic legislation, see Ratner & Abrams, supra note 185, p. 67. See Bassiouni, Crimes Against Humanity in International Criminal Law, Kluwer Law International, The Hague/London/Boston, 2nd ed., 1999, p. 258. See supra note 23, Article 6.

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to an attack on a civilian population being “pursuant to or in furtherance of a State or organizational policy to commit such attacks”.295 The International Law Commission explains its reasoning for the inclusion of a requirement of State or organisational involvement in the Draft Code of Crimes in the following terms: The second condition requires that the act was “instigated or directed by a Government or by any organization or group”. The necessary instigation or direction may come from a Government or from an organization or a group… This alternative is intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization. This type of isolated criminal conduct on the part of a single individual would not constitute a crime against humanity. It would be extremely difficult for a single individual acting alone to commit the inhumane acts as envisaged in article 18. The instigation or direction of a Government or any organization or group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity imputable to private persons or agents of a State.296

Originally, the prevalent opinion was that State action or policy was required in order for a crime to be classified as a crime against humanity and that non-State actors could not perpetrate crimes against humanity.297 In recent times though, it has been recognised that non-State actors can commit horrific crimes and that they should be individually criminally responsible under international criminal law for such crimes. As mentioned above, while the Draft Code of Crimes and the ICC Statute specifically refer to State involvement, such requirement is not absolute. If State involvement is not proved, it is still possible for a crime to be considered a crime against humanity under these instruments, if there has been involvement by an organisation or a group, i.e. a non-State actor. This change of thinking to expand the concept of crimes against humanity to include involvement by non-State actors was prompted by events in the former Yugoslavia and in Rwanda, where a number of the perpetrators of crimes were not affiliated or associated with any State, as such. Today, it is recognised that crimes against humanity can be perpetrated either with State involvement or the involvement of non-State actors. However, Ratner and Abrams note that “the focus of prosecutions in the cases of the former Yugoslavia and Rwanda suggests that some sort of ‘official’ action remains associated with the concept. In particular, those committing the offences typically are part of an organization seeking political control of or influence over a territory, whether as a de facto government, armed insurrection, or otherwise.”298 One final issue which should be considered in this context for the purposes of the subsequent discussion on individual criminal responsibility for terrorism as a 295

296 297 298

Emphasis added. The ICC Elements of Crimes provides that it is understood that “policy to commit such attack” requires that the State or organisation “actively promote or encourage such an attack against a civilian population”. See supra note 122, p. 5. See International Law Commission Report, supra note 268, Article 18 commentary no. (5), p. 96. See Bassiouni, supra note 293, pp. 255–259. Ratner & Abrams, supra note 185, p. 69.

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crime against humanity is whether the expansion of the concept of crimes against humanity to include action by non-State actors also includes action by terrorists. Both Robertson and Kittichaisaree posit that it is possible for terrorist groups or organisations to be considered as non-State actors for the purposes of this element of crimes against humanity, and this conclusion is supported by the jurisprudence of the ICTY Trial Chamber.299 Accordingly, this particular aspect of crimes against humanity would not be an automatic barrier to holding individual terrorists individually criminally responsible for committing a crime set out in Article 7(1) of the ICC Statute, as part of a widespread or systematic attack directed against a civilian population, pursuant to or in furtherance of the organisational policy of a terrorist group or organisation.300

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 2.6.1 Introductory Remarks The purpose of this section is twofold: firstly, it is to trace the evolution of the concept of individual criminal responsibility for core international crimes in international law and in this connection, to demonstrate that the concept is a firmly established principle of international law today and as an aside, to demonstrate that contrary to popular belief, the concept of individual criminal responsibility, at least as regards crimes committed in the context of an armed conflict, was recognised in international law, prior to World War II; secondly, in the context of its examination of the relevant provisions of the ICTY, ICTR and ICC Statutes for the purposes of tracing the evolution of the concept, its additional purpose is to provide some general guidance as to the main constituent elements of the principle of individual criminal responsibility for core international crimes, as reflected in those statutes.301 The relevance of this section to this thesis is to provide the background setting to the discussion on the selected pertinent issues of the concept of

299 300 301

Robertson, supra note 242, p. 311 and Kittichaisaree, supra note 242, p. 98. See Prosecutor v Dusko Tadiü, supra note 273, §§ 654-655. S ee further infra Chapter 5, section 5.8.2.1 (Attack directed against any civilian population). As noted, the intention of this section is to demonstrate that the principle of individual criminal responsibility for international crimes in international law is a firmly established principle of international law. It is not the intention to examine in great detail the constituent actus reus and mens rea elements of this principle and the defences/grounds which exist for excluding individual criminal responsibility. A brief discussion of these issues will be undertaken in order to introduce the reader to some of the basic constituent elements of individual criminal responsibility; however such discussion is not intended to be an in-depth analysis of such constituent elements. For a discussion of the

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individual criminal responsibility for core international crimes, so that such issues can be appreciated in their historical context.

2.6.2 Evolution of the Concept of Individual Criminal Responsibility for Core International Crimes in International Law302 The concept of individual criminal responsibility for international crimes was, for a prolonged period, a very innovative concept. It is a popularly held belief that the concept was first firmly established in international law as a result of the IMT and IMTFE judgments. However, as this section will illustrate, this belief is not historically accurate. Prior to the IMT and IMTFE judgments, recognition was given to the concept of individual criminal responsibility for crimes committed in the context of an armed conflict. Evidence of that recognition can be found as far back as ancient Greece. This thesis divides the pre-Nuremberg and pre-Tokyo evidence of the recognition of the concept of individual criminal responsibility into three categories – (i) Ancient civilisations up to the 17th century; (ii) 18th, 19th and early 20th centuries; and (iii) World War I and its aftermath. In order to trace the evolution of the concept of individual criminal responsibility for core international crimes in international law, it is, of course, necessary to identify the sources of international law. As noted in section 2.4.2, it is generally accepted that Article 38(1) of the ICJ Statute identifies the main sources of international law and that the article is authoritative, generally, because it reflects state practice. The analysis below considers all sources of international law, which directly or indirectly indicate a recognition or embryonic recognition of the concept of individual criminal responsibility for core international crimes in international law. It should be noted, however, that not all of the instruments or events referred to below can be considered as sources of international law per se. Nevertheless, reference is made to them, in order to illustrate the historical development of the concept of individual criminal responsibility for core international crimes in international law over time.

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constituent elements of individual criminal responsibility as set out in the ICC Statute, supra note 4, see Kai Ambos, “General Principles of Criminal Law in the Rome Statute”, 10 Criminal Law Forum 1 (1999), pp. 6–22; for a review of the constituent elements of individual criminal responsibility prior to the ICC Statute, see Kai Ambos, “Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis – From Nuremberg to the Hague”, in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, The Experience of International and National Courts, Kluwer Law International, The Hague/London/Boston, 2000, Vol. I, pp. 5–31. The sources of international law are set out in Article 38, ICJ Statute, see supra section 2.4.2.

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2.6.2.1 Pre-Nuremberg and Tokyo Ancient Civilisations up to the 17th Century Some of the earliest reported evidence of the recognition of the concept of individual criminal responsibility for crimes committed in the context of an armed conflict dates back to ancient Greece. Professor George S. Maridakis has identified two examples.303 Firstly, the defeat of the Athenian fleet at Aegospotamos in 405 B.C. by the Lacedaemonians, following which, the Lacedaemonians and their Allies formed a type of court to try the Athenians who had been captured for war crimes. This ‘court’ heard witnesses, examined evidence and eventually sentenced all the Athenian prisioners to death. Secondly, the unconditional surrender to the Lacedaemonians of a small force in Plataia in 427 B.C. A court consisting of five Spartan judges was set up to try the defendants who were all sentenced to death and executed.304 The Manu Smriti or the Laws of Manu, which is dated around 200 B.C., is also potentially of relevance in this context. Manu Smriti is an ancient Indian treatise on religious law and social obligation and attempts to formulate general rules of conduct for all of Indian society. A number of the ‘laws’ are concerned with the regulation of the caste Ksatriya (princely) and deal with the duties and rights of the king. Those concerning the conduct of war provide inter alia that when a king fights his foes in battle, he should not strike (i) with weapons which are concealed, nor with weapons which are barbed, poisoned, or the points of which are “blazing with fire”; nor (ii) “one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight, nor one who is fighting with another [foe]”; nor (iii) “one whose weapons are broken, nor one afflicted [with sorrow], nor one who has been grievously wounded, nor one who is in fear, nor one who has turned to flight; [and in all these situations let him] remember the duty [of honourable warriors]”.305 “Thus has been declared the blameless, primeval law for warriors; from this law a 303

See Robert K. Woetzel, The Nuremberg Trials in International Law with a Postlude on the Eichmann Case, Stevens & Sons Limited, London, and Frederick A. Praeger Inc., New York, 1962, pp. 17–19. See also George S. Maridakis, “An Ancient Precedent to Nuremberg”, 4 J. Int’l Crim. Jus. 847 (2006). These two events were cited as examples of a precedent for the IMT trial. However, the factual accuracy of these examples has been heavily criticised. See Woetzel, ibid., pp. 18–19. 304 Maridakis also referred to an example with its roots in Greek mythology. Aeschylus describes in his Eumenides how the goddess Athena was asked to determine a dispute between Orestes and the Erinnyans. Athena determined that she was not competent to do so and recommended that “the divine law and the gods themselves should be subject to a human court composed of the “best of the city””. As the court was directly established by the gods, it was considered to be a permanent institution. See Woetzel, ibid., p. 18. 305 See Manu Smriti, Chapter VII, §§ 90 and 92-93, an English translation of which is available at http://www.swaveda.com/Religion/Other/Manu%20Smriti/Chapter%207. htm (last visited 9 June 2004). 305 Ibid.

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Ksatriya must not depart, when he strikes his foes in battle.”306 The violators of such rules could be tried before a court of law (dharma).307 Further examples are to be found in Roman Military Law. Emperor Maurice’s Strategica308 first published in 1664, but originating from the 6th century, contained punitive provisions relating to the mistreatment of civilians. Chapter VI, Article (10) provides that “if a soldier does injury to a civilian, and does not make every effort to repair it, he shall be required to repay the damage twofold”. Equally, if any officer “does injury to a soldier, he shall repay the damage twofold; the same in the case of a civilian” and “if in winter quarters, in camp or on the march, either an officer or a soldier does injury to a civilian, and does not fully repair the same, he shall repay the damage twofold”.309 The concept of individual criminal responsibility was also recognised in Military Laws from Ruffus or Leges Militares, which was attached as an appendix to the first code of Greek-Byzantine law, Ecloga of the Laws, published around the year 740.310 Although the Military Laws from Ruffus are mainly concerned with transgressions by soldiers as against their own commanders and their failure to comply with their duties as soldiers, they do contain some punitive provisions in relation to a soldier’s conduct with regard to the enemy. Article 40 provides that a soldier “who takes a girl by force and rapes her shall have his nose cut off, and the girl shall be given a third part of his property”. In addition, a soldier “who steals anything whatever at any place whatever shall restore it twofold and be dismissed from the service” and any “person who provokes the enemy or betrays to the enemy a Roman citizen shall be subject to the supreme punishment”.311 The next reported evidence of the recognition of the concept of individual criminal responsibility for crimes committed in the context of an armed conflict can be found in the 14th century. In 1386 King Richard II of England published the Ordinance for the Government of the Army, which prohibited, on pain of death, violence against women and unarmed priests, the burning of houses and the desecration of churches. Similar provisions were included in the 1526 code issued by Ferdinand of Hungary, the 1570 code issued by Holy Roman Emperor Maxi306 307

308

309 310 311

Ibid., § 98. See K. P. Jayaswal, Manu & Yâjñavalkya – A Comparison and a Contrast: A Treatise on the Basic Hindu Law, Butterworth & Co. (India) Ltd., Calcutta, 1930, p. 106. Jayaswal does not, however, refer to any trials being held for any violations of the abovementioned rules. See also Timothy L. H. McCormack, “From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime”, in McCormack and Simpson, supra note 33, p. 35. Although the Strategica is named after Emperor Maurice, who came to the Byzantine throne in 582, the authorship of Emperor Maurice has been questioned. See C.E. Brand, Roman Military Law, University of Texas Press, Austin & London, 1968, pp. 131–132. Chapter VII, Articles (2) and (3). An English translation of an extract of Emperor Maurice’s Strategica is available in Brand, ibid., pp. 194–197. The identity of the author of these military laws is unknown. Articles 42 and 49. For an English translation of the Military Laws of Ruffus, see Brand, supra note 308, pp. 147–169.

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milian II, the 1590 code issued by Maurice of Nassau and the 1621 Articles of War decreed by King Gustavus II Adolphus of Sweden.312 As regards the latter Articles of War, specific provision was made for the punishment of any man who ‘abused’ a woman, in certain circumstances, set fire to a town or village, pillaged any church or hospital or set fire to any church, hospital, school or mill.313 The Articles of War also specifically provided for the enforcement of its provisions by way of the establishment of a hierarchy of court martials and its rules were apparently enforced in practice.314 King Christian IV of Denmark’s 1625 Articles of War also advocated severe punishment for similar acts.315 The first documented domestic prosecution for initiating an unjust war is reported to have been the case against Conradin von Hohenstafen in 1268. The accused was put to death for his crime.316 This was followed in 1305 by the prosecution and sentencing to death of Sir William Wallace for crimes committed during an armed conflict against King Edward I of England. Although both cases were before domestic courts, they are significant in that the prosecutions illustrate the recognition of the principle of individual criminal responsibility for crimes committed in the context of an armed conflict. There are also reports that in 1434, Charles VII and Constable de Richemont set in motion the prosecution of écorcheur captains for war crimes before court martials. Henry Bourges was tried and executed for war crimes in 1434. Bouson de Failles was prosecuted and sentenced for war crimes in 1438, as was the ‘Bastard of Bourbon’ in 1441.317 The earliest reported international prosecution of an individual for war crimes is the 1474 trial of Peter von Hagenbach. The Archduke of Austria pledged to Duke Charles of Burgundy – also known as ‘Charles the Bold’ and ‘Charles the Terrible’ – the town of Breisach on the Upper Rhine, due to financial difficulties. The Duke appointed Peter von Hagenbach as his Governor in Breisach and instructed him to reduce the citizens of Breisach to a state of submission. In following these orders, von Hagenbach employed especially harsh methods, including mur312

313 314 315

316

317

See text in O. Brusiin, “Gustav Adolf Krigsartikler: Några synpunkter”, Tidskrift utgiven av Juridiska föreningen i Finland, Vol. 79, 1943. For a discussion of the humanitarian law provisions of the 1621 Articles of War, see Kenneth Ögren, “Humanitarian law in the Articles of War decreed in 1621 by King Gustavus II Adolphus of Sweden”, 313 Int’l Rev. Red Cross 438 (1996), available at http://www.icrc.org/Web/ eng/siteeng0. nsf/iwpList154/BC396F38899D10BEC1256B66005A2479 (last visited 21 May 2004). Articles 88, 90 –91 and 99–100, 1621 Articles of War. See Ögren, supra note 312. Kong Christian IV’s Krigsartikler for Fodfolk og Rytteri 1625, Section VI, Articles 35-39, available at http://66.102.9.104/search?q=cache:5VrcagphuKEJ:www.chr4.dk/ tekster/10.html+Krigsartikler+for+Fodfolk+og+Rytteri&hl=da (last visited 27 June 2005). See Bassiouni, supra note 293, p. 517 citing Remigiusz Bierzanek, “The Prosecution of War Crimes” in M. Cherif Bassiouni and Ved P. Nanda (eds.), A Treatise on International Criminal Law, Springfield (III), 1973, Vol. I, pp. 559–560. See M. H. Keen, The Laws of War in the Late Middle Ages, Routledge & Kegan Paul, London, 1965, pp. 192–193 (at footnote 4).

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der, rape, illegal taxation and wanton confiscation of private property.318 Hagenbach was eventually captured by an alliance consisting of Austria, Berne, France and the towns and knights of Upper Rhine (the “Allies”) and put on trial before an ad hoc tribunal consisting of 28 judges from the Allied towns. Hagenbach tried to rely on the defence of superior orders, but this was rejected outright by the tribunal and Hagenbach was sentenced to death.319 A similar case to the Hagenbach case is the exiled James II’s decision to reprobate and relieve Count Rosen from all further military duties following the unsuccessful siege of Londonderry in 1689. James II’s decision was due to the ‘outrageous’ siege methods used by Count Rosen, which included the murder of innocent civilians, and not due to the failure of the siege itself.320 18th, 19th and Early 20th Centuries Certain events which occurred in the 18th, 19th and early 20th centuries can, arguably, be categorised as the first steps towards the recognition of individual criminal responsibility for international crimes in international law. For example, there is evidence in the late 18th century of individuals being accused in England and in the USA of international crimes, even though the crimes in question were not considered to be crimes under domestic law.321 Although the accused were tried before national courts, this does not detract from their value as evidence of the recognition of the concept of individual criminal responsibility under international law. It has also been asserted that the amnesty clauses in certain peace treaties of the 18th century are evidence of the acceptance of the principle of individual criminal responsibility in international law at that time.322 For example, the 1713 Treaty of Peace between Great Britain and France provides 318

319

320 321 322

For more detailed information on the background to this case, see Georg Schwarzenberger, International Law as applied by International Courts and Tribunals, Stevens & Sons, London, 1968, Vol. II, pp. 462–466. Schwarzenberger notes that Hagenbach’s alleged crimes were not, strictly speaking, war crimes as such acts had been committed before the war between Burgundy and its enemies and posits that the use of the term ‘crimes against humanity’ is much more appropriate when describing Hagenbach’s crimes. See ibid., p. 466. As is the case with the purported examples from Ancient Greece, the Hagenbach case has also given rise to some disagreement between scholars. The main source of contention is whether the trial can accurately be described as an international tribunal. Schwarzenberger has posited that it was in fact an international tribunal; see ibid., pp. 463–464. However, Woetzel is of the view that the court was more a confederate than an international court; see Woetzel, supra note 303, pp. 19–22. This difference of opinion does not detract from the fact that an individual was tried for an international crime under international law. See Major William H. Parks, “Command Responsibility for War Crimes”, 62 Mil. L. Rev. 1 (1973), p. 5. See East, Pleas of the Crown, 1806, Vol. II, pp. 821–822 and Respublica v. De Longchamps, 1 Dallas (1784) pp. 110–117. See generally Woetzel, supra note 303, pp. 22–23. Oehler asserts that the amnesty provisions of several peace treaties from this century demonstrate that a customary principle of individual responsibility for war crimes

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All Offences, Injurys, Harms and Damages, which the aforesaid Queen [of Great Britain] and her Subjects, or the aforesaid most Christian King [of France], and his Subjects, have suffered the one from the other during this War, shall be buried in Oblivion…323

Similar amnesty provisions are to be found in the 1713 Treaties of Peace and Amity between France and the Netherlands,324 between France and Savoy,325 between France and Prussia,326 between Savoy and Spain327 and between Great Britain and Spain,328 as well as the 1720 Treaty of Peace between Denmark and Sweden,329 the 1762 Treaty of Peace between Prussia and Sweden,330 and the 1763 Definitive Treaty of Peace and Friendship between Great Britain, France and Spain.331 The next significant event in the recognition of the concept of individual criminal responsibility in international law for violations of the laws of war came by way of the 1863 Lieber Code issued by President Lincoln in connection with the American Civil War.332 Specific provision was made inter alia for the punishment of individuals who violated the laws of war, e.g. by (i) engaging in acts of extortion or other acts for individual gain, acts of private revenge or connivance at such acts; (ii) committing offences contrary to the principle that the United States acknowledges and protects, in hostile countries occupied by them, religion and morality, strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations; (iii) committing an act of wanton violence against persons in the invaded country, an act of destruction of property not commanded by the authorized officer, any act of robbery, pillage or sacking, and/or any act of rape, wounding, maiming, or killing of such inhabitants; or (iv)

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324 325 326 327 328 329 330 331 332

existed at this time. See Dietrich Oehler, Internationales Strafrecht, Heymann, Köln, 1973, p. 561, cited by Woetzel, supra note 303, pp. 22–23. Article III of the Treaty of Peace and Friendship between the most potent Princess Anne, by the Grace of God, Queen of Great Britain, France and Ireland and the most serene and most potent Prince Lewis XIV, the Christian King, of 11 April 1713 (Peace Treaty of Utrecht), 27 Parry’s T.S. 477; English translation available in Israel, supra note 194, p. 179. 28 Parry’s T.S. 39. 28 Parry’s T.S. 125. 28 Parry’s T.S. 143. 28 Parry’s T.S. 271. 28 Parry’s T.S. 297; English translation available in Israel, supra note 194, p. 218. 31 Parry’s T.S. 219. In the context of Scandinavia, see also the earlier 1667 Treaty of Peace between Denmark-Norway and Great Britain, Article III, 10 Parry’s T.S. 287. 42 Parry’s T.S. 163. 42 Parry’s T.S. 281; English translation available in Israel, supra note 194, p. 306. Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 of 24 April 1863, reproduced in Dietrich Schindler and Jirí Toman (eds.), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and other Documents, Martinus Nijhoff Publishers, The Netherlands, 1988, p. 1.

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committing an act of arson, murder, maiming, assault, highway robbery, theft, burglary, fraud, forgery, or rape in a hostile country against its inhabitants.333 Confederate Major Henry Wirz, a Swiss doctor assisting the Confederate forces, was prosecuted under Article 59 of the Lieber Code334 in connection with the death of several thousand prisoners in the Andersonville prison and was sentenced to death.335 Although, the Lieber Code only applied to American soldiers, it was founded on what Lieber considered to be the generally accepted law of his day. The Lieber Code had a substantial impact on the military regulations of other states, forming the basis for similar codes adopted in Argentina, France, Great Britain, Prussia, The Netherlands, Russia and Spain.336 For example, The Laws of War on Land Manual adopted by the Institute of International Law at Oxford on 9 September 1880 (Oxford Manual) provided for the individual criminal responsibility of the perpetrator of a breach of any of the rules contained therein.337 The 19th/early 20th century witnessed many other wars/armed conflicts, which gave rise to the opportunity to reiterate the recognition of the individual criminal liability concept. During the Mexican War (1846–1848), military commissions were created to try individuals for offences such as violations of the laws and usages of civilised wars.338 The USA convened war crime tribunals after its occupation of the Philippines (1899–1902). One of the most famous incidents is the “Balangiga Affair”.339 On 28 September 1901, the purportedly friendly villagers of Balangiga, Samar in the Philippine Islands launched a surprise attack on a US Army garrison. The US military authorities retaliated with a ‘kill and burn’ policy, 333

Ibid., Articles 11, 37, 44 and 47 respectively. Which provides that “[a] prisoner of war remains answerable for his crimes committed against the captor’s army or people, committed before he was captured, and for which he has not been punished by his own authorities”. 335 See Leon Friedman (ed.), The Law of War: A Documentary History, Random House, New York, 1972, Vol. II, pp. 783–798. 336 The Argentinean Code was issued in 1881, the French Code in 1877, the Code of Great Britain in 1883 and 1904, the Prussian Code in 1870, the Code of the Netherlands in 1871, the Russian Code in 1877 and 1904 and the Spanish Code in 1893. See also the Danish military criminal law, Straffelov for krigsmagten, Tillæg til Rigsdagstidende, ord. saml. 1880–1881, pp. 2039–3022, which provided for the imposition of individual criminal responsibility in respect of any breach of the rules contained therein. 337 Available at http://www1.umn.edu/humanrts/instree/1880a.htm (last visited 21 May 2004). The introductory paragraph to Part III (Penal Sanction) provides “if any of the foregoing rules be violated, the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are…”. 338 See footnote 10 of Ex Parte Quirin et Al., 1942 317 US 1, which refers to the 1865 cases against T.E. Hogg, John Y. Bell, Robert C. Kennedy, and William Murphy. See also McCormack, supra note 307, p. 41. 339 See Court Martial of General Jacob H. Smith, Manila, P.I., April 1902, S. Doc. 213, 57th Cong. 2d. Sess., at pp. 5–17. For general background information on the court martial see Victor Nebrida, “The Balangiga Massacre: Getting Even”, (1997) available at http://www.bibingka.com/phg/balangiga/default.htm (last visited 21 May 2004). See also Friedman, supra note 335, pp. 799–813. 334

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which was implemented by the Sixth Separate Brigade under Brig. Gen. Jacob H. Smith, which included a battalion of US Marines under Major Littleton Waller. General Smith and Major Waller were tried before separate court martials, before which they both claimed that they had followed orders. Major Waller was acquitted, but General Smith was found guilty and was sentenced to be admonished by a reviewing authority and soon thereafter retired from the US Army. General Smith was not accused of having committed any war crimes himself, but of instructing his subordinate officer, Major Waller, to put down the insurrection in a very brutal manner (including killing anyone capable of bearing arms, i.e. of 10 years and above). President Theodore Roosevelt commenting on the case in 1902 noted that “[t]he very fact that warfare is of such a character as to afford infinite provocation for the commission of acts of cruelty by junior officers and the enlisted men, must make the officers in high and responsible positions peculiarly careful in bearing and conduct so as to keep a moral check over any acts of an improper character by their subordinates”.340 Other convictions arising from the circumstances surrounding the Philippine insurrection include convictions against Major Edwin F. Glenn (for torturing a Philippine prisoner) and Lieutenant Preston Brown (for shooting a prisoner who was attempting to escape). Glenn was sentenced to one-month’s suspension from command and a fine, while Brown, who was initially sentenced to dismissal from the armed services and to five years imprisonment, had his sentence commuted.341 Another example is the British war crime tribunals established after the Anglo-Boer War (1899–1902) to try prisoners of war for crimes they had committed.342 In fact, the 1902 Peace Treaty of Vereeniging specifically stated that “[n]o proceedings CIVIL or CRIMINAL will be taken against any of the BURGHERS … The benefit of this clause will not extend to certain Acts contrary to the usage of War which have been notified by the Commander in Chief to the Boer Generals, and which shall be tried by Court Martial immediately after the close of hostilities”.343 Mention should also be made of the 1899 and 1907 Hague Conventions. Although these international instruments forbade many acts, none of them had specific pro340

341

342

343

Cited by Peter Weiss, President of the International Association of Lawyers Against Nuclear Arms and The Lawyers’ Committee on Nuclear Policy, in a talk given by him in Bogota on 14 June 2001, available at http://www.1cnp.org/global/colombia.htm (last visited 21 May 2004). See Friedman, supra note 335, pp. 814–829. Another case arising from the US occupation of the Philippines is that of First Lieutenant Natalio Valencia who was tried and convicted for illegally ordering the execution of a non-combatant. See Parks, supra note 320, p. 8. See Woetzel, supra note 303, p. 26. Six members of the Bushveldt Carbineers, a contingent of British troops fighting the Boers were also prosecuted and found guilty of the murder of Boers including children. See also Bring, supra note 194, p. 12. Treaty between certain persons acting on behalf of the British government, certain persons acting as the Government of the South African Republic and certain persons acting as the Government of the Orange Free State on behalf of their respective Burghers, dated 31 May 1902; available at http://www.sahistory.org.za/pages/sources/docs/treaty-ofvereeniging.htm (last visited 21 June 2004).

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visions providing for what was to happen if an individual committed such forbidden acts.344 However, the principle of individual criminal responsibility was given some recognition, albeit, indirectly, as demonstrated by Articles 41 and 56 of the Hague Regulations. A violation of the terms of the armistice by private persons acting on their own initiative only entitles the injured party to demand the punishment of the offenders or, if necessary, compensation for the losses sustained. (Article 41) The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings. (Article 56)

World War I and its Aftermath The First World War and the immediate period thereafter offer additional evidence of the recognition of the principle of individual criminal responsibility for international crimes in international law. There are reports of the Allied Powers (France, Great Britain, Russia and the USA) conducting war crimes trials (which applied the ‘law of nations’), especially against German soldiers.345 In addition, in response to reports of attempts by the Ottoman Empire to exterminate the Armenian people, the British, French and Russian Governments on 28 May 1915 issued a joint Declaration to the Ottoman Government warning that the Allied Governments would hold “personally responsible” all members of the Ottoman Government for the crimes of Turkey “against humanity and civilization” as well as their agents who were implicated in such massacres.346 Although the Declaration was more political than legal in nature, it illustrates that the Allied Powers held the view that there could be individual criminal responsibility for certain crimes under international law. This is further evidenced by the penalty provisions of the 1920 Peace Treaty of Sèvres, between the Allied and Associated Powers and Turkey following the end of World War I.347 Article 226 provided that the Turkish Government recognises the right of the Allied Powers to bring before military tribunals persons 344

345 346 347

These earlier conventions were more concerned with ensuring that States conducted their participation in war in conformity with the laws of war, rather than the punishment of individuals, which was left to national law. See e.g. 1899 Convention (II), supra note 243; Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864 of 29 July 1899, which entered into force on 4 September 1900 and is available at http://www.icrc.org/ihl.nsf/INTRO/ 155?OpenDocument (last visited 17 July 2007); and the 1907 Hague Conventions IV-V, VII-IX, XI and XIII, supra note 68. See McCormack, supra note 307, p. 44. See the Armenian Memorandum presented by the Greek delegation to the Commission of Fifteen on 14 March 1919, reproduced in Schwelb, supra note 244, p. 181. Treaty of Peace between the Allied and Associated Powers (the British Empire, France, Italy, Japan, Armenia, Belgium, Greece, The Hedjaz, Poland, Portugal, Roumania, The

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accused of having committed acts in violation of the laws and customs of war and required Turkey to hand over to the Allied Powers all accused persons when requested. Although the Treaty of Sèvres never entered into force and was replaced by the 1923 Treaty of Lausanne348 (which had terms which were much more favourable to Turkey, and did not provide for the prosecution of individuals who had violated the laws and customs of war), the fact that agreement was reached on the terms of the Treaty of Sèvres is evidence that individual criminal responsibility for certain crimes under international law existed at that time, or at least was one step closer to being so. After World War I, the Allied Powers established the Commission on Responsibilities of the Authors of War and Enforcement of Penalties for Violations of the Laws and Customs of War, which was to make recommendations inter alia as to the action to be taken in relation to the German perpetrators of war crimes. The 1919 report of the Commission recognised that all enemy perpetrators who had committed war crimes should be liable to prosecution, irrespective of their rank or authority.349 The Commission recommended that an ad hoc “High Tribunal” be established consisting of four members. The law to be applied by the court was described as “the principles of the law of nations as they result from the usages established among civilised peoples, from the laws of humanity and from the dictates of public conscience”.350 Ultimately however, the Allied Powers did not follow the recommendations of the Commission due to significant disagreement within the Commission itself as to the appropriateness of the creation of an ad hoc High Tribunal. The US and Japanese members of the Commission were against the creation of such a tribunal,351 being of the view that the prosecution of the perpetrators of international crimes should be dealt with before domestic courts alone. This outcome does not, however, detract from the recognition by the Commission of the concept of individual criminal responsibility for certain international crimes. Some trials were held in Turkey following the end of the war352 and

Serb-Croat-Slovene State and Czechoslovakia) and Turkey dated 10 August 1920; available at http://www.lib.byu.edu/~rdh/wwi/versa/sevres1.html (last visited 17 June 2005). 348 Treaty of Peace with Turkey signed at Lausanne between the British Empire, France, Italy, Japan, Greece, Roumania, the Serb-Croat-Slovene State and Turkey dated 24 July 1923; available at http://www.lib.byu.edu/~rdh/wwi/1918p/lausanne.html (last visited 9 June 2004). 349 Report on the Responsibility of the Authors of the War and on Enforcement of Penalties to the Preliminary Peace Conference, March 1919, reproduced in 14 AJIL 95 (1920). 350 Ibid., p. 122. 351 Their reservations were set out in Annexes II and III of the Report on the Responsibility of the Authors of the War and on Enforcement of Penalties to the Preliminary Peace Conference. See supra note 349, pp. 127–152. 352 See James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War, Greenwood Press, Westport Connecticut/London, 1982, pp. 153–161. For example, Kemal Bey was sentenced to death and Major Tevfik

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attempts were also made by the Allied Powers to conduct their own prosecutions of Turkish war criminals. The Treaty of Versailles of 28 June 1919,353 which was entered into in the aftermath of the First World War marks an important step in the recognition of the concept of individual criminal responsibility for international crimes in international law. By way of Article 228, the German Government recognised the right of the Allied and Associated Powers to bring before military tribunals “persons accused of having committed acts in violation of the laws and customs of war”. Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers were to be brought before the military tribunals of the Power in question, whereas persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers were to be brought before international military tribunals composed of members of the military tribunals of the Powers concerned.354 In addition, by way of Article 227, the former German Emperor, William II of Hohenzollern was publicly arraigned for “a supreme offence against international morality and the sanctity of treaties”. Provision was made for the establishment of an international tribunal, composed of one judge from each of France, Great Britain, Italy, Japan and the USA, which was to be guided “by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality”.355 However, no military tribunals were ever set up in accordance with these provisions of the Treaty of Versailles. William II was not tried in accordance with the provisions of the Treaty of Versailles as the Government of the Netherlands refused to extradite him, on the grounds that the offence charged against him was political in nature and not punishable under Dutch law. In February 1920, the Allies submitted 896 names of alleged war criminals to Germany. Germany was unwilling to extradite its own nationals and suggested instead that the accused be tried before the German Supreme Court (Reichsgericht) in Leipzig. The Allies consented to this, but reserved the right to try the accused under the terms of the Treaty of Versailles, if the trials before the Leipzig court were unsatisfactory. Germany agreed with this reservation and the Allies submitted a revised list containing 45 names. Of the 45 alleged war criminals listed, only 12 were tried before the German Supreme Court in Leipzig,356 six of whom were acquitted.357 The

353 354 355 356

Bey was sentenced to 15 years hard labour by a Turkish military tribunal for robbing and murdering Armenians. See supra note 194. Ibid., Article 229. Ibid., Article 227. Of the 45 named individuals, some accused had died, others could not be found, while others could not be taken into custody. Cases tried before the court include the Dover Castle case (concerning the sinking of the British hospital ship, the Dover Castle by a u-boat) and the Llandovery case (where two German submarine officers of a U-boat were convicted for following the order of a commander to fire upon and kill the survivors of an unlawfully torpedoed hospital ship “contrary to international law”); see

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Allied Commission which had been sent to Leipzig to monitor the trials withdrew in protest at the result. The recommendation was made that no new cases should be sent to the German Supreme Court in Leipzig but that the provisions of the Treaty of Versailles should be used instead. Ultimately however, no further cases were prosecuted.358 Although the outcome of the Leipzig trials was disappointing, this should not undermine the significance of the trials conducted or the provisions of the Treaty of Versailles. The Treaty of Versailles recognised that individuals could be held individually criminally responsible for acts in violation of the laws and customs of war under international law. The fact that the Leipzig trials took place is, in itself, additional evidence of the existence of this principle at that point in time.359 In addition, the Treaty of Versailles recognised that the perpetrators of acts in violation of the laws and customs of war under international law could be tried before national military tribunals and international military tribunals. The recognition of these two principles is quite significant. The final international instrument which should be mentioned in this context is the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, which also specifically provided for the punishment of individual perpetrators, albeit not in such explicit terms as utilised by the drafters of the Treaty of Versailles 1919.360 Preliminary Conclusion Each of the above-mentioned international instruments and primarily domestic trials arguably contributes to evidence of the recognition of the principle of individual criminal responsibility for crimes committed in the context of an armed conflict prior to World War II. This is the case, notwithstanding that such ‘evidence’ is haphazard, prosecutions have failed, or sentences have not been enforced and the wording used in some international instruments is vague and imprecise. The significance of this ‘evidence’ is the principle that it seeks to illustrate – i.e.

357 358 359

360

Judgment in Case of Commander Karl Neumann Hospital Ship “Dover Castle”, 1922 16 AM J Int’l L 704 and Judgment in Case of Lieutenants Dithmar and Boldt Hospital Ship “Llandovery Castle”, 1922 16 AM J Int’l L 708 respectively. See also John Fischer Williams and Hersch Lauterpacht, Annual Digest of Public International Law Cases, 1923-24. For a summary of the charges made against the 12 accused as well as the finding and sentence, see Parks, supra note 320, p. 13. Aside from some trials in abstentia which were held in Belgium and France. See Woetzel, supra note 303, p. 34. Although, German law was applied before the German Supreme Court in Leipzig, it was recognised that an act was deemed to be punishable if it was an offence against customary international law. Reproduced in Schindler and Toman, supra note 332, p. 325. Article 30 provides that “[on] the request of a belligerent, an enquiry shall be instituted, in a manner to be decided between the interested parties, concerning any alleged violation of the Convention; when such violation has been established the belligerents shall put an end to and repress it as promptly as possible”.

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that the concept of individual criminal responsibility for international crimes committed in the context of an armed conflict was recognised prior to World War II – rather than its success or failure in actual terms. However, one important distinction needs to be mentioned in this regard. This ‘evidence’ only demonstrates recognition of the principle of individual criminal responsibility for crimes committed in the context of an armed conflict prior to World War II. It was not until the IMT and IMTFE judgments that such recognition was extended to both crimes against peace and crimes against humanity.361 It is to these judgments which we now turn. 2.6.2.2 Nuremberg and Tokyo up to the 1990s IMT and IMTFE The world was appalled by the horrific atrocities committed during the Second World War and instead of delivering immediate vengeance, an attempt was made to let the fate of the perpetrators be decided by independent judges adhering to the rule of law.362 The Moscow Declaration of 30 October 1943 signed by President Roosevelt, Prime Minister Churchill and Premier Stalin, clearly envisaged individual criminal responsibility for the perpetrators of international crimes.363 The Allied Powers warned that German officers and men and members of the Nazi party who have been responsible for or have taken part in the… atrocities, massacres and executions will be sent back to the countries in which their abdominal deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein… [but noted however that] The above declaration is without prejudice to the case of German criminals whose offenses have no particular geographical localization and who will be punished by joint decision of the government of the Allies.

361

362

363

Prior to the outbreak of World War II, the principle of individual criminal responsibility under international law for crimes other than violations of the laws of war was also generally accepted. Three obvious examples are piracy, for which there has been individual criminal responsibility for centuries, slavery and drug trafficking; see Bassiouni, supra note 293, pp. 514–516 and 524. Nobody wanted a repeat of what happened after World War I either, where most of the perpetrators were never brought to justice. For a summary of events leading up to the decision to prosecute the Nazi perpetrators of international crimes before an international tribunal instead of summarily executing them, see Bradley F. Smith, The American Road to Nuremberg: The Documentary Record 1944–1945, Hoover Institution Press, Stanford, California, 1982, pp. 5–12. See also Richard Overy, “The Nuremberg trials: international law in the making”, in Philippe Sands, supra note 36, pp. 1–29. Prior to the Moscow Declaration, the James Declaration of January 1942 was issued by many of the states victimised by Germany. The Declaration promised to punish through the channels of organised justice, those responsible for war crimes. See Parks, supra note 320, p. 15. The Moscow Declaration is available at http://www.ess.uwe.ac.uk/ documents/moscwdecl.htm (last visited 27 May 2004).

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The IMT and IMTFE Charters contained explicit provisions for the prosecution of individuals. Article 6 of the IMT Charter provided that the IMT shall have the power to “try and punish persons who, acting in the interests of European Axis countries, whether as individuals or as members of organizations, committed” crimes against peace, war crimes and crimes against humanity, as defined in the IMT Charter. It specifically made use of the term individual responsibility, noting that there would be individual responsibility for the crimes falling within the jurisdiction of the Tribunal. In addition, Article 7 specifically rejected the ‘Head of State’ defence by providing that “the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment”, while Article 8 rejected the ‘superior order’ defence.364 Similar provisions are to be found in the IMTFE Charter.365 Claims had been made prior to and during the IMT trial, that the IMT Charter created new law. However, Mr. Justice Robert Jackson (Chief Prosecutor) in his opening speech before the IMT on 21 November 1945, argued against this position in the following terms: It is true of course, that we have no judicial precedent for the Charter. But international law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law. International law is not capable of development by the normal processes of legislation, for there is no continuing international legislative authority. Innovations and revisions in international law are brought about by the action of governments such as those I have cited, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations. The fact is that when the law evolves by the case method, as did the common law and as international law must do if it is to advance at all, it advances at the expense of those who wrongly guessed the law and learned too late their error. The law, so far as international law can be decreed, had been clearly pronounced when these acts took place. Hence, I am not disturbed by the lack of judicial precedent for the inquiry it is proposed to conduct.366

As regards the principle of individual criminal responsibility, he continued,

364

365 366

But noted that the fact that the defendant acted pursuant to an order of his Government or of a superior “may be considered in mitigation of punishment if the Tribunal determines that justice so requires”. See Articles 5 and 6. See opening speech, available at http://www.yale.edu/lawweb/avalon/imt/proc/11-2145.htm, p. 146 (last visited 28 May 2004).

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The principle of individual responsibility for piracy and brigandage, which have long been recognized as crimes punishable under international law, is old and well established. That is what illegal warfare is. This principle of personal liability is a necessary as well as logical one if international law is to render real help to the maintenance of peace. An international law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare… Only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the Charter with the principle of personal responsibility. Of course, the idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity. The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.367

The judgment of the IMT explicitly reaffirmed the existence of the principle of individual criminal responsibility: It was submitted that international law is concerned with the action of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognised. In the recent case of Ex Parte Quirin […][t]he late Justice Stone, speaking for the Court, said: “From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war the status, rights and duties of enemy nations as well as enemy individuals”. He went on to give a list of cases tried by the Courts, where individual offenders were charged with offences against the laws of nations, and particularly, the laws of war. Many other authorities could be quoted, but enough has been said to show that individuals can be punished for violations of international law. 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. The provisions of Article 228 of the Treaty of Versailles… illustrate and enforce this view of individual responsibility. The principle of international law, which under certain circumstances protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law.368

367 368

See ibid., pp. 148–151. Judgement of the International Military Tribunal, Trial of Major War Criminals before the IMT, Nuremberg, (14 Nov. 1945 – Oct. 1946), pp. 465–466. The IMT judgment is

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The judgment goes on to reaffirm the principle set out in Article 7 of the IMT Charter (no ‘official position’ defence) and describes the principle set out in Article 8 (no ‘superior orders’ defence, but may be a mitigating factor) as being “in conformity with the law of all nations”.369 As can be seen from the above, the judges of the IMT only referred to the Ex Parte Quirin et Al. case370 and Article 228 of the Treaty of Versailles to support its determination that individuals can be held individually criminally responsible for certain international crimes. Its reliance on Article 228 is generally without criticism as it clearly provides for individual criminal responsibility for persons accused of having committed acts in violation of the laws and customs of war. However, the IMT’s reliance on the dicta from the Ex Parte Quirin case is questionable. The comments made by the Supreme Court of the United States and cited in the IMT judgment are obiter dicta. The issue to be decided by the Supreme Court in the Ex Parte Quirin case was whether the detention of the primarily German petitioners for trial by Military Commission, on alleged charges of violating the laws of war and the Articles of War (i.e. landing in the USA for the purposes of spying and sabotage), was in conformity with the laws and Constitution of the United States. The Supreme Court did not have to determine the petitioners’ guilt for the crimes charged or to determine whether a person could be held individually criminally responsible for certain international crimes. Therefore, the Supreme Court’s comments in relation to individual criminal responsibility were obiter dicta. Understood in this light, the considerable weight put on the comments of the Supreme Court by the IMT does not seem appropriate.371 Perhaps the lack of reference to other sources in support of the existence of the principle of individual criminal responsibility for international crimes can be simply explained by the judges’ genuine belief, that the principle of individual criminal responsibility had been firmly established in international law by the end of the Second World War.372 Arguably though, the judgment would have been enriched by reference to additional supporting authorities, particularly as defence

369 370 371

372

also available at http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm (last visited 6 March 2007). Ibid. See supra note 338. Interestingly, the dissenting opinion of the Soviet Member of the IMT, Major General Jurisprudence I. T. Nikitchenko, did not question the existence of the principle of individual criminal responsibility for international crimes. It focused on the decision of the Tribunal to acquit Schacht, von Papen and Fritzsche (whom Nikitchenko was of the opinion were guilty), the decision to sentence Hess to life imprisonment (Nikitchenko was of the view that he should have been sentenced to death by hanging), and the decision not to declare the Reichscabinet, General Staff and Oberkommando der Wehrmacht (Supreme Command of the Armed Forces) as criminal organisations (Nikitchenko was of the opinion that they should have been declared as criminal organisations). Evidence in support of this explanation is arguably provided by the choice of words employed in the judgment. After referring to the Ex Parte Quirin judgment the judgment continues “[m]any other authorities could be quoted, but enough has been said to show that individuals can be punished for violations of international law”.

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counsel raised it in their defence of their clients and Justice Jackson, as Chief Prosecutor, saw fit to raise the matter in his opening speech before the IMT.373 The judgment of the IMTFE is not especially helpful either. It did not dedicate much time to a discussion of the existence of the principle of individual criminal responsibility. On noting that two of the grounds of the defence challenging the jurisdiction of the IMTFE were that (i) war is an act of a nation for which there is no individual criminal responsibility under international law and (ii) the provisions of the IMTFE Charter are ex post facto legislation and therefore illegal, the IMTFE judgment noted that the law of the IMTFE Charter was decisive and binding on the IMTFE and the IMTFE was, as a result, formally bound to reject inter alia these two grounds of defence. However, in view of the great importance of such questions, the IMTFE was willing to record its opinion on inter alia these two issues. The IMTFE judgment then refers to a relevant passage of the IMT judgment concerning these two defences and continues, [W]ith the foregoing opinions of the Nuremberg Tribunal and the reasoning by which they are reached this Tribunal is in complete accord. They embody complete answers to the first four grounds urged by the defence as set forth above. In view of the fact that in all material respects the Charters of this Tribunal and the Nuremberg Tribunal are identical, this Tribunal prefers to express its unqualified adherence to the relevant opinions of the Nuremberg Tribunal rather than by reasoning the matters anew in somewhat different language to open the door to controversy by way of conflicting interpretations of the two statements of opinions.374

The decision of the majority of the judges sitting at the IMTFE not to delve too deeply into the issue is understandable. However, as there was clear disagreement as to the existence of a principle of individual criminal responsibility under international law after the Second World War, a thorough consideration of the issue would have been beneficial. Interestingly, although five of the 11 judges wrote opinions which dissented, either wholly or in part, with the majority judgment, only one took issue with the assumption that a principle of individual criminal responsibility under international law existed at that point in time.375 Mr. Justice Pal (India) stated

373

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375

And which he classified as being one of “certain novel problems in applying other precepts of the Charter” which he thought he should bring to the attention of the IMT. See supra note 366. See Judgment of the IMTFE, reproduced in B. V. A. Röling and C. F. Rüter (eds.), The Tokyo Judgment. The International Military Tribunal for the Far East (I.M.T.F.E.) 29 April 1946 – 12 November 1948, University Press, Amsterdam, 1977, pp. 27–28. The President of the IMTFE, Sir William Webb (Australia) had doubts about capital punishment and accordingly was against the pronouncement of the death penalty on certain of the defendants, Mr. Justice Bernard (France) dissented from the majority both on questions of fact and law, Mr. Justice Jaranilla (Republic of the Philippines) held the

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The most ingenious of the reasons that were given for fixing the criminal responsibility on the accused is that thereby the character of the whole defeated nation will be amply vindicated, and this will help the promotion of better understanding and good feeling between the individual citizens of the defeated and of the victor states. The entire defeated nation, it is said, has, by the war, provoked the hatred of the peace-loving nations. By the trial and punishment of these few persons who were really responsible for the war, the world will know that the defeated nation like all other nations was equally sinned against by these warlords. This will be a real and substantial contribution to the future peace of the world by repelling from the minds of the peace-loving nations all hatred towards the defeated nation and replacing such hatred with sympathy and good feeling. Assuming it to be so, I do not see how this coveted object would justify the punishment of these individuals by a court of law. If such is the object of a trial like the present, the same result could easily have been achieved by a commission of enquiry for war responsibility. Such a commission might have been manned by competent judges from different nationalities and their declaration would have produced the desired effect without any unnecessary straining of the law. After giving my anxious and careful consideration to the reasons given by the prosecution as also to the opinions of the various authorities I have arrived at the conclusion:… 1. That the individuals comprising the government and functioning as agents of that government incur no criminal responsibility in international law for the acts alleged; 2. That the international community has not as yet reached a stage which would make it expedient to include judicial process for condemning and punishing either states or individuals.376

In Mr. Justice Pal’s view, none of the defendants were guilty. The existence of the principle of individual criminal responsibility for international crimes was not as firmly established and apparent in 1945, as one may be lead to believe on reading the judgment of the IMT. However, notwithstanding this observation, it is the author’s view that the principle of individual criminal responsibility for certain international crimes was nonetheless established law at the time of the IMT. The IMT and IMTFE Charters represent the first recognition of the principle of individual criminal responsibility for the perpetrators of crimes against peace and crimes against humanity, in addition to war crimes. The acceptance of this concept is also borne out by the convictions handed down by both Tribunals. At the IMT, 19 of the 22 defendants were found guilty on one or more of the counts of the indictment, while three defendants were acquitted.377 12 defendants were sentenced to death by hanging, three were sentenced to imprisonment for life and the

376 377

view that more death penalties should have been passed, and Mr. Justice Röling (The Netherlands) disagreed with the majority both as regards legal and factual issues. Some of the dissenting opinions actually specifically reaffirmed the principle of individual criminal responsibility in international law, e.g. dissenting opinion of the President of the IMTFE, Sir William Webb and Mr. Justice Jaranilla. See Röling and Rüter, supra note 374, pp. 604–605. Hjalmar Schact, Franz von Papen and Hans Fritzsche were acquitted.

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remaining four defendants were sentenced to terms of between 10 to 20 years imprisonment.378 At the IMTFE, there were 28 defendants. Seven of them were sentenced to death,379 16 were sentenced to life imprisonment,380 one defendant was sentenced to 20 years imprisonment,381 while one was sentenced to seven years.382 In addition, two defendants died during the proceedings,383 while one was declared insane.384 The importance of the IMT trial is, as Mr. Justice Jackson has noted, “not measurable in terms of the personal fate of any of the defendants who were already broken and discredited men”.385 Its legacy lies in its other accomplishments. The IMT Charter for the first time made “explicit and unambiguous what was theretofore… implicit in International Law, namely that to… [perpetrate a crime against peace, a war crime or a crime against humanity] is an international crime, and that for the commission of such crimes individuals are responsible”.386 It is also of significance that although the agreement establishing the IMT Charter and reiterating the principle of individual criminal responsibility for crimes against peace, war crimes and crimes against humanity, was only signed by four states, i.e. the United Kingdom of Great Britain and Ireland, the USA, the French Republic and the Union of Soviet Socialist Republics (being the countries to which the German Reich unconditionally surrendered), 19 other states expressed their adherence to the agreement.387 As Mr. Justice Jackson noted this “represents the combined judgments of the overwhelming majority of civilized people”.388 All of these states, by their signature of the IMT Charter, or by their adherence to it,

378

379 380 381 382 383 384 385

386 387

388

Martin Bormann, Hans Frank, Wilhelm Frick, Hermann Wilhelm Göring, Alfred Jodl, Ernest Kaltenbrunner, Wilhelm Keitel, Alfred Rosenberg, Fritz Sauckel, Arthur SeyssInquart, Julius Streicher and Joachim von Ribbentrop were sentenced to death by hanging. Walther Funk, Rudolf Hess and Erich Raeder were sentenced to life imprisonment. Karl Dönitz was sentenced to 10 years imprisonment, Konstantin von Neurath to 15 years imprisonment, and Baldur von Schirach and Albert Speer to 20 years imprisonment. Dohihara, Hirota, Itagaki, Kimura, Matsui, Muto and Tojo. Araki, Hashimoto, Hata, Hiranuma, Hoshino, Kido, Koisi, Minami, Oka, Oshima, Sato, Shimada, Suzuki, Kaya, Shiratori and Umezu. Togo. Shigemitsu. Matsuoka and Nagano. Okawa. See Report to the President by Mr. Justice Jackson of 7 October 1946, available at http://www.yale.edu/lawweb/avalon/imt/jackson/jack63.htm (last visited 27 May 2004), at section III. Ibid. I.e. Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela and Yugoslavia. See supra note 385.

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indicated that they concurred with the proposition of individual criminal responsibility for crimes against peace, war crimes and crimes against humanity. An additional legacy of the IMT Charter is the incorporation of “its principles into a judicial precedent… No one can hereafter deny or fail to know that the principles on which the Nazi leaders are adjudged to forfeit their lives constitute law and law with a sanction”.389 The significance of the IMTFE has been described in similar terms.390 To summarise, the significance of the IMT and IMTFE Charters and judgments is that they extended the concept of individual criminal responsibility to crimes against the peace and crimes against humanity, as well as applying it to war crimes. Following the IMT and IMTFE judgments, the dispute as to whether the concept of individual criminal responsibility for war crimes, crimes against peace and crimes against humanity was recognised in international law, was finally resolved in favour of recognition of the concept. This is supported by the trials that took place and the international instruments which were entered into, in the aftermath of the IMT and IMTFE trials. 2.6.2.3 Post Nuremberg and Tokyo After World War II, the Allies established military tribunals in their respective zones of occupation under CCL 10.391 It is reported that during and after the IMT trial, the United States convicted 1,814 people in its zone of occupation, Great 389

390

391

Other accomplishments of the IMT noted by Jackson are as follows: (i) The agreement establishing the IMT Charter devised “a workable procedure for the trial of crimes which reconciled the basic conflicts in Anglo-American, French, and Soviet procedures”; (ii) The United Kingdom of Great Britain and Ireland, the USA, the French Republic and the Union of Soviet Socialist Republics “have given the example of leaving the punishment of individuals to the determination of independent judges, guided by principles of law”, which example other states, hopefully, will follow; (iii) The atrocities committed by the Nazi leaders have been documented with such authenticity that “there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people”; and (iv) “The record discloses the early symptoms of dictatorship and shows that it is only in its incipient stages that it can be brought under control. The Nurnberg trial has put the handwriting on the wall for the oppressor as well as the oppressed to read”. See supra note 385. “The value of the [Tokyo] judgments lies in the fact that individual criminal responsibility for launching a war and for misconduct during a war is accepted for all time as a principle. Nuremberg and Tokyo are indelible precedents… the revolutionary phenomenon of the trial of individuals was occasioned by the realization that, in the atomic age, every means must be employed in order to prevent wars. Such an expedient is the moral and juridical condemnation of war, with the resultant individual responsibility under criminal law for its unleashing”. See Röling and Rüter, supra note 374, p. XIII. For a description of the various tribunals established by Australia, Canada, China, Denmark, France, Great Britain, the Netherlands, Norway, Poland, the United States, and the USSR, to try the “lesser” war criminals, see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, Martinus Nihoff Publishers, Dordrecht/ Boston/London, 1992, pp. 213–214.

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Britain convicted 1,085 people, France convicted 2,107 while the number of people convicted by the USSR is unknown.392 There was no similar legislation to CCL 10 in Japan as the United States was the single occupying power in Japan. However, the United States tried war criminals in Manila, Yokohama, Kwajalein, Guam and China.393 The most famous case tried before a US Military Commission in Manila was the case against General Yamashita, which concerned the issue of command responsibility. In addition to the IMT and IMTFE trials and the trials conducted in accordance with CCL 10, war crime trials were also conducted before the domestic courts of many states following World War II.394 Great Britain conducted domestic trials for war crimes in the aftermath of the war,395 as did the Federal Republic of Germany. At the end of 1988, 6,500 people had been convicted in the Federal Republic of Germany.396 France adopted special laws relating to war crimes and established three special tribunals (Cours de justice, Chambres civiques and Haute Cour de la justice) in the aftermath of World War II. The most well known case is probably the case against the former Gestapo Chief of Lyon, Klaus Barbie, who was tried before the Cour de Cassation on charges of crimes against humanity, almost 40 years after the end of the war. He was ultimately sentenced to life imprisonment.397 In Austria, a series of constitutional laws were passed and special

392

393 394

395 396 397

See Bassiouni, supra note 293, p. 532. The United States conducted inter alia what are described as the “Nuremberg Subsequent Proceedings”. 12 tribunals were established at Nuremberg after the conclusion of the IMT trial to prosecute high-ranking persons. Well known cases include the Hostage case (United States of America v. Wilhelm List, et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 8 July 1947 – 19 February 1948, UNWCC, Vol. VIII, p. 38); the High Command case (United States of America v. Wilhelm von Leeb, et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 30 December 1947 – 28 October 1948, UNWCC, Vol. XII, p. 1); and the Einsatzgruppen case, supra note 267. For a brief account of these cases, see Bring, supra note 194, pp. 21–22. See Bring, supra note 194, p. 24. For a consideration of the circumstances conducive to the domestic prosecution of a state’s own nationals, (i.e. states in political transition, the threat of concurrent domestic and international jurisdiction and unacceptable violations of the laws of war committed by a state’s own nationals), see Timothy L. H. McCormack, “Their Atrocities and Our Misdemeanours: The Reticence of States to Try their ‘Own Nationals’ for International Crimes”, in Lattimer and Sands, supra note 42, pp. 108–110. See generally, Jane Garwood-Cutler, “The British Experience”, in Bassiouni, supra note 10, Vol. III, pp. 325–330. See Axel Marschik, “The Politics of Prosecution: European National Approaches to War Crimes”, in McCormack and Simpson, supra note 33, p. 74. Fédération Nationale des Déportés et Internés Résistants et Patriotes contre Klaus Barbie, reprinted in 90 R.G.D.I.P. 1024 (1986). See generally, Leila Sadat Wexler, “The French Experience”, in Bassiouni, supra note 10, Vol. III, pp. 273–300.

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courts were also established to try crimes committed between 1933 and 1945. Between 1945 and 1955, 13,000 people were convicted. 398 The Union of Soviet Socialist Republics conducted war crime trials after the war, for example, the 1943 trials in Krasnodar and the 1944 trials in Charkow and Lublin, as did the former Yugoslavia.399 Australia tried approximately 1,000 persons before its domestic courts after the war.400 Israel also conducted some well-known prosecutions after the Second World War. Not only did Israel seize the opportunity to prosecute Adolf Eichmann401 (who was sentenced to death) and John Demjanjuk,402 also known as “Ivan The Terrible of Treblinka” (who was ultimately acquitted) before its domestic courts, it also conducted trials against the Kapos (i.e. Jewish policemen in the Nazi concentration camps).403 Canada also conducted prosecutions of war criminals after the Second World War, however, it was not until the 1980’s that a Commission of Inquiry on War Criminals was established, following reports that thousands of former Nazi criminals were residing in Canada.404 The case of R v. Finta405 is one of the most renowned cases before the Canadian domestic courts. Prosecutions before domestic courts also took place in Denmark, which had been occupied by German forces between 9 April 1940 and 4 May 1945. Following liberation, approximately 40,000 people were arrested in Denmark.406 On 12 398

399 400

401 402 403

404

405 406

Verfassungsgesetz über das verbot NSDAP dated 18 May 1945 and Verfassungsgesetz über Kriegsverbrechen und andere nationalsozialistische Untaten (Kriegsverbrechergesetz) dated 26 June 1945. Apparently, the high conviction rate was due to the fact that a wide variety of crimes were encompassed by the new constitutional laws adopted. See Marschik, supra note 396, pp. 77–78. For a review of some of the more prominent trials conducted before the courts of the former Yugoslavia, see Marschik, supra note 396, pp. 91–92. See Gillian Triggs, “Australia’s War Crimes Trials: All Pity Choked”, in McCormack and Simpson, supra note 33, p. 123. See also, Graham T. Blewitt, “The Australian Experience”, in Bassiouni, supra note 10, Vol. III, pp. 301–324 and Greg James, “A Summary of the History of Nazi War Crime Trials in Australia”, in Reginbogin and Safferling, supra note 33, pp. 224–230. See supra note 192. See also Gabriel Bach, “Genocide (Holocaust) Trials in Israel”, in Reginbogin and Safferling, supra note 33, pp. 216–222. Israel v. Demjanjuk, Crim. App. No. 347/88 (Sup. Ct. of Israel, Jul. 29, 1993). For an account of the trials of Kapos before Israeli domestic courts after World War II, as well as consideration of the Eichmann and Demjanjuk cases, see Jonathan M. Weng, “Enforcing the Lessons of History: Israel Judges the Holocaust”, in McCormack and Simpson, supra note 33, pp. 103–122. See also Orna Ben-Naftali and Yogev Tuval, “Punishing International Crimes Committed by the Persecuted, The Kapo Trials in Israel (1950s–1960s)”, 4 J. Int’l Crim. Jus. 128 (2006). The Commission identified over 750 potential war criminals in Canada and put forward the names of 20 people, with the recommendation that they be prosecuted. The few prosecutions which subsequently followed, however, were unsuccessful for a variety of reasons. See generally, Christopher Amerasinghe, “The Canadian Experience”, in Bassiouni, supra note 10, Vol. III, pp. 243–272. 73 C.C.C. (3d) 65 (Ont. C.A. 1992). See Ditlev Tamm, Retsopgøret efter besættelsen, Jurist- og Økonomforbundets Forlag, Copenhagen, 1984, p. 726.

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July 1946, a Law on the Punishment of War Criminals was passed. 77 war criminals were tried under this legislation of which 71 received sentences ranging from five years imprisonment to death.407 13,521 sentences (of which 78 were death sentences) were also handed down to Danish persons who had collaborated with the German occupier, either in reliance on the provisions of the 1945 Penal Law Amendment or the 1945 Law on Collaborators. 408 Likewise, Norway conducted trials 407

408

Lov Nr. 395 af 12. Juli 1946 om Straf for Krigsforbrydere, reprinted in Tamm, ibid., pp. 773–774. One of the war criminals sentenced to death was a Danish citizen, who served in various German concentration camps. None of the seven death sentences handed down were ever executed and the last war criminal was released in 1953. The most high profile German war criminals convicted by Danish domestic courts include the Plenipotentiary Dr. Werner Best (12 years imprisonment), the Higher SS-Führer Friedrich W. L. Pancke (20 years imprisonment) and Chief of the Gestapo Otto von Bovensiepen (life imprisonment). Military Chief General von Hannecken was eventually acquitted. See Tamm, ibid., pp. 621–655 and 794. Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed, Lov Nr. 356 af 29. Juni 1946 om Ændringer i og Tilføjelser til Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed and Lov Nr. 406 af 28. August 1945 om Tillæg til Lov Nr. 259 af 1. Juni 1945 om Tillæg til Borgerlig Straffelov angaaende Forræderi og anden landsskadelig Virksomhed, reprinted in Tamm, supra note 406, pp. 755–757, 771–773, and 760–762 respectively. Of these, 7,500 were sentenced for participating in some form of armed collaboration (e.g. for active service at the front, for acting as armed guards at airports or other German military installations, or for having served with German police or police like units); 1,100 were punished as informers; 600 for committing acts of murder or violence in the interests of Germany; 1,100 for acts of economic collaboration; and 600 for other acts which assisted Germany. See Tamm, ibid., pp. 265–436 and 792. 46 out of the 78 death sentences were carried out, while 32 were commuted to life sentences. 66 people were sentenced to life imprisonment; approximately 400 were sentenced to imprisonment of 10 years or more; approximately 1,000 were sentenced to imprisonment of five years or more and approximately 2,850 people received sentences of between two-and-a-half and five years imprisonment. See Tamm, ibid., pp. 323 and 725. Tamm notes that the sentences handed down against Danish “traitors” were much harsher than those handed down to convicted German war criminals. Ibid., p. 641. The particularly high level of acts of collaboration is, perhaps, due to the special occupied status of Denmark. On occupying Denmark, Germany declared that it did not intend to violate Denmark’s territorial integrity and the Danish government, judiciary and administrative institutions continued to function until half way through the occupation. The Danish Government advocated a policy of ‘cooperation and negotiation’ (samarbejds- og indrømmelsespolitik) with the occupier in the early years of occupation. This resulted inter alia in (i) the Danish Ministry of War permitting Danish officers to serve in Frikorps Danmark, a Danish unit of volunteers which formed part of the Waffen SS (these officers were prosecuted after the war), and (ii) the Danish Government urging Danish contractors to assist in the building of German man military installations and pressuring unemployed Danes to travel to Germany for work. Tamm notes that many of those subsequently convicted for acts of collaboration e.g. in their positions as guards in Germany began their working careers in Germany in civilian posts. This had been actively encouraged by the Danish Government. As time went by, these same persons ended up in positions which resulted in them engaging in

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 109

before domestic courts following the war, the most high profile of which is that of the leader of the Nazi Norwegian Government (the elected government of Norway being in exile in London), Vidkun Quisling. He was sentenced to death and executed inter alia for the actions of his government in urging Norway to serve Germany, and for participation in the deaths of Norwegian resistance movement members. In total, approximately 46,000 sentences were handed down.409 81 German war criminals were convicted and 15 of them were sentenced to death.410 The Netherlands conducted war crime trials after the war. 208 German war criminals were convicted, of which 18 were sentenced to death. In total the Dutch special courts (bijzondere gerechtshoven) handed down 14,562 sentences.411 These prosecutions at domestic level are significant as they demonstrate the acceptance of the principle of individual criminal responsibility for certain international crimes. Of significance too is the number of countries that adopted new legislation to deal with war criminals, for example, Australia, Austria, Canada, Denmark, France, Holland, Israel, Great Britain and Norway. An inherent part of such legislation was recognition of the principle of individual criminal responsibility for war crimes.

409

410

411

conduct which subsequently was criminalised, and even though some of them realised that such conduct was not appropriate, they could not change their situation. One of the criticisms of the Danish legal purge after the end of World War II, is that the judgments handed down to collaborators were unduly harsh, bearing in mind the role of the Government in such collaborative acts as a result of its ‘cooperation and negotiation’ policy. Unfortunately, such role was never taken into account in the prosecution of these collaborators. Although four parliamentary committees were established between June 1945 and October 1950 to determine whether any member of the Danish Government could be held criminally responsible for the actions of the Danish Government in relation to the German occupation, it was determined that no such liability could attach. See Tamm, ibid., pp. 293–300, 609–619, 727–728 and 789–794. Of the 46,000 sentences, only 18,000 were sentences of imprisonment (the remainder being in the form of fines or a loss of rights). 4,500 people were sentenced to an imprisonment term in excess of three years; approximately 600 were sentenced to imprisonment in excess of eight years; 72 were given life sentences; and 30 received death sentences (not including the 15 German war criminals who were sentenced to death). The legislation in accordance with which the accused were tried included Landssvikanordning av 15. desember 1944. See Tamm, supra note 406, pp. 703–706 and Johs. Andenæs, Det Vanskelige Oppgjøret, Tano Aschehoug, Oslo, 3rd ed., 1998, pp. 101–113, 136–146, and 187–190. Two of the German war criminals sentenced to death were pardoned, while one committed suicide. 16 of the 81 German war criminals were sentenced to forced labour for life, while the remainder were sentenced to imprisonment, mainly for 10 years or more. The legislation in accordance with which the German war criminals were tried included Anordning av 4. mai 1945 om straff for utenlandske krigsforbrytere. See Tamm, supra note 406, pp. 703–706 and Andenæs, supra note 409, pp. 229–247. Of these 14,562 sentences, 148 persons were sentenced to life imprisonment, 1,746 to imprisonment of four years or more, and 7,493 to imprisonment of five years or more. See Tamm, supra note 406, pp. 706–709. For an account of some of the more well known trials conducted before the Dutch courts, see Marschik, supra note 396, pp. 89–90.

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Although the principles established by the IMT and IMTFE Charters and the jurisprudence of the IMT and IMTFE did not become utilised before an international tribunal until the 1990’s with the establishment of the ICTY, certain activities by UN bodies in the meantime helped to emphasise that these principles had now become part of international law. One of the most significant acts was the adoption by the UN General Assembly in 1946, by unanimous vote, of Resolution 95(I) – Affirmation of the Principles of International Law Recognised by the Charter of the Nüremberg Tribunal.412 This affirmation by the UN General Assembly is noteworthy, as it implies that the main principles articulated by the IMT Charter and judgment were, by 1946, not considered to be novel principles. Resolution 95(I) contained a direction to the Committee on the Codification of International Law (the International Law Commission) “to treat as a matter of primary importance plans for the formation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal”. At the second session of the International Law Commission in 1950, the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (the “Nuremberg Principles”) were adopted.413 Principle I recognises that there is individual criminal responsibility for “an act which constitutes a crime under international law”. Principle VI goes on to define as crimes under international law, crimes against peace, war crimes and crimes against humanity. Principles III and IV reject the ‘Head of State or Government official’ defence as well as the ‘superior orders’ defence, provided as regards the latter defence, that “a moral choice was in fact possible to him”. Notwithstanding that the IMT and IMTFE Charters provide that although the superior orders defence is not available, such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires, no such similar provision is made in the Nuremberg Principles.414 The Commission was of the view that the determination of whether a punishment should be mitigated is a matter for the competent court to decide. The remaining core international crime for which it became recognised that individual criminal responsibility could arise under international law was the crime of genocide. The Genocide Convention expanded the definition of crimes under international law for which an individual could be individually criminally responsible to specifically include the crime of genocide.415 As noted above, not only can an individual be criminally responsible and thus punished for directly

412

413 414 415

Dated 11 December 1946, in Schindler and Toman, supra note 332, p. 921. Resolution 95(I) does not, however, explicitly identify the principles of international law recognised by the IMT Charter and judgment, which it affirms. See supra note 92. See Article 8, IMT Charter, supra note 23 and Article 6, IMTFE Charter, supra note 23. See supra note 68. Article 4 provides that “[p]ersons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”.

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 111

committing an act of genocide, he/she can also be individually criminally responsible for conspiracy to commit genocide, direct and public incitement to commit genocide, an attempt to commit genocide and complicity in genocide.416 The Geneva Conventions should also be mentioned as they too provide evidence of the recognition of the principle of individual criminal responsibility for international crimes. Although, the Conventions do not explicitly provide that an individual can be held individually criminally responsible for an act amounting to a grave breach under any of the Conventions, each Convention provides that “[t]he High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed, any of the grave breaches of the present Convention…”.417 This indirectly implies that both the individual who commits the grave breach, and/or the superior who ordered that such grave breach be committed, can be held individually criminally responsible for committing such crime. Additional Protocol I418 as well as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict similarly adopt a circuitous route to impose individual criminal responsibility for a breach by an individual of the terms of such Protocol/convention. 419 Finally, reference should also be made to 1968 Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity.420 The circumstances giving rise to this Convention were fears, in the mid-1960’s, that German war criminals might avoid prosecution for international crimes committed by them in World War II, because of applicable statutes of limitations. The Convention provides that no statutory limitation shall apply to war crimes or crimes against humanity (as defined therein), irrespective of the date of their 416 417

418

419

420

See supra section 2.5.3.1. See Article 49, Geneva Convention I, supra note 68; Article 50, Geneva Convention II, supra note 68; Article 129, Geneva Convention III, supra note 68; and Article 146, Geneva Convention IV, supra note 68. Article 85, Additional Protocol I, supra note 68, provides that “[t]he provisions of the Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol”. This is presumably a reference to Article 49, Geneva Convention I, supra note 68; Article 50, Geneva Convention II, supra note 68; Article 127, Geneva Convention III, supra note 68; and Article 146, Geneva Convention IV, supra note 68. Additional Protocol II, supra note 68, does not contain a similar provision. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, dated 14 May 1954 and entered into force on 7 August 1956, does not explicitly provide that an individual will be individually criminally responsible for a breach of the terms of the Convention. However, Article 28 provides that “[t]he High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention”. The Convention is available at http://www.icomos.org/hague/ hague.convention.html (last visited 27 June 2005). See supra note 270. See in particular the wording used in Articles 2 and 3 of the Convention.

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commission. Both the whole concept of the Convention, as well as the specific wording used therein, indicates recognition of the concept of individual criminal responsibility for certain international crimes. Preliminary Conclusion The IMT and IMTFE judgments extended the concept of individual criminal responsibility to crimes against the peace and crimes against humanity, as well as applying it to war crimes. The recognition of this concept was reaffirmed by the domestic trials conducted in the aftermath of World War II, as well as by the wealth of domestic legislation enacted specifically to deal with war crimes. The final core international crime, genocide, was elevated to the status of an international crime for which there could attach individual criminal responsibility, by way of a specific convention dealing with such crime. Notwithstanding the substantial wealth of evidence of the existence of the principle of individual criminal responsibility for certain international crimes both prior to and after World War II, and the clear evidence of the enforcement of this principle, it is apparent that victors’ justice heavily influenced the enforcement of this principle. The principle of individual criminal responsibility was, by and large, enforced by the victors, as there was no other peacetime enforcement mechanism in existence to enforce the principle.421 If the victors did not enforce the the principle, individuals would not have been prosecuted for the perpetration of such crimes. As a corollary to victors’ justice, the principle was not evenly applied to all perpetrators of core international crimes. This is clearly illustrated by the absence of prosecutions against individuals associated with the Allied Powers who committed the same crimes as the Nazis in World War II. While there are examples of States which, after the war, prosecuted their own nationals for various forms of collaboration with Nazi Germany,422 there is scant evidence of States prosecuting their own nationals for core international crimes committed against German forces or the German civilian population.423 Political factors have also 421

422 423

Indeed, it is of interest that despite the terrible consequences of the atomic bombs released over Hiroshima and Nagasaki, not a single person was held accountable for such acts. A claim was brought against the State of Japan by residents of Hiroshima and Nagasaki for the damages, they, and members of their families, suffered as a result of the atomic bombings. The plaintiffs claimed that the dropping of the atomic bombs was an unlawful act and that Japan’s waiver of claims for damages under domestic and international law against the US gave rise to an obligation for the government of Japan itself to pay damages. The action was dismissed by the Tokyo District Court. See Shimoda v. Japan, 32 I.L.R. 626 (1964). For example, Denmark, Germany, Holland, Israel, and Norway. Of particular relevance in this regard in relation to Denmark, is whether any liability could have attached for the commission of war crimes against Germany. As noted supra section 2.5.3.2, in order to be characterised as a war crime, the prohibited act or omission must be committed during and in connection with an armed conflict. It is questionable whether it can be said that Denmark was at war with Germany,

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 113

played a major role in the actual enforcement of the principle of individual criminal responsibility. Indeed, it has even been posited that “the practice of European States shows that actual prosecution and punishment of humanitarian crimes depends solely on political factors… humanitarian crimes will, therefore, only be prosecuted and punished by the State if it is politically opportune”.424 2.6.2.4 ICTY and Beyond ICTY, ICTR and ICC Statutes After the IMT and IMTFE Charters, almost 50 years were to pass before the principles of individual criminal responsibility were utilised in the context of an ad hoc international criminal court. The Statutes of the ICTY, ICTR and most recently the ICC, have played a significant role in reaffirming the principle of individual criminal responsibility for core international crimes in international law. The ICTY Statute provides that the ICTY 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. The international crimes falling within the jurisdiction of the ICTY are specified as (i) grave breaches of the Geneva Conventions, (ii) violations of the laws or customs of war, (iii) genocide, and (iv) crimes against humanity.425 Individual criminal responsibility extends beyond the person who actually committed the crime to any person who planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the crime concerned.426 The official position of any accused person shall not relieve such person of criminal liability nor mitigate punishment.427 The ‘superior order’ defence is not available, but it may be considered in mitigation of punishment, if the ICTY determines that justice so requires.428 Finally, a superior shall not be relieved of responsibility because the crime was committed by a subordinate, if the superior “knew or had reason to know that the subordinate was about to commit such acts or had done so and the

424 425 426 427 428

at least up until 29 August 1943. Also of interest with regard to Denmark is the ‘informer liquidations’. During World War II, the Danish resistance movement conducted approximately 375 ‘informer liquidations’. The deceased were killed because they were believed to be a threat to the resistance movement. In 1945 a debate began in Denmark concerning these liquidations. The intention behind the debate was not however, primarily, to prosecute the perpetrators of such murders, as such acts were considered to be legitimate ‘acts of war’, even though it was admitted that some of the deceased had been killed in error; instead, it was primarily to investigate the circumstances of the killings and to provide an explanation to the families of the deceased as to why their loved ones had been killed. See Tamm, supra note 406, pp. 659–695 and 794. See Marschik, supra note 396, p. 100. Articles 1-5, ICTY Statute, supra note 16. Ibid., Article7(1). Ibid., Article 7(2). Ibid., Article 7(4).

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superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof”.429 The ICTR Statute contains similar provisions as regards the prosecution of 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 1994.430 The international crimes within the jurisdiction of the ICTR are (i) genocide, (ii) crimes against humanity, and (iii) violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.431 While these crimes are not identical to the crimes within the jurisdiction of the ICTY, the ICTY and the ICTR, generally speaking, have jurisdiction over the same categories of crimes. The unusual context of the Rwandan conflict, which was an internal or non-international conflict, explains this lack of uniformity.432 The ICC Statute is the most recent international instrument to confirm the principle of individual criminal responsibility for core international crimes. The ICC shall have the power to exercise its jurisdiction over persons433 for the most serious crimes of international concern, i.e. genocide, crimes against humanity, war crimes and the crime of aggression, and shall be complementary to national criminal jurisdictions.434 Article 25 of the ICC Statute, containing the general principles of the individual criminal responsibility concept, is much broader than the equivalent provisions of the ICTY and ICTR Statutes. Unlike the ICTY and ICTR Statutes, which primarily deal with individual criminal responsibility by way of one single provision,435 the ICC Statute has a number of detailed provisions to deal with effectively the same subject matter, e.g. Article 25 (Individual Criminal Responsi429 430 431 432

433

434

435

Ibid., Article 7(3). Articles 1-6, ICTR Statute, supra note 16. Ibid., Articles 2-4. In this context, reference should also be made to the Draft Code of Crimes, supra note 141. The Draft Code of Crimes provides that a crime against the peace and security of mankind entails individual responsibility (Article 2(1)). It contains provisions relating to the order of a Government or a superior, the responsibility of the superior, and official position and responsibility (Articles 5-7); and defines crimes against the peace and security of mankind as the crime of aggression, the crime of genocide, crimes against humanity, crimes against UN and associated personnel and war crimes. Article 25(1) provides that the ICC shall have jurisdiction over natural persons alone. Consideration was given to whether legal entities ought also fall within the jurisdiction of the ICC. This was a hotly argued issue, which in the end was rejected. See Per Saland, in Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues Negotiations, Results, Kluwer Law International, The Hague/London/ Boston, 1999, p. 199 and Kai Ambos in Triffterer, supra note 123, pp. 477–478. Articles 1, 5, and 6-8, ICC Statute, supra note 4. The ICC can, however, only exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to this crime. See Article 5(2), ICC Statute, supra note 4. See Article 7, ICTY Statute, supra note 16, and Article 6, ICTR Statute, supra note 16.

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 115

bility), Article 27 (Irrelevance of Official Capacity), Article 28 (Responsibility of Commanders and Other Superiors) and Article 33 (Superior Orders and Prescription of Law). Article 25(3) provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) (b) (c)

(d)

(e) (f)

Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; 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;436 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; In respect of the crime of genocide, directly and publicly incites others to commit genocide; 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.437

Article 25(3) is clearly quite complex and gives rise to many issues.438 Although, it is not intended to discuss these issues in this context, some general clarifying comments are warranted as regards Article 25(3) (a)-(c), which set out the basic concepts of individual criminal responsibility,439 and as regards the differences between Article 25 of the ICC Statute and the equivalent provisions of the ICTY and ICTR Statutes. 436

437

438 439

For a discussion as to what extent Article 25(3)(c) can be used to create international criminal liability for employees, officers and the directors of corporations, see William A. Schabas, “Enforcing International Humanitarian Law: Catching the Accomplices”, Int’l Rev. Red Cross, No. 42, 2001, pp. 439–459. In accordance with Article 30, ICC Statute, supra note 4, a person can only be held criminally responsible for a crime if the material elements are committed with intent and knowledge. For a comprehensive discussion of some of the intricacies of this definition, see Ambos, supra note 433, pp. 475–492. For a consideration of the terms aiding and abetting and a detailed discussion of individual criminal responsibility and the common purpose/joint criminal enterprise doctrine, see infra, Chapter 3, section 3.5.2.

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Subparagraph (a) provides for three types of participation – direct participation, co-perpetration and perpetration by means. Ordering the commission of a crime, as provided for in the first part of subparagraph (b), is said to imply “a superiorsubordinate relationship between the person giving the order and the one executing it. In other words, the person in a position of authority uses it to convince another to commit an offence”.440 Accordingly, the first part of subparagraph (b) concerning an individual who ‘orders’ the commission of a crime arguably falls within the category of perpetration by means referred to in subparagraph (a) where the crime is actually committed (and not just attempted), as the act of ordering the commission of a crime can be categorised as ‘perpetration by means’. The term, induces, which means to “persuade or use influence on”441 is wider than the term solicits, which means “to provoke or incite (a person) to do something wrong or illegal”.442 The degree of responsibility is, generally speaking, higher as regards the conduct described in subparagraph (b) than that described in subparagraph (c). These provisions differ from the equivalent provisions of the ICTY and ICTR Statutes in two main respects. Firstly, they provide that individual criminal responsibility can arise where the crime is only attempted and is not actually committed. As can be seen from the above, individual criminal responsibility can arise where a person orders, solicits or induces the commission of a crime which is attempted, where a person aids, abets or otherwise assists in the attempted commission of a crime, or in any other way contributes to the attempted commission of such a crime by a group of persons with a common purpose, or attempts to commit a crime by taking action that commences its execution by means of a substantial step. The ICTY and ICTR refer to the varying degrees of involvement of a person in the actual commission of a crime.443 Secondly, the ICC Statute makes specific reference to individual criminal responsibility arising in the context of the common purpose/joint criminal enterprise doctrine (which is distinct from the concept of aiding and abetting in the commission of a crime).444 No explicit reference is made to this doctrine in the ICTY and ICTR Statutes, but it has been interpreted as being encompassed by Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute.445 Article 25(3) is complemented by the provisions of Article 28 of the ICC Statute concerning the responsibility of commanders and other superiors. Article 28

440

441 442 443 444 445

See Prosecutor v Jean Paul Akayesu, supra note 192, § 483. The first part of subparagraph (b) complements Article 28 of the ICC Statute, supra note 4, which deals with the responsibility of commanders and other superiors. See Collins, English Dictionary - 21st Century Edition, Oxford University Press, Oxford, 5th ed., reprinted 2001, p. 786. Ibid., p. 1461. See Article 7, ICTY Statute, supra note 16, and Article 6, ICTR Statute, supra note 16. See supra note 439. The most well-known judgment of the ad hoc international criminal tribunals concerning the common purpose/joint criminal enterprise doctrine is the Tadiü Appeals Judgment, supra note 74. See infra Chapter 3, section 3.4.1.1.

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 117

makes a distinction between the individual criminal responsibility of (i) military commanders and (ii) non-military superiors. It provides 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: (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. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (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; and (iii) The superior 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.

In the negotiations leading up to the ICC Statute, consideration was given as to whether command responsibility should only apply to military commanders. The majority of delegates were in favour of command responsibility also applying to civilian superiors. Accordingly, Article 28(a) was drafted to cover military or quasimilitary relationships, whereas non-military superiors, such as “the non-military components of government, political parties or business”,446 were to be covered by subparagraph (b). The equivalent provisions on the ICTY and ICTR Statutes do not make a distinction between military commanders and civilian superiors (simply referring to superiors alone, which includes both military commanders and civilian superiors)447 and neither do they require that as many ‘conditions’ be fulfilled before a military commander or a civilian superior can be held criminally 446 447

See William J. Fenrick, in Triffterer, supra note 123, p. 520. The judgment of the ICTY Trial Chamber in Prosecutor v Delaliü, supra note 25, confirmed that the term superior was not limited to military commanders: “It is apparent from the text of this provision that no express limitation is made restricting the scope of this type of responsibility to military commanders or situations arising under a military command. In contrast, the use of the generic term “superior” in this provision, together with its juxtaposition to the affirmation of the individual criminal responsibility of “Head[s] of State or Government” or “responsible Government official[s]” in Article 7(2), clearly indicates that its applicability extends beyond the responsibility of military commanders to also encompass political leaders and other civilian superiors in positions of authority.” See ibid., § 356. See also generally §§ 355–363.

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responsible for crimes committed by his subordinates.448 They simply provide that the fact that any of the crimes falling within the jurisdiction of the ICTY or ICTR (as applicable) “was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof” (emphasis added). The knowledge requirement for the purposes of the ICC Statute differs, depending on whether the accused is a military commander (“knew or should have known”) or a civilian superior (“knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes”). The application of different knowledge tests was in response to an issue raised by the US delegation during the Preparatory Committee meetings, who questioned whether civilian superiors and military commanders have the same degree of control over their subordinates. Another issue raised was whether civilian superiors could prevent or repress the commission of crimes by their subordinates in the same manner as military commanders. It was also noted that often, civilian superiors and sometimes, military commanders are not in a position to prosecute the perpetrators of crimes. The discussions of these issues led to the formulation of different knowledge tests for military commanders and civilian superiors and to the inclusion within the realm of responsibility of both categories of superiors, the submittal of the fact of the commission of a crime to “the competent authorities for investigation and prosecution”.449 Neither the ICTY nor the ICTR Statute provides that the fact that an accused acted pursuant to the orders of a superior is a valid defence.450 However, the ICC Statute makes provisions for some exceptions to the outright rejection of the superior orders defence, as regards the crimes within the jurisdiction of the ICC.451 Article 33(1) provides that the fact that a crime has been committed by a 448 449 450

451

See Article 7(3), ICTY Statute, supra note 16 and Article 6(3), ICTR Statute, supra note 16. Article 28(a)(ii) and Article 28(b)(iii), ICC Statute, supra note 4. For an insight into the issues arising as regards Article 28, see Saland, supra note 433, pp. 202–204. Although such fact may be considered in mitigation of punishment, if the Tribunal determines that justice so requires. See ICTY Statute, supra note 16, Article 7(4) and ICTR Statute, supra note 16, Article 7(3). Article 33 of the ICC Statute, supra note 4, does not state specifically that the fact that action was taken pursuant to superior orders may be considered in mitigation of punishment. However, Article 78(1) of the ICC Statute, which provides that in determining the sentence, the ICC shall take into account such factors as the gravity of the crime and the individual circumstances of the convicted person, is applicable in this context. Article 33 of the ICC Statute, supra note 4, only concerns reliance on the superior orders defence in the context of the crimes before the jurisdiction of the ICC. It does not encompass the extent to which the superior orders defence can be used as regards crimes under international law in general (which may have been assumed, as Articles 22 to 33 contain rules which are generally accepted in international criminal law). For a discussion of the precise meanings of the different formulations used in this Article, see

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 119

person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless (a) the person was under a legal obligation to obey orders of the Government or the superior in question; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful.452 Article 33(2) states that orders to commit genocide or crimes against humanity are manifestly unlawful. This means that, currently, the superior orders exception can only be used as regards war crimes (subject to the three criteria set out in Article 33(1) being fulfilled). It does seem peculiar that the exception can potentially be relied upon as regards war crimes (and the crime of aggression in due course),453 but not as regards crimes against humanity or genocide. It has been posited that the reason for this difference in treatment is that “genocide and crimes against humanity can be committed by everybody, while war crimes and crimes against the peace are typically committed by military or paramilitary persons in whatever actions they may be involved. To protect them obviously is the reason for the limited regulation in paragraph 2”.454 Article 27 of the ICC Statute reiterates the principle of the irrelevance of official capacity and goes further than the equivalent provisions of the ICTY and ICTR Statutes by explicitly providing that immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person.455 Notwithstanding the broad and comprehensive provisions of Article 25, it does not explicitly set out a general rule of individual criminal responsibility resulting

452

453

454 455

Otto Triffterer, in Triffterer, supra note 123, pp. 573–588, Kai Ambos in Cassese, Gaeta and Jones, supra note 123, Vol. I, pp. 823–872 and Andreas Zimmermann, in Cassese, Gaeta and Jones, supra note 123, Vol. I, pp. 957–974. For a review of the issues raised as regards this Article during the ICC Statute negotiations, see Saland, supra note 433, pp. 210–212. The French delegation proposed that persons who were carrying out acts pursuant to decisions by the UN Security Council or on its behalf, ought to be exempted from individual criminal responsibility. This proposal was heavily criticised and was eventually dropped. A conscious decision was made at the Rome Conference that Article 33(1) should state that superior orders, in principle, shall not relieve a person of criminal responsibility and then provide an exception to this rule; instead of stating that the general principle was that superior orders could be relied upon as a defence and then setting out the circumstances where such defence could not be relied upon. Once the definition of aggression has been agreed upon and the court can exercise jurisdiction over this crime, then the superior orders defence can also be used as regards the crime of aggression, once the conditions set out in Article 33(1) are fulfilled. Triffterer, supra note 123, p. 587. This explanation seems quite plausible. It is prima facie difficult to imagine, however, how this rule sits with Article 98(1) which provides that the ICC may “not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” See infra Chapter 4, at footnote 340.

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from an omission. Individual criminal responsibility arising from omission is confined to omissions by commanders and other superiors, as provided for in Article 28. As regards this issue, the ICC Statute mirrors the ICTY and ICTR Statutes in that the only explicit recognition that omission can give rise to individual criminal responsibility is in the context of command responsibility.456 The final draft of the ICC Statute provided for a specific article on actus reus, which stated that 1. Conduct for which a person may be criminally responsible and liable for punishment as a crime can constitute either an act or an omission, or a combination thereof. 2. a person may be criminally responsible and liable for punishment for an omission where the person [could] [has the ability], [without reasonable risk of danger to him/herself or others,] but intentionally [with the intention to facilitate a crime] or knowingly fails to avoid the result of an offence where: (a) the omission is specified in the definition of the crime under this Statute; or (b) in the circumstances, the result of the omission corresponds to the result of a crime committed by means of an act] [the degree of unlawfulness realized by such omission corresponds to the degree of unlawfulness to be realized by the commission of such act], and the person is [either] under a pre-existing [legal] obligation under this Statute to avoid the result of such crime [or creates a particular risk or danger that subsequently leads to the commission of such crime].457

However, this Article was ultimately not included in the ICC Statute.458 Although, many delegations accepted that certain crimes could be committed by omission, not everyone could agree on the inclusion of a general provision providing for individual criminal responsibility arising as a result of an omission. In the end, due to time constraints and the diversity of views on the issue, it was decided not to include a general provision on omission, the argument being that notwithstanding the absence of a general provision, it would be left to the ICC itself to determine in what circumstances (if at all) omission could give rise to individual criminal responsibility, unless the definitions of the crimes themselves covered an omission, or the facts fell within Article 28 (Responsibility of Commanders and 456

457

458

See ICTY Statute, supra note 16, Article 7(3) and ICTR Statute, supra note 16, Article 6(3). Interestingly however, Chamber I of the ICTR has held that aiding and abetting can be committed by way of omission. “Another difference between complicity in genocide and the principle of abetting in the planning, preparation or execution a genocide as per Article 6(1), is that, in theory, complicity requires a positive act, i.e. an act of commission, whereas aiding and abetting may consist in failing to act or refraining from action”. Prosecutor v Akayesu, supra note 192, § 548. Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 1998, Article 28 (1) and (2) available at http://www.un.org/law/icc/docs.htm (last visited 21 June 2004). The provisions of the final draft of the ICC Statute dealing with individual criminal responsibility also contained the proposal that a person could be criminally responsible if that person “[fails to prevent or repress the commission of such a crime in the circumstances set out in Article 25 [concerning the responsibility of commanders and superiors]]”. Ibid., Article 23(7)(c). For a discussion of the issues raised during negotiations of the ICC Statute as regards this proposed Article, see Saland, supra note 433, pp. 212–213.

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Other Superiors). This solution is understandably not optimal, from the perspective of those who want the latitude of the ICC to be as restricted as possible. In addition, the actual ability of the ICC to determine in which circumstances omission could give rise to individual criminal responsibility could, arguably, be hampered by the nullum crimen sine lege principle articulated in Article 22 of the ICC Statute.459 A determination by the ICC that omission can give rise to individual criminal responsibility, except where such is explicitly provided for in the ICC Statute, could be viewed as indeterminate executive interference, which is in clear violation of the nullum crimen sine lege principle. As a result, the ICC will not have free rein to determine that omission can give rise to individual criminal responsibility. It is regrettable, that the Rome Conference could not reach agreement on this issue. A general provision on omission would not only reinforce the nullum crimen sine lege principle, it would also ensure that the perpetrators of crimes resulting from an omission could be prosecuted before the ICC. Finally, the issue of defences, or grounds for excluding criminal responsibility, ought to be briefly mentioned. Neither the ICTY Statute nor the ICTR Statute specifically lists, in a separate provision, the grounds on which individual criminal responsibility can be excluded.460 The ICC Statute improves on this by specifically listing some – but not all – of the grounds for excluding criminal responsibility. The approach of the ICC Statute is, on the whole, very haphazard. Four categories can be identified: (i) explicit grounds for excluding criminal liability (Article 31(1)); (ii) other grounds for excluding criminal responsibility provided for specifically in the ICC Statute provisions (Articles 25(3)(f), 26, 32 and 33); (iii) other ground(s) derived from the applicable law to be applied by the ICC (Article 31(3)); and (iv) explicit rejection of certain grounds (Articles 27 and 29). Article 31(1)(a)-(d) provides that a person shall not be criminally responsible, if at the time of that person’s conduct, (a) the person suffered from a mental disease or defect; (b) the person is in a state of involuntary intoxication; (c) the person acts reasonably to defend himself or another person, or in the case of war crimes, to defend property which is essential for the survival of the person or another person 459

460

Article 22(1) provides that a person shall not be criminally responsible under the ICC Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the ICC, and Article 22(2) provides that the definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. Although omission is not a crime in itself, but rather a mode of liability, the author would argue that these provisions have a bearing on the current discussion. The main basis for the nullum crimen sine lege principle is that there must be legal certainty as regards the conduct for which one may be held individually criminally responsible. This principle applies, in the author’s view, irrespective of whether what is being considered is the actual definition of a crime, or a mode of liability, which can result in the attachment of individual criminal responsibility for certain conduct. They do, however, specifically reject the immunity of head of state, or head of government ground (ICTY Statute, supra note 16, Article 7(2) and ICTR Statute, supra note 16, Article 6(2)) and the superior orders ground (ICTY Statute, Article 7(4) and ICTR Statute, Article 6(4)).

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or property which is essential for accomplishing a military mission; or (d) the alleged conduct has been caused by duress.461 Additional grounds for excluding criminal liability are found in the ICC Statute, for example, (i) if a person abandons the effort to commit the crime or otherwise prevents the completion of the crime;462 (ii) a mistake of fact which negates the mental element requirement of the crime;463 (iii) a mistake of law which negates the mental element required by the crime;464 (iv) the crime was committed pursuant to an order of a Government or a superior in accordance with the conditions set out Article 33;465 and (v) where the accused is under 18 years of age.466 Notwithstanding that explicit provision has been made for these grounds in the ICC Statute, the ICC has the power to determine the applicability of such grounds to the case before it.467 Moreover, the ICC Statute recognises that there may be additional grounds for excluding liability other than those provided for in Article 31(1), where such ground is derived from applicable law as set forth in Article 21 – including the principles and rules of international law and the general principles of law derived from domestic criminal law systems.468 Such grounds could include consent of the victim, general and/or military necessity, reprisals, immunity of diplomats and the tu quoque argument. This is not to say that each of these grounds is a valid defence/ground for excluding liability before the ICC. The list merely illustrates the number of possible defences/grounds with which the ICC Statute does not specifically deal. Finally, the ICC Statute specifically rejects two possible defences or grounds for excluding liability – immunity of Head of State or Government (Article 27) and statute of limitations defence (Article 29). This haphazard treatment of defences/grounds for excluding criminal responsibility is confusing and much is to be said for consolidating all of the defences or grounds into one single article, for ease of reference. One final recent development warranting mention in this consideration of the evolution of the concept of individual criminal responsibility for core international crimes in international law is that of the hybrid international-domestic criminal judicial bodies, i.e. the SCSL, the Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili

461

462 463 464 465 466

467 468

Agreement on these grounds for excluding criminal responsibility was difficult to reach. For an overview of the main sources of contention, see Saland, supra note 433, pp. 206–209. Article 25(3)(f). Article 32(1). Article 32(2). Article 33. Article 26. The ICC has no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the crime. Accordingly, this Article excludes the jurisdiction of the ICC over persons under the age of 18 and is not, strictly speaking, a ground to exclude criminal liability. However, it has the same effect. Article 31(2). Article 31(3).

2.6 Evolution of Individual Criminal Responsibility for Core International Crimes 123

(East Timor), and the ‘Regulation 64’ Panels of Kosovo.469 The establishment of these judicial bodies, to the extent that they apply international criminal law, underscores yet again the principle of individual criminal responsibility for core international crimes in international law. Preliminary Conclusion The Statutes of the ICTY, ICTR and the ICC, strongly reaffirm and expand on the principle of individual criminal responsibility for core international crimes in international law. The principle is further underscored by the establishment of the hybrid international-domestic criminal judicial bodies. 2.6.2.5 Conclusion A survey of the evolution of the concept of individual criminal responsibility in international law shows that the concept of individual criminal responsibility for certain international crimes was actually recognised prior to World War II, although it was not quite so firmly established as the IMT judgment suggests. Prior to Nuremberg and Tokyo, this recognition was limited to individual criminal responsibility for war crimes only. After the trials conducted at the end of World War II, both before the international tribunals and domestic courts, the categories of crimes for which a person could be held individually criminally responsible under international law was expanded to include crimes against peace and crimes against humanity. Individual criminal responsibility for the final core international crime, genocide, was recognised by way of the Genocide Convention. Today, the principle of individual criminal responsibility for international crimes is uncontroversial. This is substantiated by the statutes of the ICTY and ICTR, as well as by the successful prosecution of individuals for international crimes before such ad hoc international tribunals. The statute of the most recent international tribunal, the ICC, has reaffirmed this principle.470 Even though there is not currently total agreement on the constituent elements of individual criminal responsibility for international crimes in international law, this does not detract from the fact that the principle of individual criminal responsibility for international crimes is now a firmly established principle of international law.

469 470

See infra Chapter 4. The drafters of the ICC Statute have tried to define the constituent elements of individual criminal responsibility as clearly as possible. Although this has not been a complete success (mainly because compromises had to be made to reach a final agreement on the ICC Statute), further clarification on the constituent elements of this principle should emerge in the future, either by way of the judgments of the ICC, or due to amendments to the ICC Statute. See Articles 121 (Amendments) and 123 (Review of the Statute), ICC Statute, supra note 4. See also the comments set out in, supra note 301.

Part II- Selected Pertinent Issues

3 The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?

3.1 Introduction and Overview This chapter concerns one of the most extensively used, yet also one of the most controversial modes of liability in international criminal law today, the mode of liability labelled the ‘common purpose doctrine’ or the ‘joint criminal enterprise doctrine. The doctrine, in general terms, provides that where a pre-existing plan to commit core international crimes exists, or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and contribute to, the realisation of this purpose may be held individually criminally responsible. In accordance with this doctrine, a person can be convicted for crimes which he not only committed/participated in with intent,1 but also for crimes which he did not intend nor actually personally commit, but which were a ‘natural and foreseeable consequence’ of the common purpose or purpose of the joint criminal enterprise.2 The doctrine is considered to be one of the most effective tools which can be employed to convict individuals of core international crimes, where there is no direct evidence of the actual participation of the accused in the crime in question. It appears to have become the principal charging preference at the ICTY.3 Cassese has described it as the “darling notion” of the Prosecution.4 Gustafson posits that the joint criminal enterprise doctrine can “enhance the truth-telling function of international criminal law trials by portraying, more accurately than 1

2

3 4

In accordance with the first or second category of the joint criminal enterprise doctrine, commonly referred to as “co-perpetration cases” and “concentration camp cases” respectively. See infra section 3.4.1.1. In accordance with the third category of the joint criminal enterprise doctrine, which concerns crimes committed outside the common purpose, e.g. mob violence cases. See infra section 3.4.1.1. See Kelly D. Askin, “Reflections on Some of the Most Significant Achievements of the ICTY”, 37 New Eng. L. Rev. 903 (2003), p. 911. See Antonio Cassese, “The Proper Limits of Individual Criminal Responsibility under the Doctrine of Joint Criminal Enterprise”, 5 J. Int’l Crim. Jus. 109 (2007), p. 110.

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other theories of liability, how crimes are conceived of, planned and executed in a system-criminality context”, whereas Haffajee argues that the doctrine may be particularly useful in addressing some of the evidentiary barriers which prosecutors face in relation to the prosecution of crimes of rape and sexual violence.5 However, the doctrine has also been heavily criticised. It has been described as a “monster theory of liability” and “the beast known as joint criminal enterprise”.6 It has, moreover, been posited that the doctrine “runs perilously close to a doctrine of ‘collective guilt’ or ‘guilt by association’”.7 ICTY Judge Per-Johan Lindholm has been critical of the doctrine stating: I dissociate myself from the concept or doctrine of joint criminal enterprise in this case as well as generally… The concept or “doctrine” has caused confusion and a waste of time, and is in my opinion of no benefit to the work of the Tribunal or the development of international criminal law.8

Despite these criticisms, the doctrine has been extensively relied upon by the ICTY and to a lesser degree, by the ICTR. Although, plans are in place to ensure the completion of the work of the ad hoc international criminal tribunals in 2010,9 the findings of the ICTY and ICTR in relation to the joint criminal enterprise doctrine will continue to have an impact in international criminal law. The ICC and 5

6 7

8

9

See Katrina Gustafson, “The Requirement of an ‘Express Agreement’ for Joint Criminal Enterprise Liability, A Critique of Brÿanin”, 5 J. Int’l Crim. Jus. 134 (2007), p. 139 (but see infra note 7) and Rebecca L. Haffajee, “Prosecuting Crimes of Rape and Sexual Violence at the ICTR: The Application of Joint Criminal Enterprise Theory”, 29 Harv. J. L. & Gender 201 (Winter 2006). See also David Scheffer, “Why Hamdan is Right about Conspiracy Liability”, 30 March 2006, available at http://jurist.law.pitt.edu/ forumy/2006/03/why-hamdan-is-right-about-conspiracy.php (last visited 13 March 2007), who advocates the employment of the doctrine in relation to war crimes, as preferable to charging the (non-existent) crime of conspiracy to commit war crimes, an approach currently being adopted before the US Military Commission. See Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, Case No.: IT-99-37-AR72, “Motion re Joint Criminal Enterprise”, 28 February 2003, § 9. See David Chandler, “The Butcher of the Balkans? The Crime of ‘Joint Criminal Enterprise’ and the Miloševiü Indictments at [the] International Criminal Tribunal at the Hague”, p. 23, available at http://www.wmin.ac.uk/sshl/pdf/CSDCH andlerHagueReport0306_5_.pdf (last visited 15 March 2007). See also Mark J. Osiel, “Modes of Participation in Mass Atrocity”, 38 Cornell Int’l L. J. 793 (2005), pp. 798–800. Osiel, contrary to Gustafson’s view that the joint criminal enterprise doctrine can enhance the truthtelling function of international criminal law trials, see supra note 5, posits that “[i]n categorizing everyone as a participant [in the enterprise]… we also risk distorting the process by which episodes of state-sponsored mass atrocity occur, and so distort the history such trials can teach.” Ibid., p. 798. See Prosecutor v Blagoje Simiü, Miroslav Tadiü & Simo Zariü, Case No.: IT-95-9-T, Judgment, Separate and Partly Dissenting Opinion, T. Ch. II, 17 October 2003 (“Simiü Trial Judgment”), §§ 2 and 5. See S.C. Res. 1534, U.N. SCOR, 59th Sess., 4935th mtg., U.N. Doc. S/RES/1534 (26 March 2004).

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the SCSL (and the Supreme Iraqi Criminal Tribunal) each, either explicitly or implicitly, recognise the joint criminal enterprise doctrine and although these judicial bodies are not required to follow the jurisprudence of the ad hoc international criminal tribunals,10 it is very likely that they will seek guidance on this doctrine from the ICTY/ICTR jurisprudence. Accordingly, a consideration of this doctrine is warranted and relevant. In the author’s view, this doctrine raises a number of grave concerns. It, arguably, inter alia is imprecise, dilutes standards of proof, undermines the principle of individual criminal responsibility in favour of collective responsibility, infringes the nullum crimen sine lege principle and infringes the right of the accused to a fair trial. This chapter will begin with a brief note on the terminology to be used herein (section 3.2) followed by a review of the origins of the common purpose doctrine/ joint criminal enterprise doctrine (section 3.3). Section 3.4 will consider the application of the doctrine before the ad hoc international criminal tribunals, as well as reviewing the relevant provisions of the ICC Statute,11 the Draft Code of Crimes,12 the Statute of the SCSL,13 the Statute of the Supreme Iraqi Criminal Tribunal14 and the constitutive documents of the US Military Commission. The aim of this section is to obtain an overview of the role which this doctrine plays on the international scene and to get a clearer understanding of the doctrine as it has been applied and developed by the ad hoc international criminal tribunals. Due to the confusion which exists as regards the differences between the common purpose doctrine/joint criminal enterprise doctrine and other prima facie similar international criminal law concepts, section 3.5 will distinguish the doctrine from the aiding and abetting mode of liability, the crime of conspiracy and the crime of membership of a criminal organisation, as those terms are understood in international criminal law. Section 3.6 deals with three particular issues which arise from a review of the international jurisprudence in relation to the employment of the common purpose doctrine/joint criminal enterprise doctrine. Attention will firstly be paid to the debate as to whether the doctrine is a form of principal liability (co-perpetration) or accomplice liability (aiding and abetting). This analysis is significant inter alia in relation to the truth-telling function of the international criminal law system and the 10 11

12

13

14

See supra Chapter 2, section 2. 4.5. Adopted on 17 July 1998 and entered into force on 1 July 2002. The ICC Statute is available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf (last visited 17 July 2007). See Report of the International Law Commission on the work of its forty-fifth session, 3 May to 23 July 1993 (A/48/10), available at http://untreaty.un.org/ilc/summaries/ 7_4.htm (last visited 17 July 2007). Annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, 16 January 2002, available at http://www.sc-sl.org/scsl-statute.html (last visited 17 July 2007). See the Law of the Supreme Iraqi Criminal Tribunal, No. 10 of 2005, Official Gazette of the Republic of Iraq, No. 4006, 47th year, 18 October 2005, Article 15(2)(D). An English translation of the law is available at http://www.ictj.org/static/MENA/Iraq/ iraq.statute.engtrans.pdf (last visited 30 January 2007).

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practical implication of the categorisation of this mode of liability on the sentence handed down before the ICTY. Secondly, section 3.6 will consider whether an accused can be held liable for the crime of genocide in accordance with the third category of the joint criminal enterprise doctrine, which concerns crimes committed outside the common purpose. This is of importance, as it has been proposed, that the third category of the joint criminal enterprise doctrine can never be relied upon in relation to the crime of genocide, due to the specific intent requirement of this crime. Finally, consideration will be given to the form of pleading of the joint criminal enterprise doctrine in indictments before the ad hoc international criminal courts. Research indicates that the doctrine is frequently not pleaded with sufficient clarity. This is a cause for concern as such lack of clarity, arguably, violates the right of the accused to a fair trial, including his right to be informed promptly and in detail of the nature and cause of the charges against him and the right of the accused to have adequate time and facilities for the preparation of his defence. Finally, section 3.7 will attempt to evaluate the doctrine and examine whether, on balance, it is a “monster theory of liability” or a legitimate and satisfactory tool in the prosecution of the perpetrators of core international crimes. The author concludes, that while the description of the doctrine as a “monster theory of liability” is not entirely fair, neither can it be said, without any reservation, that the doctrine is a legitimate and satisfactory tool in the prosecution of the perpetrators of core international crimes. The serious concerns identified in relation to the doctrine significantly undermine its legitimacy and satisfactoriness as a prosecutorial tool and as a consequence thereof, undermine the legitimacy of the international criminal law system.

3.2 Terminology A brief note on the terminology used in this section is warranted. The terms ‘common purpose’ and ‘joint criminal enterprise’ are synonymous.15 As noted by the Trial Chamber in Prosecutor v Radoslav Brÿanin & Momir Talic, the Appeals Chamber’s decision in Prosecutor v Duško Tadiü (“Tadiü Appeals Judgment”)16 – which is the first contemporary recognition of the common purpose doctrine – has described the common purpose …variously (and apparently interchangeably) as a common criminal plan, a common criminal purpose, a common design or purpose, a common criminal design, a common purpose, a common design, and a common concerted design. The common purpose is also described, more generally, as being part of a criminal enterprise, a common enterprise, and a joint criminal enterprise.17 15

16 17

Prosecutor v Radoslav Brÿanin & Momir Talic, Case No.: IT-99-36/1, “Decision on Form of Further Amended Indictment and Prosecution Application to Amend”, T. Ch. II, 26 June 2001 (“Brÿanin Indictment Decision”), § 36. Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Judgment, App. Ch., 15 July 1999. See Brÿanin Indictment Decision, supra note 15, § 9 (footnotes omitted). See also ibid., § 24 and Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, Case

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131

For current purposes the acronyms CPD, JCE, and JCED will be used to refer to the terms common purpose doctrine, joint criminal enterprise, and joint criminal enterprise doctrine respectively. Such terms will be used interchangeably as deemed most appropriate in the circumstances.18 The ad hoc tribunals have shown a preference for the term JCE, due to the different intent requirements for the three categories of JCE identified in the Tadiü Appeals Judgment, as discussed below in section 3.4.1.1. As explained by the ICTY Trial Chamber, That label [“common purpose”] may have respectable origins, but it remains a misleading one. The only “purpose” which the prosecution must prove to have been “common” to the participants in the joint criminal enterprise relates to the crime which fell within the agreed object of that enterprise [JCE Categories 1 and 2]. The prosecution does not have to prove that any crime committed which goes beyond the agreed object of that enterprise [JCE Category 3] was also agreed to by the participants. It would be preferable for the prosecution to avoid the use of the misleading label “common purpose” in the future. The Appeals Chamber has treated the expression “joint criminal enterprise” as synonymous with common purpose. That label does not produce the confusion which “common purpose” produces in relation to the relevant state of mind which must be established, depending upon whether the crime charged fell within the agreed object of the enterprise or was merely a foreseeable consequence of its execution.19

The Prosecution too has a clear preference for the term ‘JCE’ in the aftermath of the Tadiü Appeals Judgment. The term basic form of JCE encompasses the first and second categories of JCE outlined in the Tadiü Appeals Judgment, while the term extended form of JCE encompasses the third category of JCE referred to in the Tadiü Appeals Judgment.20

18

19

20

No.: IT-99-37-AR72, “Decision on Dragoljub Ojdaniü’s Motion Challenging Jurisdiction – Joint Criminal Enterprise”, Separate Opinion of Judge Hunt, App. Ch., 21 May 2003, § 5 (“Ojdaniü JCE Decision”). Although the multiplicity of legal terms used to describe the same concept is arguably confusing, even some national law systems have adopted this approach in relation to this concept. See Ojdaniü JCE Decision, ibid., Separate Opinion of Judge Shahabuddeen, §§ 3–5. Generally speaking, the term ‘common purpose’ and similar terms were employed in the jurisprudence originating in the immediate aftermath of World War II. The term ‘joint criminal enterprise’ has been most frequently employed by the ad hoc international criminal courts. See Brÿanin Indictment Decision, supra note 15, § 37 (footnotes omitted). Interestingly, the acronym JCE is, in jest, referred to at the ICTY as “just convict everyone”. See Göran Sluiter, “Symposium, Guilty by Association: Joint Criminal Enterprise on Trial, Foreword”, 5 J. Int’l Crim. Jus. 67 (2007), p. 67. See infra section 3.4.1.1. See also Ojdaniü JCE Decision, Separate Opinion of Judge Hunt, supra note 17, § 8.

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3.3 History The origins of the JCED can be found in the events surrounding the end of World War II. In putting the case for a legal solution to the punishment of the Nazi perpetrators,21 an American proposal dated 15 September 1944, which was the brain child of Colonel Murray Bernays from the American Department of War, proposed reliance on two doctrines, the doctrine of conspiracy and the membership of criminal organisations doctrine, which doctrines formed the basis of the JCED.22 The former was intended to aid the prosecution of the major war criminals, while the latter was intended to encompass the ‘little fish’. Bernays articulated the particular problems presented by the events of World War II which, in his view, necessitated reliance on these two doctrines and which are also of relevance in the context of the JCED: There will be many thousands of war criminals who should be tried for crimes committed all over Europe… Some offenders are guilty as principals, some as accessories. In many cases it will be difficult to establish the individual’s identity or to connect him with the particular act charged. Witnesses will be dead and scattered, and the gathering of proof will be laborious and costly. The offenders will become subject to trial under many and divergent codes and procedures… The paper work will be enormous, the liaison and coordination singularly difficult… It will never be possible to catch and convict every Axis war criminal… under the old concepts and procedures. Even if this could be done it would not, of itself, be enough. The ultimate offence, for example, in the case of Lidice, is not alone the obliteration of the village, but even more, the assertion of the right to do it. The ordinary thug does not defend on the ground that thuggery is noble; he only contends that the police have arrested the wrong man. Behind each Axis war criminal, however, lies the basic criminal instigation that must be established, for only thus will the conviction and punishment of the individuals concerned achieve their true moral and juristic significance. In turn, this approach throws light on the nature of the individual’s guilt, which is not dependant on the commission of specific criminal acts, but follows inevitably from the mere fact of voluntary membership in organizations devised solely to commit such acts.23

21

22

23

For a summary of the events leading up to the decision to prosecute the Nazi perpetrators of international crimes before an international tribunal instead of summarily executing them, see supra Chapter 2 at footnote 362. See Bradley F. Smith, The American Road to Nuremberg: The Documentary Record 1944-1945, Hoover Institution Press, Stanford, California, 1982, Doc. 16, pp. 33–37. See also Stanislaw Pomorski “Conspiracy and Criminal Organization”, in George Ginsburgs and V. N. Kudriavtsev (eds.), The Nuremberg Trial and International Law, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1990, pp. 215–217. See Smith, supra note 22, Doc. 16, §§ 1.a. and 7, pp. 33 and 35.

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Bernays’ plan contained the following proposed solution: The Nazi Government and its Party and State agencies, including the SA, SS, and Gestapo, should be charged before an appropriately constituted international court with conspiracy to commit murder, terrorism, and the destruction of peaceful populations in violation of the laws of war. For the purposes of trial… the prosecuting Nations should bring to the bar only such individual defendants, considered to be representative of the defendant organizations, as they elect… d. The judgment should adjudicate: 1) That the Nazi Government and its mentioned agencies are guilty as charged [i.e. of conspiracy to commit murder, terrorism, and the destruction of peaceful populations in violation of the laws of war]. (2) That every member of the Government and organizations on trial is guilty of the same offence. Such adjudication of guilt would require no proof that the individuals affected [participation]24 in any overt act other than membership in the conspiracy… f. Thereafter, every member of the mentioned Government and organizations would be subject to arrest, trial and punishment in the national courts of several United Nations. Proof of membership, without more, would establish guilt of participation in the mentioned conspiracy, and the individual would be punished in the discretion of the court. Proof of the commission of other criminal acts would subject the individual to additional punishments conformably to local law… 10. It is particularly noted, in connection with the foregoing… b. That once the conspiracy is established, each act of every member thereof during its continuance and in furtherance of its purposes would be imputable to all other members thereof.25

The proposed employment of the conspiracy/criminal organisation concepts proved very controversial within the American administration itself.26 In particular, the conspiracy concept was considered problematic as it was a concept employed mainly in the Anglo-American common-law systems.27 By the end of 1944, Bernays’

24 25 26 27

The original text refers to “affected participated”, but presumably “affected participation” is the expression that should have been employed. Emphasis added. See Smith, supra note 22, Doc. 16, §§ 9 –10, pp. 36–37. Ibid., pp. 49–56. Assistant US Attorney General Herbert Wechsler, in a memorandum addressed to US Attorney General Francis Biddle dated 29 December 1944, commenting on a War Department memorandum setting forth the conspiracy/criminal organisation proposal (from November 1944) was especially critical of the conspiracy concept proposed. He wrote: “In connection with multiple liability, it should be noted that some confusion may be engendered by the terminology of the War Department proposal which refers to the basic crime as a “common-law conspiracy”, employing that concept as it is known to American law. I should suppose that what is really to be condemned as criminal is

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plan was under heavy criticism from all sides within the American administration itself. However, the tide changed following the slaughter of some 70 unarmed American prisoners of war at Malmédy, Belgium by the German army on 17 December 1944. The event persuaded many officials in the American administration that the Nazis were involved in a conspiracy to commit war crimes by criminal organisations. The final memorandum signed by the US Secretary of War, Henry Stimson, the US Secretary of State, Cordell Hull and the US Attorney General, Francis Biddle, which was presented to President Roosevelt on 22 January 1945, incorporated – albeit cautiously – much of Bernays’ original plan. The controversial conspiracy concept was replaced with the “joint participation in a criminal enterprise” concept. The memorandum recommended that The German leaders and the organizations employed by them, such as… [the] (SA, SS, Gestapo), should be charged both with the commission of their atrocious crimes, and also with joint participation in a broad criminal enterprise which included and intended these crimes, or was reasonably calculated to bring them about. The allegation of the criminal enterprise would be so couched as to permit full proof of the entire Nazi plan from its inception and the means used in its furtherance and execution, including the prewar atrocities and those committed against their own nationals, neutrals, and stateless persons, as well as the waging of an illegal war of aggression with ruthless disregard for international law and the rules of war. Such a charge would be firmly founded upon the rule of liability, common to all penal systems and included in the general doctrines of the laws of war, that those who participate in the formulation and execution of a criminal plan involving multiple crimes are jointly liable for each of the offences committed and jointly responsible for the acts of each other. Under such a charge there are admissible in evidence the acts of any of the conspirators done in furtherance of the conspiracy, whether or not these acts were in themselves criminal and subject to separate prosecution as such.28

The memorandum was never officially supported by President Roosevelt prior to his death on 12 April 1945, although it did form the basis for initial discussions between the Americans (who favoured the trial approach) and the British (who favoured the summary executions of Hitler and his aides) in London in early April 1945.29 The memorandum was approved by President Harry Truman, Roosevelt’s successor, whom on 1 May 1945 issued an executive order appointing Supreme Court Justice Robert H. Jackson as Chief of Counsel for the Prosecution of Axis

28 29

not the inchoate crime of conspiracy but rather the actual execution of a criminal plan. The theory of conspiracy affords a proper basis for reaching a large number of people, no one of whom engaged in all of the criminal conduct, but it is an error to designate as conspiracy the crime itself, the more so since the common-law conception of the criminality of an unexecuted plan is not universally accepted in civilized law. The point is rather that multiple liability for a host of completed crimes is established by mutual participation in the execution of a common plan. The Nazi leaders are accomplices in completed crime according to concepts of accessorial liability common, I believe, to all civilized legal systems”. See Smith, supra note 22, Doc. 27, section II (a), p. 87. Emphasis added. Ibid., Doc. 35, section V, p. 120. Ibid., pp. 135–138.

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Criminality. Although by the time of the UN Conference in San Francisco in late April 1945, the British were still in favour of summary executions, they agreed to yield to the Americans’ trial proposal, as each of France, Russia and the USA supported such a response. Negotiations took place on the executive instrument to implement the trial solution proposed. At the London Conference held in the summer of 1945, the conspiracy concept proposed by the Americans caused much furore. Bradley F. Smith described it in the following terms: During much of the discussion, the Russians and French seemed unable to grasp all the implications of the [conspiracy] concept; when they finally did grasp it, they were genuinely shocked. The French viewed it entirely as a barbarous legal mechanism unworthy of modern law, while the Soviets seemed to have shaken their head in wonderment - a reaction, some cynics may believe, prompted by envy. But the main point of the Soviet attack on conspiracy was that it was too vague and so unfamiliar to the French and themselves, as well as to the Germans, that it would lead to endless confusion. In this contention they were right…30

There was a clear divide on this issue between the common law countries – Great Britain and the USA – and the civil law countries - France and the Soviet Union. This disagreement continued almost until the very end. However, the final executive instrument, the IMT Charter,31 which was executed on of 8 August 1945, by the Americans, British, French and Russians included features of both the conspiracy and criminal organisation concepts.32 The relevant provisions of the IMT Charter are examined in detail below.33 Bernays’ plan – the two pillars of which were the conspiracy and membership of criminal organisations doctrines – provided the basis for, and structure within which post-World War II military tribunals and national courts applied the JCED.34 However, as concluded below, neither the conspiracy doctrine nor the membership of a criminal organisation doctrine is synonymous with the JCED. The three doctrines are each separate and distinct.35

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32

33 34 35

B. F. Smith, Reaching Judgment at Nuremberg, Meridan, New York, 1977, p. 51, quoted in Pomorski, supra note 22, p. 219. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis; 59 Stat. 1544, 82 U.N.T.S. 279, 3 Bevans 1238, available at http:// www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm (last visited 17 July 2007). Jackson and his team were responsible for the final form of the executive agreement relating to the prosecution of European Axis War Criminals (dated 19 May 1945) put before the powers. See Smith, supra note 22, pp. 139–142. See infra sections 3.5.3 and 3.5.4. See infra section 3.4.1.1. See infra sections 3.5.3 and 3.5.4.

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3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments This section considers the application of the JCED before the ad hoc international criminal tribunals, as well as reviewing the relevant provisions of the ICC Statute, the Draft Code of Crimes, the Statute of the SCSL, the Statute of the Supreme Iraqi Criminal Tribunal and the constitutive documents of the US Military Commission. The aim of this section is to obtain an overview of the role which this doctrine plays on the international scene and to get a clearer understanding of the doctrine as it has been applied and developed by the ad hoc international criminal tribunals.36

3.4.1 ICTY Since the Tadiü Appeals Judgment, the JCE mode of liability has been used extensively in the indictments of the ICTY and continues to be so today.37 This is not so surprising bearing in mind the nature of core international crimes as mass-scale crimes committed by a plurality of perpetrators. The case of Prosecutor v Slobodan Miloševiü was perhaps the most well known case in which the Prosecution relied on this mode of liability.38 As the Tadiü Appeals Judgment was the first contemporary recognition of the JCED a detailed review of the case against Tadiü is warranted. 36

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38

Due to the volume of jurisprudence on the JCED, particularly emanating from the ICTY, it is not possible to refer to each and every decision/judgment, which concerns this doctrine. Reference is instead made to the jurisprudence, considered by the author, to be of importance to the individual discussion at hand. As is evidenced by the numerous cases referred to in this section. See generally, Verena Haan, “The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia”, 5 International Criminal Law Review 167 (2005) and Nicola Piacente, “Importance of the Joint Criminal Enterprise Doctrine for the ICTY Prosecutorial Policy”, 2 J. Int’l Crim. Jus. 446 (2004). Allison Marston Danner and Jenny S. Martinez estimate that between 25 June 2001 (the date of the first ICTY indictment to explicitly rely on the JCE) and 1 January 2004, 64% of all indictments issued by the ICTY Prosecutor relied explicitly on the JCED. This number increased to 81% when all indictments which could be interpreted as also indirectly referring to the JCED were taken into consideration. See Allison Marston Danner and Jenny S. Martinez, “Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law”, 93 Calif. L. Rev. 77 (2005), pp. 107–108. See Prosecutor v Slobodan Miloševiü, Milan Milutinoviü, Nikola Šainoviü, Dragoljub Ojdaniü and Vlajko Stojiljkoviü, Case No.: IT-99-37-PT, Second Amended Indictment, 16 October 2001 (“Kosovo Indictment”); Prosecutor v Slobodan Miloševiü, Case No.: IT-02-54-T, Amended Indictment, 22 November 2002 (“Bosnian Indictment”); and Prosecutor v Slobodan Miloševiü, Case No.: IT-01-50-I, Second Amended Indictment, 23 October 2002 (“Croatian Indictment”). JCE was charged as a mode of liability in the first Bosnian and Croatian Indictments, but was not charged as a mode of liability in the Kosovo indictment until the second amended indictment. The purpose of the JCE was

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3.4.1.1 Tadiü Appeals Judgment 39 Duško Tadiü was originally charged with 34 counts of crimes before the ICTY. However, the counts that are relevant to the current discussion are those set out in counts 29-31 of the indictment charging Tadiü in the following terms: About 14 June 1992, armed Serbs, including Dusko TADIC, entered the area of Jaskici and Sivci in opstina Prijedor and went from house to house calling out residents and separating men from the women and children. The armed Serbs killed Sakib ELKASEVIC, Osme ELKASEVIC, Alija JAVOR, Abaz JASKIC and Nijaz JASKIC in front of their homes… By his participation in these acts, Dusko TADIC committed: COUNT 29: a GRAVE BREACH recognised by Articles 2(a) (wilful killing) and 7(1) of the Statute of the Tribunal; and, COUNT 30: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR recognised by Articles 3 and 7(1) of the Statute of the Tribunal and Article 3(1)(a) (murder) of the Geneva Conventions; and, COUNT 31: a CRIME AGAINST HUMANITY recognised by Articles 5(a) (murder) and 7(1) of the Statute of the Tribunal40

At trial, the Trial Chamber concluded that it was satisfied beyond reasonable doubt that Tadiü was a member of the group of armed men that entered the village of Jaskici, searched it for men, seized and beat them, and then departed with them and that after their departure five dead men were found in the village. However, it

39

40

different in each indictment. In the Kosovo Indictment, the purpose of the JCE was stated to be inter alia “… the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province of Kosovo in an effort to ensure continued Serbian control over the province…”, see ibid., Kosovo Indictment, § 16; in the Bosnian Indictment the purpose was stated to be “… the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina…”, see ibid., Bosnian Indictment, § 6; and in the Croatian Indictment the purpose was stated to be the “… forcible removal of the majority of Croat and other non-Serb population from… approximately one-third of the territory of the Republic of Croatia that he planned to become part of a new Serbdominated state…”, see ibid., Croatian Indictment, § 6. All three indictments charged the basic form of the JCE in relation to all counts, and in the alternative, the extended form of JCE in relation to some counts. Proceedings against Slobodan Miloševiü were terminated on 14 March 2006, following the accused’s death 3 days earlier. The following judges sat on the Appeals Chamber in the Tadiü Appeals Judgment: Judge Mohamed Shahabuddeen, Presiding, Judge Antonio Cassese, Judge Rafael NietoNavia, Judge Florence Ndepele Mwachande Mumba and Judge Wang Tieya. Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Amended Indictment, 14 December 1995, § 12.

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held that it could not, based on the evidence before it, be satisfied beyond reasonable doubt that the accused had any part in the killing of any of the five men. There was no evidence as to who shot the men or in what circumstances.41 Both the Prosecutor and Tadiü appealed against the judgment of the Trial Chamber. The Prosecutor’s second ground of appeal was that the Trial Chamber had erred when it decided that it could not be satisfied beyond reasonable doubt that Tadiü had played any part in the killing of the five men and requested that the finding of the Trial Chamber in this regard, be reversed by the Appeals Chamber. In this connection, it submitted that the Trial Chamber (i) misdirected itself on the application of the law on the standard of ‘proof beyond reasonable doubt’ and (ii) in determining that the Prosecution did not meet the burden of proof, had misdirected itself on the application of the CPD.42 With regard to the Prosecution’s first submission, the Appeals Chamber had to consider whether Tadiü could be found criminally responsible for the killing of the five men, even though there was no evidence that he personally killed any of the men. In doing so, the Appeals Chamber gave the first substantial consideration to the JCED since the Second World War trials. As a starting point, the Appeals Chamber noted that the basic assumption in international law, as in national systems, must be the principle of personal culpability – nulla poena sine culpa.43 Bearing this principle in mind, it must be determined whether criminal responsibility for participating in a JCE falls within the ambit of Article 7(1) of the ICTY Statute, which provides A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in article 2 to 5, [Grave breaches of the Geneva Conventions of 1949, Violations of the laws or customs of war, Genocide and Crimes against Humanity respectively] shall be individually responsible for the crime.44

As regards Article 7(1), the Appeals Chamber noted that it covers the physical perpetration of a crime by the offender himself. However, the commission of a crime envisaged by Article 2–5 “might also occur through participation in the realisation of a common design or purpose”.45 In addition, a consideration of the object and purpose of the ICTY Statute, lead to the conclusion that the ICTY Statute intends to extend the jurisdiction of the ICTY to all those responsible for serious violations of international humanitarian law in the former Yugoslavia and such responsibility is “not limited to those who actually carry out the actus reus of the crimes but extends to other offenders”.46 The Appeals Chamber continued, 41 42 43 44

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Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Opinion and Judgment, T. Ch., 7 May 1997 (“Tadiü Trial Judgment”), § 373. Tadiü Appeals Judgment, supra note 16, §§ 22, 25 and 173. Ibid., § 186. ICTY Statute, adopted on 25 May 1993 by UN Security Council Resolution 827, as amended, available at http://www.un.org/icty/legaldoc-e/index.htm (last visited 17 July 2007). Tadiü Appeals Judgment, supra note 16, § 188. Ibid., § 189. It noted that this interpretation was confirmed in the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993. Jens David Olin is, however, critical of this argument,

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 139 … 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. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions which are specified below. 191. The above interpretation is not only dictated by the object and purpose of the Statute but is also warranted by the very nature of many international crimes which are committed most commonly in wartime situations. Most of the time these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design. Although only some members of the group may physically perpetrate the criminal act… the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less – or indeed no different – from that of those actually carrying out the acts in question. 192. Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abetters might understate the degree of their criminal responsibility.47

Accordingly, the Appeals Chamber concluded, “international criminal responsibility embraces actions perpetrated by a collectivity of persons in furtherance of a common criminal design”.48 However, the ICTY Statute does not specify the subjective (mens rea) and objective (actus reus) elements of the JCED. Accordingly, the Appeals Chamber turned to customary international law, which in the Tadiü Appeals Judgment meant reliance on case law and certain pieces of international legislation,49 to determine these elements. This involved a substantial review of many post-World War II cases, the 1997 International Convention for the Suppression of Terrorist Bombings

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opining that “[t]he structure of the argument suggests that we can work backwards from the proposition that the defendants must be punished. Since the defendants must be punished, the statute must be read in such a way that it will yield the desired result.” See Jens David Ohlin, “Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise”, 5 J. Int’l Crim. Jus. 69 (2007), pp. 71–72. Tadiü Appeals Judgment, supra note 16, §§ 190-192. Ohlin is also critical of the Appeal Chamber’s reliance on the nature of many international crimes. See ibid., pp. 72–74. Ibid., § 193. See further infra note 58.

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(Article 2(3)(c))50 and the ICC Statute (Article 25(3)(d)). From its review of the post-World War II cases, the Appeals Chamber identified the following three JCE categories: 1. JCE Category 1: Cases where all co-perpetrators, acting pursuant to a common design possess the same criminal intention, e.g. the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design, and even if each co-perpetrator carries out a different role within it, they nevertheless all possess the intent to kill. The accused must “voluntarily participate” in one aspect of the common design, for instance, by inflicting non-fatal violence upon the victim, or providing material assistance to, or facilitating the activities of his co-perpetrators.51 One case referred to by the Appeals Chamber, as an example of JCE Category 1, was that of Trial of Otto Sandrock and three others (also known as the “Almeno Trial”) in which three Germans executed a British prisoner of war. One of the accused fired the lethal shot, one gave the order for the execution and the third remained by the car to prevent people from coming near the woods in which the killing took place. They all had the intention to kill the British prisoner of war, even though they all played a different role in the crime. All were found guilty by the British Military Court which heard the case, under what was referred to as the doctrine of “common enterprise”.52

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Adopted by consensus by the UN General Assembly through resolution 52/164 of 15 December 1997 and entered into force 23 May 2001. Tadiü Appeals Judgment, supra note 16, § 196. United Nations War Crimes Commission (UNWCC), Vol. I, p. 35. See also Tadiü Appeals Judgment, supra note 16, § 197. Other cases determined by the Appeals Chamber as falling within this category include: Hoelzer et al. Canadian Military Court, Aurish, Germany, Record of Proceedings 25 March – 6 April 1946, UNWCC, Vol. I, p. 341; Trial of Gustav Alfred Jepsen and others, British Military Court, Proceedings of a War Crimes Trial held at Luneberg, Germany (13–23 August 1946), excerpts of the judgment are available in “Judicial Precedents to Joint Criminal Enterprise”, 5 J. Int’l Crim. Jus. 227, pp. 228–229; Trial of Franz Schonfeld and others, British Military Court, Essen, June 11th-26th 1946, UNWCC, Vol. XI, p. 68; Trial of Feurstein and others (“Ponzano” case), Proceedings of a War Crimes Trial held at Hamburg, Germany (4-24 August 1948, Judgment of 24 August 1948), excerpts of the judgment are available in “Judicial Precedents to Joint Criminal Enterprise”, ibid., pp. 238–240; and The United States of America v. Otto Ohlenforf et al. (“Einsatzgruppen” case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, Vol. IV, p. 3.

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2. JCE Category 2: This category – which is very similar to Category 153 - encompasses the so-called “concentration camp” cases. In these cases, the crimes were alleged to have been committed by members of military or administrative units acting pursuant to a “concerted plan”, for example by military or administrative units running concentration camps.54 The two most renowned examples of JCE Category 2 cases are, probably, the Trial of Martin Gottfried Weiss and thirtynine others, otherwise known as the Dachau Concentration Camp Case, decided by a United States Military Court55 and the Trial of Josef Kramer and forty-four others, otherwise known as the Belsen Case, decided by a British Military Court.56 In both these cases, the accused held positions of authority within the concentration camps where they worked and were charged with having acted in pursuance of a common design to mistreat or kill detainees. Three requirements were required to be fulfilled in order to establish the guilt of the accused: (i) the existence of an organised system of ill-treatment of the detainees and the committing of the crimes alleged, (ii) the accused’s awareness of this system, and (iii) the active participation of the accused in the enforcement of such system, or in any case, in the realisation of the “common criminal design”.57

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Judge Hunt in his separate opinion to the Ojdaniü JCE Decision, noted that he was not satisfied that the Appeals Chamber in the Tadiü Appeals Judgment “… demonstrated a sufficiently firm basis for the recognition of these cases [i.e. cases considered by the Appeals Chamber as JCE Category 2 cases] as a separate category of joint criminal enterprise”. See supra note 17, § 30. The Trial Chamber in Prosecutor v Milorad Krnojelac, determined that the only basis for the distinction between these two categories made by the Tadiü Appeals Judgment was the subject matter with which those JCE Category 2 cases dealt, i.e. concentration camp cases during World War II. See Prosecutor v Milorad Krnojelac, Case No.: IT-97-25-T, Judgment, T. Ch. II., 15 March 2002, § 78 (“Krnojelac Trial Judgment”). Tadiü Appeals Judgment, supra note 16, § 202. Trial of Martin Gottfried Weiss and thirty-nine others, General Military Government Court of the United States Zone, Dachau, Germany, 15th November – 13th December 1945, UNWCC, Vol. XI, p. 5. Trial of Josef Kramer and forty-four others, British Military Court, Luneberg, 17th September – 17th November 1945, UNWCC, Vol. II, p. 1. The accused that were judged guilty were regarded as “co-perpetrators” of the crime of ill-treatment.

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3. JCE Category 3:58 The cases that fall within this category are different from JCE Categories 1 and 2 in that they involve a common design to pursue one course of conduct, but where one of the perpetrator(s) commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose, and the accused willingly took the risk that that natural and foreseeable consequence would occur. The Appeals Chamber gave the example of a group having the common, shared intention to forcibly remove members of one ethnicity from their town, village or region, which results in the death of one or more victims. Although murder may not have been explicitly acknowledged to be part of the common design, “it was nevertheless foreseeable59 that the forcible removal of civilians at gunpoint

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For a general discussion of JCE Category 3, see Linda Engvall, Extended Joint Criminal Enterprise in International Criminal Law, Master Thesis, Lund University, available at http://www.jur.lu.se/Internet/Biblioteket/Examensarbeten.nsf/0/ 40221FFA528F9032C 1257049005AD71E/$File/xsmall.pdf?OpenElement (last visited 26 March 2007). Steven Powles questions the validity of the Appeals Chamber’s determination that JCE Category 3 was firmly established in customary international law. See Steven Powles, “Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?”, 2 J. Int’l Crim. Jus. 606 (2004), pp. 615–617. Danner and Martinez also posit that the jurisprudence relied upon in the Tadiü Appeals Judgment does not support the form of JCE currently used at the ICTY, particularly JCE Category 3. See Danner and Martinez, supra note 37, pp. 110–112. See also Attila Bogdan, “Individual Criminal Responsibility in the Execution of a “Joint Criminal Enterprise“ in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia“, 6 International Criminal Law Review 63 (2006), who concludes that the methodology used by the Tadiü Appeals Chamber failed to follow the established rules which can be employed in determining rules of customary international law, ibid., pp. 109–112; Marco Sassòli and Laura M. Olson, “The Judgment of the ICTY Appeals Chamber on the merits in the Tadic case“, 82 Int’l Rev. Red Cross 733 (2000), pp. 733 and 749; and Shane Darcy, “Imputed Criminal Liability and the Goals of International Justice“, 20 Leiden J. Int’l L 377 (2007), pp. 384–385. Ohlin is critical of JCE Category 3 as all members of the JCE are treated equally, e.g. a person who takes the risk of joining the JCE is guilty of the same crime as the lone gunman who decides to go out and kill innocent civilians of his own accord. He suggests that equal criminal liability should be limited to acts which formed part of the agreed JCE, whereas a lower liability should attach for non-agreed foreseeable acts. See supra note 46, pp. 81–85. The judgment of the ICTY Appeals Chamber in Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, Case No.: IT-98-30/1-A, Judgment, App. Ch., 28 February 2005 (“Kvoþka Appeals Judgment”) held that the question of whether the criminal acts outside the common purpose were foreseeable and natural must be assessed in relation to the knowledge of the particular accused. See infra section 3.4.1.2 (Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü) and infra note 70.

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might well result60 in the deaths of one or more of those civilians. Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk.”61 One type of case that falls within this category are ‘mob violence’ cases, where a plurality of offenders have a common purpose, they each commit an offence against the victim(s), but it is not known, or possible to ascertain, which perpetrator committed which act, or to ascertain the causal link between each act and the eventual harm to the victim(s). In order to be liable under JCE Category 3, the Prosecution does not have to prove who actually delivered the fatal blow, or who fired the shot which killed the victim. It merely has to prove that the mens rea and actus reus requirements of JCE Category 3 have been fulfilled in relation to the accused.62 An example of a case falling within this JCE category 3 is that of the Trial of Erich Heyer and six others, otherwise known as the Essen Lynching Case or Essen West Case.63 The case concerned the lynching of three British prisoners of war by a mob of Germans in Essen-West on 13 December 1944. One of the accused, Captain Heyer, had placed the three prisoners under the escort of a German soldier, Koenen, who was to take them to a Luftwaffe unit for interrogation. As Koenen left, Captain Heyer, within clear earshot of a waiting crowd, ordered Koenen not to intervene if German civilians molested the prisoners and stated that the prisoners ought to, or would, be shot. The prisoners were beaten and kicked, by the crowd and one German corporal fired a revolver at one of the prisoners and wounded him in the head. Eventually, the prisoners were thrown over the parapet of a bridge. 60

61 62 63

The judgment of the ICTY Appeals Chamber in Prosecutor v Radislav Krstiü, Case No.: IT-98-33-A, Judgment, App. Ch., 19 April 2004 (“Krstiü Appeals Judgment”) held that it is not necessary to establish that the accused was aware, in fact, that the acts outside the common purpose, but which were natural and foreseeable, would have occurred. It is sufficient to show that the accused participated in the JCE aware of the probability that other crimes may result. Ibid., § 150. See infra section 3.4.1.2 (Prosecutor v Radislav Krstiü). In Prosecutor v Milan Babiü, the Appeals Chamber stated that as regards JCE Category 3, “… the critical question with regard to the Appellant’s mens rea was whether he had the intent to participate in the joint criminal enterprise, and not whether he specifically sought to bring about secondary crimes; so long as the secondary crimes were foreseeable and the Appellant willing undertook the risk that they would be committed, he had the legally required “intent” with respect to those crimes.” Accordingly, it agreed with the Trial Chamber’s conclusion that the accused’s guilt was not “lessened“ by the fact that he did not intend the commission of the murders in question, but was merely aware that such murders were being committed as part of the JCE. See Prosecutor v Milan Babiü, Case No.: IT-03-72-A, Judgment on Sentencing Appeal, App. Ch., 18 July 2005 (“Babiü Sentencing Appeal Judgment”), § 27. Emphasis added. Emphasis added. Tadiü Appeals Judgment, supra note 16, § 204. Ibid., § 205. Trial of Erich Heyer and six others, British Military Court for the Trial of War Criminals, Essen, 18th –19th and 21st –22nd December, 1945, UNWCC, Vol. I, p. 88.

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One died instantly and the remaining two were killed by shots from the bridge and by members of the crowd who beat and kicked them to death. The Defence tried to argue that the Prosecution needed to prove that each of the accused - consisting of Captain Heyer, Koenen and five civilians – had the intent to kill, but this approach was not adopted by the court. The court seems to have accepted the Prosecution’s submission that in order to be convicted the accused had to have been “concerned in the killing” of the prisoner. Both Captain Heyer and Koenen were convicted of committing a war crime in that they were concerned in the killing of the three prisoners, as were three of the five accused civilians. The civilians were convicted notwithstanding that it had not been proved which of the civilians had actually delivered the fatal shot(s) or blow(s).64 Following a review of all of the case law, the Appeals Chamber concluded that “the notion of common design as a form of accomplice liability65 is firmly established in customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal.” 66 The three categories identified by the Appeals Chamber as well as their subjective and objective elements are set out in Table 1:

64

65 66

See generally, Tadiü Appeals Judgment, supra note 16, §§ 207–209. Two civilians, Sambol and Hartung, were acquitted on the grounds that the blows alleged to have been inflicted by Sambol were not particularly severe nor proximate to the prisoners’ deaths and it had not been proved beyond a reasonable doubt that Hartung had participated in the event. It is difficult to appreciate, however, why Sambol and Hartung should have escaped liability under JCE Category 3 on the basis of the first mentioned ground, as this ground has no role to play in the determination of their guilt, once the mens rea and actus reus elements of JCE Category 3 are satisfied. Once each intended to participate in and further the JCE and the death of the British prisoners of war was a natural and foreseeable consequence and each willingly took this risk, then non-participation in the actual killings or the delivery of a non-fatal blow is irrelevant in the determination of liability under JCE Category 3. The Appeals Chamber also made reference to another mob violence case, heard by an American military court, Kurt Goebell et al, (Borkum Island Case), 6 February-21 March 1946; see Tadiü Appeals Judgment, supra note 16, § 210. It, moreover, considered inter alia the following cases brought before the Italian courts following World War II, concerning war crimes committed by civilians or military personnel belonging to the armed forces of a de facto government called, the Repubblica Sociale Italiana, which was under German control and established by the Fascist leadership in central and northern Italy: D’Ottavio et al., Italian Court of Cassation, Criminal Section I, Judgment of 12 March 1947, no. 270; Aratano et al., Italian Court of Cassation, Criminal Section II, Judgment of 21 February 1949, no. 102; Tossani Case, Italian Court of Cassation, Criminal Section II, Judgment of 17 September 1946, no. 1446; and Manelli et al., Italian Court of Cassation, Criminal Section I, Judgment of 20 July 1949, no. 914; excerpts of each judgment are available in “Judicial Precedents to Joint Criminal Enterprise“, supra note 52, pp. 232–234, 241–242, 230–231, and 243–244 respectively. See Tadiü Appeals Judgment, supra note 16, §§ 214-219. The use of such term has caused much discussion in subsequent case law. See infra section 3.6.1. Tadiü Appeals Judgment, supra note 16, § 220.

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 145 Table 1. JCE Categories. Category Mens rea67 1. Co-perpetration Intent to perpetrate a cases certain crime (this being the shared intent on the part of all of the co-perpetrators).

Actus reus68 (i) A plurality of persons, who need not be organised in a military, political or administrative structure. (ii) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the ICTY Statute. (The plan, design or purpose does not need to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a JCE.)69 (iii) Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the ICTY Statute. Such participation need not involve the commission of a specific crime in the Statute, e.g. murder or rape, but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.

Same as for JCE Category 1. 2. “Concentration (i) Personal knowledge of the system of ill-treatment. camp” cases (This can be proved by (a) express testimony or by (b) a matter of reasonable inference from the accused’s position of authority in the camp or organisational hierarchy.) (Continued) 67 68 69

Tadiü Appeals Judgment, supra note 16, § 228. Tadiü Appeals Judgment, supra note 16, § 227. In Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, the Trial Chamber posited that if the objective of a JCE changes, such that the objective is fundamentally different in nature and scope from the common plan or design to which the participants originally agreed, then a new and distinct JCE has been established. In order for criminal liability to attach for this second JCE, the three actus reus elements must be established in relation to it. The objective of a JCE cannot change over time with the effect that a person entails liability for criminal acts far beyond the scope of the JCE that he agreed to, except those acts which are natural and foreseeable consequences and therefore are encompassed by JCE Category 3. See Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, Case No.: IT-02-60-T, Judgment, T. Ch. I, 17 January 2005, (“Blagojeviü and Jokiü Trial Judgment“), §§ 699–701.

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3 The Joint Criminal Enterprise Doctrine Table 1. (Cont.) (ii) Intent to further this common concerted system of ill-treatment.

3: Crimes committed outside the common purpose, e.g. mob violence cases

(i) Intention to participate in and further the criminal activity or purpose of a group and to contribute to the JCE, or in any event to the commission of a crime by the group. (ii) Responsibility for crimes falling outside the common plan only arises if (a) it was natural and foreseeable70 that criminal acts other than those envisaged in the common criminal design were likely71 to be committed by other participants in the common design and (b) the accused willingly took that risk.72

Same as for JCE Category 1.

The Appeals Chamber also noted that two international treaties recognise the JCED, the International Convention for the Suppression of Terrorist Bombings and the ICC Statute. Article 2(3)(c) of the former (concerning how a person commits an offence within the meaning of the Convention) provides Any person also commits an offence if that person:… In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 of the present article by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.73

This Convention was adopted by consensus by the UN General Assembly and came into force on 23 May 2001. Unfortunately, the travaux preparatoires of the 70

71 72 73

I.e., natural and foreseeable to the accused. See supra note 59, and infra sections 3.4.1.2 (Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü) and 3.4.1 (Prosecutor v Radislav Krstiü). I.e. the accused participated in the JCE aware of the probability that other crimes may result. See supra note 60 and infra section 3.4.1.2 (Prosecutor v Radislav Krstiü). I.e. the accused was either reckless or indifferent to that risk. See Tadiü Appeals Judgment, supra note 16, § 204. Supra note 50. Emphasis added.

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Convention do not shed any real light on why this definition was adopted.74 However, as noted by the ICTY Appeals Chamber, the Convention may “be taken to constitute significant evidence of the legal views of a large number of States”.75 The ICC Statute, as will be seen below, makes clear provision for the CPD as a separate mode of liability.76 The vast majority of states who attended the Rome Diplomatic Conference adopted the ICC Statute and the UN General Assembly’s Sixth Committee substantially endorsed it.77 It entered into force on 1 July 2002. The ICTY Appeals Chamber noted that the ICC Statute “is supported by a great number of States and may be taken to express the legal position i.e. opinio juris of those States”.78 74 75 76 77 78

See generally, Tadiü Appeals Judgment, supra note 16, footnote 279. Ibid., § 221. See supra note 11 and infra section 3.4.3. As of 1 January 2007, the ICC Statute, supra note 11, has 104 State parties. Tadiü Appeals Judgment, supra note 16, § 223. On the other hand, it could be argued that the ICC Statute represents a compromise between all of the states to reach agreement, and every single provision of the ICC Statute should not be interpreted as having the undivided support of each and every state which signed and ratified/acceded to the Statute. The Appeals Chamber also referred to various national laws of states to illustrate that the JCED upheld in international criminal law has an underpinning in many national systems, e.g. Australia, Canada, England and Wales, France, Germany, Italy, the Netherlands, the United States, and Zambia (although the notion of the JCED is not the same in each of these countries). See Tadiü Appeals Judgment, supra note 16, §§ 224-225. Danish criminal law does not explicitly recognise the JCE mode of liability. However, Denmark has ratified a number of terrorism treaties, which provide that a perpetrator can be held liable for the crimes formulated therein, in reliance on the JCE mode of liability, for example, the (i) International Convention on the Suppression of Financing of Terrorism (adopted by the UN General Assembly in Resolution 54/109 of 9 December 1999; entered into force on 10 April 2002; and ratified by Denmark on 27 August 2002); (ii) International Convention for the Suppression of Terrorist Bombings, supra note 50; (iii) International Convention for the Suppression of Acts of Nuclear Terrorism (adopted by the UN General Assembly in Resolution 59/290 of 15 April 2005; entered into force on 7 July 2007; and ratified by Denmark on 20 March 2007); and (iv) Council of Europe Convention on the Prevention of Terrorism (adopted at Warsaw on 16 May 2005; entered into force on 1 June 2007; and ratified by Denmark on 24 April 2007); see Articles 2(5)(c), 2(3)(c), 2(4)(c) and 9(1)(c) respectively. The now revoked § 114 b of Straffeloven (Danish Criminal Act), which had been incurporated into Danish law in order to implement Article 2(5)(c) of the International Convention for the Suppression of the Financing of Terrorism, ibid., concerning the JCE mode of liability, explicitly employed the JCED/CPD terminology (for example, providing that a person could be jailed for up to six years for contributing to the advancement of the criminal activity of the common purpose of a group, which commits certain terrorist acts). See Lov om ændring af straffeloven, retsplejeloven, lov om konkurrenceog forbrugerforhold på telemarkedet, våbenloven, udleveringsloven samt lov om udlevering af lovovertrædere til Finland, Island, Norge og Sverige, lov nr. 378 af 06/06/2002. This provision has been replaced by the current § 114 e, which, while not expressly making reference to a perpetrator contributing to the advance of the common purpose of a group, refers to criminal liability arising where a person furthers the activity of inter

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Applying the principles identified by the Appeals Chamber in relation to the accused, Tadiü, the Appeals Chamber held that (i) Tadiü actively took part in the common criminal purpose to rid the Prijedor region of the non-Serb population, by committing inhumane acts; (ii) The common criminal purpose was not to kill all non-Serb men, but the evidence indicated that killings frequently occurred in the realisation of the common criminal purpose; (iii) Tadiü had been aware of the killings accompanying the commission of inhumane acts against the non-Serb population; (iv) Tadiü actively took part in the attack on Jaskici, rounding up and severely beating some of the men from Jaskici; and (v) The only possible inference to be drawn was that Tadiü had the intention to further the common criminal purpose of riding the Prijedor region of the non-Serb population, by committing inhumane acts; that it was foreseeable79 that in effecting this common criminal purpose, some non-Serbs might be killed; and that Tadiü was aware that the actions of the group of which he participated in might80 result in killings, but he nevertheless willingly took that risk. Accordingly, the Appeals Chamber held that the Trial Chamber had erred in holding that it could not, on the evidence, be satisfied beyond reasonable doubt that Tadiü had any part in the killing of the five men from Jaskici and that it should have found Tadiü guilty on these counts. 3.4.1.2 Application of the Principles Identified in the Tadiü Appeals Judgment Subsequent case law since the Tadiü Appeals Judgment has expressly supported the conclusion of the Appeals Chamber that the JCED is encompassed by the ICTY Statute and that it existed under customary international law at the time Tadiü committed the crimes in question.81 Subsequent case law has also supported the conclusions reached by the Appeals Chamber as regards the subjective and objective elements of the JCED, and in some cases has also expanded/built upon

79 80 81

alia a group or an association, which commits or intends to commit certain acts of terrorism. The current § 114 e was included in Straffeloven, in order to implement inter alia the Council of Europe Convention on the Prevention of Terrorism, ibid., into Danish law. See Lov om ændring af straffeloven, retsplejeloven og forskellige andre love, lov nr. 542 af 08/06/2006 and the explanatory notes to Forslag til Lov om ændring af straffeloven, retsplejeloven og forskellige andre love (Styrkelsen af indsatsen for at bekæmpe terrorisme mv.), §§ 1.5 and 2.4.2.1, available at http:// www.folketinget.dk/ Samling/20051/ lovforslag/L217/som_fremsat.htm (last visited 15 July 2007). See also infra note 483. I.e., foreseeable to Tadiü. See supra note 59, and infra section 3.4.1.2 (Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü). I.e. Tadiü was aware of the probability (not the certainty) that other crimes may result. See supra note 60, and infra section 3.4.1.2 (Prosecutor v Radislav Krstiü). E.g., see Ojdaniü JCE Decision, supra note 17, §§ 18 and 29; Prosecutor v Milorad Krnojelac, Case No.: IT-97-25-A, Judgment, App. Ch., 17 September 2003, §§ 28–33 (“Krnojelac Appeals Judgment”); and Prosecutor v Vojislav Šešelj, Case No.: IT-0367/PT, “Decision on Motion by Vojislav Šešelj Challenging Jurisdiction and Form of Indictment”, T. Ch. II, 26 May 2004, § 52 (“Šešelj Jurisdiction Decision”).

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the basic concepts outlined by the Appeals Chamber. Of interest in this connection, because of the JCE principles articulated, is the following jurisprudence:82 Prosecutor V Anto Furundžija 83 In Prosecutor v Furundžija, the Appeals Chamber confirmed the holding of the Tadiü Appeals Judgment that in order to prove the existence of a common plan, design or purpose, such plan, design or purpose does not need to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the fact that a plurality of persons act in unison to put into effect a JCE.84 This issue arose in the context of an alleged event concerning a woman identified as Witness A, who was arrested and detained by a special unit of the military police of the Croatian Defence Council known as the ‘Jokers’. Furundžija, who was a local commander of the Jokers, interrogated Witness A. During the interrogation, one of the soldiers, Accused B, forced Witness A to undress and then rubbed his knife along her inner thigh and lower stomach and threatened to put his knife inside her vagina should she not tell the truth. Furundžija continued to interrogate Witness A throughout this event. Witness A was then moved to another room where she was beaten and Accused B forced Witness A to have oral, vaginal and anal intercourse with him. Furundžija did nothing to prevent these acts.85 The Trial Chamber inter alia held Furundžija liable for torture and determined that he was a “co-perpetrator” by virtue of his interrogation of Witness A as an integral part of the torture.86 Furundžija appealed against this etermination, submitting inter alia that there was no evidence that he had intentionally acted in concert with Accused B in questioning Witness A.87 The Appeals Chamber noted that Furundžija did not himself physically attack or sexually assault Witness A. However, it held that there was no need to prove the existence of a prior agreement between Furundžija and Accused B to divide the interrogation into the questioning by Furundžija and the physical abuse by Accused B. The way the events unfolded, in the opinion of the Appeals Chamber, “precluded any reasonable doubt that… [Furundžija] and Accused B knew what they were doing to Witness A and for what purpose they were treating her in that manner; that they had a common purpose may be readily inferred from all the circumstances… Where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that 82

83 84 85 86 87

As noted, supra note 36, the JCED jurisprudence before the ICTY is vast. Accordingly, it is not possible to comment on each case individually. However, a number of cases which are of importance, due to the JCE principles formulated therein, have been identified and will be discussed herein. Prosecutor v Anto Furundžija, Case No.: IT-95-17/1, Judgment, App. Ch., 21 July 2000 (“Furundžija Appeal Judgment”). Ibid., § 119. See Prosecutor v Anto Furundžija, Case No.: IT-95-17/1, Judgment, T. Ch., 10 December 1998 (“Furundžija Trial Judgment”), §§ 39–41. Ibid., §§ 267–269. Furundžija Appeal Judgment, supra note 83, § 115.

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there was no common purpose is plainly unsustainable”.88 Accordingly, this ground of appeal by Furundžija was rejected. Prosecutor V Radoslav Brÿanin & Momir Talic This case is of interest due to its comments on JCE Category 3. In the Brÿanin Indictment Decision, the Trial Chamber held that where the accused is charged with liability under the JCED, the Prosecution must establish that the accused participated in a particular JCE, even where the crime charged went beyond the object of that enterprise (JCE Category 3).89 It held that There must be a common object, or a common purpose, to carry out a particular crime (the criminal object of the enterprise) and – if a further crime is committed which went beyond that criminal object of the enterprise, but which is nevertheless a natural and foreseeable consequence of executing that criminal object or enterprise – each participant in that enterprise will be responsible if he was aware that such a further crime was a possible consequence in the execution of that enterprise, and that, with that awareness, he participated in that enterprise. Unless the criminal object of that enterprise is identified, it is not possible to determine whether the further crime charged was a natural and foreseeable consequence of executing that criminal object. That criminal object is not identified by asserting… merely that there was no “lawful purpose”.90

Prosecutor V Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü 91 This case concerned the events that allegedly occurred at inter alia the Omarska camp, including murder, beatings, torture, persecution and sexual violence. None of the accused was instrumental in establishing the camp or in determining the official policies practiced on detainees held in the camp. Accordingly, the accused were relatively speaking, ‘little fish’. This is one of the features of this case which makes it particularly noteworthy. Kvoþka,92 who was a professional policeman at the Omarska police station at the time the Omarska camp was established, spent approximately 17 days at the Omarska camp. Despite Defence arguments that he was only a simple guard at the camp, the Trial Chamber determined that he participated in the operation of the camp as the functional equivalent of the deputy commander of the guard service and that he had some degree of authority over the guards. It also determined that Kvoþka had extensive knowledge of the abusive practices and conditions at the camp and knew that serious crimes were regularly committed at the camp. While there was not sufficient evidence to conclude that he had physically perpetrated 88 89 90 91

92

Ibid., § 120. Brÿanin Indictment Decision, supra note 15, § 43. Ibid., § 43. Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, Case No.: IT-98-30/1-T, Judgment, T. Ch., 2 November 2001 (“Kvoþka Trial Judgment”). Ibid., §§ 329–420.

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crimes against detainees in the camp, it was indisputable that he was present while crimes were committed. The Trial Chamber determined that while Kvoþka had knowledge of the abusive treatment and conditions, he nevertheless continued to work at the camp for at least 17 days, where “he performed the tasks required of him skilfully, efficiently and without complaint”.93 In determining whether Kvoþka’s participation in the Omarska camp, which camp was determined to be a JCE, was significant enough to incur criminal responsibility, the Trial Chamber noted that Kvoþka participated knowingly and willingly in the camp. Despite the criminal activity going on in the camp, he showed up for work and actively participated in the functioning of the camp. “This knowing and continued participation enabled the camp to continue its abusive policies and practices.”94 It held that he was not just a passive or reluctant participant in the JCE, determining that he had authority and influence over the guards, and that he was “substantially involved” in the common criminal enterprise. Accordingly, it concluded that he was a co-perpetrator of the JCE at the Omarska camp.95 He was found guilty of co-perpetrating crimes against humanity (persecution) and violations of the laws and customs of war (murder and torture) as part of the JCE. He was sentenced to seven years imprisonment.96 Prcaü had, prior to the outbreak of the armed conflict in the Prijedor municipality, been a retired policeman and crime technician.97 The Trial Chamber found that he had been an administrative aide to the commander of the Omarska camp and was present at the camp for approximately 22 days. Part of his duties included calling out the names of detainees who were to be interrogated, transferred, exchanged or released. The Trial Chamber found that there was not sufficient evidence establishing beyond a reasonable doubt that Prcaü was directly involved in committing specific crimes against detainees. However, he was aware of the large scale nature of the abuses committed against the detainees at the camp and he had personal knowledge of a criminal system of abusive treatment and conditions in the camp in which he worked. Notwithstanding this awareness and knowledge, he continued to work at the camp, where he performed his tasks “efficiently, effectively and indifferently”. In determining whether Prcaü’s participation in the JCE was significant enough to incur criminal responsibility, the Trial Chamber noted that the role that Prcaü played in the functioning of the camp “provided a valuable service and his administrative duties constituted one of the many integral cogs in the wheel of a system of gross mistreatment”.98 Although he was not responsible for the behaviour of the guards or interrogators at the camp, he was responsible for managing the movement of the detainees at the camp and he had to have known that in calling out the detainees names, he was sending them to be 93 94 95 96 97 98

Ibid., §§ 397. Ibid., § 404. Ibid., § 414. Ibid., §§ 420 and 718. Ibid., §§ 422-471. Ibid., § 459.

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tortured or killed. The Trial Chamber found that Prcaü “may“ have been in a position to oppose the mistreatment that he witnessed, but he remained impassive when crimes were committed in his presence and “his silence can be regarded as giving moral support or approval to the perpetrators”.99 It held that Prcaü’s acts and omissions “substantially contributed” to assisting and facilitating the JCE, that he was aware of the context of the persecution and ethnic conflict prevalent in the camp and that he knew that his work in the camp facilitated the crimes committed within the camp. It found Prcaü to be liable as a co-perpetrator of the JCE for crimes against humanity (persecution) and war crimes (murder and torture) and sentenced him to five years imprisonment.100 Prior to being mobilised to work in the reserve forces of the Omarska police, Kos worked as a waiter.101 He held the position of guard shift leader in the Omarska camp and spent approximately 31 days there. The Trial Chamber found that he was aware of the abusive treatment and conditions prevailing in the camp as well as the context of discrimination in which the crimes were committed, and despite this awareness, he continued to work in the camp where he performed the tasks required of him. It also found that Kos was directly and personally involved in the beating of detainees, extortion and the stealing of money from detainees at the camp. The guards on Kos’ shift beat detainees, sometimes in his presence and not only did Kos not object to such behaviour, he, on occasion, participated in the beatings. The Trial Chamber found that Kos’ contribution to the maintenance and functioning of the camp was “substantial” and that he knowingly and intentionally contributed to the furtherance of the JCE. He was held liable as a co-perpetrator for crimes against humanity (persecution) and war crimes (murder and torture), due to the fact that he played a key role in the functioning of the camp, that he worked at the camp for almost its entire existence and that he “personally exploited the vulnerable position of the detainees” at the camp.102 He was sentenced to six years imprisonment. In sentencing Kos, the Trial Chamber took into account inter alia that he was an inexperienced and untrained police officer at the time he took up his duties at the camp, whereas three of the other defendants had extensive police training.103 Prior to the commencement of the armed conflict, Radiü was a police officer in the Prijedor municipality.104 He worked at the camp for approximately three months and the Trial Chamber determined that he worked as a guard shift leader at the Omarska camp. During Radiü’s shifts, the guards inflicted the worse treatment on the detainees, including committing murder and acts of torture. Radiü never intervened to stop such crimes and in this regard the Trial Chamber 99 100 101 102 103 104

Ibid., § 462. It should be noted that the Trial Chamber did not determine that Prcaü had actually been in a position to oppose the mistreatment he witnessed. Ibid., § 726. Ibid., §§ 472-504. Ibid., § 504. Ibid., §§ 732 and 735. Ibid., §§ 506-579.

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concluded, “[g]iven his position of authority over the guards, his non-intervention condoned, encouraged, and contributed to the crime’s commission and continuance”.105 The Trial Chamber also held that in his role as guard shift leader, Radiü was exposed on a daily basis to killings, torture and other abuses against the camp detainees, he knew that crimes of extreme violence were routinely committed in the camp for discriminatory purposes and Radiü was directly responsible for a number of these abuses. In addition, it held that Radiü raped, or attempted to rape female, non-Serb, detainees and also committed acts of sexual intimidation, harassment and assault. It held that his contribution to the maintenance and functioning of the camp was “knowing and substantial” and that he willingly and knowingly contributed to the furtherance of the JCE to persecute and otherwise abuse non-Serb detainees and that he physically perpetrated a number of serious crimes, including sexual violence. He was found liable as a co-perpetrator of crimes against humanity (persecution) and war crimes (murder and torture) as part of the JCE. Radiü was sentenced to 20 years imprisonment. In sentencing him, the Trial Chamber noted that he was convicted of committing rape and other forms of sexual violence against several female detainees and that he grossly abused his position of power in the camp to force or coerce women into “sexual activity for his own pathetic gain”.106 In addition, the Trial Chamber took into account the “excessive and deliberate cruelty” of the guards on Radiü’s shift and noted that unlike Kvoþka and Prcaü who ignored and tolerated the crimes, Radiü apparently “relished and actively encouraged criminal activity in the camp. He appeared to regard the abuses as entertainment”.107 Prior to the establishment of the Omarska camp, Žigiü was a taxi driver and petty criminal.108 He worked as a delivery man for the camp for a few weeks, but for most of the relevant time, he was not a regular employee of the camp. He visited the camp, on several, but not more than 10 occasions. Despite this, the Trial Chamber found that he participated in the JCE of the Omarska camp by co-perpetrating persecution, murder and torture at the camp. The evidence indicated that Žigiü savagely and mercilessly beat detainees and subjected them to particularly humiliating and degrading treatment. He also forced detainees to beat each other. Žigiü was found liable as a co-perpetrator of the JCE of the Omarska camp. The Trial Chamber held that his participation in the camp was “significant”, Žigiü was aware of the persecutory nature of the crime and he “aggressively and eagerly participated” in the persecution of non-Serbs at the camp.109 He was found guilty of crimes against humanity (persecution) and war crimes (murder and torture) and was sentenced to 25 years imprisonment. In sentencing Žigiü, the court noted the extreme

105 106 107 108 109

Ibid., § 538. Ibid., § 740. Ibid., § 741. Ibid., §§ 581-693. Žigiü was also found liable for crimes committed in the Keraterm and Trnopolje camps. See ibid., § 691.

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gravity of the crimes committed by him and that he regularly entered the camp “for the sole purpose of abusing detainees”.110 This case is interesting in many respects. Firstly, at trial there was not sufficient evidence to conclude that either Kvoüka or Prcaü had personally abused detainees in the camp and there was even some evidence that some of the accused had tried to prevent abuses by the guards on a few occasions. Their ‘crime’ was that they ignored and tolerated the crimes which were committed. Their lack of direct participation is arguably reflected in the sentences handed down. Kvoüka was sentenced to seven years imprisonment and Prcaü received five years; whereas Radiü and Žigiü, who personally participated in some of the crimes, were sentenced to 20 and 25 years imprisonment respectively. Secondly, the time spent at the camp by three of the accused was relatively short - Kvoþka spent 17 days at the camp whereas Prcaü worked at the camp for 22 days and Kos for 31 days. Thirdly, as mentioned earlier, each of the accused was a ‘little fish’. Not one of them was instrumental in establishing the camp or in determining the official policies practiced on detainees held in the camp. Security police who came from outside the camp generally conducted the interrogations and the inhumane living conditions were under the control of authorities outside the camp. Notwithstanding this, the Trial Chamber found the five accused to be liable as co-perpetrators of the JCE of the Omarska camp, the purpose of which was to persecute Muslims. Of course, the co-perpetrator of a core international crime should not escape punishment merely because of his status as a small player. However, this aspect of the case does give rise to other broader issues concerning the prosecution of little fish for core international crimes. These are discussed in section 3.7.1.9. Finally, the Kvoþka Trial Judgment laid down some inventive proposals in relation to the classification of the liability of the JCE co-perpetrator. These are discussed in section 3.6.1.4. and section 3.7.1.5. The judgment of the Appeals Chamber in this case has also articulated some interesting statements on the JCED.111 1. As noted above, JCE Category 3 inter alia provides that responsibility for crimes falling outside the common plan only arises when it was natural and foreseeable that criminal acts other than those envisaged in the common criminal design were likely to be committed by other participants in the common design. The Appeals Chamber held that the question of whether the criminal acts outside the common purpose were foreseeable and natural must be assessed in relation to the knowledge of the particular accused. “What is natural and foreseeable to one person participating in a systemic joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them. Thus, participation in a systemic joint criminal enterprise

110 111

Ibid., §§ 747–748. Žigiü’s sentence was confirmed on appeal, although, he was not held responsible as a JCE co-perpetrator. See infra note 461. Kvoþka Appeals Judgment, supra note 59.

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does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural and foreseeable consequence of the enterprise. A participant may be responsible for such crimes only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him”.112 2. In accordance with the criterion laid down in the Tadiü Appeals Judgment, but contrary to the holding of the Kvoþka Trial Chamber in relation to this issue, the Kvoþka Appeals Chamber held that as a general rule, in order for responsibility to attach, the level of participation of the accused in the JCE need not be significant or substantial. The Prosecutor does not need to demonstrate that the accused’s participation is a sine qua non, without which the crimes could or would not have been committed. 113 3. Participation in a JCE does not require a desire for the result. Each of the Appellants had argued that they were just doing their job, and accordingly lacked the requisite intent to further the JCE. However, the Appeals Chamber noted that there is a distinction between intent and motive. Shared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the JCE.114 As long as the accused participated in the functioning of the camp knowingly and willingly, his motives for doing so are irrelevant to the finding of his guilt.115 Prosecutor V Milorad Krnojelac 116 Krnojelac was charged under Article 7(1) of the ICTY Statute with inter alia having acted together and in common purpose with Foþa Kazneno-Popravni Dom guards in order to persecute Muslim and other non-Serb civilian detainees on political, racial or religious grounds, to commit acts of torture, beatings and murder, and to illegally detain non-Serb civilians. In this regard, the Trial Chamber noted that in order for liability pursuant to a JCE to arise, the Prosecution must establish the existence of a JCE and the participation in it by the accused. In this connection, the Trial Chamber made the following remarks:

112 113 114 115

116

Ibid., § 86. Ibid., §§ 93-99. See also infra section 3.7.1.8. Ibid., §§ 105-107. Ibid., § 416. The Appeals Chamber also considered whether participation in a JCE can be inferred from the accused’s position in a camp, ibid., §§ 100-104; whether it is a requirement that a JCE co-perpetrator share the discriminatory intent for persecutions, ibid., §§ 108-110; whether an accused can be held responsible for the crimes of a JCE during absences from the camp, ibid., §§ 111-114; and whether the Prosecution is required to prove the existence of an agreement between the accused and the other participants in the JCE, ibid., §§ 115-119. See Krnojelac Trial Judgment, supra note 53 and Krnojelac Appeal Judgment, supra note 81.

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80. A joint criminal enterprise exists where there is an understanding or arrangement amounting to an agreement between two or more persons that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. 81.A person participates in that joint criminal enterprise either: (i) by participating directly in the commission of the agreed crime itself (as a principal offender); (ii) by being present at the time when the crime is committed and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime; (iii) by acting in furtherance of a particular system in which the crime is committed by reason of the accused’s position of authority or function, and with knowledge of the nature of that system and intent to further that system … 117 In par (ii): the Trial Chamber refers to a person being present at the time the offence is committed by another. However, presence at the time a crime is committed is not necessary. A person can still be liable for criminal acts carried out by others without being present – all that is necessary is that the person forms an agreement with others that a crime will be carried out.118

The Prosecution on appeal, submitted that the wording of paragraph 81 did not cover the entire range of criminal actions set out in the definition of the first two categories of JCE in the Tadiü Appeals Judgment and that the wording of paragraph 81 required that a JCE participant who is absent at the time of the facts should belong to a criminal system. The Prosecution was concerned that if the criminal enterprise could not be characterised as a system, an individual who played an important role in organising and planning a JCE, but who was absent at the time of the facts could not be held liable. The Appeals Chamber concluded that the Prosecution’s objection that the Trial Chamber “arbitrarily conflated the first two forms of participation in a joint criminal enterprise is unfounded”. In its view, the three forms of participation are clearly alternatives in view of the use of the word “either” in the opening sentence of paragraph 81.119 Prosecutor V Radislav Krstiü 120 The case of Prosecutor v Radislav Krstiü concerned the events surrounding the Bosnian Serb take-over of Srebrenica in which approximately 25,000 Bosnian 117 118 119 120

Footnotes omitted, emphasis added. Krnojelac Trial Judgment, supra note 53, §§ 80-81. Krnojelac Trial Judgment, supra note 53, § 82, footnote 236. Krnojelac Appeals Judgment, supra note 81, §§ 76-80. Prosecutor v Radislav Krstiü, Case No.: IT-98-33-T, Judgment, T. Ch., 2 August 2001 (“Krstiü Trial Judgment”) and Krstiü Appeals Judgment, supra note 60.

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Muslims were forcibly transported to Bosnian Muslim held territory and approximately 7,000 military-aged Bosnian Muslim men were executed. Krstiü was, at the time the alleged crimes occurred, firstly the Chief of Staff and subsequently, the Commander of the Drina Corps (a formation of the Bosnian Serb Army), in whose zone of responsibility the alleged crimes were committed. The Prosecution did not charge any specific head of criminal responsibility under Article 7(1) of the ICTY Statute, but did raise the issue of JCE liability in its Pre-Trial Brief.121 The Trial Chamber, in its discretion, and in the light of the factual evidence established, determined that Krstiü’s criminal responsibility was most appropriately determined under Article 7(1) by considering whether or not he participated in a JCE.122 It found that Krstiü had participated in a JCE to remove the Bosnian Muslim civilians from Potoþari and so incurred responsibility for the murders, beatings and abuses committed there as natural and foreseeable consequences of the JCE (i.e. JCE Category 3).123 On appeal, the Defence submitted that these crimes were not natural and foreseeable consequences of the ethnic cleansing campaign and in this connection, argued inter alia that Krstiü could not be held responsible for crimes which he was unaware were actually occurring. (Krstiü had only been physically present at Potoþari for a short time during the period which the crimes were alleged to have been committed). The Appeals Chamber however, rejected the Defence’s argument noting, that the Defence had misunderstood JCE Category 3. For an accused to incur criminal responsibility for acts that are natural and foreseeable consequences of a JCE, it is not necessary to establish that he was aware in fact that those other acts would have occurred. It is sufficient to show that he was aware that those acts outside the agreed enterprise were a natural and foreseeable consequence of the agreed JCE, and that the accused participated in that enterprise aware of the probability that other crimes may result. As such, it was unnecessary for the Trial Chamber to conclude that Radislav Krstiü was actually aware that those other criminal acts were being committed; it was sufficient that their occurrence was foreseeable to him and that those other crimes did in fact occur.124 Ojdaniü JCE Decision The Ojdaniü JCE Decision is of interest due to its consideration of the submission that the application of the JCED to Ojdaniü amounted to an infringement of the nullum crimen sine lege principle.125 121 122 123 124 125

See infra section 3.6.3.3. Krstiü Trial Judgment, supra note 120, § 610. Krstiü Appeal Judgment, supra note 60, § 145. Ibid., § 150. See also Prosecutor v Édourad Karemera, Mathieu Ngirumpatse, Joseph Nzirorera and André Rwamakuba, Case No.: ICTR-98-44-T, “Decision on the Preliminary Motions by the Defence of Joseph Nzirorera, Édourad Karemera, André Rwamakuba and Mathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise”, T. Ch. III, 11 May 2004 (“Karemera JCE Decision”).

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Ojdaniü had been charged with having committed the following crimes: deportation, other inhumane acts, persecutions and murder, inter alia by participating in a JCE, the purpose of which was to expel a substantial proportion of the Kosovo Albanian population from the territory of the province of Kosovo. The Defence argued before the Appeals Chamber that applying the JCED to Ojdaniü would infringe the nullum crimen sine lege principle as it would mean applying law which was created after the acts for which he was charged.126 The Appeals Chamber’s response to this claim is instructive as it illustrates the factors which the Chamber takes into account in determining whether there has been a breach of this principle. The Appeals Chamber noted that the nullum crimen sine lege principle is a “principle of justice”. 37. …. It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is charged were committed. The Tribunal must further be satisfied that the criminal liability in question was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the head of responsibility selected by the Prosecution. 38. This fundamental principle “does not prevent a court from interpreting and clarifying the elements of a particular crime”. Nor does it preclude the progressive development of the law by the court. But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.127

It then went on to determine whether it could be said that Ojdaniü had sufficient notice that if he took part in the commission of very serious criminal offences as part of a JCE, he could be found criminally liable on that basis. In this connection, the Appeals Chamber noted that although it applies customary international law in relation to its jurisdiction ratione materiae, it could have recourse to domestic law for the purpose of establishing that Ojdaniü “could reasonably have known that the offence in question or the offence committed in the way charged in the indictment, was prohibited and punishable”.128 It determined that the law of the Federal Republic of Yugoslavia in force at the relevant time did “provide for criminal liability for the foreseeable acts of others in terms strikingly similar to those used to define joint criminal enterprise” and that even if it did not, “there is a long and consistent stream of judicial decisions, international instruments and domestic legislation which would have permitted any individual to regulate his conduct accordingly and would have given him reasonable notice that, if infringed, that standard could entail his criminal responsibility”.129 In addition, it noted that war crimes courts have often relied upon the atrocious nature of the crimes charged to conclude 126

127 128 129

See supra note 17, §§ 34-43. The Defence asserted that the CPD as laid down in the Tadiü Appeals Judgment was only created on 15 July 1999, i.e. after the acts charged in the indictment and that the JCED did not enter the jurisprudence of the ICTY until the Krstiü Trial Judgment (2 August 2001). Footnotes omitted. Ibid., §§ 37-38. See supra note 17, § 40. Footnotes omitted. Ibid., §§ 40-41.

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that the perpetrator must have known that he was committing a crime and although “the immorality or appalling character of an act is not a sufficient factor to warrant its criminalisation under customary international law, it may in fact play a role in that respect, insofar as it may refute any claim by the Defence that it did not know of the criminal nature of the acts.”130 Taking these three factors into account, the Appeals Chamber concluded that notice would have been provided to anyone that the acts allegedly committed by Ojdaniü in 1999 would have engaged criminal responsibility on the basis of the JCE theory of liability.131 Prosecutor V Milomir Stakiü 132 The Trial Chamber in Prosecutor v Milomir Stakiü indicated a clear dissatisfaction with the JCED. Although the Prosecution, both in the indictment and at trial, pleaded the JCED, the bench took it upon itself to instead apply a mode of liability, which it referred to as ‘co-perpetration’.133 The Trial Chamber noted 438. The Trial Chamber emphasises that joint criminal enterprise is only one of several possible interpretations of the term “commission” under Article 7(1) of the Statute and that other definitions of co-perpetration must equally be taken into account. Furthermore, a more direct reference to “commission” in its traditional sense should be given priority before considering responsibility under the judicial term “joint criminal enterprise”. 439. The Trial Chamber prefers to define ‘committing’ as meaning that the accused participated, physically or otherwise directly or indirectly, in the material elements of the crime charged through positive acts or, based on a duty to act, omissions, whether individually or jointly with others. The accused himself need not have participated in all aspects of the alleged criminal conduct. 440 … For co-perpetration it suffices that there was an explicit agreement or silent consent to reach a common goal by coordinated co-operation and joint control over the criminal conduct… 441. The Trial Chamber is aware that the end result of its definition approaches that of the aforementioned joint criminal enterprise and even overlaps in part. However, the 130 131 132

133

Footnotes omitted. Ibid., § 42. For a general discussion of the nullum crimen sine lege principle and the JCED, see infra section 3.7.1.3. Prosecutor v Milomir Stakiü, Case No.: IT-97-24-T, Judgment, T. Ch. II, 31 July 2003 (“Stakiü Trial Judgment“). See also Mohamed Elewa Badar, “Just Convict Everyone!” – Joint Perpetration: From Tadiü to Stakiü and Back Again”, 6 International Criminal Law Review 293 (2006). Ibid., §§ 437–442. ICTY Judge Per-Johan Lindholm is also dismissive of the JCED in favour of the co-perpetration mode of liability, stating that “[t]he so-called basic form of joint criminal enterprise does not, in my opinion, have any substance of its own. It is nothing more than a new label affixed to a since long well-known concept or doctrine in most jurisdictions as well as in international criminal law, namely co-perpetration.” Emphasis added. See Simiü Trial Judgment, supra note 8, § 2. For a detailed consideration of the co-perpetration mode of liability relied upon by the Stakiü Trial Chamber, i.e. the notion of control of the crime, see Héctor Olásolo and Ana Pérez Cepeda, “The Notion of Control of the Crime and its Application by the ICTY in the Stakiü Case”, 4 International Criminal Law Review 475 (2004).

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3 The Joint Criminal Enterprise Doctrine Trial Chamber posits that this definition is closer to what most legal systems understand as “committing” and avoids the misleading impression that a new crime not foreseen in the Statute of this Tribunal has been introduced through the backdoor.134

The judgment is quite remarkable, when one considers, firstly, that the Prosecutor pleaded the JCED in this case and the defendant did not claim that reliance on the JCE mode of liability was inappropriate, and secondly, that the Trial Chamber cited no international jurisprudence where the co-perpetration mode of liability had been applied before. In reliance on the Stakiü judgment, the Prosecutor subsequently applied to amend the indictments in Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü 135 and Prosecutor v Nebojša Pavkoviü, Vladimir Lazareviü, Vlastimir Ðjordjeviü & Sreten Lukiü 136 to include indirect co-perpetration, “in order to make it conform with emerging jurisprudence in the Trial Judgment in Prosecutor v Stakiü”. 137 The proposed amendments were to charge indirect co-perpetration “as a method of participation in the JCE” and, alternatively, as “a separate mode of criminal participation by acting in concert”.138 The Prosecution’s interpretation of the Stakiü judgment is arguably incorrect, in that the Stakiü Trial Chamber was attempting to distance itself from the JCE altogether and appears to have been advocating that its ‘co-perpetration’ mode of liability was a mode of liability separate from the JCE mode of liability, and not a method of JCE participation, as suggested by the Prosecution. In response to the Prosecution seeking leave to amend the indictments, Ojdaniü, Milutinoviü and Pavkoviü each filed a preliminary motion challenging the jurisdiction of the ICTY, on the grounds that the Tribunal lacked jurisdiction to prosecute them under the indirect co-perpetration mode of liability, as there was no basis for this mode of liability either in the ICTY Statute or under customary international law.139 The Trial Chamber determining the motions challenging jurisdiction noted, that in order for any mode of responsibility to come within the ICTY’s jurisdiction, such mode must (i) be provided for in the ICTY Statute, explicitly or implicitly and (ii) have existed under customary international law at the relevant

134 135 136 137

138 139

Ibid. Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, Case No.: IT99–37. Prosecutor v Nebojša Pavkoviü,Vladimir Lazareviü, Vlastimir Ðjordjeviü & Sreten Lukiü, Case No.: IT-03-70. Prosecutor v Milan Milutinoviü, Nikola Šainoviü, Dragoljub Ojdaniü, Nebojša Pavkoviü,Vladimir Lazareviü, Vlastimir Ðjordjeviü & Sreten Lukiü, Case No.: IT-05-87-PT, “Decision on Ojdaniü’s Motion Challenging Jurisdiction: Indirect Co-perpetration”, T. Ch., 22 March 2006 (“Ojdanic Co-perpetration Decision”), § 5. Ibid. Ibid., § 2.

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time (e.g. at the time of the events alleged in an indictment).140 It determined that the Stakiü Trial Chamber did not rely on sources of customary international law, when defining and applying the concept of co-perpetration, and that even if the domestic sources relied upon by the Stakiü Trial Chamber provided clear evidence of the recognition of co-perpetration in national law, that was not evidence of the recognition of the mode of liability in customary international law. Accordingly, the ICTY did not have jurisdiction over co-perpetration.141 The judgment of the Appeals Chamber in Prosecutor v Milomir Stakiü,142 which was handed down on the same date as the Ojdaniü Co-perpetration Decision, also dismissed, in no uncertain terms, the attempt of the Stakiü Trial Chamber to employ the co-perpetration mode of liability instead of the JCED. It posited Upon a careful and thorough review of the relevant sections of the Trial Judgment, the Appeals Chamber finds that the Trial Chamber erred in conducting its analysis of the responsibility of the Appellant within the framework of “co-perpetratorship”. This mode of liability, as defined and applied by the Trial Chamber, does not have support in customary international law or in the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers. By way of contrast, joint criminal enterprise is a mode of liability under which the Appellant was charged in the Indictment, and to which he responded at trial. In view of these reasons, it appears that the Trial Chamber erred in employing a mode of liability which is not valid law within the jurisdiction of this Tribunal.143

140

141

142 143

Ibid., § 15. The Trial Chamber interpreted paragraph (ii) as absorbing the other two nullum crimen sine lege criteria identified by the Ojdaniü JCE Decision, i.e. (iii) the law providing for [the] form of liability must have been sufficiently accessible at the relevant time to anyone who acted in such a way; and (iv) such person must have been able to foresee that he could be held criminally liable for his actions if apprehended. Ibid. Ibid., §§ 38–41. The amended indictment against Jadranko Prliü, Bruno Stojiü, Slobodan Praljak, Milivoj Petkoviü, Valentin ûoriü and Berislav Pušiü also contained allegations that the accused had committed certain acts by way of inter alia co-perpetration and indirect co-perpetration. The accuseds’ request that such allegations be struck from the amended indictment was denied by Trial Chamber III. However, this was because the accuseds’ motion was not submitted within the requisite time frame and the Trial Chamber could more appropriately deal with the issue raised when it rendered a decision under Rule 98 ibis of the ICTY Rules of Procedure and Evidence, 13 September 2006 (available at http://www.un.org/icty/legaldoc-e/index.htm (last visited 17 July 2007)); not because the Trial Chamber was of the view that such modes of liability are within the jurisdiction of the ICTY. See Prosecutor v Jadranko Prliü, Bruno Stojiü, Slobodan Praljak, Milivoj Petkoviü, Valentin ûoriü and Berislav Pušiü, Case No.: IT-04-74-PT, “Decision on Defence Motion to strike from the amended indictment certain parts alleging co-perpetration, indirect co-perpetration, indirect perpetration and aiding and abetting of joint criminal enterprise”, T. Ch. III, 25 April 2007. Prosecutor v Milomir Stakiü, Case No.: IT-97-24-A, Judgment, App. Ch., 22 March 2006 (“Stakiü Appeals Judgment”). Ibid., § 62. Héctor Olásolo is critical of the Appeal Chamber’s finding that the coperpetration mode of liability does not have support in customary international law. See Héctor Olásolo, “Reflections on the Treatment of the Notions of Control of the Crime

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The dissatisfaction of the Appeals Chamber with the Stakiü Trial Judgment is underscored by the fact that it addressed this matter, notwithstanding that neither the Prosecutor nor Stakiü appealed the Trial Chamber’s application of the coperpetration mode of liability. The Appeals Chamber noted, that in order to avoid the uncertainty which “the introduction of new modes of liability into the jurisprudence of the ICTY may generate” and to “ensure respect for the values of consistency and coherence in the application of the law”, it “must” intervene to determine whether the co-perpetration mode of liability is consistent with the jurisprudence of the ICTY.144 Accordingly, the Stakiü Trial Chamber’s attempt at moving away from the application of the JCED was unsuccessful. While many criticisms may be directed at the JCED, including claims that it infringes the nullum crimen sine lege principle, replacing it with a mode of liability, which is also likely to infringe the nullum crimen sine lege principle, is not a satisfactory solution. As an alternative to the JCED, Harmen van der Wilt suggests the application of the ‘functional perpetration’ mode of liability in international criminal law, which mode of liability is “predicated on the notion that those who in a functional capacity “effectuate” a crime qualify to incur criminal responsibility, rather than those who, usually as subordinates or employees carry out instructions or orders.”145 Elies van Sliedregt is also in favour of taking on board indirect co-perpetration and functional theories in international criminal law, as is Kai Ambos who argues for the employment of the theory of control of the act by virtue of a hierarchical organisation (‘Organisationsherrschaft’).146 While these modes of liability could potentially be employed in scenarios where the JCED currently is employed, two comments are warranted. Firstly, as regards the functional theories, these modes of liability would only apply where the accused holds a higher position in the hierarchy of the criminal apparatus in question. Secondly, whatever new theory of liability is put forward, it will, arguably, be difficult for it to find acceptance before the ad hoc international criminal courts. This is because a feature of such theory’s originality is that it is not to be found in the jurisprudence of the ad hoc international tribunals or, most likely, customary international law, both of which criteria, as noted above, were considered to be decisive in the rejection by the Stakiü Appeals Chamber of the co-perpetration doctrine. However, as the ICC is beginning its existence with a ‘clean slate’, without the ‘baggage’ of earlier ICC judgments or being restricted to applying customary international law alone, as well as,

144 145

146

and Joint Criminal Enterprise in the Stakiü Appeals Judgment”, 7 International Criminal Law Review 143 (2007). Ibid., § 59. See Harmen van der Wilt, “Joint Criminal Enterprise, Possibilities and Limitations”, J. Int’l Crim. Jus. (2006), available at http://jicj.oxfordjournals.org/cgi/content/abstract/ mql043v1 (last visited 22 March 2007). See Elies van Sliedregt, “Criminal Responsibility in International Law, Liability Shaped by Policy Goals and Moral Outrage“, 14 European Journal of Crime, Criminal Law and Criminal Justice 81 (2006), pp. 95–96 and Kai Ambos, “Joint Criminal Enterprise and Command Responsibility“, 5 J. Int'l Crim. Jus. 159 (2007), pp. 170–171 and 181–183.

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a more widely drafted article on individual criminal responsibility (Article 25) than its ad hoc counterparts (Article 7(1), ICTY Statute147 and Article 6(1) ICTR Statute),148 it may prove easier for such new theories of liability to find acceptance before the ICC. Nonetheless, even before the ICC, any novel mode of liability would have to satisfy the nullum crimen sine lege principles formulated in Article 22 of the ICC Statute.149

3.4.2 ICTR The ICTR Statute, similar to the ICTY Statute, does not expressly provide for the JCE mode of liability. Article 6(1) of the ICTR Statute is almost identical to Article 7(1) of the ICTY Statute, providing for liability to attach to a person who “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime”. The ICTR has held that Article 6(1) encompasses the JCE mode of liability.150 The role of the JCED before the ICTR has not been as significant as it has been before the ICTY.151 However, the cases currently before the ICTR indicate a growing reliance on the doctrine.152 Presumably, more clarity concerning the

147 148

149

150 151

152

See supra note 44. ICTR Statute, adopted 8 November 1994 by UN Security Council Resolution 955, as amended, available at http://69.94.11.53/ENGLISH/basicdocs/statute.html (last visited 17 July 2007). See supra note 11. A decision of Pre-Trial Chamber I of the ICC appears to posit that the concept of indirect perpetration and of co-perpetration, as that term was employed in the Stakiü case, is encompassed by the ICC Statute. However, it should be noted that this decision was determined prior to the Stakiü Appeals Judgment, supra note 142. See Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo, Case No.: ICC-01/04-01/06, “Decision concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo”, P. T. Ch., 24 February 2006. See for example, Karemera JCE Decision, supra note 125, § 32. Danner and Martinez suggest that this could be inter alia because conspiracy to commit genocide is included within the ICTR Statute and that this is frequently charged by the ICTR Prosecutor, removing the need to rely on the JCED. See Danner and Martinez, supra note 37, p. 108. Of the ICTR cases in progress, those awaiting trial and those on appeal as of 1 April 2007, the following indictments explicitly charge the JCE: Prosecutor v Siméon Nchamihigo, Case No.: ICTR-2001-63-I, Amended Indictment, 18 July 2006; Prosecutor v Jean-Baptiste Gatete, Case No.: ICTR-2000-61-I, Amended Indictment, 10 May 2005; Prosecutor v Édourad Karemera, Mathieu Ngirumpatse & Joseph Nzirorera, Case No.: ICTR-98-44-T, Amended Indictment, 23 February 2005; and Prosecutor v Aloys Simba, Case No.: ICTR-2001-76-1, Amended Indictment, 10 May 2004. Moreover, the Prosecutor in Prosecutor v Hormisdad Nsengimana, was granted leave to amend the indictment, which amendments included various references to liability arising in accordance with the JCED. See Prosecutor v Hormisdad Nsengimana, Case No.:

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ICTR’s interpretation of this doctrine will be forthcoming, once the final judgments in these cases are handed down. One ICTR decision of particular interest is the Karemera JCE Decision153 as it discussed whether JCE liability applies both to international and internal armed conflicts154 and whether, if it does, this amounts to a breach of the nullum crimen sine lege principle.155

153

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ICTR-2001-69-I, “Decision on Prosecution Motion for Leave to File an Amended Indictment”, T. Ch. II, 29 March 2007. These indictments represent approximately 16% of the cases on the ICTR’s docket as of 1 April 2007. The following current indictments employ the expression “acting in concert with”, which has been interpreted as a reference to the JCED: Prosecutor v Protais Zigiranyirazo, Case No.: ICTR-2001-73-I, Amended Indictment, 7 March 2005; Prosecutor v Mikaeli Muhimana, Case No.: ICTR-95-1B-1, Revised Amended Indictment, 3 February 2004; Prosecutor v Augustin Bizimungu, Augustin Ndindiliyimana, Protais Mpiranya, Francois-Xavier Nzuwonemeye & Innocent Sagahutu, Case No.: ICTR-2000-56-I, Indictment, undated; Prosecutor v Tharcisse Renzaho, Case No.: ICTR-97-31-I, Indictment, 11 November 2002; and Prosecutor v Hassan Ngeze, Case No.: ICTR-97-27, Amended Indictment, 10 November 1999. It would also appear that Prosecutor v Casimir Bizimungu, Justin Mugenzi, JérômeClément Bicamumpaka & Prosper Mugiraneza, Case No.: ICTR-99-50-I, Indictment, 7 May 1999 has been interpreted as charging the JCED, notwithstanding the absence of an express or indirect reference to the JCED. See infra note 447. The indictments containing a potential indirect reference to the JCED represent approximately 28% of the cases on the docket of the tribunal as of 1 April 2007. (The indictment against Tharcisse Muvunyi also employs the expression “acting in concert with“. However, Trial Chamber II determined that JCE liability was not pleaded in this indictment. See Prosecutor v. Tharcisse Muyunyi, Case No.: ICTR-2000-55A-T, Judgment and Sentence, T. Ch. II, 12 September 2006.) See supra note 125. Another ICTR case of interest is Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos.: ICTR-96-10-A and ICTR-96-17-A, Judgment, App. Ch., 13 December 2004 (“Ntakirutimana Appeals Judgment”), see infra note 375. In Prosecutor v Aloys Simba, Case No.: ICTR-01-76-T, Judgment, T. Ch., 13 December 2005, the Trial Chamber found the accused guilty of genocide and extermination as a crime against humanity, as a JCE Category 1 co-perpetrator. Ibid., §§ 385–427. In Prosecutor v Jean Mpambara, Case No.: ICTR-01-65-T, Judgment, 11 September 2006 (“Mpambara Trial Judgment”), the Trial Chamber held that the accused did not possess the necessary intent to be held liable as a JCE Category 1 co-perpetrator of the crimes of genocide and extermination and he was subsequently acquitted. Ibid., §§ 41–164. In Prosecutor v Joseph Nzirorera, Case No.: ICTR-98-44-AR72.3, “Decision on Validity of Appeal of Joseph Nzirorera Regarding Joint Criminal Enterprise Pursuant to Rule 72(E) of the Rules of Procedure and Evidence”, App. Ch., 11 June 2004, Nzirorera also raised the challenge that the ICTR lacked jurisdiction to apply JCE Category 3 to internal armed conflicts. However, the Appeals Chamber did not have to determine this issue, as notwithstanding that the language of the indictment seemed to charge JCE Category 3 in relation to the count in question, the Appeals Chamber accepted the Prosecution’s statement that it was not charging JCE Category 3, but JCE Category 1 ibid., §§ 7–12. See supra note 125, §§ 1–30.

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With respect to the first matter, the Defence argued that there is no jurisdiction under Article 6(1) to prosecute a person for committing a crime through the extended form of JCE during an internal armed conflict. It noted that while the jurisprudence of the ICTR recognised the application of JCE Category 3 to international armed conflicts, it had never been decided by either the ICTY nor the ICTR whether customary international law recognised JCE Category 3 liability as applying in internal armed conflicts and asserted that JCE Category 3 liability did not apply in internal armed conflicts due to the lack of state practice and supporting opinio juris.156 The Prosecution posited that Article 6(1) encompasses JCE Category 3 liability in the context of an internal armed conflict, that there is no jurisprudence to the contrary and that the ICTY Appeals Chamber in the Tadiü Appeals Judgment, Ojdaniü JCE Decision and Brÿjanin Indictment Decision did not limit the applicability of JCE liability to international armed conflicts.157 The Trial Chamber did not dismiss the Defence’s claims outright. It noted that Article 6(1) encompasses JCE liability and that this provision is equally applicable whether the crimes within the jurisdiction of the ICTR are committed in the course of international or internal armed conflicts. However, JCE liability is only implicitly included in Article 6(1) on the basis of customary international law for international armed conflicts. It then turned to the rationale behind the JCE concept and found that the reasoning could not be different as regards internal armed conflicts as, The gravity of the participation in a joint criminal enterprise cannot depend on the nature of the conflict. Furthermore, as the Appeals Chamber in Tadic authoritatively held, the structure of international crimes requires that joint criminal enterprise liability be applied in order to assure an efficient prosecution. The Chamber does not perceive any difference between the structure of international crimes committed in the course of international armed conflicts and international crimes committed in the course of internal armed conflicts. Therefore the same reasoning of the Appeals Chamber in Tadic must equally apply to internal armed conflicts. The nature of the conflict is not relevant to the responsibility of the perpetrator. This criterion only goes to the characteristics of the particular crime and not to the responsibility of the potential perpetrator of an alleged act.158

The Trial Chamber also noted that just because there was an absence of precedent from the ad hoc international criminal courts concerning whether JCE liability could also arise in an internal armed conflict, this did not imply that the doctrine would not apply to internal armed conflicts. Accordingly, the Trial Chamber held that under customary international law, JCE liability applies to both internal and international armed conflicts.159 156 157 158 159

Ibid., §§ 1-5. Ibid., §§ 8 and 20. Emphasis added. Ibid., §§ 32-38. Ibid., § 38. The ICTY Trial Chamber subsequently also determined that the JCED can be applied to both international and internal armed conflicts. See Prosecutor v Jadranko Prliü, (Bruno Stojiü), Slobodan Praljak, Milivoj Petkoviü, (Valentin ûoriü) & (Berislav Pušiü), Case No.: IT-04-74-PT, “Decision to Dismiss the Preliminary Objections against the Tribunal’s Jurisdiction”, T. Ch. I, 26 September 2005 (“Prliü Jurisdiction Decision”), § 20.

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The second issue which came up for consideration by the ICTR was whether the conclusion that JCE liability applied to internal armed conflicts, amounted to a violation of the principle nullem crimen sine lege. The Trial Chamber held that it was satisfied that the JCED was part of customary international law at the time when the crimes in question were committed. It then needed to determine if the accused had sufficient notice that he could be liable for committing crimes that fall within the jurisdiction of the ICTR as part of a JCE in the course of an internal armed conflict. It noted the statement of the Trial Chamber in the Celebiüi case Whereas the criminalisation process in a national criminal justice system depends upon the legislation which dictates the time when conduct is prohibited and the content of such prohibition, the international criminal justice system attains the same objective through treaties or conventions, or after a customary practice of the unilateral enforcement of a prohibition by States. It could be postulated, therefore, that the principles of legality in international criminal law are different from their related national legal systems with respect to their application and standards. They appear to be distinctive, in the obvious objective of maintaining balance between the preservation of justice and fairness towards the accused and taking into account the preservation of world order… The Chamber holds that, given the specificity of international criminal law, the principle of legality does not apply to international criminal law to the same extent as it applies in certain national legal systems. The standards applicable to the assessment of foreseeability and accessibility of a criminal offence before the international tribunals have been established and confirmed by the Appeals Chamber in various cases. In Hadzihasanovic the Appeals Chamber noted that as to foreseeability, the accused “must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision”. With regard to accessibility the Appeals Chamber in Hadzihasanovic stated that “in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom”. The Appeals Chamber in Ojdanic furthermore recognized that the “accessibility (of customary law) may not be as straightforward as would be the case had there been an international criminal code”.160

The Trial Chamber concluded that there exist numerous judicial decisions, international instruments and domestic legislation which convey that the commission of crimes under the Statute as a participator in a JCE would entail individual criminal responsibility. Even if these judicial decisions concerned international armed conflicts, any potential perpetrator “was able to understand that the criminalization of acts of such gravity did not depend on the international or internal nature of the armed conflict”.161 Accordingly, it concluded that the application of JCE liability to internal armed conflicts did not infringe the nullum crimen sine lege principle.162 160

161 162

See Prosecutor v Zejnil Delaliü, Zdravko Muciü, Hazim Deliü and Esad LandĨo, Case No.: IT-96-21, Judgment, T. Ch., 16 November 1998 (“Delaliü Trial Judgment”), §§ 404-405. See also Karemera JCE Decision, supra note 125, § 42-43. Karemera JCE Decision, supra note 125, § 44. The Karemera JCE Decision has also given rise to the interesting question of whether one can be held individually criminally responsible as a JCE co-perpetrator of complicity in genocide. The ICTR Trial Chamber held that as complicity in genocide is a mode

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 167

3.4.3 ICC 163 The ICC Statute is the first international instrument to explicitly regulate the JCED. Article 25(3)(d) of the ICC Statue (which entered into force on 1 July 2002) deals with the JCED in the following terms: 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:… (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;164

The controversial conspiracy concept on which Article 25(3)(d) is based, led to heated debate in the ICC Preparatory Committee sessions. Generally speaking, the common law concept of conspiracy requires an agreement between two or more persons to commit a crime regardless of whether such crime is committed or not;

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of liability and not a crime, it is not possible to plead that complicity in genocide has been committed by means of a JCE. See Prosecutor v Édourad Karemera, Mathieu Ngirumpatse & Joseph Nzirorera, Case No.: ICTR-98-44-T, “Decision on Defence Motions Challenging the Pleading of a Joint Criminal Enterprise in a Count of Complicity in Genocide in the Amended Indictment”, T. Ch. III, 18 May 2006. Judge Short, however, disagreed with this conclusion opining that complicity in genocide “has the indicia of a criminal offence, whilst encompassing a particular mode of liability“ and noting that one can be found guilty of (the crime of) complicity in genocide. Ibid., “Separate Opinion of Judge Short on Complicity in Genocide and Joint Criminal Enterprise Theory”, 23 May 2006. The Prosecution challenged the Trial Chamber’s decision, but subsequently withdrew its appeal regarding this issue, as it no longer viewed the appeal necessary in the circumstances of the case. See Prosecutor v Édourad Karemera, Mathieu Ngirumpatse & Joseph Nzirorera, Case No.: ICTR-98-44-AR72.7, “Decision on Motion to Withdraw Appeal Regarding the Pleading of Joint Criminal Enterprise in a Count of Complicity in Genocide”, App. Ch., 25 August 2006. See generally Kai Ambos in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Nomos Verlagsgesellschaft Baden-Baden, 1999, pp. 483–486; Albin Eser in Antonio Cassese, Paulo Gaeta and John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, Vol. I, pp. 802–803; Per Saland in Roy S. Lee (ed.), The International Criminal Court – The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 198–200; and William A. Schabas, An Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2001, pp. 80–83. See supra note 11. Note that the ICC Statute deals with the CPD in the context of its provisions dealing with ‘modes of liability’. CPD is not defined in the ICC Statute as a ‘crime’ in itself which reiterates the differentiation between the ‘crime’ of conspiracy and the ‘crime’ of membership of an organisation. See infra sections 3.5.3 and 3.5.4.

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whereas in many civil law systems, conspiracy is viewed as a form of complicity or participation in an actual crime or attempt.165 The scope of Article 25(3)(d) is broader than the common law concept of conspiracy, in that it requires a contribution by the accused to the commission or attempted commission of a crime.166 Eser posits that … in particular by the accessorial dependence from the principal crime, the concept of conspiracy converged to such a degree with instigation that it appeared no further loss to abandon it completely [in the ICC Statute]. Consequently, the Rome Statute no longer contains the notion of conspiracy.167

A resolution of the disagreement in relation to the conspiracy issue at the ICC negotiations was assisted by the adoption, by consensus, of the 1997 Convention for the Suppression of Terrorist Bombings.168 Article 25(3)(d) of the ICC Statute is very similar to Article 2(3)(c) of the Convention for the Suppression of Terrorist Bombings. As noted above, the travaux préparatoires of the Convention do not shed any real light on why this definition was adopted.169 Saland notes that “[i]n Rome, it was easy to reach agreement to incorporate, with slight modifications, the text from that Convention…”170 3.4.3.1 Observations to Article 25(3)(d), ICC Statute A number of observations can be made in relation to the terms of Article 25(3)(d): (i) the JCE mode of liability is treated as a separate mode of liability in the ICC Statute; (ii) and (iii) neither the mens rea nor the actus reus elements of the JCED as provided for in the ICC Statute are identical to those laid down in the Tadiü Appeals Judgment; and (iv) it is questionable whether the ICC Statute accommodates JCE Category 3 liability. JCED Treated as a Separate Mode of Liability The drafters of the ICC Statute understand the JCED to be a separate mode of liability in its own right. This is evidenced by the manner in which Article 25(3) is 165 166

167 168

169 170

See Schabas, supra note 163, pp. 82–83. Previous drafts of the ICC Statute retained the concept of conspiracy but required that the crime be committed. See Model Draft Statute for the ICC of 1998, reprinted in L. Sadat Wexler and M. C. Bassiouni (eds.), Model Draft Statute for the International Criminal Court Based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June 15-July 17, 1998. Eser, supra note 163, p. 802. See supra note 50. Article 2(3)(c) of the Convention does not refer to a contribution to the attempted commission of a crime. This formulation of the JCED was also adopted in Article 2(3)(c) of the International Convention for the Suppression of the Financing of Terrorism, supra note 78. See supra section 3.4.1.1. See Saland, supra note 163, pp. 199–200.

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set up. Article 25(3)(a) concerns a person who “commits” a crime; Article 25(3)(b), a person who “orders, solicits or induces the commission” of a crime; Article 25(3)(c), a person who “for the purpose of facilitating the commission” of a crime “aids, abets or otherwise assists”; Article 25(3)(d), a person who participates by way of the JCE mode of liability; Article 25(3)(e), a person who “directly and publicly incites others to commit genocide”; and finally Article 25(3)(f) concerns a person who “attempts to commit” a crime. JCE is treated as a mode of liability which is separate from the traditional principal liability (“commission”) and accomplice liability (“aids and abets”).171 The explicit inclusion of the JCED as a mode of liability in the ICC Statute will avoid time and effort being spent by the ICC on assessing Defence submissions that the JCED is not covered by the word “commits” in Article 25(3)(a). Article 25(3)(d) makes it clear that JCE is a recognised mode of liability before the ICC. ICC JCE Mens Rea Elements are not Identical to the Tadiü Appeals Judgment JCE Mens Rea Elements The subjective (mens rea) elements of the JCED as provided for in the ICC Statute are not identical to those identified in the Tadiü Appeals Judgment and as confirmed by subsequent ICTY/ICTR jurisprudence.172 The consequences of such conclusion are discussed below. Firstly, attention is turned to how the mens rea elements of the JCED differ as between the ICC Statute and the Tadiü Appeals Judgment. Table 2 provides an overview of the mens rea criteria identified in the Tadiü Appeals Judgment and subsequent ICTY/ICTR jurisprudence and the ICC Statute. Table 2. Tadiü Appeals Judgment and ICC mens rea criteria. Mens rea criteria identified in the Tadiü Appeals Judgment and subsequent ICTY/ICTR jurisprudence 1. Co-perpetration cases Intent to perpetrate a certain crime (this being the shared intent on the part of all of the co-perpetrators). 2. “Concentration camp” cases (i) Personal knowledge of the system of ill-treatment. (This can be proved by (a) express testimony or by (b) a matter of reasonable inference from the accused’s position of authority in the camp or organisational hierarchy.) (ii) Intent to further this common concerted system of ill-treatment.

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See also infra section 3.5.2. See supra section 3.4.1.1.

Mens rea criteria identified in the ICC Statute

The ICC Statute does not distinguish between the various JCE categories and it does not appear to encompass JCE Category 3. (i) The accused’s actions shall be intentional and (ii) Either be made (a) With the aim of furthering the criminal activity or criminal purpose of the group, or (b) In the knowledge of the intention of the group to commit the crime. (Article 25(3)(d)) (Continued)

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3. Crimes committed outside the common purpose, e.g. mob violence cases

Article 30 is inconsistent with Article 25(3)(d) requiring intent and knowledge.

(i) Intention to participate in and further the criminal activity or purpose of a group and to contribute to the JCE, or in any event to the commission of a crime by the group. (ii) Responsibility for crimes falling outside the common plan only arises if (a) it was natural and foreseeable that criminal acts other than those envisaged in the common criminal design were likely to be committed by other participants in the common design and (b) the accused willingly took that risk.

As a starting point, the ICC Statute does not distinguish between the three JCE categories identified by the Tadiü Appeals Judgment. Secondly, the Tadiü Appeals Judgment determined that each JCE category has its own specific mens rea requirements and such determination has been adhered to by subsequent ICTY/ ICTR jurisprudence. However, the ICC Statute provides for the same mens rea requirements across the board. The mens rea elements identified in Article 25(3)(d) appear to be as follows: The accused’s actions shall be “intentional” and Either be made With the aim of furthering the criminal activity or criminal purpose of the group, or In the knowledge of the intention of the group to commit the crime.173

Clearly, these mens rea elements are not identical to those identified by the Tadiü Appeals Judgment. In addition, it is unclear how such requirements should be interpreted. For example, what does the term “intentional” in the second line of Article 25(3)(d) actually mean?174 If it is a requirement that the “contribution”175 of the accused be intentional, does that mean that the ICC Statute does not recognise the individual criminal responsibility of the individual in the circumstances of JCE Category 3, i.e. where the international crime committed was outside the common purpose of the group? In the author’s view, the answer is yes.176 It will 173 174

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176

See supra note 11. Emphasis added. For a consideration of what is meant by the term “intentional”, see Ambos, supra note 163, pp. 484–485. Ohlin posits that on a literal reading, it could be understood to mean “intentional, but not negligent” or “intentional, as opposed to merely accidental”. See supra note 46, p. 78. Does this mean the contribution of the accused to the actual crime committed or an intention to participate in and further the criminal activity or purpose of a group? See infra section 3.4.3.1. Van Sliedregt and Ambos are also of the view that Article 25(3)(d) does not encompass JCE Category 3 liability. See infra note 191 and infra section 3.4.3.1. (JCE Category 3 is not encompassed by the ICC Statute).

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be recalled that the Tadiü Appeals Judgment recognised that liability could arise under JCE Category 3 where the crime in question was not within the scope of the common purpose, but that it was natural and foreseeable that criminal acts other than those envisaged in the common criminal design were likely to be committed by other participants in the common design and the accused willingly took that risk. If the terms of the ICC Statute do not encompass all three categories of the JCED identified by the Tadiü Appeals Judgment, why not? Moreover, the wording of Article 25(3)(d) suggests that one can be held liable both where one’s contribution was intentional and (i) made with the aim of furthering the criminal activity/purpose of the group; or (ii) made in the knowledge of the intention of the group to commit the crime. There is a difference between one having mere knowledge of a group’s intention to commit a crime and one actually doing something with the aim of furthering the group’s criminal activity/purpose. Article 25(3)(d) treats both situations as equivalent. In addition, there are prima facie inconsistencies between the mens rea elements identified in Article 25(3)(d) and those provided for in Article 30 of the ICC Statute. Article 30 (mental element) states 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.177

While Article 25(3)(d) requires (a) intention and (b) that the contribution be made either (i) with the aim of furthering the criminal activity or criminal purpose of the group or (ii) in the knowledge of the intention of the group to commit the crime, Article 30 requires intent and knowledge. How are the two articles to be interpreted?178 What do the inconsistencies between the mens rea elements identified for 177

178

See supra note 11. Emphasis added. There are exceptions to the Article 30 requirements of intent and knowledge as set out in the ICC Elements of Crime, available at http://www.icc-cpi.int/library/about/officialhournal/Rules_of_procedure_and_Evidence _English.pdf (last visited 17 July 2007), which entered into force on 9 September 2002. See, for example, the comments to Article 6 (genocide) that “[n]otwithstanding the normal requirement for a mental element provided for in Article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case by case basis.” Gerhard Werle and Flovian Jessberger are of the view that the mental element requirements articulated in Article 30 of the ICC Statute, supra note 11, “depart significantly” from those found in other provisions of the ICC Statute, the ICC Elements of Crimes, ibid., and customary international law. They hold the view that Article 30 “should be

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the JCE mode of liability both within the ICC Statute itself and in relation to the jurisprudence of the ICTY and ICTR mean in real terms? Four issues spring to mind. Firstly, the lack of clarity and the apparent inconsistencies within the ICC Statute itself will hamper the efforts of the ICC Prosecutor to rely upon the JCE mode of liability and will lead to problems of interpretation before the ICC. How are such provisions to be interpreted by the ICC bench? How are the Prosecution and Defence supposed to present their case, when the basic principles of the JCED are unclear? This gives rise to the second, even more fundamental issue – the potential breach of the principle of legality, nullum crimen sine lege. Article 22 of the ICC Statute deals specifically with this issue. Subparagraph (1) provides “[a] person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court”. As noted by the ICTY Appeals Chamber in the Ojdaniü JCE Decision, a criminal conviction can only be based on a norm which existed at the time the act(s) or omission(s) with which the accused is charged were committed, the criminal liability in question must have been sufficiently foreseeable and the law providing for such liability must have been sufficiently accessible at the relevant time for it to warrant a criminal conviction.179 The Tadiü Appeals Judgment held that the JCED, and by implication, the mens rea and actus reus criteria of the JCED, is firmly established in customary international law. Can the same be said of the mens rea criteria identified in the ICC Statute? The ICC Statute seems to be introducing another set of rules which leads to confusion. It is questionable whether it can be said, that an accused had sufficient notice that if he took part in the commission of very serious criminal offences as part of a JCE, in the context of the mens rea elements identified in the ICC Statute, he could be found criminally liable on that basis (notwithstanding that the mens rea requirements identified in the ICC Statute are arguably less stringent than those identified in the Tadiü Appeals Judgment). It is also questionable whether it can be fair to expect an average individual to keep track of, to understand and to appreciate the subtle differences between the two sets of mens rea requirements laid down. Indeed, there seems no fairness or logic in an accused being potentially held liable under the JCE mode of liability before the ICC, when in the precisely same circumstances he would not be held liable before the ICTY (or vice versa).180 Such a consequence could result in the development of two diverging bodies of international criminal law.

179 180

interpreted as a default rule [due to the presence of the phrase “unless otherwise provided” in the opening sentence of Article 30(1)] that is applied only if there are no other specific rules on the mental element at all in either the other provisions of the ICC Statute, the Elements of Crimes or customary international law” (emphasis added). They note, in addition, that while Article 30 appears to establish a common mental element applicable to all crimes within the jurisdiction of the ICC, Article 30 actually raises more questions than it answers. See generally, Gerhard Werle and Florian Jessberger, “‘Unless Otherwise Provided’: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law”, 3 J. Int’l Crim. Jus. 35 (2005), pp. 35–55. See supra section 3.4.1.2. (Ojdaniü JCE Decision). That is, taking into account only the mens rea requirements of the JCED as articulated by the ICTY Statute, supra note 44, and the ICC Statute, supra note 11.

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 173

Thirdly, as noted above, as a matter of precedent, the ICC is not bound by the decisions of the ICTY or ICTR Chambers.181 Neither were the ICC parties under an obligation per se to incorporate the JCE mens rea and actus reus criteria articulated in the Tadiü Appeals Judgment into the ICC Statute. The legal basis of the ICC Statute is an international treaty and the parties thereto were free to determine the contents of such treaty. However, as noted above, the Tadiü Appeals Judgment determined that the JCED and by implication, the mens rea and actus reus criteria of the JCED, is firmly established in customary international law. Customary law and law made by international agreement have equal authority as international law. While parties may assign a higher priority to one over the other, some rules of international law are recognized by the international community as peremptory, permitting no derogation, for example, the nullum crimen sine lege principle (which is also expressly referred to in Article 22, ICC Statute). Such rules can be changed or modified only by a subsequent peremptory norm of international law. In addition, Article 21(b) includes within the applicable law of the ICC “the principles and rules of international law, including the established principles of the international law of armed conflict”, which appears to be a reference to customary international law.182 Of interest to this discussion is Article 10 of the ICC Statute which provides that “[n]othing in this Part [2 (Jurisdiction, Admissibility and Applicable Law)] shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute”. The purpose of such provision is to ensure that existing or developing law is not limited or prejudiced by the provisions of the ICC Statute. However, this Article 10 does not apply to Article 25(3) of the ICC Statute, which is situated in Part 3 (General Principles of Criminal Law) of the ICC Statute. Notwithstanding the absence of a legal obligation to follow the jurisprudence of the ad hoc international criminal tribunals, as noted by van Sliedregt, In any event, for the future of international criminal law it is important that the ICC incorporates the jurisprudence of the ad hoc Tribunals as much as possible, particularly when it qualifies as customary international law. This is to prevent a development of two diverging bodies of international criminal law: ICC criminal law and ICTY/ICTR criminal law.183

It remains to be seen how the ICC will deal with potential submissions by the Defence, in the future, that the subjective elements of the JCED as set out in Article 25(3)(d) are not identical to those identified in the Tadiü Appeals Judgment as forming part of customary international law. The jurisdiction of the ICC is limited by the terms of its Statute, so in theory, it is required to apply the terms of that statute. It may be though, that the ICC judiciary will make every attempt to ‘interpret’ the 181 182 183

See supra Chapter 2, section 2.4.5. See supra Chapter 2, section 2.4.3.1. See Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, T. M. C. Asser Press, The Hague, 2003, p. 115.

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terms of Article 25(3)(d), in the light of the ICTY/ICTR jurisprudence as much as possible.184 Although the international criminal courts are obliged to apply the terms of their statutes, they are each mandated to apply international criminal law. In the interests of justice, the orderly development of international criminal law, and the need for consistency, certainty and predictability, it is preferable that such courts ‘sing from the same hymn sheet’ and apply the same (version of the) law. Finally, if JCE Category 3 liability is not included within the scope of Article 25(3)(d) – which, in the author’s view, it is not – then there is a danger of inherent unfairness to the accused. In theory, the conduct of an individual could be criminal under JCE Category 3 liability before the ICTY/ICTR but precisely the same conduct would not be criminal in the context of the ICC. Why should criminal liability for a core international crime depend upon the international criminal court before which one appears? ICC JCE Actus Reus Elements are not Identical to the Tadiü Appeals Judgment JCE Actus Reus Elements Neither are the objective (actus reus) elements of the JCED as provided for in the ICC Statute identical to those identified in the Tadiü Appeals Judgment and as confirmed by subsequent ICTY/ICTR jurisprudence.185 Table 3 provides an overview of the actus reus criteria identified in the Tadiü Appeals Judgment and subsequent ICTY/ICTR jurisprudence and the ICC Statute. Table 3. Tadiü Appeals Judgment and ICC actus reus criteria. Actus reus criteria identified in the Tadiü Appeals Judgment and subsequent ICTY/ICTR jurisprudence 1. Co-perpetration cases (i) A plurality of persons, who need not be organised in a military, political or administrative structure. (ii) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the ICTY Statute. (iii) Participation of the accused in the common design involving the perpetration

Actus reus criteria identified in the ICC Statute The ICC Statute does not distinguish between the various JCE categories and it does not appear to encompass JCE Category 3. The actus reus of the JCED in the ICC Statute is unclear, but the following elements can be identified: (i) A plurality of persons (Article 25(3)(d), first sentence, second line) (ii) The existence of a common plan (Article 25(3)(d), first sentence, second line) (iii) Participation of the accused, including (Continued)

184

George P. Fletcher and Jens David Ohlin are opposed to the application of the JCED, as developed by the ICTY jurisprudence, before the ICC. They advocate the application of Article 25(3)(d) of the ICC Statute, supra note 11, before the ICC, as this is a “more precise statutory provision than the [ICTY] judicially created doctrine of joint criminal enterprise.” See George P. Fletcher and Jens David Ohlin, “Reclaiming Fundamental Principles of Criminal Law in the Darfur Case”, 3 J. Int’l Crim. Jus. 539 (2005), p. 549. 185 See supra section 3.4.1.1.

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 175 (note: attempted perpetration is not part of the actus reus) of one of the crimes provided for in the ICTY Statute. Such participation need not involve the commission of a specific crime in the Statute, e.g. murder or rape, but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.

participation on a very low level, “in any other way, contributes to…” (Article 25(3)(d), first sentence, first line) (iv) Participation of the accused in the commission or attempted commission of a crime (Article 25(3)(d), first sentence, first line)

2. “Concentration camp” cases Same as for JCE Category 1. 3. Crimes committed outside the common purpose, e.g. mob violence cases Same as for JCE Category 1.

As noted in Table 3, the actus reus criteria identified by the Tadiü Appeals Judgment are broadly speaking: (i) a plurality of persons, (ii) the existence of a common plan, design or purpose which amounts to or involves the commission of a crime and (iii) the participation of the accused in the common design involving the perpetration of one of the crimes. The actus reus criteria identified by the ICC Statute are unclear. The criteria of a plurality of persons and the existence of a common plan are also found in the ICC Statute. However, the level of participation required by the ICC Statute, arguably, at least on a literal interpretation, appears to be lower than that referred to in the Tadiü Appeals Judgment, i.e. “in any other way contributes to…”.186 In addition, Article 25(3)(d) provides for liability where a person 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. The inclusion of the attempted commission of a crime seems to go further than what is required by the actus reus criteria identified in the Tadiü Appeals Judgment and which has also been approved in other ICTY decisions. For example, in the Ojdaniü JCE Decision, the Appeals Chamber, when distinguishing conspiracy from JCE, noted that “a joint criminal enterprise requires… that the parties to that agreement took action in furtherance of that agreement” and “while mere agreement is sufficient in the case of conspiracy, the liability of a member of a joint criminal enterprise will depend on the commission of criminal acts in furtherance of that enterprise”.187 The Appeals Chamber in making these comments, referred to the statement of the United Nations War Crimes Commission188 that “the difference between a charge of conspiracy and one of acting in pursuance of a common design is that the first 186 187 188

Notwithstanding that the majority of the ICTY jurisprudence indicates a very low level of participation anyway. See infra section 3.7.1.8. See supra note 17, § 23. The UNWCC was established by the Allied powers in October 1943. Its mandate was to investigate and record Nazi crimes, to ensure war criminals were arrested and to aid in the preparation of indictments against war criminals, and to identify the legal basis for their punishment. It was dissolved in 1948.

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would claim that an agreement to commit offences had been made while the second would allege not only the making of an agreement but the performance of acts pursuant to it”.189 The JCED as specified in the Tadiü Appeals Judgment and in the subsequent ICTY/ICTR jurisprudence, arguably, only encompass circumstances where a person contributes to the commission of a crime by a group of persons acting with a common purpose, and not any attempted commission. The inconsistencies between the actus reus elements identified in the Tadiü Appeals Judgment and the ICC Statute again give rise to concerns of the breach of the principle of legality.190 JCE Category 3 not Encompassed by the ICC Statute As mentioned above, Article 25(3)(d) does not, in the author’s view, seem to encompass JCE Category 3.191 However, it could be argued that it is nonetheless included by virtue of Article 25(3)(a) which provides that a person shall be individually criminally responsible where he “commits” a crime. Both the jurisprudence of the ICTY and the ICTR interpreted the word “committed” as including all three categories of the JCED. Of course, it could, on the other hand, be argued that as the ICC Statute has made specific provision for the JCED by way of the inclusion of Article 25(3)(d), then Article 25(3)(a) should not be interpreted as including the JCED. In addition, the ICC is not bound by the jurisprudence of the ad hoc international criminal tribunals. Although this is accurate, there are, as noted above, other well-founded reasons why the ICC should try to adhere to the jurisprudence of the ad hoc international criminal tribunals. Cassese, while noting that as Article 25(3)(d) of the ICC Statute always requires ‘intent’ and accordingly excludes JCE Category 3, argues for a broad interpretation of the requirement in Article 25(3)(d), that one’s contribution be ‘intentional’.192 He argues that the ‘intent’ requirement should only apply to intent in relation to the JCE and not in relation to to any particular crime, e.g. a natural and 189 190

191

192

See Ojdaniü JCE Decision, supra note 17, at footnote 65. This thesis does not express a view on whether the JCED should, or should not, be extended to include the attempted commission of a crime. It merely seeks to emphasise that the ICC Statute definition, by including the attempted commission of a crime within its definition of the JCE mode of liability is broader than the JCE mode of liability identified in ICTY/ICTR jurisprudence. Van Sliedregt and Ambos hold the same view. See van Sliedregt, supra note 146, p. 96 and supra note 183, pp. 107–109 and Kai Ambos, “Remarks on the General Part of International Criminal Law”, 4 J. Int’l Crim. Just. 660 (2006), pp. 672–673 and Ambos, supra note 146, pp. 172–176. Ambos posits moreover, that neither does Article 25(3)(d) encompass JCE Category 2, firstly because Article 25(2)(d)(ii) requires knowledge, whereas Ambos takes the view that mere foreseeability is sufficient for JCE Category 2 and secondly, because the JCED resembles the doctrine of conspiracy, which was specifically rejected by the drafters of the ICC Statute. See Ambos, supra note 146, pp. 172–173. The author disagrees, firstly, because mere foreseeability is not sufficient to satisfy the mens rea elements of JCE Category 2 (see supra Table 1) and secondly, because while the JCED has its roots in the conspiracy doctrine, the doctrines are not the same. The former is a mode of liability, while the latter is a crime (see infra section 3.5.3). Cassese, supra note 4, p. 132.

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 177

foreseeable crime outside the JCE. Moreover, he argues that the notion of ‘knowledge’ in Article 25(3)(d)(ii) “… could well cover that of ‘foresight’ and ‘voluntary taking of the risk’ of a criminal action by one or several members of the group.”193 In the author’s view, however, Cassese’s interpretation of ‘knowledge’ is too farfetched and if the ICC Statute is to include JCE Category 3, then explicit provision should be made for it in the ICC Statute. Interestingly, the documents issued by the ICC organs, to date, do not employ the term ‘joint criminal enterprise’, which is the preference of the ICTY, when discussing the CPD/JCED. They have instead reverted to the employment of the term ‘common purpose’ or ‘common goal’.194 Bearing in mind the rationale behind the employment of the ‘joint criminal enterprise’ term by the ICTY instead of the ‘common purpose’ terminology,195 the reversion to the ‘common purpose’ terminology could conceivably be an indication that the ICC organs do not consider Article 25(3)(d), or Article 25(3)(a) for that matter, as encompassing JCE Category 3. In any case, it remains to be seen to what extent, and in accordance with what provision, if appropriate, the ICC will interpret the ICC Statute as encompassing JCE Category 3 as a mode of liability. 3.4.3.2 Future Employment of the JCED Before the ICC Although, the ICC has not handed down any final judgments yet, it is clear from the pre-trial proceedings currently under way, that the ICC Prosecutor is already making extensive use of the JCE, or more accurately, as noted above, the CPD mode of liability. Explicit reliance on the CPD can be found in the documents charging Thomas Lubanga Dyilo (Democratic Republic of the Congo).196 More over, the Prosecutor’s application under Article 58(7) of the ICC Statute, requesting Pre-Trial Chamber I to issue a summons for Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Kushayb (Darfur, Sudan) also refers to the accused having committed the crimes alleged, “as part of a group of persons acting with a common purpose”.197 It is very likely that the ICC will frequently have to consider the CPD in the future.198 193 194

195 196 197

Ibid. See, e.g., Situation in the Democratic Republic of the Congo in the Case of The Prosecutor vs Thomas Lubanga Dyilo, Case No.: ICC-01/04-01/06, Submission of the Document Containing the Charges pursuant to Article 61(3)(a) and of the List of Evidence Pursuant to Rule 121(3), Pre-T. Ch. I, 28 August 2006 and Situation in Darfur, The Sudan, Case No.: ICC—02/05, Prosecutor's Application under Article 58(7), Pre-T. Ch. I, 27 February 2007, both available at http://www.icc-cpi.int/cases.html (last visited 15 March 2007). See supra section 3.2. See supra note 194. Out of the 51 counts identified, 41 counts specifically refer to the CPD mode of liability being employed in the commission of the crimes alleged. The employment of the CPD by the Prosecutor in this case is not unexpected, bearing in mind the extensive reliance on the JCED by the International Commission of Inquiry on Darfur. See Report of the

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3.4.4 Draft Code of Crimes Against the Peace and Security of Mankind The Draft Code of Crimes does not specifically refer to the terms “common purpose” or JCE. Instead, it provides for an individual to be responsible for the crime of aggression, crimes against humanity, crimes against UN and associated personnel and war crimes if he “directly participates in planning or conspiring to commit such a crime which in fact occurs”.199

3.4.5 Special Court for Sierra Leone Article 6(1) of the Statute of the SCSL contains an almost identical provision to Article 7(1) of the ICTY Statute.200 Accordingly, it does not expressly provide for the JCE mode of liability, but the court has determined that “… the verb “commit” is sufficiently protean in nature to include participation in a joint criminal enterprise to commit the crime.”201 In reaching this conclusion, the court noted that the ICTY and ICTR have routinely applied the JCED in their jurisprudence.202 The JCE theory of liability is already playing a substantial role before the SCSL. Each of the current outstanding indictments before the SCSL charges the accused with JCE liability. For example, the consolidated indictment against the Revolutionary United Front (RUF) (Issa Hassan Sesay, Morris Kallon and Augustine Gbao) charges the accused with having participated in a JCE, the purpose of which was “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, available at http://www.icc-cpi.int/cases.html (last visited 15 March 2007), §§ 538-546. See also the Warrants of Arrest for Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Kushayb, dated 1 May 2007, available at http://www. icc-cpi.int/cases/Darfur.html (last visited 1 August 2007). Pre-Trial Chamber I of the ICC decided to issue warrants of arrest, instead of the requested summons to appear, as it was not satisfied that the accused would appear before the ICC if the summons to appear were issued. 198 This is particularly the case as regards crimes committed in Darfur, Sudan. The Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral Pursuant to Security Council Resolution 1564 of 18 September 2004, ibid, identified various Sudanese government officials as having engaged in a JCE. 199 Emphasis added. Draft Code of Crimes, supra note 12, Article 2(3)(e). 200 See SCSL Statute, supra note 13. 201 Prosecutor v Moinina Fofana and Allieu Kondewa, Case No.: SCSL-04-14-T, T. Ch. I, Judgment, 2 August 2007 (“Fofana Trial Judgment”), § 208. 202 Ibid. The SCSL is not obliged to apply the jurisprudence of the ICTY/ICTR. However, the SCSL does so, arguably, for its ‘persuasive authority’ and because the SCSL and the ad hoc international criminal tribunals are each part of the same system of international criminal justice. See supra Chapter 2, section 2.4.5.1. (Case law of the ad hoc international criminal tribunals and the SCSL).

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 179

mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.” The indictment, moreover, charges the accused inter alia with the crimes of unlawful killings, abductions, forced labour, physical and sexual violence, use of child soldiers, looting and burning of civilian structures and such crimes “were either actions within the joint criminal enterprise or were a reasonably foreseeable consequence of the joint criminal enterprise”.203 In addition, the Charles Ghankay Taylor and Johnny Paul Koroma individual indictments charge the accused with JCE liability.204 The consolidated indictment against the Armed Forces Revolutionary Council (AFRC) (Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu) likewise charged the accused with having participated in a JCE, in terms similar to the RUF consolidated indictment. However, the SCSL refused to permit the Prosecution to rely on the JCE mode of liability, as it determined that such mode of liability had been defectively pleaded in the indictment; primarily because the common purpose alleged in the indictment, that is “to take any actions necessary to gain and exercise political control over the territory of Sierra Leone, in particular the diamond mining areas”, is not a criminal purpose recognised in the SCSL Statute.205 In the most recent judgment of the SCSL against the Civil Defence Forces’ (CDF) accused, the SCSL held that although on the evidence adduced, it appeared that the accused and their subordinates may have acted in concert with each other, there was no evidence that they did so in order to further a JCE and there was no evidence proving such JCE beyond reasonable doubt. Accordingly, although the accused were found individually criminally responsible under Article 6(1) in relation to some charges, they were not held accountable as JCE coperpetrators.206

203

204

205

206

Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Case No.: SCSL2004-15-PT, Corrected Amended Consolidated Indictment, 2 August 2006, §§ 34-38. As regards the formulation of the JCE in the indictment see infra note 205. See Prosecutor v Charles Ghankay Taylor, Case No.: SCSL-03-01-I-001, Amended Indictment, 16 March 2006 and Prosecutor v Johnny Paul Koroma, Case No.: SCSL2003-03-I, Indictment, 3 March 2003. The whereabouts of Johnny Paul Koroma are unknown; nevertheless the indictment against him remains in force. The two individual indictments against Foday Saybana Sankoh and Sam Bockarie, which were withdrawn due to the deaths of the accused, also charged JCE liability. See Prosecutor v Foday Saybana Sankoh, Case No.: SCSL-2003-02-I-001, Indictment, 3 March 2003 and Prosecutor v Sam Bockarie, Case No.: SCSL-2003-04-I, Indictment, 3 March 2003. See Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No.: SCSL-04-16-T, Judgment, T. Ch. II, 20 June 2007 (“Brima Trial Judgment”), §§ 56-85, 515, 778, 1639 and 1668. See Fofana Trial Judgment, supra note 201, §§ 732, 744, 770, 804, 825, 851, 859, 865, 908, 915, 930, 939, and 949. See generally, ibid., §§ 721–973. Samuel Hinga Norman was originally one of the CDF accused. However, he died on 22 February 2007 and the proceedings against him were determined as a result. Ibid., §§ 4–8 and 13–14.

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3.4.6 Supreme Iraqi Criminal Tribunal Article 15(2)(d) of the Law of the Supreme Iraqi Criminal Tribunal explicitly recognises the JCED as a separate mode of liability, in terms similar to Article 25(3)(d) of the ICC Statute.207

3.4.7 US Military Commission 208 As noted in Chapter 2, the Military Commissions Act (“MCA”), which authorises the US President to establish military commissions to try “alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission”, was signed into law by President George Bush on 17 October 2006.209 The MCA does not specifically define the JCED/CPD as an applicable mode of liability before a military commission. However, the MCA provisions dealing with the modes of liability to be applied before the military commissions defines a principal as a person who “commits an offence… or aids, abets, counsels, commands, or procures its commission”,210 language which is, of course, similar to Article 7(1) of the ICTY Statute. Moreover, the MCA includes within its definition of the crimes

207

208

209

210

See supra note 14. Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (i.e. the Special Panels for Serious Crimes of the District Court of Dili, (East Timor)) dated 6 June 2000, UNTAET/REG/ 2000/15, available at http://www.un.org/peace/etimor/UntaetN.htm (last visited 23 March 2007), duplicates the provisions of Article 25(3)(d) of the ICC Statute, supra note 11, thus expressly recognising the JCED as a separate mode of liability. Ibid., section 14.3(d). The Statute of the Special Tribunal for Lebanon also adopts a similar approach. See Article 3(1)(b), Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, annexed to S.C. Res. 1757, U.N. SCOR, 58th Sess., 5685th mtg., U.N. Doc. S/RES/1757 (30 May 2007). The Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, signed on 10 August 2001, available at http://www.derechos.org/human-rights/seasia/doc/krlaw.html (last visited 23 March 2007) does not specifically provide for the JCE mode of liability, but employs terms similar to Article 7(1) ICTY Statute, supra note 44, formulation. For an evaluation of the status of the jurisprudence of the US Military Commission in relation to the JCED, i.e. as a source of international criminal law, or otherwise, see supra Chapter 2, section 2.4.2.4 (Judicial decisions of the US Military Commission). See MCA, available at http://www.defenselink.mil/news/commissionsacts.html (last visited 23 March 2007), section 3(a)(1), inserting inter alia § 948b(a) into the US Uniform Code of Military Justice (“UCMJ”), available at http://www.au.af.mil/au/awc/ awcgate/ucmj.htm. See supra Chapter 2, section 2.4.2.4 (Judicial decisions of the US Military Commission). Ibid., inserting § 950q.(1) into the UCMJ.

3.4 The JCED Before the Ad Hoc Tribunals and as Contained in Other Instruments 181

triable by a military commission, the crime of conspiracy.211 The Manual for Military Commissions specifies the elements of the crime of conspiracy as follows: (1)The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission; (2)The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined wilfully, that is, with the intent to further the unlawful purpose; and (3)The accused knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise.212

Clearly, the CPD language is being employed here, although its precise meaning is confusing from the perspective of international criminal law, as it appears to merge the separate concepts of the CPD (a mode of liability) and conspiracy (a crime).213 The language of the Notifications of the Swearing of Charges before the current military commission in relation to detainees Omar Ahmed Khadr and Salim Ahmed Hamdan also adopts this mixed approach, charging the detainees with the crime of conspiracy, but employing, in part, the language of the CPD.214 For example, Omar Ahmed Khadr is charged with “… wilfully join[ing] an enterprise of persons who shared a common criminal purpose, said purpose known to the accused …” and in this context having agreed and conspired to commit certain crimes.215 This ’merging’ of concepts was also evident and criticised in the constitutive documents of the now defunct military commissions established in accordance with US Presidential Military Order of 13 November 2001.216 211 212

213 214

215 216

Ibid., inserting § 950v.(28) into the UCMJ. The Manual for Military Commissions, 18 January 2007, available at http://www. defenselink.mil/news/commissionsmanual.html (last visited 23 March 2007), pp. IV20-IV-22. Emphasis added. See infra section 3.5.3. See Notification of the Swearing of Charges, Omar Ahmed Khadr, 2 February 2007, § 27 and Notification of the Swearing of Charges, Salim Ahmed Hamdan, 2 February 2007, § 15; see also Referred Charges, Omar Ahmed Khadr, 24 April 2007, Charge 3 and Referred Charges, Salim Ahmed Hamdan, 10 May 2007, Charge 1; all available at www.defenselink.mil/news/commissions.html (last visited 1 August 2007). Notification of Swearing of Charges, Omar Ahmed Khadr, ibid., § 27. Emphasis added. Military Order of November 13, 2001 – Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism”, available at www.dtic.mil/whs/directives/ corres/mco.htm (last visited 1 December 2004). See, for example, the Department of Defence, Military Commission Instruction No. 2 (“MCI No. 2”), issued in accordance with the PMO, which inter alia provided guidance with respect to the crimes which could be tried by the now defunct military commissions and the modes of liability recognised before them, mixed the conspiracy doctrine and the CPD/JCED together. See Department of Defence, Military Commission Instruction No. 2, “Crimes and Elements for Trials by Military Commission”, 30 April 2003, available at http://www.dtic.mil/

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Bearing in mind the apparent merging of the conspiracy and CPD concepts before the US military commissions, any military commission judgments dealing with these concepts in the future will, arguably, be of limited value, in the context of international criminal law, as the CPD concept employed by the military commissions appears to be a different creature to that employed by the ad hoc international criminal tribunals, the ICC and the SCSL. However, notwithstanding this conclusion, the presence of the JCED in both the constitutive documents and in a number of the indictments issued to date by the US Military Commission is still worthy of comment, as it indicates the role which the JCED currently plays in relation to the adjudication of an international crime, terrorism, albeit in a domestic setting.

3.5

Distinguishing the JCE Concept from Other Modes of Liability/Crimes

3.5.1 Relevance of Making the Distinction There is much confusion surrounding the JCE concept because of its prima facie similarity to the aiding and abetting mode of liability, the conspiracy concept and the membership of a criminal organisation concept, as those terms are understood in international criminal law.217 As will be demonstrated below, the JCE concept

217

whs/directives/corres/mco.htm (last visited 19 November 2004), section 6(C) and section 6(C)(6)(a). The lawyers of David M. Hicks, who was originally charged with the crime of conspiracy (which was described, in part, by the employment of the CPD language), argued that MCI No. 2 represented an attempt to take the inchoate offense of conspiracy and “improperly merge” it with the CPD theory of liability and that the CPD theory of liability was separate from the crime of conspiracy. A similar view was also articulated in the Brief of Amici Curiae Professors Danner and Martinez in support of Salim Ahmed Hamdan. The Brief argued that conspiracy and the JCE mode of liability are distinct from one another and that as JCE is not a substantive crime, it could not provide a basis for the US assertion that conspiracy to commit attacks on civilians, murder by an unprivileged belligerent, and terrorism constituted a violation of the international law of armed conflict or international criminal law. See United States of America v. David Matthew Hicks, Indictment, attached to US Department of Defense News Release, 10 June 2004, available at www.defenselink.mil/ news/Jun2004/ d20040610cs.pdf (last visited 11 June 2004), § 19; United States of America v David Hicks, “Defence Reply on Motion to dismiss Charge 1 [Conspiracy] for Failure to State an Offense Triable by Military Commission”, 26 October 2004, available at http:// www.defenselink.mil/news/Oct2004/d20041027state.pdf (last visited 5 March 2005); Salim Ahmed Hamdan v. Donald H. Rumsfield, U.S. Secretary of Defense et Al., Brief of Amici Curiae Professors Allison Marston Danner and Jenny S. Martinez in support of Petitioner-Appellee Salim Ahmed Hamdan and Affirmance of the Decision of the District Court, 27 December 2004, available at http://www.law. georgetown.edu/faculty/ nkk/documents/dannermartinezamicus.pdf (last visited 1 March 2005); and Danner and Martinez, supra note 37, pp. 118 and 159–166. This thesis is not concerned with the meaning attaching to these expressions outside international criminal law. It should be noted that the JCE mode of liability is also

3.5 Distinguishing the JCE Concept from Other Modes of Liability/Crimes 183

is a separate mode of liability in its own right and in the author’s view, the JCE mode of liability is not a form of aiding and abetting in the context of the ICTY and ICTR Statutes and jurisprudence.218 Neither is the JCED a form of, the conspiracy concept or the membership of a criminal organisation concept, notwithstanding that the origins of the JCED are to be found in such concepts.

3.5.2 Aiding and Abetting In the context of the ICTY and ICTR Statutes and jurisprudence, aiding and abeting and the JCED are two separate and distinct modes of liability.219 This has been emphasised by a number of decisions of the ICTY. The Furundzija Trial Judgment distinguished the two modes of liability in the following terms: In sum, the Trial Chamber holds the legal ingredients of aiding and abetting in international criminal law to be the following: the actus reus consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime. The mens rea required is the knowledge that these acts assist the commission of the offence. This notion of aiding and abetting is to be distinguished from the notion of common design, where the actus reus consists of participation in a joint criminal enterprise and the mens rea required is intent to participate.220

The Tadiü Appeals Judgment gave an even more detailed description of the differences between the two modes of liability: In light of the preceding propositions it is now appropriate to distinguish between acting in pursuance of a common purpose or design to commit a crime, and aiding and abetting. (i)The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.

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distinguishable from command responsibility, primarily, because the latter requires the existence of a superior-subordinate relationship. Generally speaking, in accordance with the command responsibility doctrine, a military superior or a civilian leader is individually criminally responsible for the acts committed by his subordinates if he knew or had reason to know that the subordinates were about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. See Kriangsak Kittichaisaree, International Criminal Law, Oxford University Press, Oxford, 2001, pp. 251–257 and Danner and Martinez, supra note 37, pp. 120–131. For a discussion as to whether Article 25(3)(c) (aiding and abetting) of the ICC Statute, supra note 11, encompasses the JCE mode of liability, see infra section 3.7.1.4. Although, see the discussion infra section 3.6.1.4 as regards the mode of liability described as “aiding and abetting a joint criminal enterprise” (which is different from the classic “aiding and abetting” mode of liability). See supra note 85, § 249.

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(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal. (ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the accomplice’s contri-bution. (iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose. (iv) In the case of aiding and abetting, the requisite element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e. either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above.490

Although some of the circumstances envisaged to be encompassed by the JCE mode of liability could arguably fit within the aiding and abetting mode of liability as articulated in the ICTY/ICTR Statutes and interpreted by the ICTY/ICTR, there are clear differences between the two modes of liability. As will be seen below, these differences are less obvious in the context of the aiding and abetting mode of liability articulated in the ICC Statute.222

3.5.3 Conspiracy 223 Generally speaking, conspiracy, as that concept is traditionally understood in international criminal law, requires an agreement between two or more parties to 221

222

223

See Tadiü Appeals Judgment, supra note 16, § 229 and last sentence of § 223. See also Furundžija Trial Judgment, supra note 85, § 216; Kvoþka Appeals Judgment, supra note 59, §§ 87-92; Prosecutor v Fatmir Limaj, Haradin Bala & Isak Musliu, Case No.: IT-03-66-T, Judgment, T. Ch. II, 30 November 2005 (“Limaj Trial Judgment”), § 510; and Prosecutor v Mitar Vasiljeviü, Case No.: IT-98-32-A, Judgment, App. Ch., 25 February 2004 (“Vasiljeviü Appeals Judgment”), §§ 93–102. See infra section 3.7.1.10. Ambos is critical of the practical effect of the distinction between the JCED and aiding and abetting: “… if one takes the objective distinction of the [Tadiü] Appeals Chamber literally, an aider and abettor would do more than a co-perpetrator; the aider and [abettor] carries out substantial acts ‘specifically directed’ to assist in the perpetration of the (main) crime, while the co-perpetrator must only perform acts (of any kind) that ’in some way’ are directed to the furthering of the common plan or purpose. This turns the traditional distinction between co-perpetration and aiding and abetting (the distinction as to the weight of the contribution, which must be more substantial in the case of co-perpetration) on its head.” See Ambos, supra note 146, p. 171. While this is accurate, this imbalance is, arguably, offset by the fact that liability under the JCED requires a criminal plan or common design, which requirement does not form part of the actus reus of aiding and abetting. See supra section 3.3.

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commit a crime, regardless of whether such crime is actually committed or not.224 There is much confusion as regards the connection, if any, between the JCE concept and the conspiracy concept. The terminology used in the IMT indictments and judgment contributed to the confusion by using the terms interchangeably.225 For example, Count One of the IMT indictment is entitled “The Common Plan or Conspiracy”, suggesting that the terms are synonymous, or are, at the very least, similar to one another. The IMT judgment also frequently uses the expression “Common Plan or Conspiracy”. As will be shown below, the concepts are not identical but are each a distinct concept in its own right. Notwithstanding that the concepts are different legal creatures, the conspiracy concept was one of the founding bases of the JCED. As a starting point, attention will be paid to the conspiracy concept in the context of the IMT Charter and judgment. As mentioned above,226 the introduction of the conspiracy concept by the American proposal resulted in much opposition. Notwithstanding this controversy, the conspiracy concept was retained in the IMT Charter. Article 6 provides The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing, (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. 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.227

224 225

226 227

See Ojdaniü JCE Decision, supra note 17, § 23. The reference to a common plan in Article 6(a) seems to have been “a compromise to the continental unfamiliarity with conspiracy as a legal concept”. See van Sliedregt, supra note 183, p. 18. See supra section 3.3. See supra note 31. Emphasis added.

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The final outcome of such drafting was that only participation in a conspiracy for the perpetration of a crime against the peace could be prosecuted. Similar conspiracy provisions were not included in the definitions of war crimes or crimes against humanity.228 This is the case, notwithstanding the positioning of the final general paragraph of Article 6. The provision of this final paragraph only applies to crimes against the peace. Count One of the indictment of the defendants before the IMT charged, however, not only conspiracy to commit crimes against the peace, but also conspiracy to commit war crimes and crimes against humanity.229 However, as noted in the judgment of the IMT, … the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides [reference to the last paragraph of Article 6]… In the opinion of the Tribunal, these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count One that the defendants conspired to commit war crimes and crimes against humanity, and will consider only the common plan to prepare, initiate and wage aggressive war.230

The IMTFE Charter and CCL No. 10 also only criminalised conspiracy in the context of crimes against peace.231

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As noted by Pomorski, supra note 22, “[t]here is neither substantive, legal nor tactical justification for the lopsided structure adopted by the Charter. One is at a loss to understand why conspiracy to prepare an aggressive war should be a crime per se while conspiracy to set up a death camp should not be”. Ibid., p. 222. The American prosecution team was responsible for preparing the case for the conspiracy and membership of criminal organisations charges before the IMT. Apparently, Chief US Prosecutor at Nuremberg, Robert Jackson advised his staff that the other powers had agreed that the Americans should prepare a case for the conspiracy charge in relation to not only crimes against the peace (which was in accordance with the terms of the IMT Charter, supra note 31) but also in relation to crimes against humanity and war crimes (which were not defined in the IMT Charter to include participation in a conspiracy for the perpetration of crimes against humanity or war crimes). See Pomorski, supra note 22, pp. 227–238. Pomorski states “… it appears that Robert Jackson made a deliberate decision to expand the conspiracy charges beyond the scope authorized by the Charter in order to retain the ground lost at the London Conference.” Ibid., p. 228. See Judgment of the International Military Tribunal for the Trial of German Major War Criminals, 14 Nov. 1945 – Oct. 1946 (“IMT Judgment”), available at http:// www.yale. edu/lawweb/avalon/imt/proc/judgen.htm (last visited 6 March 2007). See Charter of the International Military Tribunal for the Far East dated 19 January 1946, as amended on 26 April 1946; TIAS 1589, available at http:// www.yale.edu/ lawweb/avalon/imtfech.htm (last visited 17 July 2007), Article 5 and Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, 3 Official Gazette Control Council for Germany 50–55 (1946) available at http://www1.umn.edu/humanrts/instree/ccno10.htm (last visited 17 July 2007), Article II.

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On the whole, the comments of the IMT on the concept of conspiracy are quite limited. The judgment does not even provide a definition of the conspiracy concept. It did note the Prosecution’s assertion that any “significant participation in the affairs of the Nazi Party or Government” is evidence of participation in a conspiracy that is in itself criminal. However, it also noted that although conspiracy was not defined in the IMT Charter, in the Tribunal’s view, the conspiracy … must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a party programme, such as are found in the twenty five points of the Nazi Party… or the political affirmations expressed in “Mein Kampf ”… The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan.232

It also rejected the argument that a conspiracy cannot exist in the presence of a dictatorship, noting A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it. Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen, military leaders, diplomats, and business men. When they, with knowledge of his aims, gave him their co-operation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them if they knew what they were doing… The relation of leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organised domestic crime.233

All 22 indictments before the IMT contained charges on Count 1 i.e. “The Common Plan or Conspiracy” to commit crimes against the peace, war crimes and crimes against humanity. However, only eight of the defendants were held to be guilty of a conspiracy to commit crimes against the peace.234 How is the concept of conspiracy different from the JCED?235 In the Ojdaniü JCE Decision, the Defence submitted that the concept of conspiracy “is precisely the basis of liability for joint criminal enterprise”; that where suggestions were made in the UN Security Council that the ICTY Statute should include conspiracy as a form of liability, these suggestions were rejected; and that where the drafters of the ICTY Statute wanted to include conspiracy as a form of liability, they did so 232 233 234 235

See IMT Judgment, supra note 230. Ibid. Göering, Hess, Jodl, Keitel, Raeder, Ribbentrop, Rosenberg and von Neurath. See IMT Judgment, supra note 230. Fletcher and Ohlin assert that “[t]he doctrine of joint criminal enterprise is the law of conspiracy dressed up in the jargon of modern economic activity. Joint enterprises were thought to be the Communist path to economic collaboration with the West. Now the West has appropriated the term and its prestige to impose a dubious form of criminal liability.” See Fletcher and Ohlin, supra note 184, p. 548.

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expressly, for example, in Article 4(3)(b) (conspiracy to commit genocide).236 The Appeals Chamber, in rejecting the submissions of the Defence noted The Defence’s argument that the drafters’ exclusion of “conspiracy” from the Statute is evidence that joint criminal enterprise has also been excluded is likewise misguided. Joint criminal enterprise and “conspiracy” are two different forms of liability. Whilst conspiracy requires a showing that several individuals have agreed to commit a certain crime or set of crimes, a joint criminal enterprise requires, in addition to such a showing, that the parties to that agreement took action in furtherance of that agreement. In other words, while mere agreement is sufficient in the case of conspiracy, the liability of a member of a joint criminal enterprise will depend on the commission of criminal acts in furtherance of that enterprise. Thus, even if it were conceded that conspiracy was excluded from the realm of the Tribunal’s Statute, that would have no impact on the presence of joint criminal enterprise as a form of “commission” pursuant to Article 7(1) of the Statute.237

Conspiracy is a crime in its own right, while the JCED is a mode of liability which attaches to substantive offences. It is not a crime in its own right. This distinction is reflected in the provisions of the ICC Statute.238

3.5.4 Membership of a Criminal Organisation239 There is also confusion as regards the JCE concept and the concept of membership of criminal organisations, as that term is understood in international criminal law, because the JCE concept has been/is frequently applied to persons who are members of a criminal organisation. In addition, the “common purpose” terminology is used in the context of references to membership of a criminal organisation. This gives rise to the following questions: Is the JCE concept the same as the concept of membership of a criminal organisation? How do the two concepts coincide? If they are not identical, is there an overlap between them? In order to answer these

236 237

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See Ojdaniü JCE Decision, supra note 17, § 14. Emphasis added and footnotes omitted. See Ojdaniü JCE Decision, supra note 17, § 23. See also the separate opinion of Judge Hunt in the Ojdaniü JCE Decision, ibid., §§ 22–24. See supra section 3.4.3. See also Richard P. Barrett and Laura E. Little, “Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in International Tribunals”, 88 Minn. L. Rev. 30 (2003) who argue that the conspiracy concept is a “robust alternative” to JCE liability. Despite the differences between the conspiracy and JCE concepts however, Jens Meierhenrich argues that “[a]s important as these differences are, they should not distract from underlying similarities, conceptual and functional, between conspiracy and joint criminal enterprise.” See Jens Meierhenrich “Conspiracy in International Law”, 2 Annual Review of Law and Social Science 341 (2006), p. 351. See also Bogdan, supra note 58, pp. 112–115. See generally, Robert K. Woetzel, The Nuremberg Trials in International Law with a Postlude on the Eichman Case, Stevens & Sons Limited, London and Frederick A. Praeger Inc., New York, 1962, pp. 190–217 and Pomorski, supra note 22, pp. 238–246.

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questions, attention needs to be given to the concept of membership of a criminal organisation. The concept of criminalising membership of a criminal organisation, which was embraced by Bernays’ plan,240 was first suggested by the French delegation in the sub-committee for war crimes.241 The delegation proposed that in order to deal with mass crime a presumption of guilt (i.e. reversing the onus of proof) be applied and secondly that individuals should be held criminally responsible for their membership of a criminal organisation.242 The former proposal was not implemented in the provisions of the IMT Charter. The IMT Charter makes numerous references to members of organisations. The opening sentence of Article 6 provides that the IMT … shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed… [crimes against peace, war crimes and/or crimes against humanity]243

This sentence, without more, merely highlights that individuals who happen to be members of organisations can also be tried for international crimes. It does not criminalise membership of criminal organisations, nor can it be interpreted as a reference to the JCE concept. Article 9, paragraph 1 provides that … at the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

Article 10 continues any Signatory shall have the right to bring [the] individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.244

It is important to note that the IMT did not find any of the defendants guilty of the crime of membership of an organisation, as such crime never fell within its subject-matter jurisdiction. The IMT Charter only authorised the Tribunal to declare an organisation criminal. It was then up to the national, military or occupation courts 240 241 242 243 244

See supra section 3.3. See UNWCC, History of the United Nations War Crimes Commission and the Development of the Laws of War, London, 1948, p. 294. See van Sliedregt, supra note 183, p. 21. See supra note 31. Emphasis added. Emphasis added. The IMTFE Charter, supra note 231, did not contain provisions similar to Articles 9 and 10 of the IMT Charter, supra note 31. Its only reference to members of organisations was in Article 5, which provided, “[t]he Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offences which include Crimes against Peace” (emphasis added). In any event, no Japanese organisations or groups were indicted before the IMTFE. See Woetzel, supra note 239, p. 229.

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of signatories to the IMT Charter to prosecute individuals for the crime of membership of an organisation declared to be criminal by the IMT.245 Even though the function of the IMT in this connection was merely declaratory and not prosecutorial, the IMT was understandably concerned that innocent persons should not be punished for the crime of membership. It held [t]he Tribunal is vested with discretion as to whether it will declare any organisation criminal. This discretion is a judicial one and does not permit arbitrary action, but should be exercised in accordance with well settled legal principles one of the most important of which is that criminal guilt is personal and that mass punishments should be avoided. If satisfied of the criminal guilt of any organisation or group this Tribunal should not hesitate to declare it to be criminal because the theory of “group criminality” is new, or because it might be unjustly applied by some subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible in a manner to ensure that innocent persons will not be punished. A criminal organisation is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organised for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to organisations and groups will… fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organisation and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organisation. Membership alone is not enough to come within the scope of these declarations.246

The criminalisation of membership of a criminal organisation was originally designed to make the prosecution of large numbers of individuals (with its inherent evidentiary and procedural problems) easier. However the requirements laid down in the IMT Judgment proved counterproductive to these intentions, requiring on behalf of each accused, knowledge of the criminal purposes or acts of the organisation and voluntary membership of the organisation in question. The IMT declared the following groups/organisations to be criminal: The Leadership Corps of the Nazi Party, the Gestapo (Die Geheime Staatspolizei), the SD (Die Sicherheitsdienst des Reichsführer SS) and the SS (Die Schutzstaffeln Der Nationalsocialistischen Deutschen Arbeiterpartei), while it determined that the SA (Die Sturmabteilungen der Nationalsozialistischen Deutschen Arbeiterpartei) the Reich Cabinet and the General Staff and High Command were not criminal organisations.247 245

246 247

As neither Denmark nor Norway was a signatory to the IMT Charter, supra note 31, (although they did each express adherence to the IMT Charter), this provision had no application in relation to the prosecutions conducted before domestic courts in Denmark and Norway after the war. See, however, also infra note 249. See IMT Judgment, supra note 230. The SA was not declared criminal as the IMT held that it could not be said that its members generally participated in or even knew of the criminal acts in question. The Reich Cabinet was also not declared criminal as it was not shown that after 1937 it really ever acted as a group or organisation and because the small number of people

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CCL 10 specifically recognised as a crime “membership in categories of a criminal group or organization declared criminal by the International Military Tribunal” which crime was punishable by death.248 Relying on the declarations of the IMT, many lower lever Nazis were prosecuted in accordance with this CCL 10 provision by Great Britain and the United States.249 Having considered the concept of membership of a criminal organisation, as that term is understood in international criminal law, the questions posed at the beginning can be answered in the following terms: The current JCE concept and the concept of membership of a criminal organisation are different creatures.

248 249

potentially involved could conveniently be tried in ordinary cases, without requiring resort to a declaration that the Reich Cabinet was criminal. The reasoning for not declaring the General Staff and High Command criminal was due to the small number of persons involved and because the General Staff and High Command did not constitute a group or organisation for the purposes of Article 8, IMT Charter, supra note 31. See Woetzel, supra note 239, pp. 198–199. CCL 10, supra note 231, Articles II(1)(d) and II(3)(a). See van Sliedregt, supra note 183, p. 26. See also Woetzel, supra note 239, pp. 190– 244. Neither Denmark nor Norway relied on this CCL 10 provision (in any case, neither was an occupying authority to which CCL 10 applied). However, both countries did, relying on domestic criminal law, prosecute persons for membership of groups which had not been specifically declared criminal by the IMT. In Denmark, mere membership of the Danish National-Socialist Party, Danmarks Nationalsocialistiske Parti (DNSAP), or any other Nazi party was not in itself criminal and punishable, per se. However, an exception to this was made as regards civil servants who had been members of the DNSAP after 9 April 1940, because they were considered to have betrayed democracy and their duty of loyalty to the Danish state. After the end of World War II, approximately 600 civil servants were discharged from the civil service due to their membership of the DNSAP. In addition, the leaders of the DNSAP, whom it was considered had tried to overrun the Danish Government and democracy, were also prosecuted. Approximately 50 DNSAP leaders were convicted as collaborators, receiving sentences of between one and 10 years imprisonment. See Ditlev Tamm, Retsopgøret efter besættelsen, Jurist- og Økonomforbundets Forlag, Copenhagen, 1984, pp. 386–396, 705, and 792–793. Moreover, membership of the uniformed Hilfspolizei Corp after 1944, which was responsible for maintaining law and order in Copenhagen and which was reputed to have actively assisted the German police during World War II in its fight against the Danish opposition movement, was criminal and punishable with a minimum 10 year penalty. See Tamm, ibid., pp. 309–316. In Norway, mere membership of the Norwegian Nazi party, Nasjonal Samling (NS), was criminal and punishable. Approximately 26,000 persons were convicted of mere membership of the NS and 2,200 civil servants were suspended from their posts due to their membership of the NS. In addition, all members of NS after 8 April 1940 were deemed ‘jointly and severally’ liable for damages caused by the party, for example, resulting from the inappropriate use of public funds or the imprisonment of persons by the party. The magnitude of the fine handed down depended upon the personal wealth of the particular member concerned. See Tamm, ibid., p. 705 and Johs. Andenæs, Det Vanskelige Oppgjøret, Tano Aschehoug, Oslo, 3rd ed., 1998, pp. 127–136, 147–156, 168–177, and 221–222.

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The JCE concept, as it is understood today, concerns a mode of liability250 whereas the concept of membership of a criminal organisation, as that concept was understood and employed in the aftermath of World War II, was actually a crime. When one was prosecuted after World War II for membership of a criminal organisation, one was prosecuted for the actual crime of membership of an organisation judged to be criminal - irrespective of whether or not any crime was committed - whereas when one is being prosecuted using the JCE concept as a mode of liability today, one is being prosecuted for one’s participation in the crime(s), e.g. war crimes or crimes against humanity, actually committed by the group/ organisation in question and not for the actual crime of membership. JCE is not not a separate crime in its own right.251 The Appeals Chamber of the ICTY in the Ojdaniü JCE Decision had the opportunity to consider a claim that JCE “is akin to a form of criminal liability for membership and that it has become a “vehicle for organizational liability”, whereby mere membership in a criminal organization would by itself entail the individual criminal responsibility of the accused”.252 In rejecting such claim, the Appeals Chamber held 25.Joint criminal enterprise is different from membership of a criminal enterprise… what was to be punished in relation to… [membership of a criminal enterprise] was… a knowing and voluntary membership of organisations which did in fact commit crimes and those on a wide scale. No such offence was included in the Tribunal’s [ICTY] Statute. The UN Secretary-General made it clear that only natural persons (as opposed to juridical entities) were liable under the Tribunal’s Statute, and that mere membership in a given criminal organization would not be sufficient to establish individual criminal respon-sibility… 26.Criminal liability pursuant to a joint criminal enterprise is not a liability for mere membership… but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter. The Prosecution in the present case made that point clear when it said that Ojdaniü was being charged not for his membership in a joint criminal enterprise but for his part in carrying it out.253

In addition, the Trial Chamber of the ICTY, relying on the Ojdaniü JCE Decision, has also emphasised that JCE liability cannot be viewed as membership in an organisation “because this would constitute a new crime not foreseen under the

250 251

252 253

Or, as described by the Prosecution, “a punishable mode of participation in the actual commission of crimes”. See Ojdaniü JCE Decision, supra note 17, § 15. It should be noted that the concept of membership of a criminal organisation was recognised and used in the aftermath of World War II, based on declarations from the IMT regarding which organisations it determined to be criminal. It has no role to play in international criminal law today, as no international criminal court is currently empowered to declare an organisation criminal. See Ojdaniü JCE Decision, supra note 17, § 24. Ibid., §§ 25-26.

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Statute and would therefore amount to a flagrant infringement of the principle nullum crimen sine lege.”254 It should also be noted that the ICC Statute deals with JCE in the context of its provisions dealing with ‘modes of liability’.255 The JCED is not defined in the ICC Statute as a ‘crime’ in itself, which reiterates the differentiation between JCE as a ‘mode of liability’ and the ‘crime’ of membership of an organisation. Notwithstanding the conclusion that the JCED and membership of an organisation concept are not synonymous, this does not detract from the fact that the basis of the JCE concept was originally inter alia the concept of membership responsibility.

3.6 Issues Arising in Relation to the JCED from a Review of the JCED Jurisprudence This section purports to deal with some particular issues which have arisen from a review of the international jurisprudence on the JCED.256 Three issues can be identified in this regard: (i) whether the JCED can be categorised as a form of principal liability, accomplice liability or both and the significance of this classification; (ii) the application of the doctrine in the context of the crime of genocide; and (iii) the form of pleading of the doctrine in indictments before the ad hoc international criminal tribunals.

3.6.1 Is the JCE Mode of Liability a Form of Principal or Accomplice Liability? The prima facie contradictory statements made in the Tadiü Appeals Judgment as to whether participation in a JCE results in the principal or accomplice liability of the accused has given rise to considerable discussion before both the Trial and Appeals Chambers of the ad hoc international criminal tribunals.257 The positions of the two camps can be described in the following manner: Those who claim that the doctrine is a form of principal liability, as that term is understood in international criminal law, posit that the doctrine is encompassed by the word “committed” in Articles 7(1) and 6(1) respectively of the ICTY and ICTR Statutes. Those who support the view that the doctrine is an accomplice liability, as that term is

254 255

256 257

Stakiü Trial Judgment, supra note 132, § 433. See supra section 3.4.3. The JCED is also encompassed by the modes of liability provisions of the ICTY and ICTR, i.e. Articles 7(1) ICTY Statute, supra note 44, and 6(1) ICTR Statute, supra note 148. Primarily, the ICTY jurisprudence, as the ICTY is the judicial institution before which the JCED has been most frequently pleaded. See Tadiü Appeals Judgment, supra note 16, §§ 188, 192, 220 and 229.

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understood in international criminal law, submit that the doctrine is, instead, encompassed by the phrase “aids and abets” in Articles 7(1) and 6(1) respectively of the ICTY and ICTR Statutes. The ad hoc Chambers have not adopted a common interpretation of the Tadiü Appeals Judgment on this issue and subsequent case law reflects this lack of agreement. 3.6.1.1 Significance of Classification Before analysing this issue, it is important to identify the significance of the categorisation of the JCE mode of liability as either a form of principal or accomplice liability. It appears that the reason the ad hoc international criminal tribunals have focused on this issue is because of the distinction in some civil law systems of handing down a lower maximum sentence to a person who merely aids and abets the principal.258 However does this civil law distinction have any relevance in the context of the ad hoc international criminal tribunals? The Trial Chamber in Prosecutor v Milorad Krnojelac when discussing this issue posited: 74.The purpose behind the Prosecution’s approach appears to be to classify the participant in a joint criminal enterprise who was not the principal offender as a “perpetrator” or a “co-perpetrator”, rather than someone who merely aids and abets the principal offender. The significance of the distinction appears to be derived from the civil law where a person who merely aids and abets the principal offender is subject to a lower maximum sentence. 75.The Trial Chamber does not accept that this distinction is necessary for sentencing in international law, and in particular holds that it is irrelevant to the sentencing practice of this Tribunal. The Appeals Chamber has made it clear that a convicted person must be punished for the seriousness of the acts which he has done, whatever their categorisation. The seriousness of what is done by a participant in a joint 258

Van Sliedregt notes that “[t]he fact that JCE is composed of elements originating from different legal cultures and applied by persons from varying legal backgrounds may account for the misapprehension and differing views that exist with regard to JCE.” See Elies van Sliedregt, “Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide”, 5 J. Int’l Crim. Jus. 184 (2007), pp. 199–200. See also ibid., pp. 189– 190 and 196–200. Danish criminal law does not distinguish between principal perpetrators and accessories, as those terms are understood in international criminal law. Although the language of § 23 of Straffeloven can be misunderstood as the language of accessory liability, being part of Chapter 4 of Straffeloven, entitled “Forsøg og medvirken” (Attempt and participation), the principal/accomplice classification has no legal significance. Under Danish criminal law, an accusation of ‘participation’ means that the accused is charged with having participated in the execution of a crime and not that the accused is charged with having participated in the execution of a crime committed by a principal. As regards sentencing, each accused is judged according to the same sentencing rules. However, an accused’s specific contribution (and not his possible classification as a principal or an accessory) will be taken into consideration in the determination of his punishment. See § 23 of Straffeloven, Lovbekendtsgørelse nr. 1000 af 05/10/2006, available at http://www.retsinfo.dk/danlov/danlov.htm (last visited 1 August 2007), and generally, Vagn Greve, Det strafferetlige ansvar, Jurist- og Økonomforbundets Forlag, Copenhagen, 2nd ed., 2004, pp. 161–172.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 195 criminal enterprise who was not the principal offender is significantly greater than what is done by one who merely aids and abets the principal offender. That is because a person who merely aids and abets the principal offender need only be aware of the intent with which the crime was committed by the principal offender, whereas the participant in a joint criminal enterprise with the principal offender must share that intent… 77. This Trial Chamber does not hold the same view as Trial Chamber I as to the need to fit the facts of the particular case into specific categories for the purposes of sentencing. There are, for example, circumstances in which a participant in a joint criminal enterprise will deserve greater punishment than the principal offender deserves. The participant who plans a mass destruction of life and who orders others to carry out that plan, could well receive a greater sentence than the many functionaries who between them carry out the actual killing. Categorising offenders may be of some assistance but the particular category selected cannot affect the maximum sentence which may be imposed and it does not compel the length of sentences which will be appropriate in the particular case.259

The Prosecutor, before the Appeals Chamber, appealed the Trial Chamber’s conclusion that it was not necessary to distinguish between the different types of participant in a crime when it comes to sentencing. However, the Appeals Chamber rejected the Prosecution’s appeal on this ground.260 The Trial Chamber in the Kvoþka Trial Judgment was also of a similar view, noting that the gravity of the offence is the primary factor to be taken into account when imposing a sentence and that the “([t)he seriousness of the crimes must weigh heavily in the sentence imposed irrespective of the form of the criminal participation of the individual.”261 The irrelevance of the form of liability as a factor in the sentencing of the accused is supported by the constitutive documents of the ICTY and ICTR. For example, Article 24(2) of the ICTY Statute provides that in imposing sentences, the ICTY Trial Chambers should take into account factors such as the gravity of the offence and the individual circumstances of the convicted person.262 Article 101 of the ICTY Rules of Procedure and Evidence provides that in determining sentences, the Trial Chamber shall also take into account the following factors: any aggravating circumstances; any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; the general practice regarding prison sentences in the courts of the former Yugoslavia; and the extent to which any penalty imposed by a court of any State on the convicted person

259

260

261 262

Emphasis added. Krnojelac Trial Judgment, supra note 53, §§ 74–77. See also Ojdaniü JCE Decision, supra note 17, Separate Opinion of Judge Hunt, § 31 and Krnojelac Appeals Judgment, supra note 81, §§ 67 and 75. The Appeals Chamber’s consideration of this matter is not very satisfactory. It merely noted the statements of the Trial Chamber in relation to this matter and then concluded that the “Prosecution did not show those findings to be erroneous”. Krnojelac Appeals Judgment, supra note 81, § 75. Kvoüka Trial Judgment, supra note 91, § 698. See supra note 44.

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for the same act has already been served.263 No mention is made of the form of liability of the accused as a factor to be taken into account when determining sentence. Similar provisions exist in the constitutive documents of the ICTR.264 It should be noted, however, that two cases emanating from the ICTY Appeals Chamber suggest that the principal/accessory distinction is relevant, in practice, as regards sentencing. In the Vasiljeviü Appeals Judgment the Appeals Chamber overturned the Trial Chamber’s finding that the accused was responsible as a coperpetrator in a JCE (which was considered to be a form of principal liability), for murder as a violation of the laws or customs of war and instead determined that he was responsible as an aider and abettor.265 The Trial Chamber sentenced Vasiljeviü to 20 years, but that sentence was reduced to 15 years by the Appeals Chamber, which expressly determined that “aiding and abetting is a form of responsibility which generally warrants a lower sentence than is appropriate to responsibility as a co-perpetrator”.266 Moreover, in the Krstiü Appeals Judgment, the Appeals Chamber overturned the Trial Chamber’s finding that the accused was responsible inter alia as a co-perpetrator in a JCE to commit genocide (which was considered to be a form of principal liability) and instead found that he was responsible inter alia as an aider and abettor to genocide.267 Relying on the earlier Vasiljeviü judgment, it specifically noted that “… aiding and abetting is a form of responsibility which generally warrants lower sentences than responsibility as a co-perpetrator”.268 Accordingly, it held that Krstiü’s sentence must be adjusted due to its finding that Krstiü was responsible as an aider and abettor and not as a co-perpetrator and subsequently reduced Krstiü’s sentence from 46 years to 35 years.269 The holdings of the Vasiljeviü and Krstiü Appeals Judgments are, however, open to criticism. Firstly, the judgments, in this regard, are contrary to the constitutive documents of the ICTY itself and to the preceding jurisprudence of the ICTY. Secondly, the reasons put forward by the Appeals Chamber for this change of direction are not convincing. In the Vasiljeviü Appeals Judgment, the Appeals Chamber, in support of its contention that aiding and abetting is a form of responsibility which generally warrants a lower sentence, refers to certain Canadian and English jurisprudence, as well as to the Austrian, Chinese, German and South Korean Codes.270 It may well be that these sources support such contention, but the ICTY is competent to apply international criminal law and not domestic laws. The Krstiü 263 264

265 266 267 268 269 270

See supra note 141. Article 23(2) ICTR Statute, supra note 148, and Rule 101 ICTR Rules of Procedure and Evidence, adopted on 29 June 1995, as amended, available at http://69.94.11.53/default.htm (last visited 17 July 2007). Rule 101 inter alia refers to the general practice regarding prison sentences in the courts of Rwanda. See Vasiljeviü Appeals Judgment, supra note 221, § 182. Ibid., § 182. See supra note 60, §§ 5-138. Ibid., § 268. Ibid., §§ 266 and 275. See supra note 221, § 182 at footnote 291.

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Appeals Judgment supported its conclusion by specifically referring to the Vasiljeviü judgment and stating that the principle underlying its conclusion has also been recognised in the ICTR (citing the Prosecutor v Juvénal Kajelijeli case)271 and in many national jurisdictions (citing the same domestic law references as were cited in the Vasiljeviü Appeals Judgment). Interestingly, the Vasiljeviü Appeals Judgment was the only ICTY case law referred to by the Appeals Chamber in the Krstiü Appeals Judgment.272 Notwithstanding this criticism of the Vasiljeviü and Krstiü Appeals Judgments, it is clear that, on a practical level, the principal/accessory debate is significant in the context of the ICTY. Moreover, as will be seen later, this distinction is conceivably of importance in the context of the ICC sentencing provisions.273 The principal/accessory distinction also plays a role in the context of the discussion as to whether JCE Category 3 liability can be applied to the crime of genocide. If JCE Category 3 liability is a principal perpetrator liability, then arguably, one cannot be held liable as a JCE Category 3 co-perpetrator of genocide without special intent, as a principal perpetrator of genocide must have the genocidal special intent.274 Additionally, on a perception level, the distinction as to whether one has been convicted on the basis of principal or accomplice liability is significant. The behaviour of a principal perpetrator has connotations of being more inappropriate

271

272

273 274

The ICTR Trial Chamber stated that “[s]econdary or indirect forms of participation have generally resulted in a lower sentence.” See Prosecutor v Juvénal Kajelijeli, Case No.: ICTR-98-44A-T, Judgment and Sentence, T. Ch. II, 1 December 2003 (“Kajelijeli Trial Judgment”), § 963. Perhaps the reason the ICTY Appeals Chamber in the Vasiljeviü and Krstiü Appeals Judgments reached the same conclusion concerning this matter can be explained by the fact that with the exception of one judge, the judges which sat on the Vasiljeviü bench were the same as those that determined the Krstiü Appeals Judgement (i.e. Judges Theodor Meron (Presiding), Mohamed Shahabuddeen, Mehmet Güney and Wolfgang Schomburg). In the Babiü Sentencing Appeal Judgment, supra note 60, the Appeals Chamber similarly stated that “… generally it may be said that a finding of secondary or indirect forms of participation in a joint criminal enterprise relative to others may result in the imposition of a lower sentence…” and in support of such statement, reference is made to the Kajelijeli Trial Judgment and the Krstiü Appeals Judgment. Ibid., § 40. Such determination is questionable, however. The Kajelijeli case did not concern JCE liability, while the Krstiü Appeals Judgment, as noted above, suggested that a lower sentence should be imposed for aiding and abetting genocide as opposed to coperpetrating a JCE to commit genocide. Neither judgment determined that a finding of secondary or indirect forms of participation in a JCE relative to others may result in the imposition of a lower sentence. As noted later, the suggestion that one can aid and abet a JCE has been dismissed by the ICTY Appeals Chamber. See infra section 3.6.1.4. See infra section 3.7.1.5. See infra section 3.6.2 and infra footnote 354.

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than that of an accomplice.275 Moreover, the correct classification is important in the context of the truth-telling function of the criminal law system. It is key that the precise role of the accused in the crime concerned be determined. Finally, determining the form of the JCE mode of liability is important, in the sense, that it needs to be established whether the actions of the accused fall within, for example, Article 7(1) ICTY Statute, at all, instead of, for example, Article 7(3) ICTY Statute (superior responsibility). 3.6.1.2 Jurisprudence Supporting the Position that JCE Liability is a Form of Principal Liability As mentioned above, the Tadiü Appeals Judgment, from the perspective of the categorisation of the form of liability, seemed to utilise contradictory expressions in describing the JCED. For example, it states: “However, the commission of one of the crimes envisaged in… the [ICTY] Statute might also occur through participation in the realisation of a common design or purpose”.276 This could prima facie be interpreted as support for the position that the JCED is a form of principal liability. However, later in the judgment, the Appeals Chamber states: “[i]n sum, the Appeals Chamber holds the view that the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit implicitly in the [ICTY] Statute”.277 This statement, on the contrary, could be interpreted as support for the proposition that the JCED is a form of accomplice liability. In distinguishing between the JCED and the aiding and abetting mode of liability, the Appeals Chamber notes inter alia that the “aider and abettor is always an accessory to a crime perpetrated by another person, the principal”,278 thus suggesting by implication that a JCE perpetrator is not always an accessory and therefore is sometimes a principal perpetrator. It also noted “to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility”.279 This statement too seems to support the proposition that the JCED is a principal liability. These prima facie contradictory statements have been a source of much discord before the ICTY. The jurisprudence of the ICTY provides support for both camps. This section will highlight cases which support the proposition that participation in a JCE is a form of ‘commission’ encompassed by Article 7(1) ICTY Statute, and thus is a principal liability.

275

Ibid. Emphasis added. Tadiü Appeals Judgment, supra note 16, § 188. 277 Emphasis added. Ibid., § 220. 278 Emphasis added. Ibid., § 229. 279 Emphasis added. Ibid., § 192. 276

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 199

The first case of interest in this regard is the Ojdaniü JCE Decision. The Prosecution in the Ojdaniü case classified Ojdaniü’s participation in the JCE as a form of ‘commission’. The Appeals Chamber agreed with the Prosecution’s classification, noting Leaving aside the appropriateness of the use of the expression “co-perpetration” in such a context, it would seem therefore that the Prosecution charges co-perpetration in a joint criminal enterprise as a form of “commission” pursuant to Article 7(1) of the Statute, rather than as a form of accomplice liability. The Prosecution’s approach is correct to the extent that, insofar as a participant shares the purposes of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated. The Appeals Chamber therefore regards joint criminal enterprise as a form of “commission” pursuant to Article 7(1) of the Statute.280

The Appeals Chamber specifically noted that it did not need to consider whether JCE liability fell within the other forms of liability which could be encompassed by the phrase “or otherwise aided and abetted” in Article 7(1). It was satisfied that JCE already fell within one of the express forms of liability set out in Article 7(1).281 The separate opinion of Judge Shahabuddeen in the Ojdaniü JCE Decision is also important in relation to this discussion, particularly as Judge Shahabuddeen was the Presiding Judge of the Appeals Chamber in the Tadiü Appeals Judgment. He considered whether the Tadiü Appeals Judgment reference to the CPD being a “form of accomplice liability”282 should be interpreted as meaning that a participant in a JCE is one who merely aids and abets. He noted It is not appropriate to describe a participant in a joint criminal enterprise as one who merely aids and abets. But it is not believed that the intention to make such a description can be ascribed to the [Tadiü] Appeals Chamber. It would seem that what was meant was that the participants in a joint criminal enterprise were themselves accomplices – accomplices of each other and that they engaged “a form of accomplice liability”.283

He then went on to consider whether the law prevents ‘principals’ in the commission of a crime from being treated as the ‘accomplices’ of each other and concluded that there did not seem to be anything “in the general law of evidence in criminal matters” which would restrict the term ‘accomplice’ to aiders and abettors. Indeed, there was much in favour of the extension of the term to include ‘principals’ in the commission of a crime. In his view, the conclusion to be drawn from the Tadiü Appeals Chamber classification of participation in a JCE as a “form of accomplice liability” was that the court was not talking of aiders and abettors, but should be understood as saying that “each participant in the joint 280 281 282 283

Ojdaniü JCE Decision, see supra note 17, § 20. Ibid., § 19. Tadiü Appeals Judgment, supra note 16, § 220. Ojdaniü JCE Decision, see supra note 17, Separate Opinion of Judge Shahabuddeen, § 7.

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criminal enterprise would be an accomplice of the other participants and, accordingly, would engage “a form of accomplice liability””.284 He noted, in addition, that if the Tadiü Appeals Chamber was saying that the participants in a JCE were mere aiders and abettors, this conclusion would contradict other statements of the Appeals Chamber in the Tadiü Appeals Judgment, where it specifically distinguished between acting in pursuance of a common purpose or design to commit a crime and aiding and abetting and where it stated that “depending upon the circumstances, to hold [co-perpetrators] liable only as aiders and abettors might understate the degree of their criminal responsibility”.285 Accordingly, Judge Shahabuddeen was very clear that the Tadiü Appeals Judgment considered participation in a JCE as resulting in principal liability rather than accomplice liability. Judge Hunt, who also issued a separate opinion to the Ojdaniü JCE Decision, noted his difficulty with the employment of the phrase “a form of accomplice liability” in the Tadiü Appeals Judgment, but nonetheless concluded, that in his view, JCE participation was more than merely aiding and abetting. One difficulty I still have is with the description of “a form of accomplice liability” given by the… [Tadiü Appeals Judgment] to the individual criminal responsibility which arises from the participation of an accused in a joint criminal enterprise… “Accomplice” is a term of uncertain reference. It means one who is associated with another in the commission of a crime, but his association may be either as a principal or one who aids and abets the principal. The… [Tadiü Appeals Judgment] does not identify which of these two meanings it intended to convey by the description it gave, and accordingly the description may be productive of confusion. In my opinion, it is not appropriate to describe a participant in a joint criminal enterprise as one who merely aids and abets, even though such a description may well bring a joint criminal enterprise easily within the terms of Article 7(1)… It would not be appropriate because… such a participant must be distinguished from one who merely aids and abets. The main distinction between the two relates to the state of mind which must be established. The participant in the basic form of joint criminal enterprise must share with the person who physically carried out the crime the state of mind required for that crime; the person who merely aids and abets must be aware of the essential elements of the crime committed, including the state of mind of the person who physically carried it out, but he need not share that state of mind.286

In the Krnojelac Appeals Judgment, the Appeals Chamber also took a stance on whether the JCE theory of liability is a form of principal liability or accomplice liability.287 Krnojelac was charged inter alia under Article 7(1) of the ICTY Statute with having acted together and in common purpose with Foþa Kazneno-Popravni Dom guards in order to persecute Muslim and other non-Serb civilian detainees on political, racial or religious grounds, to commit acts of torture, beatings and murder, and illegally detaining non-Serb civilians. The Trial Chamber found him

284 285 286 287

Ibid., Separate Opinion of Judge Shahabuddeen, § 11. Ibid., Separate Opinion of Judge Shahabuddeen, §§ 12-13. Emphasis added and footnotes omitted. Ibid., Separate Opinion of Judge Hunt, § 29. Krnojelac Appeals Judgment, supra note 81, §§ 64-74.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 201

individually criminally responsible as an aider and abettor under Article 7(1) for the crimes of persecution and cruel treatment. The Prosecution was of the view that if the Trial Chamber had applied the definition of JCE correctly, Krnojelac would have been found guilty as a “co-perpetrator” and not as an “aider and abettor” and submitted that the Trial Chamber’s distinction between the principal offender and the co-perpetrator (within the context of a JCE) was contrary to the findings of the Tadiü Appeals Judgment, which does not differentiate between those who perform the actus reus of the crime and those who contribute to it and share the intent.288 The Krnojelac Appeals Chamber accepted the Prosecution’s submission relying on the statement in the Tadiü Appeals Judgment that Article 7(1) covers the physical perpetration of a crime, however “the commission of one of the crimes envisaged in Article 2, 3, 4, or 5 of the Statute might also occur through participation in the realisation of a common design or purpose”.289 It also noted that the Prosecution’s submission had been upheld in the Ojdaniü JCE Decision. Thus, the Appeals Chamber concluded that participation in a JCE (whether or not one is the principal perpetrator of the crime in question or not) is a form of “commission”, i.e. a form of principal liability, under Article 7(1).290 The view that participation in a JCE amounts to a form of principal liability is supported inter alia by the Furundžija Trial Judgment,291 the Simiü Trial Judgment292 and the Stakiü Trial Judgment.293 It is also supported by the judgments of the ICTY Trial Chambers in Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, Prosecutor v Radoslav Brÿanin, Miroslav Tadiü & Simo Zariü and Prosecutor v Momþilo Krajišnik.294

288 289 290 291

292 293 294

Ibid., § 67. Emphasis added. See Tadiü Appeals Judgment, supra note 16, § 188. Krnojelac Appeals Judgment, supra note 81, §§ 73-74. Furundžija Trial Judgment, supra note 85. The Trial Chamber at § 216 notes “… two separate categories of liability for criminal participation appear to have crystallised in international law, co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other”. This appears to be a recognition by the Trial Chambers that the JCE mode of liability is a principal liability. The Appeals Chamber in this case, did not take issue with this conclusion. See Furundžija Appeal Judgment, supra note 83, §§ 118-119. See supra note 8, § 138. See supra note 132, § 432. See Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, Case No.: IT-02-60-T, “Judgment on Motions for Acquittal Pursuant to Rule 98 Bis”, T. Ch. I, Section A, 5 April 2004, §§ 73-76 and Blagojeviü and Jokiü Trial Judgment, supra note 69, § 696; Prosecutor v Radoslav Brÿanin, Case No.: IT-99-36-T, Judgment, T. Ch. II, 1 September 2004 (“Brÿanin Trial Judgment“), § 258; and Prosecutor v Momþilo Krajišnik, Case No.: IT-00-39-T, Judgment, T. Ch. I, 27 September 2006 (“Krajišnik Trial Judgment”), § 886. See also Prliü Jurisdiction Decision, supra note 159, § 16.

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3.6.1.3 Jurisprudence Supporting the Position that JCE Liability is a Form of Accomplice Liability In Prosecutor v Radoslav Brÿjanin & Momir Talic, “Decision on Motion by Momir Talic for Provisional Release”, the Trial Chamber rejected the Prosecution’s submission that the Appeals Chamber in the Tadiü Appeals Judgment held that the word ‘committed’ in Article 7(1) encompassed the JCE theory of liability.295 The Trial Chamber noted that the Appeals Chamber in the Tadiü Appeals Judgment stated that the CPD was a “form of accomplice liability” and went on to hold 43. A “form of accomplice liability” cannot be the same as the liability for the physical perpetration of the crime by the accused himself… Common purpose as a “form of accomplice liability” is more naturally comprehended within the words “otherwise aided and abetted in the planning, preparation or execution” in Article 7.1. To permit the pro-secution to include within the word “committed”, when used in the collocation of Article 7.1, both the physical perpetration of the crime by the accused himself and his participation in a common purpose to perpetrate that crime would virtually ensure the ambiguity in the pleading which the Appeals Chamber has now twice criticised. 44. The prosecution relies upon the Appeals Chamber’s use of the word “commission” in the second sentence of par 188 [of the Tadiü Appeals Judgment] as coming to the opposite conclusion. However, in the light of the clear description of common purpose as a “form of accomplice liability” after the Appeals Chamber’s extensive review of the concept, it is obvious that the word “commission” in this context was used in its generic sense, not in the particular sense of the word when used in the collocation of Article 7.296

A year later, the Trial Chamber in the Krnojelac Trial Judgment, classified the responsibility of a participant in a JCE (other than the principal perpetrator of the crime itself) as a form of “accomplice liability”, separate from the ‘commission’ of the crime. It held This Trial Chamber… does not… accept the validity of the distinction which Trial Chamber I has sought to draw between a co-perpetrator and an accomplice. This Trial Chamber prefers to follow the opinion of the Appeals Chamber in Tadiü, that the liability of the participant in a joint criminal enterprise who was not the principal offender is that of an accomplice. For convenience, however, the Trial Chamber will adopt the expression “coperpetrator” (as meaning a type of accomplice) when referring to a participant in a joint criminal enterprise who was not the principal offender.297 295 296

297

Prosecutor v Radoslav Brÿanin & Momir Talic, Case No.: IT-99-36/1, “Decision on Motion by Momir Talic for Provisional Release”, T. Ch. II, 28 March 2001, §§ 40-45. Ibid., §§ 43–44. The Trial Chamber also referred to the JCE theory of liability as a form of accomplice liability (“If the prosecution seeks to rely upon the “accomplice” liability of acting in concert as part of a common purpose or design, or as part of a common criminal enterprise… then this should be made clear”). Ibid., § 12. Krnojelac Trial Judgment, supra note 53, § 77. The Trial Chamber noted that the jurisprudence of the post World War II cases surveyed by Trial Chamber I in the Kvoüka Trial Judgment, supra note 91, drew no distinction between the categories of coperpetrator and aider and abettor in determining the criminal responsibility of the accused. Ibid., at footnote 229.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 203

The Trial Chamber came to this conclusion, notwithstanding that it noted that the seriousness of what is done by a participant in a JCE who was not the principal offender is “significantly greater” than what is done by one who merely aids and abets the principal offender.298 The ICTY Trial Chamber has also referred, in passing, in the Šešelj Jurisdiction Decision to the Appeals Chamber having held that “the concept of joint criminal enterprise “as a form of accomplice liability” was firmly established in customary international law prior to the establishment of the Tribunal”.299 3.6.1.4 Jurisprudence Supporting the Position that JCE Liability is Both a Form of Principal and Accomplice Liability The Trial chamber decision in the Kvoþka Trial Judgment took the principal acessory liability debate one step further. 300 Whereas up until the Kvoþka Trial Judgment, the jurisprudence came down in favour of the principal liability or accomplice liability classification of the JCE mode of liability, the Kvoþka Trial Judgment posited that it is possible both to co-perpetrate (i.e. principal liability) and aid or abet (accomplice liability) a JCE.301 298 299

300 301

Ibid., § 75. As noted above, however, the Appeals Chamber subsequently overturned the Trial Chamber’s decision on this matter. See supra section 3.6.1.2. Šešelj Jurisdiction Decision, supra note 81, § 52 (although the Trial Chamber did not comment specifically on what was meant by the expression “as a form of accomplice liability”). The Trial Chamber in the Krstiü Trial Judgment, supra note 120, § 642, noted that the Tadiü Appeals Judgment refers to the JCED as being a form of accomplice liability. However, it viewed such comment as not being part of the ratio decidendi of the Tadiü Appeals Judgment. See supra note 91. There is some support for this position, albeit fleeting, in the ICTY jurisprudence. The Vasiljeviü Appeals Judgment seems to have determined that the accused was “responsible” for having aided and abetted “the joint criminal enterprise of persecution”. The language of the judgment is unclear. See supra note 221, §§ 142–143. The Amended Consolidated Indictment against Krajišnik and Plavšiü, issued 4 months after the Kvoüka Trial Judgment asserted that the accused participated in the JCE as co-perpetrators, or, alternatively, as aiders and abettors. See Prosecutor v Momþilo Krajišnik and Biljana Plavšiü, Case Nos.: IT-00-39 & 40-PT, Amended Consolidated Indictment, 7 March 2002, § 4. This was later disregarded by the Trial Chamber as an “inaccurate” plea of criminal responsibility. See Krajišnik Trial Judgment, supra note 294, § 886. The subsequent judgment of the Trial Chamber in the Simiü Trial Judgment also recognised that a perpetrator could aid and abet a JCE. See supra note 8, § 160. In Prosecutor v Milan Babiü, the Prosecutor and the accused jointly filed a plea agreement, whereby the accused pleaded guilty to count 1 of the indictment (concerning persecution) as an aider and abettor of a JCE. The ICTY Trial Chamber, however, “expressed doubts about the legal characterization of Babiü’s acts in the plea agreement as an aider and abettor of a JCE”. The accused subsequently pleaded guilty as a co-perpetrator of a JCE. See Prosecutor v Milan Babiü, Case No.: IT-03-72-A, Sentencing Judgment, T. Ch. I, 29 June 2004, §§ 4–8. In the Krnojelac Trial Judgment, the Trial Chamber stated that it did not “accept the validity of the distinction” which the Kvoüka Trial Judgment had made

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As noted above, the case concerned events that allegedly occurred at inter alia the Omarska camp.302 Kvoþka, Prcaü, Kos, and Radiü were charged with crimes against humanity (persecution - including murder, torture, beatings, sexual assault and rape, harassment, humiliation and psychological abuse - and inhumane acts) and violations of the laws or customs of war (outrages upon personal dignity). Žigiü was separately charged with crimes against humanity and war crimes (murder, torture, and cruel treatment against certain named or identified persons). In addition, Radiü was separately charged with rape and torture (crimes against humanity) and torture and outrages upon personal dignity (war crimes).303 Each was inter alia charged with having participated in the crimes alleged under Article 7(1). The amended indictment did not charge JCE liability, but the Prosecution introduced the concept in its Pre-Trial Brief. The Trial Chamber considered it within its discretion to characterise the form of participation of the accused, if any, according to the theory of responsibility it deemed most appropriate, within the limits of the amended indictment and insofar as the evidence permitted.304 In this connection, the Trial Chamber considered the legal characteristics of JCE liability. In doing so, the Trial Chamber reached the following conclusion: The Trial Chamber also considers that it is possible to co-perpetrate and aid or abet a joint criminal enterprise depending primarily on whether the level of participation rises to that of sharing the intent of the criminal enterprise. An aider and abettor of a joint criminal enterprise, whose acts originally assist or otherwise facilitate the criminal endeavour, may become so involved in its operations that he may graduate to the status of a coperpetrator of that enterprise.305

The judgment focused on JCE Category 2 as this was the category that was most appropriate based on the facts of the case. The Trial Chamber held With respect to the threshold for assessing liability pursuant to the joint criminal enterprise theory, we turn first to the required mens rea. World War II jurisprudence, as well as the summary in the Tadiü Appeal, reveals that liability on the basis of a joint criminal enterprise requires a knowing assistance or encouragement for an aider and abettor and an intent to advance the goal of the enterprise in the case of a co-perpetrator… It must be conceded that the Tadiü formula for joint criminal enterprise responsibility appears to contain an inherent contradiction. On the one hand, it expressly allows for contribution to the commission of the crime through aiding or abetting which… require only knowledge not shared intent. At other times, Tadiü defines participation in terms of shared intent and it is not clear that this is limited to co-perpetrators. The Trial Chamber believes that the Nuremberg jurisprudence and its progeny allow for “aiding and abetting” in its traditional form to exist in relation to a joint criminal enterprise and in the case of such an aider or abettor, know-ledge plus substantial contribution to the enterprise is sufficient to maintain

302 303 304 305

between a co-perpetrator and an accomplice. See Krnojelac Trial Judgment, supra note 53, §§ 76-77. See also infra notes 322 and 324. See supra section 3.4.1.2. Kvoþka Trial Judgment, supra note 91, §§ 119-121. Ibid., § 248. Emphasis added. Ibid., § 249.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 205 liability. Once the evidence indicates that the participant shares the intent of the criminal enterprise, he graduates to the level of a co-perpetrator of the enterprise.306

As already noted, in support of its conclusion, the Kvoþka Trial Chamber referred to various post World War II judgments where it was determined that some or all of the accused aided and abetted the JCE, for example, the Dachau Concentration Camp Case, the Stalag Luft III Case, the Kiel Gestapo Case, and the Hadamar Case.307 Having reviewed these cases, and many more in addition, the Trial Chamber noted 306. These cases make clear that when a detention facility is operated in a manner which makes the discriminatory and persecutory intent of the operation patently clear, anyone who knowingly participates in any significant way in the operation of the facility or assists or facilitates its activity, incurs individual criminal responsibility for participation in the criminal enterprise, either as a co-perpetrator or an aider and abettor, depending upon his position in the organizational hierarchy and the degree of his participation… 308. The Trial Chamber considers that persons who work in a job or participate in a system in which crimes are committed on such a large scale and systematic basis incur individual criminal responsibility if they knowingly participate in the criminal endeavour, and their acts or omissions significantly assist or facilitate the commission of the crimes. 309. The Trial Chamber wishes to stress that this does not mean that anyone who works in a detention camp where conditions are abusive automatically becomes liable as a participant in a joint criminal enterprise. The participation in the enterprise must be significant. By significant, the Trial Chamber means an act or omission that makes an enterprise efficient or effective; e.g. a participation that enables the system to run more smoothly or without disruption. Physical or direct perpetration of a serious crime that advances the goal of the criminal enterprise would constitute a significant contribution. In general, participation would need to be assessed on a case by case basis, especially for low or mid level actors who physically perpetrate crimes.308

The Trial Chamber concluded: In sum, an accused must have carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise within the knowledge that his acts or omissions facilitated the crime committed through the enterprise in order to be criminally liable as a participant in a joint criminal enterprise. The culpable participant would not need to know of each crime committed. Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that substantially assists or facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently would be enough to establish criminal liability. The aider

306 307

308

Emphasis added. Ibid., §§ 271 and 273. Dachau Concentration Camp Case, supra note 55; Trial of Max Wielen and 17 others, British Military Court, Hamburg, Germany, 1st July – 3rd September 1947, UNWCC, Vol. XI, p. 34; The Kiel Gestapo Case, UNWCC, Vol. XI, p. 42; and the Hadamar Trial, see Kvoþka Trial Judgment, supra note 91, at footnote 500, respectively. Kvoþka Trial Judgment, supra note 91, §§ 306 and 308–309.

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or abetter or co-perpetrator of a joint criminal enterprise contributes to the commission of the crimes by playing a role that allows the system or enterprise to continue its functioning.309

Table 4 provides an overview of how the proposition put forward in the Kvoþka Trial Judgment sits with the previous positions adopted in relation to this topic: Table 4. Comparison with Kvoþka Trial Judgment criteria. Position Adopted

Position 1: JCE is a principal liability310

Position 2: JCE is an accomplice liability312

Position 3: Position adopted in the Kvoüka Trial Judgment, i.e. can co-perpetrate and/or aid and abet a JCE

Falls within the term “committed”, Article 7(1) ICTY Statute (principal liability) ¥

Falls within the expression “or otherwise aided and abetted”, Article 7(1) ICTY Statute (accomplice liability) X

(i) Mens rea (which includes “intent”); and (ii) Actus reus requirements as laid down in Tadiü Appeals Judgment must be satisfied.311 X ¥

¥

(i) Mens rea (which includes “intent”); and (ii) Actus reus requirements as laid down in Tadiü Appeals Judgment must be satisfied. ¥

(i) Mens rea requirement is a shared intent on behalf of the alleged perpetrator to carry out the JCE.313 (ii) Actus reus requirements as laid down in Tadiü Appeals Judgment must be satisfied, with the additional requirement that the participation of the accused must be significant/substantial.314

(i) Mens rea requirement is awareness (i.e. knowledge) by the alleged perpetrator that his contribution is assisting or facilitating a crime committed by a JCE (i.e. the perpetrator need not share the intent of the co-perpetrators).*315 (ii) Actus reus requirements as laid down in Tadiü Appeals Judgment must be satisfied, with the additional (Continued)

315 309 310 311 312 313 314

Ibid., § 284. Ibid., § 312. See supra section 3.4.1.1. Ibid. See supra section 3.6.1.3. Kvoþka Trial Judgment, supra note 91, § 284. Ibid., §§ 273, 306, 308, 309 and 312. See infra section 3.7.1.8.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 207 requirement that the participation of the accused must be significant/substantial.316 *An aider and abettor of a JCE may become a co-perpetrator if he shares the intent of the JCE.317

In the author’s view, there are a number of issues of concern as regards the holdings of the Kvoþka Trial Judgment in relation to the JCED. Firstly, the Kvoþka Trial Judgment is based, in the author’s view, on the mistaken supposition that the Tadiü Appeals Judgment contains “an inherent contradiction” by “expressly allow[ing] for contribution to the commission of the crime through aiding and abetting” and defining “participation in terms of shared intent and it is not clear that this is limited to co-perpetrators”.318 In the author’s view, while the choice of wording employed in the Tadiü Appeals Judgment could have been better, and could admittedly lead to confusion if read out of context, the Tadiü Appeals Judgment does not support the proposition that the JCE concept is a form of accomplice liability. The author agrees with the holdings in the judgments referred to in section 3.6.1.2 that the unfortunate employment of certain accomplice liability terms can be explained and that the Tadiü Appeals Judgment should be interpreted as confirmation of the JCE concept as a form of principal liability alone. Accordingly, in the author’s view, the Kvoþka Trial Judgment’s holding that “World War II jurisprudence and the Tadiü Appeal Judgment reveals that liability on the basis of a joint criminal enterprise requires a knowing assistance or encouragement for an aider or abettor”319 is not supported by the Tadiü Appeals Judgment. Secondly, where there is no evidence of direct participation in the crime by the alleged perpetrator, substantial caution needs to be taken when imposing individual criminal responsibility for an international crime. The consequences of doing so are so considerable, that such responsibility should not be assigned on insubstantial grounds. As noted in the Tadiü Appeals Judgment, the basic assumption must be that the foundation of criminal responsibility is the principle of personal culpability, nulla poena sine culpa.320 In the author’s view, the Tadiü Appeals Judgment supports the proposition that the crucial element of the JCED is the element of intent. That is what makes the perpetrator’s acts so reprehensible and in

316 317 318 319 320

Ibid., §§ 273, 306, 308, 309 and 312. Ibid., § 284. Ibid., § 273. Ibid., § 271. Tadiü Appeals Judgment, supra note 16, § 186.

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a sense, “worthy” of punishment.321 Even though the accused did not personally commit the act (or at least the available evidence does not support such a conclusion), the fact that he, for example, in the case of JCE Category 1, shared the same intent as the principal perpetrator(s) to commit an international crime, makes him equally as guilty as the principal perpetrator(s). His inter alia intent is punishable. To remove this intent element as a requisite to liability under the JCE concept would, in the author’s view, be going too far. The accountability net should, arguably, be cast wide in order to catch all the perpetrators of core international crimes, irrespective of the actual mode of liability employed in the commission of the core international crimes. However, it should not come at any price. The nullum crimen sine lege principle needs to be respected.322 It would be difficult, in the author’s view, for an international criminal court/tribunal to realistically hold today or at any previous point in time that (i) aiding and abetting a JCE was a norm which existed at the time the acts or omission with which the accused is charged were committed; (ii) the criminal liability in question was sufficiently foreseeable; and (iii) the law providing for such liability was sufficiently accessible at the relevant time for it to warrant a criminal conviction. In the author’s view, the extension of the JCE concept to liability arising from aiding and abetting a JCE is potentially a breach of the nullum crimen sine lege principle. Thirdly, in the author’s view, the creation of a ‘JCE aiding and abetting’ mode of liability is superfluous. The traditional ‘aiding and abetting’ mode of liability is a well-established mode of liability and the Tadiü Appeals Judgment, as well as numerous ICTY and ICTR decisions have confirmed the JCE mode of liability (as a form of principal liability) as a recognisable mode of liability. What is the difference between the traditional ‘aiding and abetting’ mode of liability and the ‘JCE aiding and abetting’ mode of liability? Is the ‘JCE aiding and abetting’ mode of liability concept not, in essence, the same as the traditional ‘aiding and abetting’ mode of liability, with the exception that the former happens, incidentally, to occur within the context of a JCE? The mens rea and actus reus of the ‘JCE aiding and abetting’ mode of liability and the traditional ‘aiding and abetting’ mode of liability have both been noted above.323 The mens rea of both modes of liability is the same. The actus reus of the two modes of liability is prima facie different. The ‘JCE aiding and abetting’ mode of liability articulated in the Kvoþka Trial Judgment requires, inter alia, the existence of a common plan, design or purpose and 321

322 323

Although JCE Category 3 does not require the existence of a shared intent on the part of all of the co-perpetrators in relation to the crime committed outside the common purpose, and liability can arise where it was natural and foreseeable that criminal acts other than those falling within the common purpose were likely to be committed by other JCE participants and the accused willingly took that risk, in order to fall within JCE Category 3, the accused must still have an intention to participate in and further the criminal activity of purpose of the group and to contribute to the JCE. See supra Table 1 and supra section 3.4.1.1. For a more detailed discussion of the nullum crimen sine lege principle, see infra section 3.7.1.3. See Table 4 and supra section 3.5.2.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 209

the significant participation of the accused in the same. The traditional ‘aiding and abetting’ mode of liability does not require the existence of a common plan, Indeed, no plan or agreement is required – the principal may not even know about the contribution of the accomplice. However, although the traditional ‘aiding and abeting’ mode of liability does not require the existence of a common plan, design or purpose, neither does it require that there not be such a common plan, design or purpose. In the author’s view, the accused that would fall within the ‘JCE aiding and abetting’ mode of liability category envisaged by the Kvoþka Trial Judgment could, in many circumstances, fall within the traditional aiding and abetting mode of liability (whose actus reus requirements are less burdensome for the Prosecution).324 Thus, in the author’s view, the establishment of a separate JCE aiding and abetting mode of liability is not warranted or necessary. In addition, as will be seen below, for the purposes of sentencing (which seems to be the original reason why attention has been drawn to the principal/accomplice liability distinction), theoretically, it is not necessary to distinguish between the different types of participant in a crime. So, if the actions of an accused can be caught by the JCE mode of liability (principal liability) or the ordinary aiding and abetting mode of liability (accomplice liability), then there is no additional benefit, from a sentencing perspective at least, in having a third JCE aiding and abetting mode of liability. Finally, it is interesting to note the approach of the ICC Statute to this issue. Article 25(3) clearly distinguishes between (i) principal liability, (ii) accomplice liability, and (iii) JCE liability. Arguably, the language of Article 25(3)(d) which concerns JCE liability only accommodates JCE liability as a form of principal liability in that it requires intention.325 The requirement that the contribution of the alleged perpetrator be intentional (i.e. that the perpetrator intended to contribute to the commission or attempted commission of a crime by a group of persons acting with a common purpose) arguably does not coincide with the ‘JCE aiding and abetting’ mode of liability envisaged by the Kvoþka Trial Judgment, which only requires knowledge that the acts of the perpetrator assist the commission of the offence. In addition, as noted above, Article 30 of the ICC provides that a person shall be criminally responsible and liable for punishment only if the material elements are committed with intent and knowledge, unless otherwise provided.326 The Appeals Chamber of the ICTY handed down its judgment in the Kvoþka case on 28 February 2005.327 It would have been desirable if the Appeals Chamber 324

325 326 327

It should be noted that the traditional ‘aiding and abetting’ mode of liability requires that the assistance provided by the aider and abettor have a substantial effect on the perpetration of a crime, see supra section 3.5.2. The Kvoþka Trial Judgment, supra note 91, advocates that the participation of the accused in the JCE should be significant (as opposed to the Tadiü Appeals Judgment which only requires participation of the accused in a JCE, i.e. that the accused performs acts that in some way are directed to the furthering of the common plan or purpose). See supra section 3.4.3. Ibid. Kvoþka Appeals Judgment, supra note 59.

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had commented in detail on the Trial Chamber’s holding that the JCE mode of liability is both a form of principal and accomplice liability. The Appeals Chamber did, however, comment indirectly on the holding, albeit not in very substantial terms. Presumably, this was because the Kvoþka Trial Judgment, despite its determination that an accused can be held liable either as a JCE co-perpetrator or as a JCE aider and abettor, found all five accused to be responsible as JCE coperpetrators. Accordingly, any broader discussion on the classification of the JCE mode of liability would have been unnecessary, except to the extent that the Appellants relied on it as a ground of appeal before the Appeals Chamber.328 The Appellants challenged the legal principles which the Trial Chamber had applied when it found that they each had participated in a JCE, on appeal. In its discussion on the definition of JCE, the Appeals Chamber referred to the Tadiü Appeals Judgment’s explanation as to why participation in a JCE is a “form of commission”, thus suggesting that the JCE mode of liability, in its opinion was a form of principal liability alone.329 When considering the difference between JCE co-perpetration and aiding and abetting, an issue which was raised in the submissions of the Appellants, the Appeals Chamber appears to focus on the distinction between JCE co-perpetration and the traditional aiding and abetting form of liability, not the JCE aiding and abetting mode of liability formulated by the Kvoþka Trial Chamber.330 Although the Appeals Chamber does not explicitly reject the Trial Chamber’s holding in relation to the JCE aiding and abetting mode of liability, its position is, arguably, clearly illustrated by the following: The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself. Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.331

328 329 330 331

Which included all of the accused, except Kos who withdrew his appeal. Ibid., § 4. Ibid., § 80. Ibid., §§ 87-92. Footnotes omitted and emphasis added. Ibid., § 91. Prior to this statement, the Kvoüka Appeals Chamber determined that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a JCE depends on the effect of the assistance and on the knowledge of the accused. “Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator”. Kvoüka Appeals Judgment, supra note 59, § 90.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 211

The Krajišnik Trial Chamber has interpreted this statement as a rejection of the proposed JCE aiding and abetting mode of liability.332 As noted by the Chamber, “… a person’s conduct either meets the conditions of JCE membership… in which case he or she is characterized as a co-perpetrator, or the conduct fails the threshold, in which case there is no JCE responsibility”.333 Moreover, in the Mpambara Trial Judgment, the ICTR Trial Chamber rejected the Prosecution’s argument that it was trying “to prove criminal responsibility for commission by aiding and abetting the physical perpetrators in furtherance of a JCE.” The Trial Chamber noted that such statement was “legally incoherent” and cited the Kvoþka Appeals Chamber’s statement that it would be inaccurate to refer to aiding and abetting a JCE.334 3.6.1.5 Employment of Terminology One issue which, perhaps, has struck the reader of the above discussion as odd is the terminology employed by the ad hoc international criminal tribunals in describing an accused charged with the JCE mode of liability. The term “co-perpetrator” has frequently been employed to describe a perpetrator in a JCE. This term seems inappropriate where one holds the view that JCE liability is a form of principal liability. The choice of terminology employed with regard to a JCE co-participator has warranted comment by the ICTY. Judge Hunt, in his separate opinion in the Ojdaniü JCE Decision, noted A third difficulty which remains is the use in the… [Tadiü Appeals Judgment] of the words “perpetrator” and “co-perpetrator[s]” apparently as terms of art, when dealing with the concept of a joint criminal enterprise. The former is used to describe the person who physically executed the crime charged and the latter to describe those who otherwise participated in the joint criminal enterprise. The use of such terms has not always been consistently followed in subsequent cases, but it appears to result from a distinction which exists in the civil law system whereby a person who merely aids and abets the perpetrator (or the person who physically executes the crime) is subject to a lower maximum sentence. The adoption of the term “co-perpetrator” is apparently intended for that purpose to distinguish 332 333 334

Krajišnik Trial Judgment, supra note 294, § 886. Ambos, on the other hand, does not agree that one cannot aid and abet a JCE. See Ambos, supra note 146, p. 170. Krajišnik Trial Judgment, supra note 294, § 886. See Mpambara Trial Judgment, supra note 153, § 37. See also Prosecutor v Ivan ýermak & Mladen Markaþ, Case No.: IT-03-73-PT, “Decision on Prosecution Motion Seeking Leave to Amend the Indictment”, T. Ch. II, 19 October 2005. Although this decision was decided after the Kvoüka Appeals Judgment was handed down, the Trial Chamber, on noting that the Amended Indictment charged the accused inter alia with aiding and abetting a JCE, did not determine that such mode of liability was invalid, but instead specified how the pleading of this charge should be altered. Ibid., §§ 29–30. However, the Trial Chamber subsequently granted a motion to modify the Trial Chamber’s earlier decision, inter alia so as to permit the removal from the indictment of a reference to the accused allegedly having aided and abetted a JCE, in reliance on the Kvoüka Appeals Judgment. See Prosecutor v Ivan ýermak & Mladen Markaþ, Case No.: IT-03-73-PT, “Decision on the Prosecution’s Motion for Modification of the Trial Chamber’s Decision Issued on 19 October 2005”, T. Ch. II, 9 December 2005.

212 3 The Joint Criminal Enterprise Doctrine the participant in a joint criminal enterprise from one who merely aids and abets. No such distinction exists in relation to sentencing in this Tribunal, and I believe that it is unwise for this Tribunal to attempt to categorise different types of offenders in this way when it is unnecessary to do so for sentencing purposes. The Appeals Chamber has made it clear elsewhere that a convicted person must be punished for the seriousness of the acts which he has done, whatever their categorisation.335

There is a genuine difficulty in labelling the perpetrator of a JCE, as broadly speaking, the traditional meaning of ‘principal perpetrator’ is, the person who actually pulled the trigger which kills the victim. The accused who have appeared before the ad hoc international criminal tribunals, charged with having participated in a JCE are never the principal perpetrators in this traditional sense (or at least the Prosecution does not have the evidence to prove that they are). On balance, the Prosecution has shown a preference for the term ‘co-perpetrator’ to describe the alleged participation of an accused in a JCE.

3.6.2 Genocide and JCE Category 3 The application of the JCE Category 3 mode of liability to the crime of genocide has proved problematic. As mentioned above, the mens rea requirements of JCE Category 3, i.e. crimes committed outside the common purpose, are (i) an intention to participate in and further the criminal activity or purpose of a group and to contribute to the JCE, and (ii) responsibility for crimes falling outside the common plan only arises if it was natural and foreseeable that criminal acts other than those envisaged in the common criminal design were likely to be committed by other participants in the common design, and the accused willing took that risk.336 Therefore, an accused can be held liable in accordance with the JCE Category 3 mode of liability for a crime which he does not intend, and which is committed by another person. The crime of genocide requires the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. For example, Article 4 of the ICTY Statute provides Article 4 Genocide 1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article. 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; 335 336

Footnotes omitted. See Ojdaniü JCE Decision, supra note 17, § 31. See supra section 3.4.1.1.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 213 (e) forcibly transferring children of the group to another group. 3. The following acts shall be punishable: (a) genocide: (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.337

Article 4(2) and 4(3) repeat verbatim Articles II and III of the Genocide Convention.338 Thus, the mens rea elements of the JCE Category 3 mode of liability and the crime of genocide prima facie appear incompatible.339 This issue has been the source of much discourse before the ICTY and ICTR Chambers. 3.6.2.1 Case Law In Prosecutor v Milomir Stakiü, the accused was charged with genocide or alternatively, complicity in genocide punishable inter alia under Articles 4(3)(a) or (e) and 7(1) of the ICTY Statute.340 The Prosecution, relying on Article 4(3)(a) argued that Stakiü was liable as a co-perpetrator in a JCE, where the common purpose included or escalated to genocide, or as a co-perpetrator in a JCE where genocide was the natural and foreseeable consequence of the execution of the common purpose (i.e. JCE Category 3 liability). As regards the mens rea of genocide the Prosecution argued that individual perpetrators and those who order, plan or instigate genocide must be shown to have the specific intent articulated in Article 4(2). However, it argued that such intent is not required for all modes of liability under Article 7(1), including JCE Category 3. The Trial Chamber rejected such submission, noting Genocide is a unique crime where special emphasis is placed on the specific intent. The crime is, in fact, characterised and distinguished by a “surplus” of intent. The acts proscribed in Article 4(2) of the Statute, subparagraphs (a) to (c), are elevated to genocide when it is proved that the perpetrator not only wanted to commit those acts but also intended to destroy the targeted group in whole or in part as a separate and distinct entity. The level of this intent is the dolus specialis or “specific intent”… the application of a mode of liability cannot replace a core element of a crime. The Prosecution confuses modes of liability and the crimes themselves. Conflating the third variant of joint criminal enterprise and the crime of genocide would result in the dolus specialis being so watered down that it is extinguished. Thus the Trial Chamber finds that in order to “commit” genocide, the elements of that crime, including the dolus specialis must be met. The notions of “escalation” to genocide, or genocide as a “natural and foreseeable consequence” of an enterprise not

337 338 339 340

Emphasis added. Dated 9 December 1948, entered into force 12 January 1951, 78 UNTS 277. The same can be said of the crime of persecution, which requires the intent to discriminate. See Stakiü Trial Judgment, supra note 132.

214 3 The Joint Criminal Enterprise Doctrine aimed specifically at genocide are not compatible with the definition of genocide under Article 4(3)(a).341

The consequence of such decision is that, as a matter of law, an individual could never be held liable for genocide on the basis of JCE Category 3, due to the specific intent requirement of the crime of genocide. The same conclusion was reached by the Trial Chamber four months later in Prosecutor v Radoslav Brÿanin, which held In order to arrive at a conviction for genocide under Article 4(3)(a), the specific intent for genocide must be met… this specific intent is incompatible with the notion of genocide as a natural and foreseeable consequence of a crime other than genocide agreed to by the members of the [JCE]… This specific intent [required for genocide] cannot be reconciled with the mens rea required for a conviction pursuant to the third category of [JCE]. The latter consists of the Accused’s awareness of the risk that genocide would be committed by other members of the [JCE]. This is a different mens rea and falls short of the threshold needed to satisfy the specific intent required for a conviction for genocide under Article 4(3)(a).342

This decision was appealed by the Prosecution who argued that the Trial Chamber had erred in law in concluding that JCE Category 3 liability is incompatible with the specific intent requirement of genocide and submitted that the Trial Chamber had confused the mens rea required for the offence of genocide with the mental state required to establish responsibility of an accused pursuant to the JCE Category 3 mode of liability.343 The Appeals Chamber agreed with the Prosecution and held

341

342

343

Emphasis added. Ibid., §§ 520 and 530. On appeal, the Appeals Chamber did not consider whether a person could be held responsible for genocide on the basis of JCE Category 3, as the Prosecution expressly denied that it was alleging JCE Category 3 for genocide. See Stakiü Appeals Judgment, supra note 142, § 38. Prosecutor v Radoslav Brÿanin, Case No.: IT-99-36-T, “Decision on Motion for Acquittal Pursuant to Rule 98 Bis”, T. Ch., 28 November 2003, §§ 30 and 57. Cassese is, likewise, of the view that JCE Category 3 cannot apply for special intent crimes. See supra note 4, pp. 121–123. In his view, firstly, the alleged JCE Category 3 co-perpetrator cannot be held liable as he does not possess the special intent required. “Secondly, admittedly whoever is liable under the third category of JCE has a distinct mens rea from that of the ‘primary offender’; nevertheless, as the ‘secondary offender’ [i.e. the JCE Category 3 co-perpetrator] bears responsibility for the same crime as the ‘primary offender’, the distance between the subjective element of the two offenders must not be so dramatic as in the case of crimes requiring special intent. Otherwise, the crucial notions of ‘personal culpability’ and ‘causation’ would be torn to shreds.” Ibid., pp. 121– 122. In Cassese’s view, the ‘secondary offender’ in such cases could only be charged as an aider and abettor. Ibid. Prosecutor v Radoslav Brÿanin, Case No.: IT-99-36-A, “Decision on Interlocutory Appeal”, App. Ch., 19 March 2004 (“Brÿanin Appeals Decision”), §§ 3–4.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 215 5. .… The third category of joint criminal enterprise liability is, as with other forms of criminal liability… not an element of a particular crime. It is a mode of liability through which an accused may be individually criminally responsible despite not being the direct perpetrator of the offence. An accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed. Rather, it is sufficient that accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed. 6. For example, an accused who enters into a joint criminal enterprise to commit the crime of forcible transfer shares the intent of the direct participators to commit that crime. However, if the Prosecution can establish that the direct participator in fact committed a different crime, and that the accused was aware that the different crime was a natural and foreseeable consequence of the agreement to forcibly transfer, then the accused can be convicted of that different offence. Where that different crime is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent… 9. The fact that the third category of joint criminal enterprise is distinguishable from other heads of liability is beside the point. Provided that the standard applicable to that head of liability, i.e. “reasonably foreseeable and natural consequences” is established, criminal liability can attach to an accused for any crime that falls outside of an agreed upon joint criminal enterprise.344

Accordingly, the Appeals Chamber held that the Trial Chamber had erred in law by conflating the mens rea requirement of the crime of genocide with the mental requirement of the JCE Category 3 mode of liability. The Trial Chamber in Prosecutor v Slobodan Miloševiü relied upon the conclusion of the Brÿanin Appeals Decision in support of its conclusion that there is no incompatibility between the requirement of genocide and the mens rea requirement for a conviction pursuant to JCE Category 3, as did the Stakiü Appeals Chamber.345 Trial Chamber III of the ICTR in the Karemera JCE Decision similarly relied on the conclusion of the Brÿanin Appeals Decision to determine that it had subject-matter jurisdiction to try the accused for JCE liability to commit genocide.346 The Defence in this case inter alia submitted the argument that Article 2(3) of the ICTR Statute (identical to Article 4(3) of the ICTY Statute) provides explicitly for the different forms 344 345

346

Original footnotes omitted. Emphasis added. Ibid., §§ 5, 6 and 9. Prosecutor v Slobodan Miloševiü, “Decision on Motion for Judgment of Acquittal”, Case No.: IT-02-54-T, T. Ch., 16 June 2004, § 291. The Amici Curiae of Miloševiü had inter alia submitted that the special intent required for genocide is not compatible with the mens rea requirement for a conviction pursuant to JCE Category 3, ibid., § 290. See also Stakiü Appeals Judgment, supra note 142, § 38. See supra note 125, § 48. See also Prosecutor v André Rwamakuba, Case No.: ICTR98-44-AR72.4, “Decision on Interlocutory Appeal regarding Application of Joint Criminal Enterprise to the Crime of Genocide”, App. Ch., 22 October 2004, which determined that customary international law recognised the application of the mode of liability of JCE to the crime of genocide before 1992. Ibid., § 31.

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of criminal responsibility governing genocide, so Article 6(1) of the ICTR Statute (identical in all relevant respects to Article 7(1) of the ICTY Statute) as a general provision does not apply to genocide.347 The Trial Chamber dismissed this argument noting The Chamber considers the interpretation of Articles 2 and 6 of the Statute by the Defence to be erroneous. Article 6(1) entails a general provision on individual criminal responsibility applicable to all crimes under the Statute. Article 2(3) provides for forms of criminal responsibility for the crime of genocide only. This provision reproduces verbatim Article III of the Genocide Convention. As the Trial Chamber in Krstic348 correctly notes, this provision provides for additional forms of criminal responsibility which are not included in the general provision of Article 6(1), such as “conspiracy to commit genocide” and “attempt to commit genocide”. The drafters of the Statute incorporated this provision in the Statute in order to ensure “that the Tribunal has jurisdiction over all forms of participation in genocide prohibited under customary international law.”349

3.6.2.2 Criticism of the Brÿanin Appeals Decision The Brÿanin Appeals Decision has been criticised for allegedly changing/ expanding the definition of genocide by enabling an individual to be liable for genocide employing the JCE Category 3 mode of liability, without requiring specific intent, an absolute requirement of the crime of genocide until the Brÿanin Appeals Decision. However, in the author’s view, such a position ignores the distinction between (i) the definition of a crime (which includes the elements of a crime) and (ii) the mode of liability by which the crime is committed. What causes the confusion as regards this issue, is that one of the elements of the crime of genocide is mens rea, i.e. specific intent (part of category (i)) and there is another mens rea for the purposes of JCE Category 3, i.e. the mode of liability (category (ii)). In the author’s interpretation, the Brÿanin Appeals Decision does not mean that an individual can be convicted of genocide in the absence of a specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. That specific intent has to exist in the minds of the persons who directly perpetrate the crime of genocide (i.e. satisfaction of the requisite mens rea element of the crime of genocide). However, an individual who participated in a JCE, whose purpose did not include the crime of genocide but where it was natural and foreseeable that genocide, which was outside the common purpose, was likely, can also be convicted of the crime of genocide, without the Prosecution having to prove that he had the specific intent to commit the crime of genocide. This is because specific intent is not part of the mens rea of the mode of liability only the mens rea element of the definition of genocide. What needs to be proved is the mens rea elements of the JCE Category 3. It is sufficient that the direct perpetrators have the specific 347 348 349

JCE was determined to be encompassed by the term “committed” in Article 6(1). Krstiü Trial Judgment, supra note 120, § 640. See also generally Krstiü Appeals Judgment, supra note 60. Karemera JCE Decision, supra note 125, § 47.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 217

intent to commit the crime of genocide, whereas the specific intent of the JCE Category 3 co-perpetrators is proved by the existence of a JCE, the foreseeability that the crime of genocide would be committed, even though it fell outside the common purpose of the JCE and the accused’s willingness to take that risk. The comments of Judge Shahabuddeen who issued a separate (but not dissent ing) opinion to the Brÿanin Appeals Decision are insightful in this regard. He agreed with the conclusion reached by the Appeals Chamber but not with the reasons on which the majority based their decision. He noted that paragraph 5 of the Brÿanin Appeals Decision (set out above) could be interpreted as meaning that an individual could be convicted of the crime of genocide without specific intent needing to be shown. However, he noted 2. In my respectful interpretation, the third category of joint criminal enterprise mentioned in Tadic does not dispense with the need to prove intent; what it does is that it provides a mode of proving intent in particular circumstances, namely, by proof of foresight in those circumstances. What the Trial Chamber350 held was that, in the case of a crime of specific intent, foresight does not prove specific intent; as genocide is a crime of specific intent, a conviction for it is therefore not possible under the third category of joint criminal enterprise… 4. I agree with the Trial Chamber in so far as it took the view that the statutory intent has to be established in each case of a genocide conviction. The reason for my agreement is this: The third category of Tadic does not, because it cannot, vary the elements of the crime; it is not directed to the elements of the crime; it leaves them untouched. The requirement that the accused be shown to have possessed a specific intent to commit genocide is an element of that crime. The result is that that specific intent always has to be shown; if it is not shown, the case has to be dismissed. 5. I do not think that Tadic spoke differently. The case as I appreciate it, concerned not the principle of having to show intent, but a method of doing so. … what it [the Tadiü Appeals Judgment] implies is that it is necessary to show intent but that intent is shown by the particular circumstances of the third category of joint criminal enterprise.351

Judge Shahabuddeen went on to conclude, applying the distinction drawn by him, that Brÿanin’s intent to commit the original crime (which was within the common purpose of the JCE) “included the specific intent to commit genocide also if and when genocide should be committed”.352 Thus, it can be inferred that Judge Shahabuddeen does not hold the view that the definition of genocide has been expanded or changed by the Tadiü Appeals Judgment or the Brÿanin Appeals Decision, by removing the specific intent requirement for the crime of genocide. This is because these judgments/decisions concerned a mode of proving intent, i.e. intent is proved by the particular circumstances of JCE Category 3 and not the elements of crimes. 350 351 352

Presumably a reference to the Trial Chamber in Prosecutor v Radoslav Brÿanin, supra note 342. Brÿanin Appeals Decision, supra note 343, separate opinion of Judge Shahabuddeen, §§ 2, 4 and 5 (emphasis added). Ibid., Separate Opinion of Judge Shahabuddeen, § 7.

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The distinction is subtle, but nevertheless, real. In the author’s view, the Brÿanin Appeals Decision did not change/expand the definition of genocide by removing the requirement of specific intent. The definition of the crime of genocide was not changed by that decision, but the category of persons whom can be held liable for the crime of genocide has been expanded, by the application of the JCE Category 3 mode of liability.353 However, quite another matter is whether it is desirable that a person can be convicted as a JCE co-perpetrator of genocide in reliance on JCE Category 3. In the author’s view, it is not. When one takes into account that genocide is considered to be the most reprehensible crime in international criminal law, then it is, arguably, farfetched to impose individual criminal liability for such crime, when the accused did not have the intent to commit genocide and did not physically commit the crime himself. One possible solution to offset the perceived injustices of the application of JCE Category 3 mode of liability to genocide could be to deal with the matter at the sentencing stage. Arguably, a more severe sentence should be imposed on a JCE Category 1 or 2 co-perpetrator of genocide, as such coperpetrator shares the special intent of genocide, whereas a lesser sentence should be imposed on a JCE Category 3 co-perpetrator of genocide, as he does not actually share the genocidal special intent.354

3.6.3 The Pleading of the JCE Mode of Liability in Indictments The form of pleading of the JCED by the Prosecutor in indictments before the ICTY and ICTR has given rise to many problems, as evidenced by the filing of preliminary motions by the Defence challenging the form of the indictment. 353

354

The Krstiü Appeals Judgment, supra note 60, states “[g]enocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established.” In the author’s view, this statement does not detract from the conclusion reached in this section 3.6.2.2, because as noted above, in the author’s view specific intent still remains part of the definitional elements of the crime of genocied. See infra section 3.7.1.6. Van Sliedregt notes that recent ICTY/ICTR jurisprudence indicates that for the purposes of imposing liability for aiding and abetting genocide, the tribunals have accepted that knowledge of genocidal intent is sufficient (as opposed to the accused possessing genocidal special intent himself). Accordingly, the genocidal special intent can also, arguably, be proved by knowledge or foresight, in the case of a JCE Category 3 co-perpetrator of genocide. However, for the purposes of conviction and sentencing, van Sliedregt argues that a JCE Category 3 co-perpetrator of genocide should be treated as “participating” in genocide which carries a lower sentence than committing genocide as a JCE Category 1 or 2 co-perpetrator (as such co-perpetrator has the genocidal special intent). In this way, JCE Category 3 liability for the crime of genocide would be higher up the scale of culpability than an aiding and abetting liability for the same crime. See supra note 258, pp. 193–195 and 203–207.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 219

Plainly, one should be careful that one does not seek to apply domestic law form of indictment standards to the international criminal law system in relation to the form of the indictment. As noted by the Trial Chamber in Prosecutor v Miroslav Kvoüka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, “Decision on Defence Preliminary Motions on the Form of the Indictment”, [T]he influence of domestic criminal law practice on the work of the International Tribunal must take due account of the very real differences between a domestic criminal jurisdiction and the system administered by the International Tribunal… The Trial Chamber finds that as a general rule, the degree of particularity required in indictments before the International Tribunal is different from, and perhaps not as high as, the particularity required in domestic criminal law jurisdictions… The massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes – at any rate, the degree of specificity may not be as high as that called for in domestic jurisdictions.355 Even taking this word of caution into account, the Prosecution has, arguably, failed on many occasions to articulate charges of criminal liability on the basis of the JCED with sufficient clarity, so as to enable the accused to fully appreciate the nature of the charges being brought against him and to enable him to prepare a proper defence.

3.6.3.1 Relevant Provisions of the ICTY Statute, ICTY Rules and Rules Arising from the Case Law of the ICTY, in Relation to the Form of Indictments Article 18(4) of the ICTY Statute provides that “[u]pon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute”, whereas Article 21(4)(a) and (b) of the ICTY Statute provides that in the determination of the charges against him, the accused shall be entitled to “be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him” and “to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.356 In addition, Article 21(2) provides that in the determination of charges against him, the accused “shall be entitled to a fair and public hearing…”.357 Rule 47(C) of the ICTY Rules of Procedure and Evidence builds on these provisions by stating that “[t]he indictment shall set forth the name and particulars of

355

356 357

Prosecutor v Miroslav Kvoüka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, Case No.: IT-98-30/1, “Decision on Defence Preliminary Motions on the Form of the Indictment”, T. Ch., 12 April 1999, §§ 16-17. Emphasis added. See ICTY Statute, supra note 44. Article 17(4) and Article 20 (4)(a) and (b) of the ICTR Statute, supra note 148, contains similar provisions. Emphasis added. See ICTY Statute, supra note 44. Article 20(2) of the ICTR Statute, supra note 148, contains a similar provision.

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the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.”358 Case law has determined that there is a distinction between the material facts upon which the Prosecution relies (which must be pleaded in the indictment) and the evidence by which those material facts will be proved (which need not be pleaded).359 The leading authority on the materiality of a particular fact is the decision of the Appeals Chamber in Prosecutor v Kupreškiü.360 Its findings have been summarised in the following terms: In the Kupreškiü case, the Appeals Chamber stressed that the materiality of a particular fact cannot be determined in the abstract. It depends on the objective of the Prosecution’s case. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct of the accused. For example, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail. Clearly, there may be instances where the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes: 92. It is of course possible that an indictment may not plead the material facts with the requisite degree of specificity because the necessary information is not in the Prosecution’s possession. However, in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed. In this connection, the Appeals Chamber emphasises that the Prosecution is expected to know its case before it goes to trial. It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. There are, of course, instances in criminal trials where the evidence turns out differently than expected. Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment. 114. The Appeals Chamber notes that, generally, an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case. If it fails to do so, it suffers from a material defect. A defective indictment, in and of itself, may, in certain circumstances cause the Appeals Chamber to reverse a conviction. The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the 358

359

360

Emphasis added. See ICTY Rules of Procedure and Evidence, supra note 141. An identical provision is contained in rule 47(C) of the ICTR Rules of Procedure and Evidence, supra note 264. See, for example, Prosecutor v Zoran Kupreškiü , Mirjan Kupreškiü, Vlatko Kupreškiü, Drago Josipoviü, Dragan Papiü and Vladimir Šantiü, Case No.: IT-95-16-A, App. Ch., Judgment, 23 October 2001 (“Kupreškiü Appeals Judgment”), § 147 and Prosecutor v Milorad Krnojelac, Case No.: IT-97-25, “Decision on Preliminary Motion on Form of Amended Indictment”, T. Ch. II, 11 February 2000 (“Krnojelac Amended Indictment Decision”), § 17. Kupreškiü Appeals Judgment, ibid.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 221 accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.361

The ICTR Appeals Chamber in Prosecutor v Rutaganda has held that before determining whether an event charged is immaterial or not, the Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. Inaccuracies capable of misleading the accused as to the nature of the criminal conduct with which he is charged could be prejudicial to the accused.362 The existence of the JCE is a material fact which must be pleaded.363 Moreover, the onus is on the Prosecution to identify the particular acts of the accused himself or the particular course of conduct on his part which are alleged to constitute the accused’s alleged individual responsibility, and not the acts of those persons for whose conduct he or she is alleged to be responsible.364 Additionally, the indictment should plead the state of mind of the accused. The materiality of facts such as the identity of the victims, the time and place of the events alleged and the description of those events depends upon the proximity of the accused to those events and therefore, the form of responsibility with which the accused is charged.365 3.6.3.2 Blanket Pleading of All Modes of Responsibility Under Article 7(1) Icty Statute The Prosecution has in numerous indictments not actually specified which mode of liability the accused is charged with having employed. Instead it casts the net of responsibility very broadly by using, for example, the following formulation: [The accused, from… until… ] is individually responsible for the crimes charged against him in this indictment, pursuant to Article 7(1) of the Statute of the Tribunal. Individual criminal responsibility includes committing, planning, initiating, ordering or aiding and abetting in the planning, preparation or execution of any acts or omissions set forth below…

361 362 363

364

365

Krnojelac Appeals Judgment, supra note 81, § 132. Prosecutor v Georges Anderson Nderubumwe Rutaganda, Case No.: ICTR-96-3-A, Judgment, App. Ch., 26 May 2003, § 303. Prosecutor v Nebojša Pavkoviü, Vladimir Lazareviü, Vlastimir Ðorÿeviü & Sreten Lukiü, Case No.: IT-03-70-PT, “Decision on Vladimir Lazareviü’s Preliminary Motion on Form of Indictment”, T. Ch., 8 July 2005 (“Lazareviü Indictment Decision”), § 7. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25, “Decision on the Defence Preliminary Motion on the Form of the Indictment”, T. Ch. II, 24 February 1999 (“Krnojelac Indictment Decision”), § 13. See also Prosecutor v Ramush Haradinaj, Idriz Balaj & Lahi Brahimaj, Case No.: IT-04-84-PT, “Decision on Motion to Amend the Indictment and on Challenges to the Form of the Amended Indictment“, T. Ch. II, 25 October 2006 (“Haradinaj Indictment Decision”), § 23. Haradinaj Indictment Decision, ibid., § 23.

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The problem with this formulation, of course, is that the accused does not actually know whether he is being accused of having personally committed the alleged crimes as a principal, or as an aider and abettor. Moreover, as mentioned above, the term ‘committing’ has been interpreted as encompassing the JCED, but without more clarification, it is difficult to determine what meaning the Prosecution is attaching to the term ‘committing’ (i.e. perpetrator or JCE co-perpetrator) and questions arise as to whether it is fair that the accused is left in doubt as to the nature of the charges against him. The ambiguity arising from this practice of merely quoting the provisions of Article 7(1) was noted by the Appeals Chamber in Prosecutor v Aleksovski. The Appeals Chamber stated that it was preferable that the Prosecution clearly express the particular nature of the responsibility alleged in relation to each individual count of the indictment.366 The Trial Chamber in Prosecutor v Radoslav Brÿanin & Momir Talic, noted that It was appropriate for the indictment to define individual responsibility in such extensive terms only if the prosecution intended to rely upon each of the different ways pleaded. If the prosecution did not have that intention, then the irrelevant material should not have been pleaded because of the ambiguity it creates, and the prosecution should have made its intention clearer.367

Notwithstanding this statement by the Trial Chamber, the Prosecution continued to use the same blanket pleading of the provisions of Article 7(1) in the Radoslav Brÿanin & Momir Talic amended indictment. The Trial Chamber thus determined to interpret the amended indictment as meaning that the Prosecution intended to rely on each of the different modes of liability under Article 7(1).368 In the Krstiü Trial Judgment, the Trial Chamber determined that since the Prosecution had not charged any specific head of criminal responsibility under Article 7(1) of the Statute, it was within its discretion to convict the accused under the “appropriate head within the limits of the Indictment and fair notice of the charges and insofar as the evidence permits”.369

366 367

368 369

Prosecutor v Aleksovski, Case No.: IT-95-14/1-A, Judgment, App. Ch., 24 March 2000 (“Aleksovski Appeals Judgment”), at footnote 319. Prosecutor v Radoslav Brÿanin & Momir Talic, Case No.: IT-99-36/1, “Decision on Objections by Radoslav Brdanin to the Form of the Amended Indictment”, T. Ch. II, 20 February 2001 (“Brÿanin Amended Indictment Decision”), § 10. See also Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No.: SCSL04-16-PT, “Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment”, T. Ch., 1 April 2004 (“Brima Trial Decision”), where the Trial Chamber noted that where the Prosecution pleads Article 6(1) of the SCSL Statute, supra note 13 (identical to Article 7(1) of the ICTY Statute, supra note 44) in its entirety, it carries the burden of proving each of the modes of liability at trial. Ibid., § 49. See Brÿanin Indictment Decision, supra note 15, § 8. Krstiü Trial Judgment, supra note 120, § 602.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 223

This blanket pleading approach was also criticised by the Trial Chamber in the Krnojelac Indictment Decision. The Trial Chamber noted 59. The form of pleading adopted by the prosecution in this case (and in some other cases) is to plead in terms of universal application an allegation that the accused bears three types of responsibility – superior, aiding and abetting and personal… and then in relation to individual counts, to plead facts which imply that, in relation to that particular count, personal liability is not being pursued. 60. It must be firmly stated that such a form of pleading is likely to cause ambiguity… It would be preferable in future cases that an indictment indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged. This would not be necessary where, for example, the nature of the responsibility alleged is the same in relation to every count but, where the nature of the responsibility differs, it should not be left to the accused (and ultimately to the Trial Chamber in the inevitable preliminary motion) to infer from the absence of any facts which indicate a personal responsibility that no such responsibility is being pursued.370

Following this decision, the Prosecution amended the Krnojelac indictment for the second time and pleaded for the first time the CPD in the following terms: 4.9 MILORAD KRNOJELAC… is individually responsible for the crimes charged against him in this indictment pursuant to Article 7(1) of the Statute… relating to the events occurring at KP Dom. Individual criminal responsibility includes committing, planning, ordering or otherwise aiding and abetting in the planning, preparation or execution of any acts or omissions set forth below… 5.1 MILORAD KRNOJELAC… while acting as the camp commander at the Foca KP Dom, together with the KP Dom guards under his command and in common purpose with the guards and soldiers… persecuted the Muslim and other non-Serb male civilian detainees at the KP Dom facility on political, racial or religious grounds. 5.2 As part of the persecution, MILORAD KRNOJELAC participated in or aided and abetted the execution of a common plan involving…371

The question arose whether the JCED was sufficiently pleaded. The Accused was of the view that it did not and filed a Preliminary Motion pursuant to Rule 72 of the ICTY Rules of Procedure and Evidence challenging the form of the indictment and asserting that the indictment was deficient in not identifying inter alia the essence of the common plan, the authors of the plan and the persons designated to execute the plan.372 The Trial Chamber determined to interpret the second amended indictment as pleading the CPD, but only a basic JCE.373 In doing so, it

370 371 372 373

See Krnojelac Amended Indictment Decision, supra note 359, §§ 59–60. Emphasis added. The Prosecutor of the Tribunal Against Milorad Krnojelac, Case No.: IT-97-25-I, Second Amended Indictment, 2 March 2000. Defence Preliminary Motion of the Second Amended Indictment, 25 April 2000. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25, “Decision on Form of Second Amended Indictment”, T. Ch. II, 11 May 2000 (“Krnojelac Second Indictment Decision”), § 13. The Trial Chamber noted that as the indictment was silent as to an extended

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noted, “the common purpose case could have been better and more logically pleaded. However, the clumsiness of its expression does not render it deficient in form”.374 Notwithstanding the existence of clear instances where both the Trial Chamber and Appeals Chamber of the ICTY have noted the ambiguity arising when using the blanket Article 7(1) language to charge the accused, this has not resulted in either Chamber rejecting an indictment on the grounds of it having a material defect or, at appeal level, rendering a trial unfair due to a material defect in the indictment.375 For instance, the Appeals Chamber in Prosecutor v Zejnil Delaliü, Zdravko Muciü, Hazim Deliü and Esad Landžo (“ýelebiþi Appeals Judgment”) noted Although greater specificity in drafting indictments is desirable, failure to identify expressly the exact mode of participation is not necessarily fatal to an indictment if it nevertheless makes clear to the accused the ‘nature and cause of the charges against him’.376

This comment in the ýelebiþi Appeals judgment was relied upon by the Trial Chamber in the Krstiü Trial Judgment, to reject the contention of the Defence that the Trial Chamber could not apply the JCE theory of liability, because JCE had not been expressly argued in the Krstiü amended indictment.377 Moreover, in Prosecutor v Tihomir Blaškiü, although the Appeals Chamber criticised the blanket pleading of Article 7(1) and determined that the Prosecution “should” have pleaded the particular forms of participation under Article 7(1) with respect to each incident under each count,378 in the end it determined that such defect in the indictment did not materially impair the accused’s ability to prepare his defence and accordingly render his trial before the Trial Chamber unfair.379 The Appeals Chamber in the Kvoþka Appeals Judgment reached a similar conclusion. Although, the JCED had not been specifically pleaded in the Kvoþka indictment and although the Appeals Chamber determined that the material facts relevant to the JCED

374 375

376 377 378 379

JCE, it was unnecessary for the Trial Chamber to consider it as a mode of liability charged by the Prosecution. Ibid., § 11. Ibid., § 14. The ICTR has been more consequential in this regard. In the Ntakirutimana Appeals Judgment, the ICTR Appeals Chamber dismissed the third ground of appeal of the Prosecutor to revise the verdict to reflect the fact that the accused were liable for genocide as JCE co-perpetrators instead of as aiders and abettors of genocide. This was due to the “persistent ambiguity” surrounding the mode(s) of liability pleaded by the Prosecution. In that case, the JCE mode of liability was not specified in the indictments or raised at trial. Neither did the Trial Chamber interpret the indictments as alleging liability, as a JCE co-perpetrator of genocide. See supra note 153, §§ 448-484. Emphasis added. Prosecutor v Zejnil Delaliü, Zdravko Muciü, Hazim Deliü and Esad Landžo, Case No.: IT-96-21-A, App. Ch., Judgment, 20 February 2001, § 351. Krstiü Trial Judgment, supra note 120, § 602. Prosecutor v Tihomir Blaškiü, Case No.: IT-95-14-A, Judgment, App. Ch., 29 July 2004 (“Blaškiü Appeals Judgment”), § 226. Ibid., §§ 230-245.

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“should” have been specifically pleaded, it determined that the Prosecution had given “clear and consistent notice”, starting before the commencement of the Kvoþka trial and continuing through the Prosecution’s case that it intended to rely on the JCED.380 What is interesting about many of the cases where blanket pleading has been used in the relevant indictment is that the ICTY Chambers did not require that the mode of liability be expressly and clearly set out in the indictment. This was a preferable approach but it was not obligatory (as evidenced by the failure to declare an indictment as having a material defect, notwithstanding the ambiguity as to the precise mode of liability being charged). The Prosecution was permitted to plead the JCE mode of liability in quite unspecific terms and it was only at the intervention of the Trial Chamber (at the instigation of the Accused) that it was eventually determined what the Prosecution was actually pleading. Perhaps the timing of the earlier ICTY indictments influenced the Trial Chamber’s leeway to the Prosecution. Utilisation of the JCED was in its infant stage and each of the Prosecution, Defence and the ICTY Chambers had yet to learn how to handle it, including how it should be pleaded. Clearly though, this ‘learning process’ does not make any potential infringement of an accused’s right to a fair trial any the more acceptable. The pronouncements of the Chambers over recent years have emphasised that indictments need to be more precise in relation to the pleading of the JCED. Over and above, pleading the JCE as a material fact in an indictment, the indictment must also identify (i) the nature or purpose of the JCE; (ii) the time at which or the period over which the enterprise is said to have existed; (iii) the identity of those engaged in the enterprise, so far as their identity is known, but at least by reference to their category as a group; and (iv) the nature of the participation of the accused in that enterprise.381 Where the nature of the participation by the accused in the JCE is to be established by inference, the Prosecution must identify in the indictment the facts and circumstances from which the inference is sought to be 380

381

Kvoþka Appeals Judgment, supra note 59, §§ 29, and 36-54. The Appeals Chamber noted, moreover, that none of the accused had brought a timely objection to the employment of the JCED to the attention of the Trial Chamber. Ibid., § 50. See, for example, Krnojelac Second Indictment Decision, supra note 373, § 16; Prosecutor v Mitar Raševiü, Case No.: IT-97-25/1-PT, “Decision Regarding Defence Preliminary Motion on the Form of the Indictment”, T. Ch. II, 28 April 2004, § 15; Prosecutor v Ivan ýermak & Mladen Markaþ, Case No.: IT-03-73-PT, “Decision on Ivan ýermak’s and Mladen Markaþ’s Motions on Form of Indictment”, T. Ch. II, 8 March 2005 (“ýermak Indictment Decision”), § 9; and Lazareviü Indictment Decision, supra note 363, § 7. It should be noted, that the expression “acting in concert together” employed in a number of indictments, has been determined to mean acting pursuant to a JCE. See Prosecutor v Mitar Vasiljeviü, Case No.: IT-98-32-T, Judgment, T. Ch. II, 29 November 2002 (“Vasiljeviü Trial Judgment”), § 63 and Simiü Trial Judgment, supra note 8, §§ 139–143 and 148–149. Judge Lindholm has stated, however, that the expression only refers to JCE Categories 1 and 2, “whereas the extended form of joint criminal enterprise under no conditions can be inferred from the words “acting in concert together”.” See Simiü Trial Judgment, supra note 8, § 4.

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drawn.382 Moreover, as regards the state of mind of the accused, the Prosecution must plead either the relevant state of mind as a material fact, or the evidentiary facts (e.g. the acts and conduct of the accused) from which the state of mind is to be inferred.383 Accordingly, the Prosecution would, today, be foolhardy to ignore these pronouncements. However, where an indictment fails to comply with the stated requirements, the more recent case law mentioned above indicates that the ICTY will still try to determine that a material defect in the indictment has been cured by the subsequent actions of the Prosecution, particularly if the issue has not been resolved prior to commencement of the actual trial. This is, in many respects, understandable. The acquittal of an accused because of some perceived ‘legal technicality’ would not sit well with the victims involved and the international community as a whole. Likewise, the recent indictments issued by the Prosecution indicate that the Prosecution pleads the relevant material facts of the JCED in the indictments when it has that information available to it.384 Where it does not, the pleading is less comprehensive. However, as noted above, in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed, in the absence of such material facts.385 One final comment is warranted. In the absence of JCE language in the indictment or elsewhere, the Chambers may be willing to interpret the relevant documentation as putting the accused on notice that the Prosecution intended to rely on the JCE Categories 1 and 2. However, it is not willing to determine that the accused had been put on notice that the Prosecution intended to rely on JCE Category 3, in the absence of the specific pleading of such JCE category.386

382 383

384

385 386

Lazareviü Indictment Decision, ibid. Ibid., § 9. See also Brÿanin Indictment Decision, supra note 15, § 33 and ýermak Indictment Decision, supra note 381, § 63. In Prosecutor v Aloys Simba, the ICTR Trial Chamber, in reliance on the Brÿanin Indictment Decision, ordered the Prosecution to amend the Amended Indictment to plead the mens rea element of the JCE. See Prosecutor v Aloys Simba, Case No.: ICTR-01-76-I, “Decision on Preliminary Defence Motion Regarding Defects in the Form of the Indictment“, T. Ch. I, 6 May 2004 (“Simba Indictment Decision”), §§ 9–12. See, for example, Prosecutor v Milan Milutinoviü, Nikola Šainoviü, Dragoljub Ojdaniü, Nebojša Pavkoviü,Vladimir Lazareviü, Vlastimir Ðjordjeviü & Sreten Lukiü, Case No.: IT-05-87-PT, Third Amended Joinder Indictment, 21 June 2006; Prosecutor v Ljube Boškoski & Johan Tarculovski, Case No.: IT-04-82-PT, Amended Indictment, 2 November 2005; and Prosecutor v Mico Stanišic, Case No.: IT-04-79-PT, Revised Amended Indictment, 22 September 2005. See Kupreškiü Appeals Judgment, supra note 359, § 92 See Krnojelac Trial Judgment, supra note 53, § 86, Vasiljeviü Trial Judgment, supra note 381, § 213 and Simiü Trial Judgment, supra note 8, § 155.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 227

3.6.3.3 Revealing the Nature of the Alleged Individual Criminal Responsibility of the Accused in the Prosecution’s Pre-Trial Brief The jurisprudence of the ICTY contains a number of cases where the Prosecution did not charge the JCE mode of liability until its Pre-Trial Brief. This action has been challenged by the accused who argued that as the JCE mode of liability was not charged in the indictment, the Prosecution could not rely on it at all, notwithstanding that it was relied upon in the Pre-Trial Brief. The response of the ICTY Chambers to this argument has not been harmonious. Trial Chamber II, in a decision on 23 February 2001, rejected a Prosecution argument that it was not obliged to reveal the nature of the alleged individual criminal responsibility of the accused until it files its Pre-Trial Brief. As its PreTrial Brief would show, with respect to each crime, the nature of the alleged individual criminal responsibility of the accused, no purpose, arguably, would be served in requiring the same degree of specificity in the indictment.387 The Trial Chamber noted that such an assertion would not be in compliance with the obligations imposed by the ICTY Statute and ICTY Rules of Procedure and Evidence upon the Prosecution.388 In addition, the Pre-Trial Brief is not delivered until preparation for the trial is well under way and if the Defence is denied information as to the nature of the accused’s criminal responsibility for the events pleaded until the Pre-Trial Brief is filed, it is almost entirely incapacitated from conducting any meaningful investigation in preparation for trial until then. Some of the bases of responsibility pleaded in the indictment may not be identified in the Pre-Trial Brief when it is filed months later. It would be extraordinary that the accused should be expected to waste time beforehand investigating every basis for his responsibility referred to in Articles 7.1 and 7.3 (as pleaded here).389

Moreover, the Trial Chamber in Prosecutor v Vojislav Šešelj noted, that when summarising “general pleading principles”, generally “an indictment, as the primary accusatory instrument, must plead with sufficient particularity the material aspects of the Prosecution’s case, failing which it suffers from a material defect. In the light of the primary importance of the indictment, the Prosecution cannot cure a defective indictment via its supporting material and pre-trial brief.”390 However, in the Krstiü Trial Judgment, the Trial Chamber rejected the Defence’s submission that it was not open to the Trial Chamber to apply the JCE mode of liability, as it had not been pleaded in the indictment, although it had been pleaded in the Prosecution’s Pre-Trial Brief. The Trial Chamber noted that the Prosecution’s Pre-Trial Brief expressly discussed JCE liability in the context of ethnic cleansing and that the Defence had not objected to its presence in the Pre-Trial 387 388 389 390

See Brÿanin Amended Indictment Decision, supra note 367. Ibid., §§ 10–11. Ibid., § 12. Šešelj Jurisdiction Decision, supra note 81, § 31. Emphasis added.

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Brief and only objected to some of the legal submissions on the matter. In addition, the Trial Chamber found that the “nature and cause of the charges against the accused pleaded in the indictment contains sufficient references to his responsibility for the alleged crimes committed in concert with others”.391 As noted above, the Trial Chamber posited that “[s]ince the Prosecution has not charged any specific head of criminal responsibility under Article 7(1) of the Statute, it is within the discretion of the Trial Chamber to convict the Accused under the appropriate head within the limits of the Indictment and fair notice of the charges and insofar as the evidence permits”.392 Moreover, in the Kvoþka Trial Judgment, the Trial Chamber did not uphold the Defence’s objection to the introduction of the JCE mode of liability in the Prosecution’s Pre-Trial Brief. The Prosecution had charged the accused with responsibility in accordance with Article 7(1) in its amended indictment, but did not introduce the charge of JCE responsibility until its Pre-Trial Brief. The Defence argued that by introducing JCE as a ground of liability in its Pre-Trial Brief, the Prosecution was attempting to expand the responsibility of the accused as alleged in the amended indictment and that the Prosecution should be limited to proving the charges set out in the amended indictment. The Trial Chamber agreed that the amended indictment must frame the Prosecution’s case “in a recognizable fashion and be sufficiently clear in its charges to enable the accused to mount an effective defence and that the Prosecution is certainly limited in its case to the charges set out in the Amended Indictment”.393 However, referring to the findings in the Tadiü Appeals Judgment, the ýelebiþi Appeals Judgment and the Krstiü Trial Judgment, the Trial Chamber noted that the theory of JCE liability is included within the scope of Article 7(1) and that it considered it “within its discretion to characterize the form of participation of the accused, if any, according to the theory of responsibility it deems most appropriate, within the limits of the Amended Indictment and insofar as the evidence permits”. On appeal, each of the appellants, Kvoþka, Radiü, Žigiü and Prcaü contended that the Trial Chamber had erred in law in convicting him of crimes not properly pleaded in the indictment, i.e. the JCE mode of liability, for which they each therefore lacked notice. Although the Appeals Chamber determined that the indictment failed to give proper notice of the Prosecution’s intent to rely on the JCED, and accordingly was vague and defective, a careful review of the trial record indicated, in the view of the Appeal Chamber, that the Prosecution had nonetheless given “timely, clear and consistent information to the Appellants, which detailed the factual basis of the charges against them and compensated for the Indictment’s failure to give proper notice of the Prosecution’s intent to rely on joint criminal enterprise responsibility”.394

391 392 393 394

See Krstiü Trial Judgment, supra note 120, § 602. Ibid., § 602. Kvoþka Trial Judgment, supra note 91, § 246. Kvoþka Appeals Judgment, supra note 59, §§ 26–55. In this regard, the Appeals Chamber referred to the Prosecution’s Pre-Trial Brief filed on 14 February 2002 which addressed the JCED, the opening statement of the Prosecution of 28 February 2000,

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 229

Finally, the Kvoþka Appeals Judgment is of relevance to the current discussion. In that case, the Appeals Chamber did not have to consider a specific motion by the accused that the Prosecution could not rely on the JCED, where it had not been pleaded in the indictment, but had been relied upon in the Pre-Trial Brief. However, the Appeals Chamber specifically relied upon the fact that the Kvoþka Pre-Trial Brief referred in some detail to the JCED, in determining that the Prosecution gave “clear and consistent” notice to the accused that it intended to rely on the JCED, notwithstanding the absence of the pleading of the JCED in the Kvoþka indictment. As mentioned at the outset, the response of the ICTY Chambers has not been cohesive on this matter. An accused would be well advised to prepare his case against a charge of participation by way of the JCE mode of liability notwithstanding that the JCE mode of liability is not charged in the indictment, but only in the Prosecution’s Trial Brief. Similar to the ICTY Chambers’ position in relation to the blanket pleading of the JCE mode of liability in the indictment, it would appear that the Chambers have a ‘preferred’ scenario and the ‘accepted-in-practice’ scenario. They would prefer that the indictment charge the JCE mode of liability and that Prosecution not wait until its Pre-Trial Brief to charge the JCE mode of liability. However, in practice, if the JCE mode of liability is not charged until the Prosecution’s Pre-Trial Brief, then the Chambers will do all that it can to determine that the JCE mode of liability has been adequately charged by the Prosecution. At the very least, reliance may be placed by the Chamber on the reference in a PreTrial Brief to the JCED to overcome a material defect in an indictment which does not plead the JCED, although such mode of liability is subsequently relied upon by the Prosecution.395 3.6.3.4 JCE Specifically Charged, but not Specified which JCE Category is Being Charged A review of the ICTY indictments indicate that the Prosecution sometimes explicitly charges the JCE mode of liability, but does not specify the precise category of JCE with which it charges the accused. A case in point is the Krnojelac case.396 The third amended indictment in the Krnojelac case pleaded the JCED in the same terms as the second amended indictment.397 As mentioned above, the Trial Chamber interpreted this formulation as an allegation by the Prosecution that the Accused had acted pursuant to a

395

396 397

which referred to the JCED and the Prosecution’s oral argument on its request to file an amended indictment ruled on by the Trial Chamber on 13 October 2000. Ibid. In the Simba Indictment Decision, the ICTR Trial Chamber cited with approval, the conclusion of the Krnojelac Appeals Judgment, that the general requirement to plead all the requisite elements of a JCE in an indictment does not prevent the Prosecution in limited circumstances from providing adequate notice by elaborating on its theory in its Pre-Trial Brief in light of the facts alleged. See supra note 383, § 391. The Prosecutor of the Tribunal Against Milorad Krnojelac, Case No.: IT-97-25-I, Third Amended Indictment, 25 June 2001. See supra section 3.6.3.2.

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basic JCE and not JCE Category 3.398 Notwithstanding this interpretation of the indictment by the Trial Chamber, the Prosecution did not seek to amend the indictment to include JCE Category 3, but did seek to rely on JCE Category 3 in its Pre-Trial Brief, as an alternative, if basic JCE could not be established.399 Would such course of action comply with the right of the accused to a fair trial? Could the Prosecution rely on a particular category of the JCED which was not explicitly specified in the indictment charging the accused, but only mentioned in a Pre-Trial Brief by the Prosecution? The Trial Chamber decided that it could not, particularly as the Trial Chamber itself had interpreted the indictment as only referring to basic JCE. If the Prosecution wanted to rely on JCE Category 3, then they needed to plead it expressly in the indictment.400 The Prosecution subsequently appealed such decision inter alia on account of its ‘general significance’ for the case law-of the ICTY, submitting that the Trial Chamber had committed an error of law in holding that the accused could not be held liable in accordance with JCE Category 3 with respect to any of the crimes alleged in the indictment, unless JCE Category 3 was pleaded expressly in the indictment.401 The Appeals Chamber held, on the facts, that the Trial Chamber had good grounds for refusing to consider JCE Category 3 with respect to Krnojelac.402 In the course of its consideration of this ground of appeal, the Appeals Chamber made some noteworthy general comments in relation to the pleading of JCE. With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form 398

399 400 401 402

See Krnojelac Amended Indictment Decision, supra note 359, § 13. The Trial Chamber noted that as the indictment was silent as to an extended JCE, it was unnecessary for the Trial Chamber to consider it as a mode of liability charged by the Prosecution. Ibid., § 11. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25-PT, Prosecution Pre-Trial Brief, 16 October 2000. Krnojelac Trial Judgment, supra note 53, § 86. See also the references in supra note 386. Krnojelac Appeals Judgment, supra note 81, § 125. For example, when the Trial Chamber determined that the Prosecution was not pleading JCE Category 3, the Prosecution should have sought to have remedied this misconception either by requesting the Trial Chamber to revisit its decision or by seeking leave to amend the indictment. See Krnojelac Appeals Judgment, supra note 81, §§ 140–144.

3.6 Issues Arising in Relation to the JCED from a Review of Jurisprudence 231 (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment – for instance in a pre-trial brief – the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial.403

Thus, according to the Krnojelac Appeals Chamber, when pleading that the accused ‘committed’ the crime, the Prosecution must specify in the indictment whether the term is to be understood as meaning physical commission or participation in a JCE by the accused, or both (as soon as possible and in any event, before the start of trial). However, it is not obligatory, only preferable, to refer to the particular form (basic or extended) of JCE envisaged, where appropriate.404 This gives rise to the question as to why there should be a distinction. In the interests of guaranteeing the accused a fair trial, then arguably it should also be obligatory to refer to the particular form of JCE, as soon as possible and in any event, before the start of the trial. However, the Appeals Chamber faces the dilemma of balancing the rights of the accused and the realities facing the Prosecution when prosecuting core international crimes, i.e. that at the time the indictment is issued or even right up to the commencement of the trial, the Prosecution may not be able to plead the specifics of the crime as they are not within its possession. However, as noted in the Kupreškiü case, in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed.405 It is clear that the indictments drafted by the Prosecution have, with the passing of time and the gaining of experience, become less vague as regards the mode of liability being charged. Instead of just pleading the blanket Article 7(1) formula, the Prosecution is now, where appropriate, also clearly pleading the JCE theory of liability. A typical example of the formulation pleaded by the Prosecution is as follows: [The Accused] are individually criminally responsible for the crimes referred to in Articles… of the Statute of the Tribunal and described in this indictment, which they planned, instigated, ordered, committed or in whose planning, preparation or execution they otherwise aided and abetted. By using the word “committed” in this indictment, the Prosecutor does not intend to suggest that… [the Accused] physically committed any or all of the crimes charged personally.

While no doubt this type of phrasing represents an improvement from the perspective of the rights of the accused, it is arguably not enough. Frequently, having read the indictment which charges the JCE mode of liability, one is still not clear 403 404

405

Emphasis added. Ibid., § 138. The Appeals Chamber in the Kvoþka Appeals Judgment held that “… in order for an accused charged with joint criminal enterprise to fully understand which acts he is allegedly responsible for, the indictment should clearly indicate which form of joint criminal enterprise is being alleged”. Kvoþka Appeals Judgment, supra note 59, § 28 (emphasis added). See supra section 3.6.3.1.

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as to what precise category of JCE is being charged. It is often left up to the Chamber itself to determine what category the Prosecution is charging, bearing in mind the facts of the case and the evidence presented. The right of the accused to a fair trial is arguably jeopardised if the Prosecution does not clearly articulate its case against the accused. A determination of the charges against the accused should not be dependent upon the interpretation of the Chamber. On other occasions, the indictment is more specific and in addition to using similar wording to that set out above, it includes wording to the effect that The crimes enumerated in the counts of this indictment were within the object of the joint criminal enterprise [i.e. a reference to JCE Category 1 and/or 2], and each of the accused held the state of mind necessary for the commission of each of these crimes. Alternatively, the crimes enumerated in the Counts… were the natural and foreseeable consequences of the execution of the joint criminal enterprise and each of the accused was aware that these crimes were the possible consequence of the execution of the joint criminal enterprise [a reference to JCE Category 3].

Notwithstanding this wording, it is still not clear what basic category of JCE the Prosecution is pleading406 and again, it is frequently left to the Chamber to determine which JCE category the Prosecution is actually pleading. For instance, in Prosecutor v Mile Mrkšiü, Miroslav Radiü and Veselin Šljivanþanin, “Decision on Form of Consolidated Amended Indictment and on Prosecution Application to Amend”, the Trial Chamber held Insofar as the basic form of JCE is concerned, the Trial Chamber interprets that the Prosecution pleads the first category of JCE, but not the second category of JCE. The Trial Chamber believes it is appropriate to clarify this already at this stage of proceedings to avoid any ambiguity. If the Prosecution considers that the Trial Chamber has misconstrued its intentions on the matter, the Trial Chamber invites it to dispel any ambiguity either by requesting the Trial Chamber to revisit its decision or by seeking leave to further amend the Indictment.407

In conclusion, although the more recent indictments which have been issued by the Prosecution are more precise than those issued previously, there does appear to be something inherently unfair in an indictment that does not expressly state the precise mode of liability of which the accused is charged. This unfairness is underscored by the fact that, not even the Chamber, let alone the accused, is clear on the mode of liability charged. If the Prosecution is in a position to “dispel any ambiguity either by requesting the Trial Chamber to revisit its decision or by seeking leave to further amend the Indictment”, then surely it should do so as soon as possible. 406 407

Notwithstanding that the difference between JCE Category 1 and JCE Category 2 is relatively minor. See supra section 3.4.1.1. Emphasis added and footnotes omitted. See Prosecutor v Mile Mrkšiü, Miroslav Radiü and Veselin Šljivanþanin, Case No.: IT-95-13/1-PT, “Decision on Form of Consolidated Amended Indictment and on Prosecution Application to Amend”, T. Ch. II., 23 January 2004, § 33. See also Krnojelac Trial Judgment, supra note 53 and Krnojelac Appeals Judgment, supra note 81.

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3.6.3.5 Permissibility of Charging Under Alternative Categories of JCE Liability As noted above, the language of the indictment sometimes indicates that the Prosecution is charging the accused both with basic JCE liability and extended JCE liability. It could be argued that this method of pleading is also inherently unfair to the accused as he has to prepare to defend himself against all three categories of JCE liability; and arguably if he is found liable under the basic JCE mode of liability in relation to one set of events, then he cannot be found liable under the extended JCE mode of liability in relation to those same events. Is it permissible for the Prosecution to ‘hedge its bets’ in such manner and can the Prosecution really be said to ‘know its case’ before going to trial if it pleads alternative forms of JCE liability? This issue came up for consideration before the Trial Chamber in Prosecutor v Mile Mrkšiü, where the indictment pleaded both the basic and the extended form of JCE liability.408 The Defence submitted that the allegation that the accused participated in the basic form of JCE was inconsistent with the alternatively alleged extended form of JCE, that allowing the Prosecution to plead both forms would result in the accused “having to defend himself from one fact in two opposite ways… therefore rendering any possibility of a defence preparation impossible” and that this “broadened form of responsibility” disabled the accused from adequately preparing its defence. Accordingly the Prosecution should be ordered to specify the form of JCE liability with which it wished to charge the accused.409 The Trial Chamber however, determined that the jurisprudence of the ICTY indicates that it is permissible to plead the basic and extended forms of JCE liability in the alternative, on the basis that it is not always possible for the Prosecution to know ahead of trial which of the two forms of responsibility will be proved by the evidence… The Defence submission that this may make the preparation of its case more difficult or “impossible” has not been substantiated, and does not justify a change in the Prosecution’s pleading approach… It is not the task of the Trial Chamber to ensure that the position of the Defence is not onerous, but rather that it is not unfairly so. The Prosecution correctly responds that the suggestion that pleading in the alternative places an accused in a more onerous position and that it should therefore be disallowed is without support in the Tribunal jurisprudence.410

This position again seems prima facie unfair to the accused. One could argue that if the Prosecution does not know what its case is, then they should not have charged the accused in the first place. On the other hand, if the evidence at trial is not sufficient to prove, for example, JCE Category 1, but it does prove JCE Category 3, then the accused should not be permitted to escape punishment merely because the Prosecution lost its gamble by charging JCE Category 1 alone. 408 409 410

Prosecutor v Mile Mrkšiü, Case No.: IT-95-13/1-PT, “Decision on Form of the Indictment”, T. Ch. II., 19 June 2003. Ibid., §§ 55–57. Ibid., §§ 56–58.

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3.6.3.6 Concluding Remarks The ICTY is of the view that if the specific mode of liability which is being charged by the Prosecution is not clear, then it is within the discretion of the court to convict the accused under the appropriate head of Article 7(1). It has also determined that it is acceptable for the Prosecution not to charge JCE liability in the indictment, but to wait until its Pre-Trial Brief to do so. In addition, while it is preferable to refer to the particular JCE category on which the Prosecution wishes to rely in the indictment, it is not obligatory.411 Moreover, the Kvoþka Appeals Chamber has held that in some cases, the prejudicial effect of a defective indictment can be remedied if the Prosecution has provided the accused with “clear, timely and consistent information detailing the factual basis underpinning the charges against him or her, which compensates for the failure of the indictment to give proper notice of the charges”.412 Notwithstanding these viewpoints, in the author’s view, the fact that an accused may be forced to prepare his case, without knowing the full extent of the charges against him amounts to a breach of the rights of the accused to a fair trial, to be informed promptly and in detail of the nature and cause of the charge against him and to have adequate time and facilities for the preparation of his defence, all of which rights are specifically provided for in Article 21 of the ICTY Statute. The international criminal law system is faced with a difficult balancing act – the enforcement of the principle of individual criminal responsibility for core international crimes versus the protection of the rights of the accused. However, the application of the JCED before the ICTY indicates that one needs to take care that one’s zealousness for the punishment of the perpetrators of core international crimes does not engulf the rights of the accused. The individual perpetrators of core international crimes ought to be punished, but not at any cost.

3.7 Critique of the JCED Having considered the employment of the JCED in the constitutive documents of various judicial institutions, as well as the particular issues which arise in relation to the employment of the doctrine before the ad hoc international criminal tribunals and in its jurisprudence, it is pertinent to evaluate the doctrine on a broader level 411

412

The SCSL has also had opportunity to consider Defence claims that the JCE element of the charges had not been pleaded with sufficient specificity in the indictment concerned. However, the Trial Chamber rejected such contention in Prosecutor v Issa Hassan Sesay, Case No.: SCSL-2003-05-PT, “Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment”, T. Ch., 13 October 2003; Prosecutor v Santigie Borbor Kanu, Case No.: SCSL-2003-13-PT, “Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment”, T. Ch., 19 November 2003; and Brima Trial Decision, supra note 367, §§ 51–53. However, the latter decision was overturned by the Appeals Chamber of the SCSL. See supra note 205 and supra section 3.4.5. Kvoþka Appeals Judgment, supra note 59, § 34.

3.7 Critique of the JCED 235

and to examine whether, on balance, it is a “monster theory of liability” or a legitimate and satisfactory tool for the prosecution of the perpetrators of core international crimes. A number of issues should be noted in this regard.413 3.7.1 Pertinent Issues 3.7.1.1 Rationale of the JCED The rationale of the JCED has been identified in the following terms: [T]o hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.414

The doctrine enables the evidentiary difficulties of proving that the accused participated in a crime to be circumvented and for the accused to be convicted of participation in a core international crime(s). It is the nature of core international crimes to be mass-scale crimes committed by a plurality of perpetrators and frequently evidence of participation by an accused is scarce. One can appreciate the desire to punish as many of the perpetrators of core international crimes as possible. However, at what price? Arguably the JCED is imprecise, dilutes standards of proof, has connotations of guilt by association, and undermines fundamental principles of criminal law, i.e. the right to a fair trial, the presumption of innocence and the punishment of the personal guilt of the individual.415 Should elementary principles of justice be compromised in order to accommodate evidentiary difficulties? There are two sides to this coin. The rationale for the traditional strict evidentiary requirements, which must be satisfied in order for a conviction, is to ensure that an innocent man is not convicted. Why should this rationale be ignored when the crime at hand is a core international crime? Indeed, one could argue that it is precisely because the consequences of conviction for a core international crime are so grave, that such strict evidentiary requirements ought not to be relaxed. On the other hand, it is argued that because of the nature of core international 413

414 415

It should be noted that the Appeals Chamber’s determination in the Tadiü Appeals Judgment that the legal basis of the JCD is part of customary international law, has been the subject of much criticism. This is, of course, another critique of the JCED. However, as this issue has been dealt with extensively elsewhere, see, for example, the references set out in supra note 58, it will not be considered in this chapter. Van Sliedregt, however, is not of the view that the JCED does not form part of customary international criminal law. See van Sliedregt, supra note 146, pp. 96–99. See Karemera JCE Decision, supra note 125, § 36. As articulated in, for example, Articles 7 and 21, ICTY Statute, supra note 44, Article 6 and 20, ICTR Statute, supra note 148 and Articles 25, 66 and 67, ICC Statute, supra note 11.

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crimes, such strict evidentiary requirements will, in most cases, be impossible to satisfy; and because of the heinous nature of such crimes, certain leeway ought to be given. Otherwise many perpetrators of core international crimes will escape justice. The ad hoc international criminal tribunals and the ICC are engaged in a very difficult balancing act. It is also of interest that the JCED is only a feature of some (mainly commonlaw) and not all, or at least not a majority of, domestic criminal law systems.416 If one is not satisfied with the application of the doctrine on the domestic level, then why should the doctrine have application on the international level? Could part of our reasoning be that we do not think that it will ever apply to our nationals? It is most often the case that the accused to whom this doctrine is applied are not the nationals of western countries. Presumably, concern would be expressed if, for example, a Danish national was convicted of an international crime on the basis of JCE Category 3, whereby such individual neither intended to commit such crime, nor personally committed such crime. Such a situation is more plausible than ever before, due to Danish military involvement in various conflict situations worldwide. One can appreciate why the populations of war torn countries who are subjected to the international criminal justice system are quite sceptical of the very system that is supposed to furnish them justice. There is no doubt that the application of the JCED is the consequence of a complicated balancing act. However, in the author’s view, as has been noted above, if the fundamental rights of the accused are in any way disrespected – which is arguably the result of the application of the JCED - the resulting damage to the international criminal law system in the long-run could be substantial. In order for this system to be taken seriously, then the fundamental rights of the accused must be respected, even if means that some of the perpetrators of core international crimes go unpunished and notwithstanding the particular nature of core international crimes or the rationale of the JCED. 3.7.1.2 Undermining the Principle of Individual Criminal Responsibility in Favour of Collective Responsibility As observed on numerous occasions above, bearing in mind the particular nature of core international crimes, the frequent employment of the JCED is understandable. Indeed, the Appeals Chamber in the Krnojelac case noted the Prosecution’s comment that “the international crimes most frequently committed in wartime situations are “manifestations of collective criminality” and any allegation of “perpetrating” a crime in an indictment can impute liability to an individual for his participation in any of the categories of joint criminal enterprise described in the Tadiü Appeals Judgement.”417 However, the danger exists that in applying the JCED to deal with a plurality of offenders, the principle of individual criminal responsibility, which is one of the fundamental principles of international criminal 416 417

See supra note 78. See Krnojelac Appeals Judgment, supra note 81, § 126, at footnote 159.

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law, is undermined and replaced by the concept of collective responsibility.418 As noted by the ICTY Trial Chamber in Prosecutor v Dario Kordiü and Mario ûerkez, The expansion of mens rea is an easy but dangerous approach. The Trial Chamber must keep in mind that the jurisdiction of this International Tribunal extends only to “natural persons” and only the crimes of those individuals may be prosecuted. Stretching notions of individual mens rea too thin may lead to the imposition of criminal liability on individuals for what is actually guilt by association, a result that is at odds with the driving principles behind the creation of this International Tribunal.419

Advocates of the JCED would argue that liability arising under the JCE mode of liability does not equate to collective responsibility. Guilt does not arise by association but rather the accused is convicted for his own participation in a crime(s) with respect to which he had the requisite intent. With regards to JCE Category 1 (co-perpetration cases), the accused has to have the intent to perpetrate a crime, such intent being the shared intent on the part of all of the participators, and there has to be a plurality of persons, the existence of a common plan, design or purpose which amounts to or involves the commission of a crime and the participation of the accused in the common design. The actus reus elements of JCE Category 2 (concentration camp cases) are the same, whereas the mens rea required is a personal knowledge of the system of ill-treatment and an intent to further this common concerted system of ill-treatment. On the one hand, there is value in the submission that JCE Categories 1 and 2 do not amount to guilt by association as clearly the accused has to have the requisite intent and there has to be some form of actual participation by him. On the other hand, although JCE Categories 1 and 2 are arguably not synonymous with collective responsibility, the distinction between them is very subtle. It is hard not to draw parallels with collective responsibility, especially when the actus reus requirements are based on group/common plan criteria and as regards JCE Category 1, the intent of the accused is the shared intent of the other alleged JCE perpetrators. In the author’s view, the category of the JCED which is most in danger of falling foul of the collective responsibility concept is JCE Category 3 (crimes committed outside the common purpose). The actus reus requirements are the same as for JCE Categories 1 and 2, whereas the mens rea requirements are that the accused had an intention to participate in and further the criminal activity or purpose of a group and to contribute to the JCE and responsibility for crimes falling outside the common plan only arises if, it was natural and foreseeable that criminal acts other 418

419

See supra note 7. See also Shane Darcy, “An Effective Measure of Bringing Justice?: The Joint Criminal Enterprise Doctrine of the International Criminal Tribunal for the Former Yugoslavia”, 20 Am. U. Int’l L. Rev. 153 (2004–2005), who concludes that the JCED fails to adhere to the nulla poena sine culpa principle, which requires that an individual can only be punished if he is personally culpable for a crime. Original footnotes omitted; Prosecutor v Dario Kordiü and Mario ûerkez, Case No.: IT-95-14/2-T, T. Ch., Judgment, 26 February 2001, § 219. The comments were made in the context of a discussion on the mens rea requirement of the crime of persecution.

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than those envisaged in the JCE were likely to be committed by other participants in the common design and the accused willingly took that risk. Essentially an accused can be determined guilty of, for example, murder or even genocide, even though he never had the requisite intent to commit such crimes and even though they were committed outside the JCE and by persons that he, perhaps, had no control over. His guilt is arguably based on the principle of collective responsibility. He is being punished for a crime that he did not personally perpetrate and with respect to which he never had the requisite intent to commit; he is being punished for his association with the perpetrators of the crime. This is a worrying development in the law. As noted by Patricia McGowan Wald, a former judge at the ICTY “… the criminal enterprise doctrine must have outer limits if the notion of individual criminal guilt is to be maintained, rather than replaced by notions of collective guilt which was, after all, the very evil the Tribunals were set up to avoid.”420 The ICTY itself has also warned of the dangers of collective responsibility.421 3.7.1.3 Infringement of the Nullum Crimen Sine Lege Principle As noted above,422 the JCED has been challenged on the ground that it infringes the nullum crimen sine lege principle. Although neither the ICTY nor ICTR Statute explicitly refer to the principle of legality, the case law of the ICTY illustrates the criteria which are envisaged by the ICTY Chambers as being encompassed by such principle.423 The ICC Statute expresses the principle in the following terms:

420

421

422 423

Patricia McGowan Wald, “The Omarska Trial – A War Crimes Tribunal Close-Up”, 57 SMU L. Rev. 271 (Winter 2004), p. 287. See also Patricia McGowan Wald, “General Radislav Krstic: A War Crimes Case Study”, 16 Geo. J. Legal Ethics 445 (Spring 2003), p. 469 where she posits that the JCED must be monitored carefully lest it “escape[s] legitimate limits and provide[s] too easy an escape from the burden of proving guilt beyond a reasonable doubt in individual cases…”. See also Darcy, supra note 58, p. 386. See Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. A/49/342 - S/1994/1007, 29 August 1994, § 16. See also van Sliedregt, supra note 183, pp. 343–362. See supra sections 3.4.1.2 (Ojdaniü JCE Decision) and 3.4.2. See Appeals Chamber decision in the Ojdaniü JCE decision, supra note 17, §§ 37–38 and supra section 3.4.1.2 (Ojdaniü JCE Decision). For a general discussion of the principle of legality of crimes, see Antonio Cassese, International Criminal Law, Oxford University Press, Oxford, 2003, pp. 139–157. Cassese notes that after World War II, the doctrine of substantive justice (which requires that the legal order primarily aim at prohibiting and punishing any conduct that is socially harmful or causes danger to society, whether or not that conduct has already been legally criminalised at the moment it is taken) gradually began to be replaced by the doctrine of strict legality (in accordance with which a person may only be held criminally liable if the action which he committed was a criminal offence at the actual time it was committed) under international law. See also generally Bogdan, supra note 58.

3.7 Critique of the JCED 239 Article 22 Nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

The criminalisation process in the international criminal law system presents particular difficulties in determining what the law actually states. “Whereas the criminalisation process in a national criminal justice system depends upon legislation which dictates the time when conduct is prohibited and the content of such prohibition, the international criminal justice system attains the same objective through treaties or conventions or after a customary practice of the unilateral enforcement of a prohibition by States”.424 In the Tadiü Appeals Judgment, the Appeals Chamber made it clear that it was not creating a new basis of liability in describing the JCED, as in its view, it already fell within the term “committing” in Article 7(1) of the ICTY Statute. Irrespective of whether or not it can be said that the JCE mode of liability was a valid mode of liability on which to base individual criminal responsibility for core international crimes at the time of, or before, the Tadiü Appeals Judgment,425 it is clear that the numerous ICTY/ICTR indictments that charge the JCE mode of liability and the less numerous, but nevertheless significant, ICTY/ICTR findings of guilt on the basis of the JCED, have strengthened the position of the JCED advocates. Bearing in mind the heavy reliance of the ICTY Prosecutor on the JCED and the recognition of such, as a mode of liability before both ad hoc tribunals, it would be less likely that an international tribunal, such as the ICC, would determine that the JCE Categories 1 and 2 were not valid modes of liability, on the grounds that there did not exist a ‘norm’, at the time the act or omission with which the accused is charged were committed, recognising these modes of liability (the first tier of the principle of legality).426 424 425

426

Delaliü Trial Judgment, supra note 160, § 404. See also supra Chapter 2, section 2.4.2. See references set out at supra note 58. Bogdan posits that “[t]he formulation, adherence, and application of “joint criminal enterprise” at the Yugoslav Tribunal is in violation of nullum crimen sine lege, since “joint criminal enterprise” was neither part of customary international law, nor a recognized general principle of law at the time when the offenses adjudicated by the Yugoslav Tribunal were taking place in the former Yugoslavia… The application of “joint criminal enterprise” as a form of responsibility, therefore, also violates the prohibition against ex post facto laws since defendants charged and convicted under this concept are convicted pursuant to a law not in existence at the time their offenses were committed.” See Bogdan, supra note 58, p. 119. Particularly, as the ICC Statute, supra note 11, contains a specific provision on the JCE mode of liability. See Article 25(3)(d), ICC Statute, ibid. However, as noted above, it is

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However, as noted by the ICTY Appeals Chamber in the Ojdaniü JCE Decision, in order to satisfy the nullum crimen sine lege principle, the mode of liability in question must also have been “sufficiently foreseeable” and “the law providing for such liability must be sufficiently accessible at the relevant time”.427 In the Ojdaniü JCE Decision, the ICTY referred to the law of the Federal Republic of Yugoslavia to determine whether it could be said that Ojdaniü could reasonably have known that the offence in question, or the offence committed in the way charged in the indictment was prohibited and punishable. A number of countries do not recognise the JCED as a mode of liability, or only do so in limited circumstances. Does that mean that nationals of those states can successfully argue that the JCED was not sufficiently foreseeable nor accessible to them, so they cannot be convicted on that basis, whereas nationals of England, the USA and Yugoslavia whose national laws do recognise some form of the JCED cannot expect the same success when employing an identical argument? Although, this is oversimplifying the matter, there is some merit in the question. The Appeals Chamber in the Ojdaniü JCE Decision noted, that even if the law of the Federal Republic of Yugoslavia did not recognise the JCED, the recognition of the JCED in inter alia, international jurisprudence and international instruments, as well as the atrocious nature of the crimes charged, may be enough to put individuals on notice that they could be held individually criminally responsible for core international crimes on the basis of the JCE mode of liability.428 Notwithstanding the relevant judgments of the ICTY/ICTR recognising the JCE mode of liability, and the recognition of the JCED as a mode of liability in inter alia the International Convention for the Suppression of Terrorist Bombings 1997, the International Convention for the Suppression of the Financing of Terrorism 1999, and the ICC Statute, can it really be said that the JCE mode of liability for core international crimes is “sufficiently foreseeable” and that the law providing for the same is “sufficiently accessible”? In the author’s view, it is doubtful. Of course, the JCED has a higher profile today than it had before the Tadiü Appeals Judgment. However, the negotiations in relation to Article 25(3)(d) of the ICC Statute indicate that even among the legal experts and high-positioned diplomats, the JCED is still a contentious issue. In addition, there seems to be an inherent unfairness in expecting an individual – in particular an uneducated and perhaps illiterate rebel – to comprehend the JCED, when many seasoned international criminal lawyers are still unclear as to its scope.429 Such expectation of knowledge of potential liability as a result of the JCED mode of liability arguably reflects an ivory tower view. This seems even

427 428 429

questionable whether Article 25(3)(d) encompasses JCE Category 3. See supra section 3.4.3.1 (JCE Category 3 is not encompassed by the ICC Statute). See supra section 3.4.1.2 (Ojdaniü JCE Decision). Ojdaniü JCE decision, supra note 17, §§ 41-42. It should be noted that Rule 145(1)(c) of the ICC Rules of Procedure and Evidence provides that in determining sentence, the ICC should take into consideration inter alia the education, social and economic condition of the convicted person. See ICC Rules of Procedure and Evidence, adopted 9 September 2002, available at http://www.icccpi.int/about/Official_Journal.html (last visited 17 July 2007).

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more so the case when what is involved is an attempt to establish liability on the basis of JCE Category 3. It, arguably, seems farfetched that, for example, an accountant who works at a camp where inmates are being beaten, who is aware of such beatings (but not of any murders) and does not condemn them, can be held criminally liable for the death of some inmates, even though he himself never beat or murdered any inmate (although he did know that he was assisting in the efficient and effective running of the camp and thus the activities of the camp). In the author’s view, it is understandable that such accountant might believe that on a moral level, he is perhaps guilty as he stood by and did nothing to prevent such crimes or did not condemn them, but that on a legal level, he was not criminally responsible for any international crime. It is suspected that many people who are unfamiliar with the JCED would hold a similar view. Of course, one may argue that criminal liability arises based on the egregious nature of the crimes alone. Core international crimes are so horrific that anyone involved in them in any shape or form should be held criminally liable for them. However is the egregiousness of such crimes sufficient justification to create a ‘special’ mode of liability for core international crimes? Even the Appeals Chamber in the Ojdaniü JCE Decision, held that the immorality or appalling character of an act is not sufficient to warrant its criminalisation under customary international law. However, it may “play a role in that respect”, in that it may refute any claim by the accused that he did not know of the criminal nature of the acts.430 Moreover, the JCED is, in effect, a general sweep-up mode of liability if the Prosecution cannot make any other mode of liability stick. Should basic principles of international criminal law be compromised in the (albeit understandable) quest to punish someone for the perpetration of core international crimes? In the author’s view, the simple answer is no. The nullum crimen sine lege principle requires restraint in extending the law, particularly when applying legal theories that were not in place when the acts were committed. Such moderation has been lacking, in the view of the author, as regards the development and application of the JCED, particularly in relation to JCE Category 3.431

430

431

See Ojdaniü JCE Decision, supra note 17, § 42. Moreover, Judge Geoffrey Robertson determined that the fact that the conduct of an accused “would shock or even appal decent people is not enough to make it unlawful in the absence of a prohibition”. See Prosecutor against Sam Hinga Norman, Case No.: SCSL-2004-14-AR72(E), “Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)”, App. Ch., 31 May 2004, Dissenting Opinion of Justice Robertson, § 3. For a discussion of whether the principle of nullum crimen sine lege bars the progressive development of law, see Mohamed Shahabuddeen, “Does the Principle of Legality Stand in the Way of Progressive Development of Law”, 2 J. Int’l Crim. Jus. 1007-1017 (2004).

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3.7.1.4 JCE Scenarios Already Covered by Aiding and Abetting? Two arguments are frequently used in relation to the aiding and abetting and JCE modes of liability. The first is that the two modes of liability are effectively identical. As indicated above, as regards the ICTY and ICTR Statutes, there are clear differences between the aiding and abetting mode of liability and the JCE mode of liability as regards the mens rea and actus reus requirements. Accordingly this argument, in the context of the ICTY and ICTR Statutes, does not stand. The second is that the JCE mode of liability is superfluous, as JCE scenarios are sufficiently covered by the aiding and abetting mode of liability. This argument, while, in the author’s view, not finding support in the context of the statutes of the ad hoc international criminal tribunals, arguably does find some support in the context of Article 25(3) of the ICC Statute. As noted above, Article 25(3)(d) sets out a specific provision for the JCE mode of liability. Article 25(3)(c) deals with aiding and abetting in the following terms: 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;432

This language is broader in scope than the equivalent language used in the ICTY and ICTR Statutes – “A person who… otherwise aided and abetted in the planning, preparation or execution of a crime”.433 Unlike the ICTY and ICTR Statutes, it is clear that the ICC Statute treats aiding and abetting as two separate concepts, i.e. “aids, abets or otherwise assists” as opposed to “aided and abetted”. In addition, the ICC Statute envisages that aiding or abetting are only two methods by which one may assist in the commission or attempted commission of a crime, i.e. “aids, abets or otherwise assists”. Further, it is of interest that Article 25(3)(c) does not specifically require that in order for accomplice liability to arise, the assistance given must be direct and/or substantial, as is required by the Draft Code of Crimes.434 Although the ICTY and ICTR Statutes did not expressly include such a requirement, such requirement has been read into them.435 Finally, Article 25(3)(c)

432 433 434

435

ICC Statute, supra note 11. Emphasis added. See Article 7(1) ICTY Statute, supra note 44, and Article 6(1) ICTR Statute, supra note 148. Article 2(3)(d), of which states that the accused “knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime…”. Emphasis added. The Trial Chamber in the Furundžija Trial Judgment posited, that the reason the word “direct” was not used in Article 25(3)(c) of the ICC Statute, was perhaps because the word suggests that the assistance given needs to be tangible or to have a causal effect on the crime. Such a requirement is not a feature of the aiding and abetting mode of liability. See supra note 85, § 232. See Tadiü Trial Judgment, supra note 41, § 691; Delaliü Trial Judgment, supra note 160, § 329; Furundžija Trial Judgment, supra note 85, §§ 232-235; Prosecutor v Akayesu, Case No.: ICTR-96-4-T, Judgment, T. Ch., 2 September 1998, § 484; and

3.7 Critique of the JCED 243

requires that the aider and abettor must act with the purpose of facilitating the commission of a crime. The ICTY and ICTR Statutes have been interpreted to mean that the aider and abettor must only have knowledge that the acts he performs assist the commission of a crime by the principal.436 As set out above, the Tadiü Appeals Judgment identified four differences between the aiding and abetting mode of liability (as articulated in the ICTY Statute and jurisprudence) and the JCE mode of liability.437 It is of value to examine these distinctions in the context of the description of the aiding and abetting mode of liability in the ICC Statute, in order to determine if the JCED is superfluous in the context of the aiding and abetting provision in the ICC Statute. 1. The aider and abettor is always an accessory to the principal. Presumably, this was considered by the Appeals Chamber to be a distinguishing feature, as the ICTY jurisprudence has, on balance, determined that a JCE perpetrator is a principal. Accordingly, if the JCED concerned principal liability, then it could not be the same as the aiding and abetting mode of liability, which is a form of accomplice liability. However, this principal/accomplice debate is not important in the context of the ICC Statute as the JCE mode of liability has its own separate provision (Article 25(3)(d)) and attempts were not made to pigeonhole it as being encompassed by the word “commits” in Article 25(3)(a) ICC Statute, concerning principal liability. The ICC Statute does not state whether it considers the JCE mode of liability to be a form of principal or accomplice liability, or neither; and the fact that the JCE mode of liability is contained in its own explicit provision, probably has more to do with a desire to ensure that it was crystal clear that the ICC Statute recognised the JCE mode of liability,438 rather than making a conscious decision to remove the JCE mode of liability from the principal liability category.439 The jurisprudence of the ICTY indicates that there is disagreement as to the classification of the JCE mode of liability as a principal/accomplice liability and the Kvoþka Trial Judgment advocated the recognition of the JCE mode of liability as both a principal and an accomplice liability. Accordingly, it could be argued that there is some support for the submission that, at least in some circumstances, the JCE mode of liability may

436 437 438 439

Prosecutor v Kayishema and Ruzindana, Case No.: ICTR-95-1-T, Judgment, T. Ch., 21 May 1999, § 199. See Tadiü Appeals Judgment, supra note 16, § 229. See supra section 3.5.2. So that time did not have to be spent on determining whether the word “commits” in Article 25(3)(a), ICC Statute, supra note 11, encompasses the JCE mode of liability. Although the Trial Chamber in the Furundzija Trial Judgment, on noting the distinction drawn by Article 25(3) between accomplice liability and JCE liability, describes the significance of the distinction in the following terms: “[t]hus, two separate categories of liability for criminal participation appear to have crystallised in international law – co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other”. See supra note 85, § 216.

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be a form of accomplice liability.440 This, combined with the broader wording of Article 25(3)(c) of the ICC Statute provides weight to the argument that, in the context of the ICC Statute, this distinction – that an aider and abettor is always an accessory and by implication that a JCE participator is always a principal – is not always completely valid in the context of the JCE mode of liability. 2. In the case of aiding and abetting, no proof is required of the existence of a common concerted plan. This is, of course, an accurate statement. However, it does not prevent circumstances which would normally fall within the JCE mode of liability from falling within the aiding and abetting mode of liability once the other requirements of Article 25(3)(c) are satisfied. 3. The aider and abettor carries out acts to support the perpetration of a crime and this support has a substantial effect upon the perpetration of the crime while the JCE participator performs acts that in some way are directed to the furthering of the common plan/purpose. As mentioned above, Article 25(3)(c) does not explicitly require that the assistance given must be substantial. Of course, it may be that the ICC, in due course, will interpret such a requirement into the wording of Article 25(3)(c) bearing in mind the jurisprudence of the ICTY/ ICTR on the aiding and abetting mode of liability. But it is not bound by the judgments of the ad hoc international criminal tribunals, so it is not obliged to do so. On a literal reading of Article 25(3)(c), it could be argued that the requirement of substantial assistance is not required in the context of the aiding and abetting mode of liability articulated in the ICC Statute and accordingly even assistance which is not substantial, but nonetheless of some significance, or assistance given in some way which aids the perpetration of the crime, could fall within Article 25(3)(c). 4. The requisite mental element for aiding and abetting is knowledge by the principal, whereas the acts performed by the aider and abettor assist the commission of a specific crime. As regards the JCE mode of liability either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed, is required. As noted above, Article 25(3)(c) requires that the aider and abettor must act with the purpose of facilitating the commission of a crime. This goes much further than requiring that the aider and abettor only have knowledge that the acts he performs assist the commission of a crime by the principal. In addition, as noted above, Article 30 of the ICC Statute requires that the material elements of the crime must be committed with intent and knowledge. It is thus conceivable that JCE Categories 1 and 2 could, in any event, satisfy the mens rea requirement of Article 25(3)(c). Accordingly, this distinction does not seem insurmountable in the context of the ICC Statute. Accordingly, in the author’s opinion, the arguments that the aiding and abetting mode of liability is, essentially, identical to the JCE mode of liability or that the JCE

440

Although, the author does not agree with the conclusions of Trial Chamber in the Kvoþka Trial Judgment. See supra section 3.6.1.4.

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mode of liability is superfluous, as it is already covered by the aiding and abetting mode of liability, do not stand in the context of the provisions of the ICTY and ICTR Statutes and the jurisprudence of the ICTY and ICTR. However, support for such arguments in the context of the ICC Statute can be found. The wording of Article 25(3)(c) is much broader than the equivalent provisions in the ICTY and ICTR Statutes. An explicit substantial effect requirement is absent and the mens rea requirements are much stricter. Thus, in the author’s view, it is conceivable that certain circumstances which traditionally would only have fallen squarely with the JCE mode of liability, now arguably, fall within the aiding and abetting mode of liability as that concept is articulated in the ICC Statute. Article 25(3)(c) could conceivably encompass certain traditional JCE Category 1 and 2 scenarios, and this classification, if successful, would be preferable, as it avoids the negative connotations of collective responsibility. Article 25(3)(c) could not, however, in the author’s view, encompass JCE Category 3 scenarios, as it does not accommodate responsibility for the perpetration of a crime for which one did not have the intent to commit. Recourse would have to thus be made to Article 25(3)(d), but as noted above, in the author’s view, it is doubtful that this article encompasses JCE Category 3 liability either. Bearing in mind the breath of Article 25(3)(c) it seems unlikely that much reliance need be placed by the Prosecution on Article 25(3)(d) in the future. However, as Eser has noted, there may be some “symbolic value” in the employment of Article 25(3)(d) as it emphasises the group element.441 3.7.1.5 Principal/Accomplice Debate As noted above, on balance, the jurisprudence of the ICTY indicates a preference for the categorisation of JCE liability as a form of principal liability. The assertion that an accused can aid and abet a JCE has been rejected by the ICTY Appeals Chamber. The principal/accessory distinction, as already discussed, is important in many respects. In sentencing terms, a conviction on the basis of principal liability as opposed to accomplice liability is theoretically meaningless before the ICTY and the ICTR.442 However, recent jurisprudence of the ICTY, suggests, that on a practical level, the distinction is significant as regards sentencing. The principal/accomplice debate is increasingly important, seen in the light of the relevant ICC provisions. The ICC Statute, similar to the ICTY and ICTR Statutes, does not, for example, explicitly provide that if an accused is convicted as a principal offender then he is to receive an automatic pre-defined sentence. Neither does it explicitly state that a principal offender is to be given a tougher sentence than an accomplice. However, the ICC Rules of Procedure and Evidence, unlike the ICTY/ICTR Statutes/Rules of Procedure and Evidence, provide the following in the context of the determination of sentence: 441 442

Eser, supra note 163, p. 803. See Article 24(2) ICTY Statute, supra note 44, and Rule 101 ICTY Rules of Procedure and Evidence, supra note 141; Article 23(2) ICTR Statute, supra note 148, and Rule 101 ICTR Rules of Procedure and Evidence, supra note 264.

246 3 The Joint Criminal Enterprise Doctrine 1. In its determination of the sentence pursuant to article 78, paragraph 1, the Court shall:… (c)… give consideration inter alia, to the extent of the damage caused, in particular the harm caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person.443

Accordingly, the ICC is explicitly instructed, in the determination of sentence, to take into consideration the degree of participation of the convicted person and the degree of his intent. The ICC Statute sets out an explicit separate provision on the JCE mode of liability. It does not classify the JCE mode of liability either as a form of accomplice or principal liability. However, that does not guarantee that in the minds of the judges a conviction on the basis of the JCE mode of liability will not be equated with principal liability (both because of the jurisprudence of the ICTY supporting such a conclusion and also based on the reasoning expressed by the Trial Chamber in the Krnojelac Trial Judgment). Thus, it is conceivable that an accused convicted on the basis of the JCE mode of liability before the ICC will receive a heavier sentence than an accused convicted as an accomplice, particularly as the ICC Rules of Procedure and Evidence expressly require that the degree of participation of the accused and the degree of his intent be taken into consideration in the determination of sentence.444 It is beneficial that the ICC Statute, by including a separate provision dealing with the JCE mode of liability has avoided the principal/accomplice debate. However, notwithstanding this, in reality it may be difficult for the JCE mode of liability to shake off its previous classifications as a principal liability and thus result in heavier sentences for the accused convicted on the basis of the JCE mode of liability before the ICC. 443

444

Emphasis added. Rule 145(1)(c) ICC Rules of Procedure and Evidence, supra note 429. See generally Article 78 ICC Statute, supra note 11, and Rule 145(1) ICC Rules of Procedure and Evidence, ibid. The ICC Rules of Procedure and Evidence were adopted by the Assembly of State Parties, which is the management oversight and legislative body of the ICC. It is composed of representatives of the States which have ratified and acceded to the ICC Statute. The Rules of Procedure and Evidence are an instrument for the application of the ICC Statute. They form part of the applicable law of the ICC Statute. See Article 21(1)(a) ICC Statute, supra note 11. The precise meaning of the expression “degree of participation” of the convicted person is unclear. It could be understood as a reference to the classification of the convicted person’s involvement in the crime as a principal or an accessory. However, the ICTY jurisprudence appears to adopt that expression to refer to the actual manner in which the accused participated in a crime, as opposed to his classification as a principal or accessory. For example, a co-perpetrator to a JCE can participate in a JCE in many ways, as the person who masterminded the purpose of the JCE or as a ‘mere’ bookkeeper in a camp where inmates are tortured, for instance. The degree of participation of the former is considered more blameworthy than the degree of participation of the latter. See the use of this expression in the context of the determination of the gravity of a crime, for example, in the Aleksovski Appeals Judgment, supra note 366, § 182, the Blaškiü Appeals Judgment, supra note 378, § 683 and the Babiü Sentencing Appeal, supra note 60, § 39. It remains to be seen how the ICC interprets this expression.

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The principal/accomplice debate also plays a role in the context of the discussion as to whether JCE Category 3 liability can be applied to the crime of genocide. Moreover, on a perception level, it is significant whether one has been convicted on the basis of principal or accomplice liability. The behaviour of a principal perpetrator has connotations of being more inappropriate than that of an accomplice. The Trial Chamber in the Krnojelac Trial Judgment stated that the seriousness of what is done by a participant in a JCE who was not the principal offender is significantly greater than what is done by one who merely aids and abets the principal offender, as an aider and abettor need only be aware of the intent with which the crime was committed by the principal offender, whereas the participant in a JCE must share the intent of the principal offender. While this is true in the case of JCE Categories 1 and 2, the same does not apply to a JCE Category 3 scenario. In the latter circumstances, the JCE participant does not share the intent of the principal offender. He has the intent to participate in and further the criminal activity or purpose of a group and to contribute to the JCE. The activity of the principal offender is outside the JCE, but the liability of the JCE participant arises because it is deemed natural and foreseeable that criminal acts other than those envisaged in the JCE were likely to be committed by other participants in the JCE (in this case, the principal offender) and the JCE participant willingly takes that risk. Additionally, determining whether the JCE mode of liability is a principal or an accomplice liability is important in the sense that it needs to be established whether the actions of the accused fall within, for example, Article 7(1) ICTY Statute, at all, instead of, for example, article 7(3) ICTY Statute (superior responsibility).445 Most importantly, the correct classification is important in the context of the truthtelling function of the criminal law system. It is vital that the precise role of the accused in the crime concerned is determined. 3.7.1.6 Genocide and JCE Category 3 The intricacy of the JCE mode of liability is well illustrated by the debate in relation to the crime of genocide and JCE Category 3. It is difficult even for seasoned international criminal lawyers to grasp the nuances and complexities of the issues that arise. Again, it needs to be asked whether it can, realistically, be said that an average perpetrator in an armed conflict can or should be expected to understand 445

It should be noted that in the light of the Brÿanin Appeals Chamber’s holding that the physical perpetrators of a particular crime do not need to be JCE members in order for liability to attach to high-level officials, Judge Meron has questioned the appropriateness of the classification of the JCE mode of liability as a principal liability. He posits that “… where A and B belong to a JCE and A orders non-member X to commit a crime in furtherance of the JCE, then B’s conviction for this crime via the JCE should be treated as a form of “ordering” for [the] purposes of Article 7(1) rather than as a form of “committing”. Since B’s liability for this crime is essentially derivative of A’s, he should not be convicted of a higher mode of liability than that which attaches to A’s conduct.” See Prosecutor v Radoslav Brÿanin, Case No.: IT-99-36-A, Judgment, App. Ch., 3 April 2007 (“Brÿanin Appeals Judgment”), Separate Opinion of Judge Meron, §§ 4-7. This issue was not addressed in the Brÿanin Appeals Judgment itself.

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that he potentially may be liable for the crime of genocide on the basis of the JCE Category 3 mode of liability. Claims of breaches of the nullum crimen sine lege principle are not without some merit. It could be argued, that as genocide is considered the most heinous of core international crimes, there should be very clear rules as to who can be held liable for committing the crime of genocide and in what circumstances. As noted above, in the author’s view, the Brÿanin Appeals Decision has not expanded or changed the definition of genocide, but expanded the category of persons who can be held liable for the crime. Accordingly, calls that JCE Category 3 not be utilised in relation to genocide and persecution, on the grounds that it does not appreciate the specific intent element of these crimes, do not, in the author’s view seem warranted.446 However, there are clear concerns in basing the accused’s guilt on the JCE Category 3 mode of liability, particularly where the accused is a low-level perpetrator and where the Prosecutor has defined the purpose of the JCE in very broad terms. These concerns are heightened when the crime involved is the most heinous of all crimes. One possible solution to offset the perceived injustice of the application of JCE Category 3 mode of liability to genocide could be to deal with the matter at the sentencing stage. Arguably, a more severe sentence should be imposed on a JCE Category 1 or 2 co-perpetrator of genocide, as such co-perpetrator shares the special intent of genocide, whereas a lesser sentence should be imposed on a JCE Category 3 co-perpetrator of genocide, as he does not share the genocidal special intent. 3.7.1.7 Pleading of the JCED In Indictments As already noted, a review of the form of pleading of the JCE mode of liability before the ICTY gives cause for concern. Although the drafting of indictments has become progressively more precise, the fact that the accused continue to challenge the form of the indictment in relation to the JCED is, arguably, evidence that the pleading of the JCED in indictments is still subject to improvement.447 In particular, 446 447

See also Danner and Martinez, supra note 37, p. 151. For example, see Lazareviü Indictment Decision, supra note 363. In the context of the ICTR, the case of Prosecutor v Casimir Bizimungu, Justin Mugenzi, Jérôme-Clément Bicamumpaka & Prosper Mugiraneza is of interest. The indictment against the accused, dated 7 May 1999, did not expressly, or arguably, indirectly refer to the JCED. It did mention certain “plan[s]” and referred to the accused “conspir[ing] among themselves and with others”, but that was in connection with the charge of inter alia conspiracy to commit genocide. The indictment was not amended in the light of the Tadiü Appeals Judgment or any subsequent jurisprudence emphasising the importance of pleading the JCED expressly. The accused requested a declaration from the Trial Chamber that the indictment did not allege that they were liable in reliance on the JCED. In considering this issue, the Trial Chamber noted that the Prosecution asserted inter alia that the JCED “is an implicit mode of responsibility in the charges of Conspiracy and Complicity to Commit Genocide”. It is doubtful to what extent this assertion can be said to be accurate. Ultimately, the Trial Chamber rejected the accused’s request as they had employed the incorrect legal mechanism (Rule 73) in raising the issue, but advised

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it is of concern that the Prosecution frequently does not specify which category of JCE liability the accused is being charged with. Arguably, this is a prerequisite to any fair trial of the accused. Failure to do so, conceivably breaches the right of the accused to a fair trial, for example, his right to be informed promptly and in detail of the nature and cause of the charge against him and his right to have adequate time and facilities for the preparation of his defence. Bearing in mind the peculiarities of core international crimes, it is understandable that the Prosecution may not have the necessary information to determine which form of JCE they ought to be pleading in the indictment. However, the author agrees with the Appeals Chamber in the Kupreškiü Appeals Judgment, that if this is the case, “doubt must arise as to whether it is fair to the accused for the trial to proceed”.448 One can, of course, appreciate the difficult position that the Prosecution finds itself in, as indeed do the ad hoc international criminal tribunals, in general. From the perspective of the public, especially the victims of the crimes being tried before the ad hoc international criminal tribunals, it is important that justice be seen to be done, i.e. that perpetrators be tried and sentenced. However, this concern should not overrule the right of the accused to a fair trial. Punishment of the perpetrators of core international crimes should not come at any cost to the basic rights of the accused. If this were to happen, this would prove more damaging to the legitimacy of the international criminal law system in the long run, than any reports of perpetrators evading justice ever would. In addition, as seen above, although the ICTY Chambers have posited that it is preferable that the accused be given proper notice of the charges, the jurisprudence of the ICTY indicates that, in practice, there are no adverse consequences if the Prosecution fails to do so. Notwithstanding that an indictment is shown to be vague or defective, the tribunal, to date, has always succeeded in finding some material, or sequence of events which is interpreted as remedying the defect.449 A case in point is the Kvoþka Appeals Judgment. In one sense, it is understandable that when the JCED first came to prominence before the ICTY, it was a learning process for all the parties involved. However, in the author’s view, in the light of the numerous judgments of both the Trial Chamber and the Appeals Chamber setting out guidelines on how the JCE mode of liability is to be charged, it is no

448 449

that the parties could raise the issue during their final submissions at the end of the case. See Prosecutor v Casimir Bizimungu, Justin Mugenzi, Jérôme-Clément Bicamumpaka & Prosper Mugiraneza, Case No.: ICTR-99-50-T, “Decision on Jérôme Bicamumpaka’s Request for a Declaration that the Indictment does not Allege that He is Liable for Any Form of Joint Criminal Enterprise”, T. Ch. II, 23 March 2006 (“Bizimungu JCE Decision”). In the context of the SCSL, see Fofana Trial Judgment, supra note 201, Brima Trial Judgment, supra note 205 and generally supra section 3.4.5. See supra note 359, § 92. See also supra section 3.6.3.1. SCSL Trial Chamber II has declined to be as accommodating. As noted above, Trial Chamber II refused to permit the Prosecution to rely on the JCE mode of liability in Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, as it determined that such mode of liability had been defectively pleaded in the indictment. See Brima Trial Judgment, supra note 205 and supra section 3.4.5. See also the comments to the ICTR Ntakirutimana Appeals Judgment, supra note 375.

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longer acceptable for the Prosecution to fall foul of those guidelines. In addition to this representing a violation of the rights of the accused, it also imposes an unacceptable task on the ICTY. It should not be the job of the ICTY Chambers to keep “saving” the Prosecution’s case. 3.7.1.8 Significant Level of Participation of the Accused in the JCE In general, there is no requirement in international criminal law that the accused’s participation in the JCE be significant or substantial. The Tadiü Appeals Judgment only requires the participation of the accused in the JCE and does not specify that such participation should be significant, or otherwise.450 Therefore, in theory, even the most insignificant participation of an accused in a JCE could satisfy this criterion of the JCE actus reus. This is a matter of concern. Where the purpose of the JCE is defined by the Prosecution in very broad terms, which is not uncommon before the ICTY, it is easy to envisage that almost any action of the accused could be classified as participation in the JCE.451 Bearing in mind the concern surrounding various aspects of the JCE, in the author’s view, it is prima facie desirable that the participation of the accused be required to be significant.452 As discussed above,453 the Kvoüka Trial Judgment advocated that the participation of the accused had to be significant or substantial.454 It did not determine that its approach was novel, but posited that it was the result of the application by the ICTY of the JCED in practice.455 It also relied on a number of post-World War II judgments, which it posited supported its view.456 The Trial Chamber laid down some criteria which, in its view, were indicia of a significant participation of the accused in a JCE. The level of participation attributed to the accused and whether that participation is deemed significant will depend on a variety of factors, including the size of the criminal enterprise, the functions performed, the position of the accused, the amount of time spent participating after acquiring knowledge of the criminality of the system, efforts made to prevent criminal activity or to impede the efficient functioning of the system, the seriousness 450 451 452 453 454 455

456

Neither is significant or substantial participation required by Article 25(3)(d) of the ICC Statute, supra note 11. For example, an indictment charging that the purpose of a JCE was the persecution of the non-Serb population in a certain geographical location over a certain period of years. Danner and Martinez also advocate this position. See Danner and Martinez, supra note 37, pp. 150-151. See supra section 3.4.1.2 (Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlad’o Radiü, Zoran Žigiþ and Dragoljub Prcaþ). The Trial Chamber seems to use these two terms interchangeably. “In the Tribunal jurisprudence, the contribution of persons convicted of participation in a joint criminal enterprise has to date been direct and significant. Those convicted have committed crimes or have been actively involved in assisting or facilitating crimes”. Kvoþka Trial Judgment, supra note 91, § 275. Ibid., §§ 290-306.

3.7 Critique of the JCED 251 and scope of the crimes committed and the efficiency, zealousness or gratuitous cruelty exhibited in performing the actor’s function. It would also be important to examine any direct evidence of a shared intent of agreement with the criminal endeavour, such as repeated, continuous, or extensive participation in the system, verbal expressions, or physical perpetration of a crime. Perhaps the most important factor to examine is the role the accused vis-á-vis the seriousness and scope of the crimes committed: even a lowly guard who pulls the switch to release poisonous gas into the chamber holding hundreds of victims would be more culpable than a supervising guard stationed at the perimeter of the camp who shoots a prisoner attempting to escape.457

Each of the accused in the Kvoþka case raised questions, on appeal, in relation to the level of contribution required to satisfy the actus reus criterion of participation in a JCE. Notwithstanding the findings of the Trial Chamber, the Appeals Chamber emphasised on numerous occasions that, in general, there is no specific legal requirement that the accused make a substantial or significant contribution to the JCE.458 However, it held that there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the JCE.459 Such an example is that of an “opportunistic visitor”. It will be recalled that Žigiü was not employed at the Omarska camp, but visited it on several occasions, during which time he participated in the maltreatment of camp detainees. The Appeals Chamber held that while, in its opinion, a person did not have to have an official function in the camp, or belong to the camp personnel to be held responsible as a participant in the JCE, it would not be appropriate to hold every visitor to the camp who committed a crime there responsible as a participant to the JCE. In the case of such opportunistic visitors, “a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine”.460 It noted that while it did not wish to minimise the gravity of the crimes Žigiü committed in the camp, these crimes formed only “mosaic stones” in the general picture of violence and oppression at the Omarska camp.461 The Appeals Chamber’s requirement of a

457 458 459

460 461

Ibid., § 311. Kvoþka Appeals Judgment, supra note 59, §§ 97, 104, 187, 421 and 599. Ibid. It also held that “the Prosecutor need not demonstrate that the accused’s participation is a sine qua non, without which the crimes could or would not have been committed”. It thus rejected Prcaü’s argument that he did not participate in the JCE because he was “easily replaceable”. Ibid., § 98. Emphasis added. Ibid., § 599. Ibid., § 599. The Appeals Chamber then held, that without further evidence of the concrete crimes committed by Žigiü, no reasonable trier of fact could conclude from the evidence before the Trial Chamber that Žigiü had participated in a significant way in the functioning of the camp. Accordingly, Žigiü could not be held responsible as a participant in the JCE, and his conviction for the crimes committed in the camp “in general” had to be overturned. Ibid. Notwithstanding this conclusion, the Appeals Chamber affirmed the sentence of 25 years of imprisonment handed down to Žigiü by the Trial Chamber.

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substantial contribution in relation to opportunistic visitors was noted with approval in the Limaj Trial Judgment.462 As posited by the Kvoüka Appeals Chamber, the law as it currently stands, does not require that the participation of the accused in the JCE be significant or substantial, as a general rule. One could, of course, argue that if the accused has the requisite intent in relation to the JCE, then his level of participation in the JCE should not be decisive, once he has actually participated (albeit not significantly, in the JCE). In reality, the significant contribution of the accused and his intent to participate in the JCE are inextricably intertwined.463 As noted by the Kvoþka Appeals Chamber, “[i]n practice the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose”.464 Notwithstanding that this may well be the case, in the author’s view, it is desirable that the law explicitly provide that the participation of the accused in the JCE be significant. Two criteria support such an approach. Firstly, it is very important on a perception level. On reading the criteria laid down in the Tadiü Appeals Judgment, one is struck by the fact that, in theory, almost any level of participation by the accused in the JCE is sufficient, no matter how insignificant. To specifically require that such participation be significant would remove this controversy which beleaguers the JCED. Secondly, from a practical perspective, it would, assist the Prosecution and the accused substantially to have a clear rule as to the level of participation required. The special exception which the Appeals Chamber made in the case of opportunistic visitors illustrates the complexities that can arise. What other special cases would warrant treatment as an exception to the general rule? One can easily envisage that accused in circumstances, which in their view are also exceptional, may also try to argue that they too are worthy of being classified as an exception to the general rule. It is a slippery slope, which could end up occupying an unwarranted amount of the court’s time. If in practice, in order to satisfy the intent requirement, a significant contribution of the accused also has to be proved, is it really such an enormous step to require that in all cases, the contribution of the accused to the JCE should be significant?465 The recent jurisprudence of the ICTY could be interpreted as giving some reason for hope. The Brÿanin Appeals Judgment held that the contribution of the accused should “at least be a significant contribution”, but that it is not necessary

462 463

464 465

See supra note 221, § 667. Moreover, a requirement of a significant contribution also reinforces the idea that only the ‘big fish’ should be prosecuted in international criminal law, as presumably their contribution was significant. See infra section 3.7.1.9. See supra note 59, § 97. Cassese posits that although the Tadiü Appeals Judgment did not require a ‘substantial’ contribution, in his view, such a requirement is “indispensable”. See Cassese, supra note 4, pp. 127–128.

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that such contribution be necessary or substantial.466 The holding of the Brÿanin Appeals Judgment has subsequently been relied upon by the ICTY Trial Chamber in Prosecutor v Milan Martiü and the SCSL Trial Chamber in the Fofana Trial Judgment.467 However, the Brÿanin Appeals Chamber determination is questionable, as the Kvoüka Appeals Judgment, on which it specifically relied, expressly determined that there is no specific legal requirement that the accused’s contribution be either substantial or significant.468 The Brÿanin Appeals Judgment seems only to have confused this issue even more. While the content of its determination is to be applauded, it is, arguably, not an accurate assessment of the current law. 3.7.1.9 The Application of the JCED to the ‘Little Fish’ The Kvoþka Trial Judgment illustrates that even the ‘small fish’ can be caught by the JCED. On the one hand, although it is understandable that the public can be disappointed that the ‘big fish’ are not being punished,469 for example, President Radovan Karadzic and Serbian Commander Ratko Mladic, in the case of the Omarska camp, in the author’s view, this does not support the definitive conclusion that the little fish should not be prosecuted. If grounds for prosecution exist, then, prima facie, an alleged perpetrator should be prosecuted, irrespective of his status, or lack thereof, on the ladder of authority. As noted by Patricia McGowan Wald, Talk of big fish and little fish implies that unless you are high on the scale of authority, you are not worth going after and that’s an insult to the person whose family was blown away by a little fish.470

There is however, some value in the argument that the JCED should only be used in relation to ‘big fish’. There are, in the author’s view, so many issues of concern about this doctrine that great care should be taken in prosecuting anyone in accordance with it, especially ‘small fish’. In addition, international criminal courts were never intended to be used for the prosecution of every single perpetrator of core international crimes. It was intended that they should deal with the 466 467 468 469 470

See Brÿanin Appeals Judgment, supra note 445, § 430. See also Ibid., Declaration of Judge van den Wyngaert, § 3. Prosecutor v Milan Martiü, Case No.: IT-95-11-T, Judgment, T. Ch. I, 12 June 2007, § 440 and Fofana Trial Judgment, supra note 201, § 215. See supra note 458. Because they cannot be apprehended or their governments will not hand them over for prosecution. See supra note 420, p. 289. In the case before the courts of the Federal Republic of Germany against 20 members of staff at the Auschwitz concentration camp, the defendants complained about the unfairness of prosecuting them, the “little people”. In response, the court noted that “it would be a mistake to say that the “little people” are not guilty because they did not initiate things. They were just as vital to the execution of the extermination plan as those who drew up this plan at their desks.” See Matthew Lippman, “Fifty Years after Auschwitz: Prosecutions of Nazi Death Camp Defendants”, 11 Conn. J. Int’l L. 199 (1996), p. 230.

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persons in positions of authority. Indeed, in the early days of the ICTY, one of the frequent criticisms of the ICTY Prosecutor was that it was indicting far too many lower-level offenders.471 The ICTY’s completion strategy provides for the transfer of cases concerning intermediary and lower-level accused to competent national jurisdictions, for example to the War Crimes Chamber of the State Court of Bosnia and Herzegovina and the War Crimes Chamber of the Belgrade District Court of Serbia.472 In addition, in a policy paper of the Office of the ICC Prosecutor, the preliminary recommendation was made that the Office of the ICC Prosecutor should “focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes”,473 while, the SCSL Statute provides for the prosecution of persons “who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean Law…”.474 The Kvoþka Trial Judgment has some significant implications for recent and/or contemporary events. It is especially relevant in the light of, for example, abuse and claims of abuse in the Abu Gharib prison in Iraq and other claims made against British soldiers of torture and abuse of prisoners in Afghanistan and Iraq. Essentially, assuming the ICC, for example, had jurisdiction over the crimes allegedly committed in the Abu Gharib prison,475 if it were proved that a JCE existed at the Abu Gharib prison to persecute Iraqis and such acts of persecution amounted to a crime against humanity, then just about any person who participated in the effective and efficient running of the prison (even if his function was purely administrative, e.g. merely processing the payroll) could be held liable for the crimes committed by his co-soldiers, once he was aware of the system of persecution and did nothing about it, or at the very least did not resign from his position. Even though the Trial Chamber in the Kvoþka Trial Judgment held that there was not sufficient evidence that either Kvoþka or Prcaü had personally committed acts of abuse, it was of critical importance that they had knowledge of the abusive treatment and conditions and yet continued to work at the camp, performing their tasks skilfully, efficiently and without complaint. The realisation that soldiers of many western states, often portrayed as the ‘good guys’ in the media, could, in theory, be held liable for core international crimes, which they did not personally commit, as a result of the JCE mode of liability, underscores the reality of the application of this mode of liability. 471 472 473

474 475

See Patricia M. Wald, “ICTY Judicial Proceedings – an Appraisal from Within”, 2 J. Int’l Crim. Jus. 466 (2004), p. 467. See infra Chapter 4. “Policy on some Policy Issues before the Office of the Prosecutor”, ICC-OTP 2003, available at http://www.amicc.org/docs/OcampoPolicyPaper9_03.pdf (last visited 28 February 2005), p. 7. SCSL, supra note 13, Article 1(1). Which it does not currently have due to the fact that the US is not a party to the ICC Statute, supra note 11, and due to the complementarity provisions in the ICC Statute, as well as numerous jurisdictional and other hurdles that have to be overcome before the ICC has jurisdiction over such crimes.

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3.7.1.10 The ICC and the JCE Mode of Liability As noted above,476 neither the subjective nor objective elements of the JCED as articulated in the ICC Statute are identical to those identified in the Tadiü Appeals Judgment or the subsequent jurisprudence of the ICTY/ICTR. This will give rise to problems of interpretation before the ICC and more fundamentally could result in Article 25(3)(d) of the ICC Statute being challenged on the grounds that it breaches the nullum crimen sine lege principle. In addition, in the author’s view, Article 25(3)(d) does not encompass JCE Category 3. This gives rise to questions of inequality of treatment: why should one’s criminal liability under the JCED depend upon the international criminal court before which one appears? As noted above, although the international criminal courts are obliged to apply the terms of their statutes, they are each mandated to apply international criminal law. In the interests of justice, the orderly development of international criminal law, and the need for consistency, certainty and predictability, it is preferable that such courts ‘sing from the same hymn sheet’ and apply the same (version of the) law. There is, however, an upside to this state of affairs. If the ICC determines that JCE Category 3 is not encompassed by Article 25(3)(d) of the ICC Statute, then at least no prosecutions can take place before the ICC based on this questionable mode of liability.477 The JCED also gives rise to concern with regard to the complementarity provisions of the ICC Statute, which is considered to be one of the main ‘safety’ features of the ICC Statute. If a case is being investigated or prosecuted at national level and the concerned state is genuinely willing and able to carry out the investigation or prosecution, then the ICC shall determine such case to be inadmissible before the ICC.478 No doubt, many states bore this consideration in mind when determining whether to ratify the ICC Statute or not, as most states want to be able to prosecute perpetrators before their domestic courts, especially where the perpetrator is a national of such state or where the crime in question was committed on the territory of such state. As long as state parties are willing and able to prosecute the accused before their own domestic courts, then there is no danger that such accused will be tried before the ICC. However, as already noted, the JCED is not a recognised mode of criminal liability in all the legal systems of the world (particularly civil law systems) and in other systems it is only recognised in certain limited circumstances.479 476 477 478 479

See supra section 3.4.3. Unless, of course, the ICC determines that Article 25(3)(a) encompasses JCE Category 3, which as discussed, see supra section 3.4.3, is unlikely. Articles 1 and 17(1), ICC Statute, supra note 11. As regards Denmark, see supra note 78 and infra note 483. For a comparative study of the German law and English law modes of laibility for JCE activities, see Kai Hamdorf, “The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime, A Comparison of German and English Law”, 5 J. Int’l Crim. Jus. 208 (2007). He concludes that both legal systems encompass all three JCE categories, to a large extent.

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Each State party to the ICC Statute is obliged to implement the ICC Statute into its domestic legislation in order to enable such State parties to cooperate fully with the ICC in its investigation and prosecution of core international crimes.480 However, such implementation is not enough if a State party whose domestic legislation does not recognise the JCED as a mode of liability for the prosecution of international crimes wishes to ‘benefit’ from the complementarity provisions in the ICC Statute. The mere implementation of the ICC Statute into domestic legislation will ensure that such State party can cooperate fully with the ICC. However, it does not provide the prosecuting authorities of the state concerned with the power to prosecute the perpetrators of core international crimes relying on the JCED as a mode of liability under that State’s domestic law. Additional domestic legislation will be needed to achieve that end. For example, Denmark has incorporated the ICC Statute into Danish domestic law by way of the Law on the International Criminal Court, which empowers it to fulfil its obligations to cooperate with the ICC.481 However, such incorporation does not amend Danish criminal law or Danish criminal procedure. The explanatory notes to the Law on the International Criminal Court specifically note that such incorporation does not mean that Part 3 of the ICC Statute (General Principles of Criminal Law), which includes Article 25(3)(d) of the ICC Statute concerning the JCED mode of liability, can be applied before the Danish domestic courts.482 In order to permit the prosecution of the international crimes identified in the ICC Statute before the Danish courts relying specifically on the JCE mode of liability, a specific amendment would have to be made to Danish criminal law.483 The end result, thus, is 480

481

482 483

Articles 86 and 88, ICC Statute, supra note 11. The term “implement” is, perhaps, more appropriate as regards States adhering to the dualist theory of international law, in that treaty obligations must be specifically adopted into domestic law before they can take effect. States which adhere to the monist theory of international law do not require specific legislation to implement a treaty. Notwithstanding this, the term “implement” is employed herein in a general manner and is intended to encompass both dualist and monist states. See Lov om Den Internationale Straffedomstol, Lov nr. 342 af 16/05/2001. See also the explanatory notes to Forslag til Lov om Den Internationale Straffedomstol, 4 October 2000, point 5, available at www.folketinget.dk/Samling/20001/lovforslag_som_fremsat/ L20.htm (last visited 14 February 2007). Ibid, point 5, § 8. Although Danish criminal law does not expressly recognise the JCED mode of liability, Flemming Orth posits, that in general, the Danish rules on accomplice (medvirken) liability arguably encompass JCE Category 1 scenarios and could potentially encompass some, but not all, JCE category 2 scenarios. As regards JCE Category 3, he notes that such category would run into difficulties before a Danish domestic court. See Flemming Orth, “Afsnit A: Joint criminal enterprise i dansk ret(?), Udvalgte juridiske begrebers betydning i dansk ret”, in Lars Plum and Andreas Laursen (eds.), Enhver Stats pligt… International strafferet og dansk ret, Jurist- og Økonomforbundets Forlag, Copenhagen, 2007, pp. 425–430. See also Jesper Hjortenberg, “Den internationale straffedomstol og dansk ret“ in Lars Plum and Andreas Laursen, ibid., p. 464 and supra note 78. Notwithstanding this, in order to ensure that Denmark is not excluded from exercising

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that Denmark may find itself in a situation whereby it cannot prosecute an accused before its own domestic courts,484 although it wishes to do so and its only option will be to surrender the accused to the ICC for prosecution.485 This example underscores the potential unsatisfactory consequences involved in a State party not diligently amending its domestic criminal legislation to ensure that an accused can be prosecuted before its domestic courts for core international crimes, relying on the JCE mode of liability. Moreover, apart from the concern this issue gives rise to as regards the complementarity provisions of the ICC Statute, it also seems inherently unfair that an accused could not be held accountable for a particular act before a domestic court, but that he could be held accountable for that same act before the ICC. The other side of this coin can hardly be described as satisfactory either. It is conceivable that some State parties, in order to ensure that they can avail of the ICC’s complementarity provisions, may amend their domestic legislation to provide for the prosecution of core international crimes before their domestic courts in reliance on the JCED, where their domestic legislation does not currently recognise such mode of liability. This would result in the introduction of the JCED in to, potentially, many domestic criminal systems by the back door, albeit only in relation to core international crimes. Bearing in mind the substantial concerns attaching to this doctrine, such outcome would, in the author’s opinion, be undesirable, especially as the JCED is currently understood. The introduction of the doctrine in to the domestic legislation of State parties could later be interpreted as evidence of support for the doctrine, notwithstanding that the only reason such states incorporated the doctrine into their domestic legislation was to ensure that they could avail of the complementarity provisions of the ICC Statute. Finally, it is noteworthy that one of the main reasons the concept of corporate liability was not included in the ICC Statute was because corporate liability is not

484 485

jurisdiction over an accused because of the absence of the recognition of the JCED in relation to international crimes, the adoption of specific domestic legislation, particularly in relation to JCE Categories 2 and 3, is preferable. As regards the principal/accomplice debate, no significance should be attached to the view that the Danish rules on accomplice (medvirken) liability seem to encompass certain JCE categories. As noted above, Danish criminal law, does not distinguish between principal and accessory liability and the term medvirken in Danish law is not identical to the concept of accessory liability, as that term is understood in international criminal law. See supra note 258. For example, if on the evidence, the only mode of liability which could be used to prosecute the accused is the JCE Category 3. Besides concerns as to the extent to which Danish criminal law recognises the JCED, there is also concern that the definition of war crimes and crimes against humanity as defined in the ICC Statute, supra note 11, are not totally covered by Danish criminal law. See Hjortenberg, supra note 483, pp. 467–469. For a general consideration of the impact of inadequate implementing national legislation, as regards the definition of ICC crimes, on the admissibility of a case before the ICC, see Julio Bacio Terracino, “National Implementation of ICC Crimes, Impact on National Jurisdictions and the ICC”, 5 J. Int’l Crim. Jus. 421 (2007).

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recognised by all states. Accordingly the ICC’s complementarity provisions would never have come into play, as regards those states which do not recognise corporate liability.486 It is interesting that this argument was considered important enough to exclude corporate responsibility from the ICC Statute, but not the JCED.

3.7.2 Conclusion Although the more recent jurisprudence of the ICTY, ICTR and SCSL evidences the exercise of some restraint in the application of the JCED,487 some serious 486 487

See Eser, supra note 163, pp. 778–779, Kai Ambos, supra note 163, p. 478 and Daryl Robinson in Cassese, Gaeta and Jones, supra note 163, Vol. II, p. 1863. For example: (i) In the Brÿanin Trial Judgment, the Trial Chamber went further than preceding ICTY jurisprudence by requiring that there be an express agreement or understanding between the accused and the physical perpetrators of the crimes charged. Moreover, it held that the physical perpetrator of the crime in question had to be a member of the JCE, in order for liability to attach to high-level officials and that the JCE mode of liability was only appropriate to small cases. See supra note 294, §§ 340–356. However, each of these findings was recently rejected by the ICTY Appeals Chamber. See Brÿanin Appeals Judgment, supra note 445, §§ 357–450. Judge Mohammed Shahabuddeen dissented in part. In his view, a physical perpetrator, who acquiesces in the JCE and perpetrates a crime within its common purpose, thereby becomes a member of the JCE, if he is not already a member. See Brÿanin Appeals Judgment, ibid., Partly Dissenting Opinion of Judge Shahabuddeen, §§ 3–4. Judge Christine van den Wyngaert disagrees with Judge Shahabuddeen’s ‘acquiescence’ concept. See Brÿanin Appeals Judgment, ibid., Declaration of Judge van den Wyngaert, §§ 5–7. In relation to support for the findings of the Brÿanin Trial Judgment, see van der Wilt, supra note 145, p. 17 and van Sliedregt supra note 258, pp. 200–201. For criticism of the findings of the Brÿanin Trial Judgment, see Gustafson, supra note 5 and Allen O’ Rourke, “Joint Criminal Enterprise and Brÿanin: Misguided Overcorrection”, 47 Harv. Int'l L. J. 307 (2006). (ii) In the Blagojeviü and Jokiü Trial Judgment, although the Prosecution alleged that Vidoje Blagojeviü committed a forcible transfer of women and children as part of a JCE, the Trial Chamber found that the form of liability “more appropriate” to describe his participation in the forcible transfer was aiding and abetting. Blagojeviü and Jokiü Trial Judgment, supra note 69, §§ 704–714. Likewise, the Trial Chamber held that although all the other elements of JCE Category 1 had been satisfied, Dragan Jokiü did not have the requisite intent to commit murder, extermination and persecutions and accordingly the appropriate form of liability to describe his participation in the crimes in question was aiding and abetting. Ibid., §§ 715–725. On appeal, the Prosecutor argued unsuccessfully that the Trial Chamber had erred in fact by finding that Blagojeviü did not have the requisite intent to commit forcible transfer as part of the JCE. See Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, Case No.: IT-02-60-A, Judgment, App. Ch., 9 May 2007, §§ 250–276. (iii) In the Limaj Trial Judgment, although the Trial Chamber found that a prison camp was operating in Llapushnik and that crimes were committed against the individuals detained at the camp, by a number of people, it held that neither the existence nor the scope of the alleged JCE had been established. See supra note 221, § 666. In this regard, see Pascale Chifflet, “The First Trial of Former Members of the Kosovo Liberation Army: Prosecutor v Fatmir Limaj, Haradin Bala, and Isak Musliu”, 19 Leiden J. Int’l L 459 (2006), pp. 474–476. Other relevant ICTY

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reservations concerning the JCED remain. As a general matter, the JCED has, warranted or not, negative connotations of being a form of collective responsibility. This is especially the case as regards JCE Category 3. The JCED is treading a fine line between individual criminal responsibility and collective responsibility and any application of this mode of liability by the international judiciary in the future must bear in mind the need to steer well clear of all associations with the collective responsibility concept. The employment by the ICC Prosecutor of the broadened aiding and abetting mode of liability of the ICC Statute to cover cases which previously would have been charged under the JCE mode of liability is preferable, as it, at least, avoids connotations of collective responsibility. Secondly, in the author’s view, a case can be made that the JCED breaches the nullum crimen sine lege principle, particularly as regards the JCE mode of liability articulated in the ICC Statute. It seems inherently unfair to expect an ordinary individual to understand the complexities of the JCED and to appreciate that he may be liable for a core international crime in accordance with this doctrine, in particular JCE Category 3. Thirdly, although the special nature of core international crimes should be accommodated, the right of the accused to a fair trial should not be infringed. An accused should, at the very least, be aware of the nature of the charges laid against him. It should not be a matter of interpretation for the courts. It is precisely because of the heinous nature of such crimes, with the resulting serious consequences for an accused found guilty of committing such crimes, that every safeguard should be put in place to ensure that the accused is not unfairly disadvantaged. Bearing in mind the substantial jurisprudence on the form of pleading of the JCED in indictments, it is no longer acceptable for the Prosecution to issue vague and imprecise indictments when charging the JCED. The international judiciary should not accept such vague indictments and should reject indictments which are

jurisprudence includes the (i) Vasiljeviü Appeals Judgment, supra note 221 and supra section 3.6.1.1; (ii) Krstiü Appeals Judgment, supra note 60 and supra section 3.6.1.1; (iii) Kvoüka Appeals Judgment, supra note 59 and supra section 3.7.1.8; and (iv) Lazareviü Indictment Decision, supra note 363, § 6. As regards the ICTR, see (i) Karemera JCE Decision, supra note 125; (ii) Mpambara Trial Judgment, supra note 153; (iii) Ntakirutimana Appeals Judgment, supra note 153; (iv) Bizimungu JCE Decision, supra note 447; and (v) Prosecutor v Sylvestre Gacumbtsi, Case No.: ICTR2001-64-A, Judgment, App. Ch., 7 July 2006, whereby the ICTR Appeals Chamber dismissed the Prosecution’s appeal against the Trial Chamber’s judgment, that the JCED was not pleaded clearly enough in the indictment or elsewhere to allow the accused to defend himself adequately. This was the case, even though the indictment employed the expressions “acted in concert with” and the accused having participated in a “common scheme, strategy or plan”. Ibid., §§ 158-179. Likewise, the SCSL jurisprudence evidences restraint on the part of the SCSL in relation to the JCED. See Fofana Trial Judgment and the Brima Trial Judgment, supra section 3.4.5 and see supra notes 201 and 205 respectively. It should be noted that while this new restraint shown by the ICTY, ICTR and SCSL is, in principle, to be applauded, it does not, of course, negate the potential unfairness to those accused tried and sentenced prior to the exercise of this new restraint by the ICTY.

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defective. There should be some adverse consequence to the issuing of vague and imprecise indictments by the Prosecution. Neither should the doctrine be treated as an escape route from the Prosecution’s duty to prove the guilt of the accused beyond reasonable doubt, notwithstanding the particular evidential difficulties presented by core international crimes. It is crucial that the courts be satisfied that sufficient evidence has been presented before the court to support a conviction on the basis of the JCED. Fourthly, for the reasons noted above, it should be part of the actus reus of the JCED that the participation of the accused in the JCE be significant. Fifthly, it is arguably inappropriate to apply the JCED to the ‘little fish’. Sixthly, although the debate as to whether the doctrine is a form of principal liability or accomplice liability is insignificant as regards sentencing before the ICTY/ICTR, from a theoretical perspective, it is important inter alia from a practical perspective, as well as in relation to the truth-telling function of the international criminal law system. The distinction has, moreover, implications in relation to sentencing before the ICC. Seventhly, it is likely that the application of the JCED before the ICC is going to be problematic. Not only are the mens rea and actus reus elements of the JCED articulated in the ICC Statute different to those articulated in the ICTY jurisprudence, Article 25(3)(d) of the ICC Statute could, arguably, be challenged as a breach of the nullum crimen sine lege principle. In addition, Article 25(3)(d) does not seem to encompass JCE Category 3, which inter alia raises the question as to why the liability of the accused should depend upon the forum before which he appears. However, the upside to this is, that if the ICC determines that JCE Category 3 is not encompassed by Article 25(3)(d), then at least no prosecutions can take place before the ICC based on this questionable mode of liability. For those states which do not recognise the JCED in their national laws, the complementarity provisions will provide no ’protection’ before the ICC, a fact which ICC signatory states may not appreciate. Even if State parties do amend their domestic legislation, where necessary, to enable the domestic prosecution of international crimes by reliance on the JCED, it is also questionable whether this is desirable, as it effectively amounts to the incorporation of the JCED into domestic legislation through the back door. Nevertheless, at least if the ICC determines that JCE Category 3 is not encompassed by Article 25(3)(d), then JCE Category 3 will not be incorporated into the domestic legislation of State parties, which do not already recognise such mode of liability in their domestic systems (unless of course the domestic legislature or courts concerned determine otherwise). Finally, while it is, of course, desirable that as many perpetrators of core international crimes be prosecuted and convicted, such convictions should not come at any price, for example, by undermining basic principles of criminal law (such as the fundamental rights of the accused) and/or the entire international criminal law system, including its very legitimacy.488 As noted by Judge Hunt, “this Tribunal 488

As articulated by Schabas, the JCED “facilitate[s] the conviction of individual villains who have apparently participated in serious violations of human rights. But… [it] result[s] in discounted convictions that inevitably diminish the didactic significance of

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[ICTY] will not be judged by the number of convictions it enters… but by the fairness of its trials”.489 Notwithstanding these concerns, the JCE mode of liability continues to be used widely in the prosecution of core international crimes before international courts and internationalised courts, and it is unlikely that its popularity will wane in the immediate future. Despite the current enthusiastic employment of the JCE mode of liability, one can only hope that the judiciary will bear in mind the perils of this doctrine when it arises in a case before it. To conclude, in the author’s view, the description of the JCE as a “monster theory of liability” is not entirely fair. However, neither can it be said, without any reservation, that the JCED is a legitimate and satisfactory tool in the prosecution of the perpetrators of core international crimes. The serious concerns which exist in relation to the JCED significantly undermine the doctrine’s legitimacy and satisfactoriness as a prosecutorial tool. Moreover, the employment of the doctrine, in its current form, before the international criminal courts, arguably, also undermines the credibility and authority of those very courts.

489

the… [ICTY’s] judgements and that compromise its historical legacy… Deviance from adherence to strict principles may augment the chances of conviction but it can also threaten the Tribunal’s ability to fulfil its solemn goals.” See William Schabas, “Mens Rea and the International Criminal Tribunal for the Former Yugoslavia”, 37 New Eng. L. Rev. 1015 (2003), pp. 1034 and 1036. For a discussion on the interaction between domestic criminal law, international human rights law and transitional justice and the role each plays in the international criminal law system, see Danner and Martinez, supra note 37. Danner and Martinez posit that “[j]oint criminal enterprise provides an example of an international criminal doctrine where certain aspects of the human rights and transitional justice influences in international criminal law are in danger of overpowering the restraining forces of the criminal law tradition. As currently formulated, the doctrine has the potential to stretch criminal liability to a point where the legitimacy of international criminal law will be threatened – thereby undermining not only the criminal law aims, but also the human rights and transitional justice goals of international criminal law”. Ibid., p. 132. Prosecutor v Slobodan Miloševiü, Case No.: IT-02-54-AR73.4, “Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements”, App. Ch., 21 October 2003, § 22.

4 The Defining Criteria of International Criminal Courts for the Purposes of Lifting State Official Immunity

4.1 Introduction As noted in Chapter 2, the principle of individual criminal responsibility for core international crimes is a firmly established principle of international law. However, the enforcement of this principle can, in some circumstances, be thwarted by the operation of state official immunity. Although, state official immunity attaches to a State and not to an individual, certain individuals can benefit from such immunity, due to their position as state officials.1 The lifting of immunity from prosecution for core international crimes is central to whether or not individual criminal responsibility can be imposed for such crimes. In Democratic Republic of the Congo v Belgium (“Yerodia”), the ICJ determined, that whereas an incumbent or former Minister for Foreign Affairs enjoys absolute immunity from criminal prosecution before national courts for war crimes and crimes against humanity, an incumbent or former Minister for Foreign Affairs may be subject to criminal prosecution for the same crimes before certain international criminal tribunals, where such tribunals have jurisdiction over the crime in question.2 The ICJ’s determination applies, a fortiori, to the immunity, or 1 2

See infra note 21. Case concerning Yerodia of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, 14 February 2002, §§ 60–61, available at http://www.icj-cij.org/ docket/files/121/8126.pdf (last visited 18 July 2007). It could be argued that the international criminal court exception identified by the ICJ was unnecessary, as the ability to prosecute high-ranking state officials before an international criminal court can be simply explained on the basis of consent, i.e. that States consent to the lifting of state official immunity before such judicial bodies. However, in the author’s view, this is not an entirely accurate assessment. Article 27(2) ICC Statute, available at http://www.icccpi.int/library/about/officialjournal/Rome_Statute_English.pdf (last visited 1 June 2007), expressly lifts the immunity of state officials. An ICC State party, or a party which accepts the jurisdiction of the ICC in accordance with Article 12(3), ICC Statute, ibid, can be said to have consented to the lifting of immunity before the ICC in relation to its own state officials. However, in the author’s view, the same cannot be said in relation to an international criminal court, whose legal basis is a UN Security Council Chapter VII resolution, for example, the ICTY/ICTR. In the author’s view, it would be inaccurate to say that UN member States give their consent to the lifting of state official

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absence thereof, of incumbent and former Heads of State and Government for such crimes. Even though the SCSL is not obliged to adhere to any judgment of the ICJ, it accepted and applied the national/international criminal court distinction articulated by the ICJ, in its Decision on Immunity from Jurisdiction in Prosecutor v Charles Gankay Taylor (“Taylor Decision”);3 and it is conceivable that when dealing with the issue of state official immunity from prosecution for core international crimes in the future, judicial bodies will continue to apply this national/ international distinction.4 This is the case, even though as will be seen below, in the author’s view, the classification of a judicial body as an international criminal court/tribunal does not automatically mean that a state official has no immunity from prosecution before that body.5 In the light of the Yerodia case and the Taylor Decision, it is, therefore, important that the defining criteria of an international criminal court/tribunal be identified, both to enable the judiciary of the judicial body before which the issue arises, to be able to determine if such judicial body is an international criminal court/tribunal and to enable an accused to determine if his entitlement to immunity from prosecution applies before the judicial body before which he appears. Regretfully, the

3

4

5

immunity before such international criminal courts; instead, the necessity for such consent is removed. See infra section 4.7. Neither does the consent theory hold in relation to the prosecution of Charles Taylor before the SCSL, see infra note 3 and section 4.5.3 (to the extent that the SCSL is determined to be an international criminal court, see infra section 4.5.3 and 4.6.2.1). The legal basis of the SCSL is a treaty between the UN and the Government of Sierra Leone, see infra sections 4.5.4.2 (agreement between the UN and one or more States) and 4.6.2.1. The Republic of Liberia, of which Charles Taylor was the former president, is not a party to that treaty, and it has not given its consent to the lifting of immunity in relation to Taylor before the SCSL. This absence of consent is underscored by the application by the Republic of Liberia to the ICJ concerning the international arrest warrant issued by the SCSL against Taylor. See infra note 14. Prosecutor v Charles Ghankay Taylor, Case No.: SCSL-2003-01-I, “Decision on Immunity from Jurisdiction”, App. Ch., 31 May 2004. This issue was also expressly addressed by the Amicus Curiae see infra note 4, the SCSL Prosecutor and Taylor’s Defence Team. In connection with the Taylor Decision, the Appeals Chamber of the SCSL appointed Professor Philippe Sands QC and Professor Diane F. Orentlicher to each submit an Amicus Curiae Brief concerning whether the SCSL was impeded from exercising jurisdiction over Taylor. Professors Sands and Orentlicher also specifically relied on the Yerodia Case judgment and on the national/international court distinction drawn by the ICJ, in determining whether Taylor was entitled to immunity from prosecution before the SCSL. See Professor Philippe Sands QC, The Prosecutor v Charles Ghankay Taylor, Case SCSL-2003-01-I, “Submissions of the Amicus Curiae on Head of State Immunity”, 23 October 2003 (copy on file with the author), § 56 and Professor Diane F. Orentlicher, The Prosecutor v Charles Ghankay Taylor, Case SCSL-2003-01-I, “Submissions of the Amicus Curiae on Head of State Immunity”, 23 October 2003 (copy on file with the author), pp. 1 and 9. See infra section 4.7.

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ICJ did not identify the defining criteria of an international criminal court/tribunal, before which an incumbent or former Minister for Foreign Affairs may be subject to criminal prosecution, but merely put forward as examples of the same, the ICTY, ICTR and ICC.6 Neither is there a universally accepted legal definition of an international criminal court/tribunal and the recent jurisprudence considering this issue has not proved particularly insightful. The terms ‘international criminal court’ and ‘international criminal tribunal’ are frequently employed both in academic legal literature and the media quite loosely, without much consideration being given as to what these terms actually mean. It is still a commonly held view, for example, that the IMT was an international criminal tribunal/court.7 However, there are many opponents to this view.8 6 7

8

See supra note 2. See Benjamin B. Ferencz, “International Criminal Court”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, North-Holland Publishing Company, Amsterdam, New York, London, 1981, Vol. I, p. 100 and Kai Ambos, “Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis – From Nuremberg to The Hague”, in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, The Experience of International and National Courts, Kluwer Law International, The Hague, London, Boston, 2000, Vol. I, p. 7. See also M. Cherif Bassiouni, “The Permanent International Criminal Court”, in Mark Lattimer and Philippe Sands (eds.), Justice for Crimes against Humanity, Hart Publishing, Oxford and Portland, Oregon, 2003, p. 174, Carl Aage Nørgaard, The Position of the Individual in International Law, Scandinavian University Books, Munksgaard Copenhagen, 1962, pp. 183–196 and Robert Cryer, Prosecuting International Crimes, Selectivity and the International Criminal Law Regime, Cambridge University Press, Cambridge, 2005, pp. 38–39. See Christian Tomuschat, “International Courts and Tribunals”, in Bernhardt, ibid., pp. 93–94, who opines that neither the IMT nor the IMTFE were international courts/tribunals as such tribunals “must be viewed primarily as an agency for the joint exercise of domestic penal jurisdiction as held individually by each of the four Applied Powers. Even if one considers that the International Military Tribunal exercised penal jurisdiction directly derived from international law, it does not fit into the normal pattern of [international court/tribunals], since no judge of German nationality was allowed to sit on the bench.” Boleslaw Adam Bosnek notes that the IMT has been criticised as a “quasiinternational tribunal set up by the victorious powers, without any judge from a neutral country to try the crimes of the vanquished. Its international character was questioned by arguments that it was a domestic court set up in Germany by the governments then exercising joint sovereign rights in occupied Germany.” See Boleslaw Adam Boczek, Historical Dictionary of International Tribunals, The Scarecrow Press Inc., Metuchen, N.J., London, 1994, p. 124. See also Geoffrey Robertsen, Crimes against Humanity, The Struggle for Global Justice, Allen Lane, The Penguin Press, London, 1999, p. 264; Antonio Cassese, International Criminal Law, Oxford University Press, Oxford, New York, 2003, pp. 332–333 (referring to the IMT and IMTFE as “non-national” or “multinational” institutions); Sterling Johnson, Peace without Justice, Hegemonic Instability or International Criminal Law, Ashgate, Aldersot, 2003, p. 37; and Joanna Harrington, Michael Milde, and Richard Vernon (eds.), Bringing Power to Justice, The Prospects of the International Criminal Court, McGill-Queen’s University Press, Montreal & Kingston, London, Ithaca, 2006, p. 4. The ICTY’s Trial Chamber, moreover, determined that the

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This matter is further complicated by the establishment of ‘hybrid internationaldomestic bodies’.9 There is no agreed legal definition of this term in international criminal law. Indeed, a multitude of terms is employed to describe such bodies, e.g. ‘hybrid criminal judicial bodies’, ‘internationalised criminal courts or tribunals’ and ‘mixed criminal courts or tribunals.’ Broadly speaking, the term ‘hybrid international-domestic bodies’ is used as a general term to describe courts or tribunals which are mixed in their composition, for example, whereby the judges which sit on the bench are a mixture of international (i.e. non-national) judges and domestic judges, and/or the laws, statutes or rules of such courts/tribunals are a mixture of international and domestic law. Conventional examples of hybrid internationaldomestic bodies are the SCSL, the Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili (East Timor) and the ‘Regulation 64’ Panels of Kosovo. Additional examples of existing criminal judicial bodies with a mixture of international and national features include the War Crimes Chamber of the State Court of Bosnia and Herzegovina and the Supreme Iraqi Criminal Tribunal.10 Moreover, the soon to be established Special

9 10

IMT was not truly international, but was multinational. See Prosecutor v Dusko Tadiü, Case No.: IT-94-1-T, Opinion and Judgment, T. Ch., 7 May 1997, § 1. See also infra section 4.5.4.2 (Legal basis of an international criminal judicial body – treaty-based). For an overview of the reasons which warrant the establishment of hybrid internationaldomestic bodies, see Cassese, supra note 8, pp. 343–345. The UN has also been involved in attempting to establish a semi-international ‘Special Chamber’ in Burundi for war crimes and crimes against humanity, as well as a Truth and Reconciliation Commission. However, negotiations with the Burundian government have come to a standstill, as the Burundian Government is of the view that the proposed Commission should also be empowered to pardon criminals. The UN is opposed to this, viewing any such pardon as an amnesty, i.e. a general pardon, for the crimes committed. Negotiations have reached an impasse at the moment. See International Justice Tribune No. 64, 19 March 2007, p. 2, No. 56, 6 November 2006, p. 1 and No. 50, 10 July 2006, p. 4. The Sudanese Government set up the Special Court for Darfur to try war crimes, in response to the referral of the Darfur situation to the ICC by the UN Security Council. However, such court is purely domestic in nature and has been much criticised for its failure to provide accountability and justice for the international crimes committed in Darfur. See International Justice Tribune No. 49, 26 June 2006, p. 2 and No. 46, 8 May 2006, p. 3. Moreover, the War Crimes Chamber of the Belgrade District Court of Serbia, which was established to assist the ICTY in the implementation of its completion strategy, is also a domestic judicial body. The July 2003 Law on Organisation and Jurisdiction of Government Authorities in Prosecuting Perpetrators of War Crimes (English translation available at http://www.osce.org/documents/fry/ 2003/07/446_en.pdf (last visited 30 January 2007)) provides for the establishment of a Prosecutor’s Office for War Crimes and a War Crimes Investigation Service with responsibility for the prosecution/investigation of inter alia grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity and provides for the establishment of the War Crimes Chamber of the Belgrade District Court in Serbia for the hearing of trials in relation to such crimes (ibid., Articles 2, 4 and 8–10). No international (i.e. non-national) professional personnel assist the War Crimes Chamber of the Belgrade District Court in Serbia. Similarly, the Ad Hoc Human Rights Court in Jakarta, Indonesia for crimes committed in East

4.2 Scope, Aim and Overview 267

Tribunal for Lebanon (“STL”) will also have a mixture of international and national features. Can these hybrid international-domestic bodies be considered as international criminal courts/tribunals for the purposes of the discussion on the lifting of immunity from prosecution for core international crimes? Does the fact that a court or tribunal is categorised as a hybrid international-domestic body automatically exclude it from being categorised as an international criminal court/tribunal? In the Taylor Decision, the SCSL Appeals Chamber determined that the SCSL was an international criminal court for the purposes of determining whether Charles Taylor, the now former president of the Republic of Liberia, was immune from the jurisdiction of the SCSL. It is conceivable that the other hybrid international-domestic bodies in existence may also have to determine whether a state official before them can claim state official immunity from prosecution for core international crimes. It is to these issues we turn in this chapter, due to the relevance of the discussion of the lifting of immunity from prosecution for core international crimes, to the concept of individual criminal responsibility for core international crimes. This issue is of considerable importance, notwithstanding that the actual number of state officials who cannot benefit from state official immunity, far outweigh those that can.11 Indeed, it is precisely because of their high-ranking status that certain state officials have the capacity and opportunity to commit core international crimes.12

4.2 Scope, Aim and Overview Although the main significance of this pertinent issue is in relation to the question of the lifting of immunity from prosecution of Heads of State and Government and Ministers of Foreign Affairs for core international crimes, it is the intention of the author only to give a cursory treatment of the broader subject of state official immunity for core international crimes here. This is primarily because existing

11 12

Timor, allegedly by the Indonesian security forces and the militias they supported after the 1999 referendum in East Timor, is another example of a purely domestic arrangement. Article 43(2) of Law No. 26 year 2000 on Human Right Court (“Law no. 26/ 2000”) provides for the establishment of the Ad Hoc Human Rights Court by way of a Presidential Decree. Law No. 26/2000 defines the crimes falling within the jurisdiction of the Ad Hoc Human Rights Court as crimes against humanity and genocide. The judges of the Ad Hoc Human Rights Court are all local and the court sits at the Central Jakarta District Court. Its expenses are covered by the Indonesian Ministry of Justice and Human Rights. Calls for the establishment of an international tribunal to try the perpetrators in question have frequently been made, but were continually rejected by former UN Secretary-General Kofi Annan, who stated that he would not request the UN Security Council to set up an international tribunal if Indonesia succeeds in conducting its own trials in conformity with international standards. However, the trials conducted by the Ad Hoc Human Rights Court have been heavily criticised. See Suzannah Linton, “Unravelling the First Three Trials at Indonesia’s Ad Hoc Court for Human Rights Violations in East Timor”, 17 Leiden J. Int’l L 303 (2004). See infra note 21. For example, by instructing their subordinates to physically carry out the crimes in question.

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legal literature comprehensively deals with this subject, in particular, in relation to the many issues arising from the decision of the ICJ in the Yerodia Case.13 In the author’s view, it is more productive and novel to focus on the defining criteria of an international criminal court/tribunal, as this subject matter has received little indepth attention in academic and legal circles.14 Accordingly, this chapter will not focus on whether the distinction drawn by the ICJ between national and international criminal courts/tribunals, for the purposes of determining whether an individual is entitled to immunity from prosecution for core international crimes, is a correct interpretation of international law or not.15 In any event, as noted above, 13

14

15

See generally, Chanaka Wickremasinghe, “I. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) Preliminary Objections and Merits, Judgment of 14 February 2002”, 52 ICLQ 775 (2003) and the literature cited therein. See also the literature referred to in this chapter. An ideal opportunity for the ICJ to consider the defining criteria of an international criminal court/tribunal was provided by way of the application by the Republic of Liberia to the ICJ in its dispute with Sierra Leone, concerning the international arrest warrant issued by the SCSL against Taylor. Liberia claimed inter alia that the SCSL was not an international criminal judicial body. However, no action will be taken by the ICJ until Sierra Leone consents to the jurisdiction of the ICJ. See ICJ Press Release 2003/26 dated 5 August 2003, available at http://www.pict-pcti.org/news_archive/03/ 03Aug-/ICJ_080503.htm (last visited 10 January 2007). This issue has been addressed, for example, in Zsuzsanna Deen-Racsmány, “Prosecutor v Taylor: The Status of the Special Court for Sierra Leone and its Implications for Immunity”, 18 Leiden J. Int’l L 299 (2005), pp. 316–317. Micaela Frulli posits that the national/international distinction has no bearing as regards functional immunity (see infra note 21) but is of relevance in relation to personal immunity (see also infra note 21); Micaela Frulli, “The Question of Charles Taylor’s Immunity, Still in Search of a Balanced Application of Personal Immunities?”, 2 J. Int’l Crim. Jus. 1118 (2004), pp. 1125–1129. Sarah M. H. Nouwen suggests that instead of focusing on the national/international distinction, attention should be turned to the nature of the offence in question and the distinction between criminal responsibility and procedural immunity; Sarah M. H. Nouwen, “The Special Court for Sierra Leone and the Immunity of Taylor: the Arrest Warrant Case Continued”, 18 Leiden J. Int’l L 645 (2005), pp. 658– 669. Moreover, Jan Wouters argues that the national/international distinction is not accurate as several instruments and national jurisprudence indicate that there also exists an exception to immunity from prosecution for core international crimes before national courts; Jan Wouters, “The Judgment of the International Court of Justice in the Arrest Warrant Case: Some Critical Remarks”, 16 Leiden J. Int’l L 253 (2003), pp. 259–261. Although not specifically commenting on the validity of the national/international distinction, both Salvatore Zappalá and Antonio Cassese argue that under customary international law, there exists an exception to functional immunity for state officials who have committed international crimes before both national and international courts; Salvatore Zappalá, “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation”, 12 EJIL 595 (2001), pp. 600–607 and Antonio Cassese, “When may Senior State Officials be tried for International Crimes? Some Comments on the Congo v. Belgium Case”, 13 EJIL 853 (2002), pp. 870–874. See also Adam Day, “Crimes against Humanity as a Nexus of Individual and State Responsibility: Why the ICJ got Belgium v. Congo

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the SCSL Appeals Chamber has already applied the national/international criminal court/tribunal distinction articulated by the ICJ in the Yerodia case and it is likely, that in the future, other judicial bodies will continue to apply such distinction. The aim of this chapter is threefold. Firstly, it is to identify the defining criteria of international criminal courts/tribunals, which a judicial body should bear in mind, when determining a judicial body’s national or international criminal court/tribunal status. It should be noted that the defining criteria identified herein are not intended to be conclusive or appropriate as regards every discussion relating to international judicial bodies. The criteria identified are intended as a source of general guidance only in the context of the discussion relating to the lifting of immunity from prosecution for core international crimes in international law. Some international judicial bodies have jurisdiction over States, while others only have jurisdiction over natural persons. As this thesis concerns the criminal responsibility of individuals and not States, focus is placed on the defining criteria of international criminal judicial bodies which can impose individual criminal responsibility. It is, of course, possible that the criteria identified may prove helpful in other contexts, where an identification of the defining criteria of an international judicial body is necessary; but likewise it is also possible that they may not be entirely appropriate in another context, or indeed that criteria, other than those identified herein, may well have an appropriate role to play in other contexts. Secondly, the aim is, by applying the criteria identified, to determine if the SCSL Appeals Chamber was correct in determining that the SCSL can be categorised as an international criminal court, for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes. Finally, the aim of this chapter is to determine if the other hybrid internationaldomestic bodies in existence today, and the soon to be established STL, can be categorised as international criminal courts/tribunals for these same purposes, particularly as it is possible that such bodies may have to address this issue at some point in the future. Accordingly, this chapter adopts the following approach: Firstly, some clarification will be provided in relation to the terminology employed herein. Secondly, a brief comment will be made on the Yerodia case. Thirdly, an analysis will be conducted of the academic commentary and relevant jurisprudence which consider the defining criteria of international (criminal) courts/tribunals. Fourthly, the defining criteria of an international criminal court/tribunal will be identified. Finally, the hybrid international-domestic bodies in existence today, as well as the soon to be established STL, will be analysed to determine if any/each of them can be categorised as an international criminal court/tribunal, for the purposes of the wrong?”, 22 Berkeley J. Int’l L. 489 (2004). See also supra note 13. It has, moreover, been asserted that there is no functional immunity in relation to international crimes before either national or international courts because such crimes amount to violations of jus cogens norms and peremptory norms, which norms prevail over the international rules on immunity. This is, however, not a universally held view. See Dapo Akande, “International Law Immunities and the International Criminal Court”, 98 Am. J. Int’l L. 407 (2004), p. 414 and Andrea Gattini, “War Crimes and State Immunity in the Ferrini Decision”, 3 J. Int’l Crim. Jus. 224 (2005).

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international law rules relating to the lifting of immunity from prosecution for core international crimes. The author concludes that the fundamental defining criteria of an international criminal court/tribunal (a distinction is made below between such fundamental defining criteria and other matters which can be indicative of an international criminal court/tribunal)16 for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes are as follows: (i) The legal basis of an international criminal court/tribunal is either an international treaty between two or more States, a UN Security Council Chapter VII resolution, an agreement between the UN and one or more States, or an amendment to the UN Charter; (ii) an international criminal court/tribunal is not part of the judiciary of one single State; (iii) it applies international criminal law; (iv) its jurisdiction ratione materiae and ratione personae is international; and (v) its decisions are binding. The author, moreover, concludes that the SCSL can be categorised as an international criminal court/tribunal, for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes. Although the author is in agreement with the conclusion of the SCSL Appeals Chamber in relation to the international criminal court status of the SCSL, the basis on which the Appeals Chamber reached such conclusion is subject to criticism. While the Appeals Chamber considered the legal basis of the SCSL in some detail, its conclusions in relation to the same are confusing and unhelpful. Moreover, the Appeals Chamber’s decision would have benefited from a thorough consideration and identification of all of the defining criteria of an international criminal judicial body, instead of settling for a cursory and vague treatment of the subject at hand. Finally, the author concludes that the Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili (East Timor), the ‘Regulation 64’ Panels of Kosovo, the War Crimes Chamber of the State Court of Bosnia and Herzegovina and the Supreme Iraqi Criminal Tribunal cannot be categorised as international criminal courts/tribunals for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes; primarily because they each form part of the judiciary of a single State. The STL does not form part of the judiciary of a single State. However, it cannot be categorised as an international criminal tribunal for current purposes, as it does not apply international criminal law and its jurisdiction ratione materiae and ratione personae is not international.

4.3 Terminology As noted above, some clarification ought to be provided in relation to the terms ‘international criminal court’ and ‘international criminal tribunal’. As a general rule of thumb, the term ‘court’ is employed in relation to a permanent judicial body, whereas ‘tribunal’ seems to be employed in relation to a temporary judicial body, 16

See infra section 4.5.4.

4.4 Yerodia Case 271

for example an ad hoc judicial body.17 However, these terms are frequently used interchangeably. This chapter will employ the term ‘international criminal judicial body’ as a general term to encompass both international criminal courts and international criminal tribunals and ‘international judicial body’ to encompass both international courts and international tribunals. However, the terms ‘international criminal court’, ‘international criminal tribunal’, ‘international court’ and ‘international tribunal’ will be used, where deemed appropriate.18 The term ‘hybrid criminal judicial bodies’ will be employed to describe hybrid international-domestic bodies.

4.4 Yerodia Case A brief comment is warranted on the Yerodia case, which brought the subject of this chapter to the fore. The case concerned the issue by a Belgian investigating judge of an international arrest warrant against the then Minister for Foreign Affairs of the Democratic Republic of the Congo, Abdulaye Yerodia Ndombasi, for alleged crimes against humanity and offences constituting grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto.19 The Democratic Republic of the Congo claimed that by issuing such warrant, Belgium had inter alia violated the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State. The ICJ determined, that there did not exist under customary international law, at the time it handed down its judgment, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs before national courts, where they are suspected of having committed war crimes or crimes against humanity.20 However, it determined 17

18

19 20

See Boczek, supra note 8, p. 2, Cesare P. R. Romano, “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle”, 31 N.Y.U.J. Int’l L. & Pol. 709, (Summer 1999) p. 712 and Hermann Mosler, “Judgments of International Courts and Tribunals”, in Bernhardt, supra note 7, p. 111. For example, some scholars show a preference for using the term ‘international court’ over ‘international tribunal’ and vice versa, although they use these terms to refer to the same judicial bodies. This chapter will employ the terminology adopted by the individual writer in question when, for example, referring to the work of such writer. See supra note 3, §§ 1–13. By the time the ICJ handed down its judgment, Yerodia no longer held a ministerial post, due to the formation of a new government in the Congo. See supra note 2, § 58. Judge Van den Wyngaert disagrees with this conclusion, as does Judge Al-Khasawneh. See Dissenting Opinion of Judge Van den Wyngaert, ibid., §§ 1, 10, and 24–39 and Dissenting Opinion of Judge Al-Khasawneh., ibid., § 8. See also Cassese, supra note 8, p. 271, and Steffen Wirth, “Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case“, 13 EJIL 877 (2002). Judge Van den Wyngaert, moreover, strongly opposed extending the rule on immunity to Ministers of Foreign Affairs (as opposed to e.g. Heads of State or Government). See Dissenting Opinion Judge Van den Wyngaert, ibid., §§ 9–23 and 87. See also Dissenting Opinion Judge Al-Khasawneh, ibid., §§ 1-2, Joint Separate Opinion Judges Higgins, Kooijmans and Buergenthal, ibid., §§ 81-83; Philippe Sands, “International Law Transformed?

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that whereas an incumbent or former Minister for Foreign Affairs enjoys absolute immunity from criminal prosecutions before national courts for war crimes and crimes against humanity, an incumbent or former Minister for Foreign Affairs may be subject to criminal prosecution for the same crimes before certain international criminal tribunals, where such tribunals have jurisdiction over the crime in question, for example, the ICTY, ICTR and ICC.21

21

From Pinochet to Congo…?”, 16 Leiden J. Int’l L 33 (2003), p. 48; Wouters, supra note 15, pp. 255–258; and Akande, supra note 15, pp. 411–412. See Yerodia case, supra note 2, §§ 58–61. The distinction between national/ international criminal judicial bodies appears to be the based on the principle of State sovereignty and the thinking that one sovereign State should not adjudicate on the conduct of another State. This principle is not violated when a state official is tried before an international criminal judicial body, which is not an organ of a State, but derives its mandate from the international community. See Taylor Decision, supra note 3, §§ 51–52. David S. Koller identifies three additional possible arguments for why immunities do not attach before international criminal judicial bodies: (i) the ‘internationalness’ argument, which provides that as the rules governing international immunities are primarily derived from international law, the international community may determine when those immunities are no longer possible; (ii) the ‘world order/constitutional’ argument, which argues that as the UN Charter is the constitution of the international community, the UN Security Council could bind the entire international community; and (iii) the ‘treaty’ argument whereby States, which each individually possess the right to waive their own immunities, agree by treaty to waive such immunities before an international criminal judicial body. See David S. Koller, “Immunities of Foreign Ministers: Paragraph 61 of the Yerodia Judgment as it pertains to the UN Security Council and the International Criminal Court”, 20 Am. U. Int’l L. Rev. 7 (2004), pp. 30–41. Two categories of immunity are recognised in international criminal law: (i) functional immunity (ratione materiae) and (ii) personal immunity (ratione personae). Functional immunity is based on the notion that an individual acting for a State cannot be held responsible for any violation of international law, while acting in his official capacity. Only the State can be responsible for such actions and accordingly this immunity is eternal and applies even after the person concerned has left office. Functional immunity can be claimed in relation to the acts of e.g. Heads of State, Ministers for Foreign Affairs and also lower-ranking state officials. The rationale for personal immunity, on the other hand, is that the activity of Heads of State, Heads of Government, Minister of Foreign Affairs and other high ranked state officials must be immune from foreign jurisdiction to enable them to conduct their official functions without any threat, impediment or interference in order to ensure the smooth and peaceful conduct of international relations. This immunity ceases however, when the state official ceases office, as the immunity relates to the position held. See generally Cassese, supra note 8, pp. 264–274, Cassese, supra note 15, pp. 862–864, Wirth, supra note 20, pp. 882–884 and Frulli, supra note 15, pp. 1125–1126. The ICJ in the Yerodia Case also determined that provided a national court has jurisdiction under international law, such national court may try a former Minister for Foreign Affairs of another State in respect of acts committed in a private capacity prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office (but without setting out what acts it considered to be ‘private acts’). See supra note 2, § 61. This gives rise to the question whether core international crimes can amount to private acts. Cassese is against such a categorisation, noting the “artificiality of this legal construct”, see ibid., p. 870, as is Wirth who

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4.5 Defining Criteria of an International Criminal Judicial Body 4.5.1 Introduction There is currently no universally accepted legal definition of an international criminal judicial body. However, inspiration for such a definition can be found elsewhere. This section will deal with the topic at hand in the following manner: Firstly, consideration will be given to the literature which seeks to define the criteria of an international judicial body, which is helpful in providing a starting point for the analysis of the defining criteria of an international criminal judicial body. Secondly, consideration will be given to the jurisprudence and literature which attempt to define an international criminal judicial body in the aftermath of the Yerodia case. Thirdly, drawing on the criteria which can be deciphered from the preceding reviews, an attempt will be made to identify the defining criteria of an international criminal judicial body.

4.5.2 Defining Criteria of an International Judicial Body Just as there is no universally accepted legal definition of an international criminal judicial body, neither is there a list of agreed criteria that must be satisfied in order for a body to be categorised as an international judicial body. However, the latter has received some degree of attention and diverse definitions and criteria have been proposed. These definitions/criteria are set out below in detail and in chronological order. The reasoning behind this approach is three-fold: firstly, in order to identify the criteria proposed; secondly to highlight the chronological development of these criteria; and thirdly to emphasise the lack of agreement on this issue. In 1962, Carl Aage Nørgaard identified the general characteristics of an international tribunal as follows:

posits that this would imply that such acts cannot be attributed to the State for the purposes of State responsibility, which would prevent a State from being ordered to pay compensation, see Wirth, ibid., p. 891. See also Martine Spinedi, “State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Datur?”, 13 EJIL 895 (2002), and Wouters who notes that categorising such acts as private acts “ignores the sad reality that in most cases those crimes are precisely committed by or with the support of high-ranking officials as part of a State’s policy, and thus falls within the scope of official acts”. See Wouters, supra note 15, p. 262. Lord Browne-Wilkinson, on the other hand, is of the view that torture or genocide can never be committed in an official capacity and therefore should be treated as private acts. See R v. Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No. 3) (HL(E)) [2000] I AC 147, p. 203. See also Nouwen, supra note 15, p. 663 and Zappalá, supra note 15, pp. 601–605.

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[T]the following characteristics with regard to creation and organization are important: 1. The intention of the parties to establish an international tribunal. 2. The designation of the tribunal as international. 3. The creation of the tribunal by or by virtue of a treaty, i.e. by international law beween two or more States. 4. The tribunal may not be part of the judiciary of one single State. 5. The composition of the tribunal of independent judges of different nationality. 6. The parties in a case before the tribunal each shall have the right to have a judge of their own nationality on the bench. As important characteristics with regard to function and competence must be mentioned: 1. The tribunal shall apply international law. 2. The jurisdiction of the tribunal must be international, i.e. the jurisdiction of the tribunal must not be limited, i.e., it shall exceed the jurisdiction which one single State itself can confer upon its municipal tribunals. 3. The tribunal shall have jurisdiction in cases between States. 4. The tribunal shall have jurisdiction only in cases in which the parties either in general or by special agreement have accepted the jurisdiction of the tribunal.22

Christian Tomuschat is another scholar which has given this topic some consideration. In 1974, he identified five criteria of an international tribunal as follows:23 1. Application of law, i.e. the tribunal makes its decisions in accordance with law or by applying predetermined legal rules. 2. International tribunals are based on and apply international law, i.e. rules that are created through international rather than domestic procedures. 3. Independence of persons vested with adjudicatory functions, i.e. the judges are independent and are not subject to instructions from their national governments. 4. Binding character of decisions, i.e. such decisions must definitively settle the dispute “at least from the legal angle”,24 and it cannot be left to the parties to accept or reject the outcome. 5. Activity of international tribunals regulated by a body of generally applicable procedural rules, e.g. rules of procedure and evidence which apply to all disputes before the tribunal and cannot be changed by the parties. By 1981, writing in the Encyclopedia of Public International Law, Tomuschat amended the defining criteria of international courts and tribunals slightly stating International courts and tribunals (ICTs) are permanent judicial bodies, composed of independent judges, whose tasks are to adjudicate international disputes on the basis of international law… according to a pre-determined set of rules of procedure

22 23

24

Nørgaard, supra note 7, p. 179. Christian Tomuschat, “International Courts and Tribunals with Regionally Restricted and/or Specialized Jurisdiction”, in Max Planck Institute for Comparative Public Law and International Law, Judicial Settlement of International Disputes: International Court of Justice, Other Courts and Tribunals, Arbitration and Conciliation: An International Symposium, Springer Verlag, Berlin, Heidelberg, New York, 1974, pp. 285–416. Ibid., p. 300.

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and to render decisions which are binding on the parties. ICTs as they exist at present have nearly all been established on the basis of multilateral international treaties.25 Thus, the criteria of permanency was added and it was noted that the legal basis of nearly all international judicial bodies, at that point in time, was a multilateral international treaty. Hermann Mosler’s entry in the same publication assigned an elevated hierarchical value to the latter criteria, identifying as an “essential characteristic” of an international court, the establishment of such court on the basis of an international convention.26 In the 1994 Addendum to his entry, Mosler notes that while previous international courts were established by international conventions, the ICTY and ICTR were established by way of UN Security Council Chapter VII resolutions.27 In addition to identifying the legal basis of an international court as an international convention (multilateral, regional, plurilateral or bilateral), Mosler’s 1981 treatment of this topic identified the following as additional “essential criteria” of an international court: (b) Independence of the judiciary… (c) Objective rules derived from general international law and treaty law effective between the parties, to guide the judges in determining the law applicable; (d) The equality of the parties in the application of the law and in the proceedings before the court. This last principle applies without exception to inter-State disputes… (e) A procedure, the rules for which are established before hand and which are appropriate for the subject-matter of the disputes submitted to the court’s jurisdiction; (f) The binding effect of the judgment.28

As regards the legal basis of an international criminal judicial body, Benjamin B. Ferencz in 1981 noted that an international criminal court could be created by (i) an amendment to the UN Charter, (ii) a resolution of the UN General Assembly, or by (iii) an international convention adopted by the contracting States.29 The Historical Dictionary of International Tribunals (1994) provides that In its strict meaning, international adjudication, that is, settlement of international disputes by international tribunals, implies the existence of a standing court of general or specialized jurisdiction, established pursuant to a multilateral, global, or regional treaty, in which independent and impartial judges render legally binding decisions on the basis of international law according to previously set rules and procedures usually spelled out in the court’s statute which guarantee the parties’ right to submit their views on the basis of full equality.30

25 26 27

28 29 30

Emphasis added. See Tomuschat, supra note 8, pp. 93–99. See Mosler, supra note 17, p. 111. Although, Mosler did not posit whether the legal basis of an international court actually could be a UN Security Council Chapter VII resolution. See Hermann Mosler, “Judgments of International Courts and Tribunals”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Elsevier, Amsterdam, Lausanne, New York, Oxford, Shannon, Singapore, Tokyo, 1997, Vol. III, pp. 37–38. See supra note 17, pp. 111–112. See supra note 7, p. 100. See Boczek, supra note 8, p. 2.

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Moreover, Cesare P.R. Romano writing in 1999, referring to the work of Christian Tomuschat on this area, determined that five “basic criteria” must be met, in order for a judicial body to be classified as an international judicial body:31 (i) it must be permanent; (ii) it must have been established by an international instrument;32 (iii) the body must resort to international law in deciding the cases submitted to it; (iv) it must decide those cases on the basis of rules of procedure which pre-exist the case and usually cannot be modified by the parties; and (v) the outcome of the process must be legally binding. For the “sake of completeness and accuracy”, Romano goes on to note that two additional (but apparently not “basic”) criteria are: (i) it must be composed – at least in its majority – of judges who have not been appointed ad hoc by the parties, but rather who have been chosen before a case is submitted through an impartial mechanism; and (ii) it must decide disputes between two or more entities of which at least one is a sovereign State or an international organisation.33 In 2000, Charles H. Brower summarised the three general criteria of an international tribunal as (i) a treaty-based constitutive document; (ii) a governing-law regime based on public international law, and (iii) between “controlling parties” who possess international legal personality,34 while another suggestion is that (i) international tribunals derive their jurisdiction from inter-governmental agreements; (ii) they apply public international law; and (iii) they resolve disputes between legal persons on the international plane.35 When writing about the judicial settlement of international disputes in 2003, Brownlie comments that Apart from the International Court of Justice, judicial settlement has included the activity of many ad hoc arbitral tribunals and mixed commissions and of specialized tribunals of a semi permanent character… Two circumstances are paramount: (1) the existence of a dispute; and (2) decision by a tribunal which, in virtue of its source of authority, composition, immunity from local jurisdiction, and powers of jurisdiction, is international rather than national… The international character of the tribunal is a question both of its organization and its jurisdiction. A municipal tribunal may apply international law and when it does so is no longer merely an organ of the national system of law: but it is not acting independently 31 32

33 34

35

Romano, supra note 17, pp. 713–714. By way of insight into what Romano means by this expression, he notes that several of the bodies referred to in his article concerning international judicial bodies have been established directly by a treaty, “while some others have been established by other international legal acts deriving their force from treaties”. See supra note 17, p. 713. The ICTY and ICTR were outside the scope of his article however, not being permanent institutions. See ibid., p. 718. Romano, supra note 17, p. 715. Synopsis by Charles H. Brower, II of the three criteria of international tribunals identified by Moshen Mohebi. See Brower, “Book Review and Note: The International Law Character of the Iran-United States Claims Tribunal by Moshen Mohebi”, 94 A.J.I.L. 813 (2000) p. 813. See Brower, ibid., summarising the opinions of Ian Brownlie and Manley O. Hudson in relation to the criteria of international tribunals.

4.5 Defining Criteria of an International Criminal Judicial Body 277 of the national system, it is not settling issues between legal persons on the international plane and its jurisdiction does not rest on agreement on the international plane.36

Finally, Cesare P.R. Romano’s commentary to the 2004 publication of The Project on International Courts and Tribunals entitled “The International Judiciary in Context: A Synoptic Chart” identifies “certain fundamental criteria” of international judicial bodies, namely they a) are permanent institutions; b) are composed of independent judges c) adjudicate disputes between two or more entities, at least one of which is either a State or an International Organization; d) work on the basis of predetermined rules of procedure; and e) render decisions that are binding.37

The above review of the defining criteria of an international judicial body illustrates the varied opinions that exist on this topic and highlights how those criteria have changed, with the passage of time, to encompass new circumstances. It is not the intention, at this juncture, to discuss the merits of each of the proposed criteria. Such an analysis will be undertaken in section 4.5.4 below in connection with the author’s own analysis of the defining criteria of an international criminal judicial body.

4.5.3 Jurisprudence and Literature on the Defining Criteria of an International Criminal Judicial Body The defining criteria of an international criminal judicial body have been examined by the SCSL Appeals Chamber in the Taylor Decision. In that case, Taylor, the former President of the Republic of Liberia applied to quash his indictment before the SCSL and to set aside the warrant for his arrest on the grounds that he was immune from any exercise of the jurisdiction of the SCSL. The Defence argued inter alia that as an incumbent Head of State at the time of his indictment, Taylor enjoyed absolute immunity from criminal prosecution. The Prosecution by way of response, relying on the ICJ’s judgment in the Yerodia case argued that customary international law permits international criminal tribunals to indict acting Heads of State and the SCSL is an international criminal court established under international law. The Defence took issue with the classification of the SCSL as an international criminal court. Accordingly, for the purposes of the Taylor Decision, the classification of the SCSL as an international criminal judicial body or as a national criminal judicial 36 37

Ian Brownlie, Principles of Public International Law, Oxford University Press, 6th edition, 2003, pp. 675–676. The Project on International Courts and Tribunals, “The International Judiciary in Context: A Synoptic Chart”, Version 3.0, November 2004, available at http://www.pictpcti.org/publications/synoptic_chart.html (last visited 4 December 2006).

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body was crucial. The Appeals Chamber, in “view of the significance of the international law issues” involved, exercised its power to appoint Professor Philippe Sands and Professor Diane F. Orentlicher as amici curiae and requested each to submit an amicus curiae brief, concerning whether the SCSL was impeded from exercising jurisdiction over Taylor. As the Appeals Chamber relied on some of the findings of the amicus curiae briefs in its decision, particularly the findings of Professor Sands, a review of these briefs is warranted. The Taylor Decision in general and the amicus curiae briefs are of particular interest, bearing in mind that the SCSL is a hybrid criminal judicial body. 4.5.3.1 Amicus Curiae Brief of Professor Philippe Sands Professor Sands’ Brief identifies three broad criteria which must be investigated to determine whether a court can be categorised as an international criminal judicial body for the purposes of the international law rules concerning Head of State immunity: (i) its legal basis; (ii) its nature; and (iii) “the extent of its powers and attributes”.38 Unfortunately, the Brief does not expand upon these criteria in abstract form. It does not list, at the outset, the particular defining criteria of an international criminal judicial body and then apply these criteria to the case at hand. Such an approach would have been insightful, as it would enable the reader to clearly identify the criteria against which the SCSL was being assessed. Instead, the approach taken is to examine the constitutive instrument of the SCSL, as well as other relevant documents, and to highlight certain statements in these documents, which support the view that the SCSL is an international criminal judicial body. This is done without actually identifying which particular defining criterion of an international criminal judicial body is being satisfied, by the specific document or statement in hand. The Brief then concludes that the SCSL’s legal basis, nature and the extent of its powers and attributes are those of an international criminal court. This approach is not particularly helpful. While some common factors or criteria which a judicial body must fulfil in order to be categorised as an international criminal judicial body can be construed from the Brief, it is not always immediately obvious what these criteria are. The following are the factors which are noteworthy according to Professor Sands in determining that the SCSL is an international criminal court for the purposes of the international law rules concerning Head of State immunity:39 38 39

See supra note 4, § 57. In identifying these factors, Sands inter alia refers to the constitutive document of the SCSL, the Statute of the Special Court for Sierra Leone dated 16 January 2002 (“SCSL Statute”), which is annexed to the Agreement between the UN and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone dated 16 January 2002, (“Special Court Agreement”) available at http://www.sc-sl.org/ (last visited 17 July 2007), as well as UN Security Council Resolution 1315, S.C. Res. 1315, U.N. SCOR, 55th Sess., 4186th mtg., U.N. Doc. S/RES/1315 (14 August 2000), and the Report of the UN Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, S/2000/915.

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x The UN Security Council requested the UN Secretary-General to negotiate an agreement with the Government of Sierra Leone to create an independent special court.40 x It did not seem to be the intention of the resolution drafters to limit the jurisdiction of the SCSL to Sierra Leonean nationals or to the leaders of certain organisations.41 x Although in the end it was decided that the SCSL should not share the Appeals Chamber of the ICTY and ICTR, a matter the UN Security Council specifically requested be considered, such request is “an indication of the extent to which the UN Security Council intended the Special Court to have a jurisdiction which was generally analogous to that of the ICTY and ICTR.”42 x The SCSL was established by an agreement between the UN and the Government of Sierra Leone and “is therefore a treaty-based sui generis court of mixed jurisdiction and composition.”43 x As a treaty-based organ, the Special Court is not anchored in any existing system (i.e., UN administrative law or the national law of the State of the seat).44 x The SCSL has concurrent jurisdiction with and primacy over the Sierra Leonean courts.45 x Its primacy does not, however, extend to the national courts of third States and it lacks the power to request the surrender of an accused from any third State and to induce the compliance of its authorities with any such request.46 x The SCSL is established “outside the [Sierra Leonean] national court system” and operates “independently of the relevant national system”.47 x The UN Secretary-General appoints two of the three Trial Chamber judges and three of the five Appeals Chamber judges, as well as the prosecutor and the registrar. Accordingly all of these positions are filled by international (i.e. nonSierra Leonean) personnel.48 x The expenses of the SCSL are to be borne by voluntary contributions from the international community.49 x The SCSL’s premises and archives are inviolable and its property funds and assets are immune from interference.50

40 41 42 43 44 45 46 47 48 49

See supra note 4, § 60. Ibid., § 61. Ibid., § 61. Ibid., § 62, quoting from the Report of the UN Secretary-General, supra note 39. Ibid., §§ 62 and 70. Ibid., §§ 62 and 69. Ibid., § 62. Ibid., § 63, quoting from the Report of the UN Secretary-General, supra note 39. Ibid., § 66. Ibid., § 66.

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x The SCSL has the juridical capacity to enter into agreements with States as “may be necessary for the exercise of its functions for the operation of the Court”.51 x The SCSL’s judges, prosecutor and registrar enjoy privileges and immunities in accordance with the 1961 Vienna Convention on Diplomatic Relations.52 x The SCSL may prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law.53 x Crimes within the jurisdiction of the SCSL are: (a) crimes against humanity; (b) violations of Article 3 common to the Geneva Conventions and of Additional Protocol II; (c) other serious violations of international humanitarian law; and (d) certain crimes under Sierra Leonean law.54 x The Statute of the SCSL expressly provides that “[t]he official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”55 x The Rules of Procedure and Evidence of the ICTR are to apply mutatis mutandis to the conduct of proceedings before the SCSL.56 x The President of the SCSL is required to submit an annual report to the UN Secretary-General and to the Government of Sierra Leone.57 Bearing in mind all these factors, Professor Sands concludes that 1. The SCSL is not part of the judiciary of Sierra Leone and is not a national court. 2. The SCSL is established by treaty and fulfils the criteria associated with classical international organisations (including legal personality; the capacity to enter into agreements with other international persons governed by international law; privileges and immunities; and an autonomous will distinct from that of its members). 3. The SCSL’s competence and jurisdiction ratione materiae and ratione personae are similar to that of the ICTY, ICTR and ICC, also in relation to their provisions concerning absence of immunity for Heads of State etc. 4. Accordingly, “there is no reason to conclude that the Special Court should be treated as anything other than an international criminal tribunal or court, with all that implies for the question of immunity for a serving Head of State”.58 50 51 52 53 54 55 56 57 58

Ibid., § 66. Ibid., § 66. Ibid., § 66. Ibid., § 67. Ibid., § 68. Ibid., quoting from Article 6(2) of the SCSL Statute, supra note 39. Ibid., § 69. Ibid., § 69. Ibid., § 76.

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As noted above, the approach adopted in Professor Sands’ Brief is not optimal, although it is more useful than the decision of the SCSL Appeals Chamber itself. While certain specific criteria which a judicial body must fulfil in order to be categorised as an international criminal judicial body can be construed from Professor Sands’ Brief, it is not always immediately obvious what these are. It would have been preferable had an abstract set of criteria been identified at the outset, followed by an examination of the constitutive documents of the SCSL to determine if the identified criteria were fulfilled by the SCSL. In that way, the reader could clearly decipher the criteria against which the SCSL was being adjudged. Section 4.5.4 below will attempt to identify the defining criteria of an international criminal judicial body and in this regard, the factors identified in Professor Sands’ Brief will be taken into account. Therefore, it is not intended to discuss the validity of these criteria at this juncture. However, three general points are worth noting. Firstly, Professor Sands’ Brief does not consider, expressly in any case, the criteria identified by the scholars mentioned in section 4.5.2 above, although, of course, many of the criteria mentioned above are indirectly identified as defining criteria in Professor Sands’ analysis. In particular, the legal basis of the SCSL, an agreement between the UN and the Government of Sierra Leone, which as will be seen below, is not one of the traditionally recognised legal bases of an international criminal judicial body, is an issue which was not considered in any great depth in Professor Sands’ Brief. Bearing in mind the importance of this issue, it is surprising that it did not warrant further discussion.59 Secondly, Professor Sands’ Brief introduces into this discussion a new defining criterion, i.e. that the court concerned fulfils the criteria associated with classical international organisations. Thirdly, it is not clear from the Brief, whether Professor Sands considers all of the issues mentioned in his Brief as fundamental criteria for categorisation as an international criminal judicial body, or whether some of them are merely indicative of classification as an international criminal judicial body.60 Such a distinction would have been helpful, especially for the purposes of determining, in the future, whether any other hybrid criminal judicial bodies can be considered as international criminal judicial bodies for the purposes of the international rules on immunity from prosecution for core international crimes. 4.5.3.2 Amicus Curiae Brief of Professor Diane F. Orentlicher Professor Orentlicher’s Brief is not particularly helpful in identifying the defining criteria of an international criminal judicial body. Similar to Professor Sands, 59

60

Professor Sands’ brief does focus, however, on whether the SCSL was set up as a result of a UN Security Council Chapter VII resolution or not, and the significance, or otherwise, of such conclusion in the light of the international law rules concerning Head of State immunity. For a more detailed discussion of this matter, see infra section 4.5.4.2 (Legal basis of an international criminal judicial body – UN Security Council Chapter VII). See infra section 4.5.4.1 concerning the distinction between fundamental and indicative defining criteria.

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Professor Orentlicher does not specifically provide an abstract list of the defining criteria of an international criminal judicial body at the outset, against which the SCSL can be assessed. At times, it is, in the author’s view, unclear what Professor Orentlicher actually considers to be the defining criteria of an international criminal judicial body. In determining whether the SCSL is an international criminal court or not, Professor Orentlicher notes that the English House of Lords defined the term broadly as including the IMT, IMTFE, ICTY, ICTR and ICC and she refers to these judicial bodies as the “five frequently-cited examples of an international criminal court”.61 She observes further that the IMT’s international nature “derived in part from the pooling of national jurisdiction… properly exercised by each of the four states that signed the Nuremberg Charter”.62 As noted above, although the IMT and IMTFE are commonly considered to be international criminal judicial bodies, there is much academic opinion to the contrary.63 Therefore, reliance on these tribunals in support of a discussion on international criminal judicial bodies is not ideal. Professor Orentlicher continues by noting that the SCSL was established pursuant to a mandate of the UN Security Council, i.e. UN Security Council resolution 1315. In requesting the UN Secretary-General to negotiate the creation of an independent special court, the UN Security Council was exercising its responsibility for the maintenance of international peace and security.64 She notes, moreover, that “[t]here is no reason to suppose that the UN Security Council’s authority to act on behalf of UN Member States in the performance of its responsibilities is confined to actions taken under Chapter VII of the UN Charter.”65 Finally, Professor Orentlicher observes that although the SCSL is a hybrid criminal judicial body, it has the “hallmarks of an international tribunal”. These are evidenced by the following: x The Report of the UN Secretary-General which distinguishes the SCSL from the national courts of Sierra Leone and which notes that the SCSL is established outside, and operates independently of, the Sierra Leonean courts; x The specific request by the UN Security Council that the UN Secretary-General consider the possibility of expanding the mandate of the ICTY/ICTR Appeals Chamber to include appeals from the Trial Chamber of the SCSL; x The UN Secretary-General’s dismissal of the option that a special court be established as part of the Sierra Leonean court system, but with international assistance; and

61

62 63 64 65

See supra note 4, p. 16, referring to Regina v. Bartle and the Comm’r of Police for the Metropolis and Others Ex Parte Pinochet, [1998] 3 W.L.R. 1456, reprinted in 37 I.L.M. 1302, 1311–1312. Ibid., pp. 16–18. See infra section 4.1. Ibid., p. 19. Ibid., p. 19.

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x The appointment of the prosecutor, registrar and a majority of the judges of the SCSL by the UN Secretary-General.66 Professor Orentlicher’s Brief, unfortunately, does not analyse in depth the defining characteristics of an international criminal judicial body. However, the Brief underscores the uncertainty and diverse views that exist on this topic. Our attention now turns to the decision of the SCSL Appeals Chamber in the Taylor Decision on this matter. 4.5.3.3 SCSL Appeals Chamber’s Taylor Decision In determining whether the SCSL is an international criminal judicial body, the Appeals Chamber first examined its legal basis. Its determination on this issue is quite confusing. It first notes that the SCSL was established by way of a treaty, i.e. the Special Court Agreement.67 Even though it acknowledges that the SCSL does not have Chapter VII powers and it expressly posits that the absence of Chapter VII powers does not by itself define the legal status of the SCSL,68 it still tries to pigeonhole the legal basis of the SCSL into the framework of Chapter VII of the UN Charter. The Appeals Chamber stated Although the Special Court was established by treaty, unlike the ICTY and ICTR which were each established by resolution of the Security Council in its exercise of powers by virtue of Chapter VII of the UN Charter, it was clear that the powers of the Security Council to enter into the agreement for the establishment of the court was derived from the Charter of the United Nations both in regard to the general purposes of the United Nations as expressed in Article 1 of the Charter and the specific powers of the Security Council in Articles 39 and 41. These powers are wide enough to empower the Security Council to initiate, as it did by Resolution 1315, the establishment of the Special Court by Agreement with Sierra Leone. … in carrying out its duties under its responsibility for the maintenance of international peace and security, the Security Council acts on behalf of the members of the United Nations. The Agreement between the United Nations and Sierra Leone is thus an agreement between all members of the United Nations and Sierra Leone. This fact makes the Agreement an expression of the will of the international community. The Special Court established in such circumstances is truly international. By reaffirming in the preamble to Resolution 1315 ‘that persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law’, it has been made clear that the Special Court was established to fulfil an international mandate and is part of the machinery of international justice.69

66 67 68 69

Ibid., pp. 19–21. See supra note 39 and supra note 3, § 35. See supra note 3, § 38. Ibid., §§ 37–39.

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The Appeals Chamber then concludes that the SCSL “is not a national court of Sierra Leone and is not part of the judicial system of Sierra Leone exercising judicial powers of Sierra Leone”70 and in this connection, the Appeals Chamber accepts and adopts the conclusions of Professor Sands mentioned above, which inter alia includes the conclusion that the SCSL is established by treaty. Having determined that the SCSL is an international criminal court, the Appeals Chamber goes on to opine that “[t]he constitutive instruments of the court contain indicia too numerous to enumerate to justify that conclusion. To enumerate those indicia will involve virtually quoting the entire provisions of those instruments. It suffices that having adverted to those provisions, the conclusion we have arrived at is inescapable”.71 Bearing in mind the significance of this issue, particularly because the SCSL is a hybrid criminal judicial body, it is disappointing that the Appeals Chamber did not identify the ‘obvious’ indicia in the SCSL’s constitutive documents, that in its view led it to the conclusion that the SCSL is an international criminal judicial body. The overall treatment by the Appeals Chamber of this issue is decidedly unsatisfactory on two grounds. Firstly, the decision does not examine in depth, or identify all of the defining criteria of an international criminal judicial body. Such an approach was arguably indispensable, when the Appeals Chamber had to answer the very specific question of whether the SCSL is an international criminal judicial body. Secondly, its treatment of the legal basis of the SCSL is confusing. On balance, it appears that the Appeals Chamber is of the view that the legal basis of the SCSL is the Special Court Agreement.72 Assuming this is the case, the Appeals Chamber’s dicta on the legal basis of the SCSL is wanting, bearing in mind that until the establishment of the SCSL, it had never been considered that the legal basis of an international criminal judicial body could be an agreement between the UN and one or more States. Such a significant proposal warrants much more than cursory reflection. 4.5.4 Defining Criteria of an International Criminal Judicial Body 4.5.4.1 Introduction This section examines each of the criteria which have been identified by the scholars and jurisprudence outlined above, as the defining criteria of international 70 71

72

Ibid., § 40. Ibid., § 42. In Prosecutor v Morris Kallon, Sam Hinga Norman and Brima Bazzy Kamara, Case No.: SCSL-2004-14-AR72E, “Decision on Constitutionality and Lack of Jurisdiction”, App. Ch., 13 March 2004 (“Constitutionality Decision”), the Appeals Chamber of the SCSL also determined, in passing, that the SCSL is an ‘international tribunal’. Ibid., § 71. The jurisprudence of the SCSL prior to the Taylor Decision also supports such a conclusion. See infra section 4.5.4.2 (Legal basis of an international criminal judicial body – agreement between the UN and one of more legal States). The Appeals Chamber’s attempt to pigeonhole the legal basis of the SCSL into the framework of Chapter VII of the UN Charter, although expressly acknowledging that the SCSL does not have Chapter VII powers, appears to result from its desire to determine that it had jurisdiction over Taylor, while he was the incumbent President of Liberia. See infra section 4.7.

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judicial bodies. As many of the criteria were identified in the context of international judicial bodies, not international criminal judicial bodies, the author adopts these criteria to the context of international criminal judicial bodies, for the purposes of the current analysis. In this regard, two issues warrant mentioning. Firstly, as the criteria set out in section 4.5.2 were identified in the context of international judicial bodies which traditionally adjudicate disputes between States, some of the identified criteria will clearly have no role to play in the determination of the defining criteria of international criminal judicial bodies which concern the prosecution of individuals. Secondly, as it is the purpose of this chapter to inter alia determine the international criminal judicial body status of certain hybrid criminal judicial bodies, particular attention will be paid to how the various identified criteria sit with the structure of hybrid criminal judicial bodies. For the purposes of this analysis, a distinction will be made between (i) the fundamental criteria of international criminal judicial bodies, which terminology the author employs to describe criteria, the fulfilment of which, in the author’s view, is absolutely necessary, in order for a judicial body to be characterised as an international criminal judicial body;73 and (ii) the indicative criteria of an international criminal judicial body, the fulfilment of which criteria, in the author’s view, is not necessary for the characterisation of a judicial body as an international criminal judicial body, but which further supports the international criminal judicial body classification of a judicial body. For the purposes of this analysis, it is accepted that the ICTY, ICTR and ICC are international criminal judicial bodies. Accordingly, reference is made to these judicial entities, where appropriate, in order to clarify some of the criteria mentioned below. This section ends with a summary of the fundamental and indicative criteria of international criminal judicial bodies, which criteria will then be applied to determine whether the SCSL and other hybrid criminal judicial bodies can be characterised as international criminal judicial bodies, for the purposes of the rules in international law on the lifting of immunity from prosecution for core international crimes. 4.5.4.2 Legal Basis of an International Criminal Judicial Body One of the most fundamental criteria of an international criminal judicial body is its legal basis. Five proposed legal bases of international criminal judicial bodies can be identified from the above review: (i) an international treaty between two or more States; (ii) a UN Security Council Chapter VII resolution; (iii) an agreement between the UN and one or more States; (iv) an amendment to the UN Charter; and (v) a resolution of the UN General Assembly. Each legal basis will be considered below.

73

Nørgaard refers to these as “absolute conditions” for characterising a judicial body as an international judicial body. See Nørgaard, supra note 7, pp. 179–183.

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(I) Legal Basis of an International Criminal Judicial Body – Treaty-Based The traditional legal basis of an international criminal judicial body is an international treaty between two or more States.74 The advantage to such an approach is that a State participating in the negotiation of a treaty has influence over the contents of such treaty and it can exercise its sovereign right to become a party to the treaty or not. The downside is that this procedure is time-consuming, both as regards reaching agreement on the final terms of the treaty and obtaining the required number of ratifications to such treaty. Proposed historic examples of international criminal judicial bodies whose legal bases were treaties are the IMT75 (although, as mentioned its status as an international criminal judicial body has been questioned) and the international military tribunal to be established in accordance with the provisions of the Treaty of Versailles.76 The only contemporary example of an international criminal tribunal with a treaty-based constitutive document is the ICC. It was established by the Rome Statute of the International Criminal Court on 17 July 1998, when 120 States participating in the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Statute of the ICC.77 An issue in this connection which needs to be addressed is whether the international treaty purporting to establish an international criminal judicial body is required to be global in scope, i.e. is it necessary that many States become parties to the treaty purporting to establish an international criminal judicial body, in order for such body to be categorised as an international criminal judicial body? As noted above, the traditional legal basis of an international criminal judicial body is an international treaty between two or more States, also described as multilateral international treaties, and multilateral, regional or plurilateral international conventions.78 None of the scholars, in setting out this criterion, require that a certain number of States have to sign an international treaty in order to create an international criminal judicial body. However, for example, the statement by the ICTY 74 75

76

77 78

This criterion has been identified inter alia by Nørgaard, Tomuschat, Mosler, Boczek, Brower and Romano. See also Ferencz, supra note 7, p. 100. The London Agreement establishing the Nuremberg Tribunal was signed by four States, the French Republic, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Ireland and the United States of America, (being the countries to which the German State unconditionally surrendered) and 19 other States expressed their adherence to the agreement. See supra Chapter 2, at footnote 23. The Tokyo Tribunal was established by way of a special military order issued by US General Douglas MacArthur acting as Supreme Commander for the Allied Powers, see Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 19 January 1946, T.I.A.S. No. 1589, 4 Bevans 20. Although the international military tribunal was never established, for current purposes, what is significant is that had such tribunal been established, its legal basis would have been an international treaty between the Allied and Associated Powers and Germany. See supra Chapter 2, section 2.6.2.1 (World War I and its aftermath). See supra note 2. See Nørgaard, Tomuschat, and Mosler.

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Trial Chamber that the IMT and IMTFE “were multinational in nature, representing only part of the world community”,79 would seem to suggest that in order to be ‘truly international’, the constitutive document of an international criminal judicial body must be executed by a substantial part of the world community.80 Is this a correct interpretation of the law as it exists today? In the author’s view, where the legal basis of an international criminal judicial body is an international treaty, it is sufficient that such treaty be executed by two States alone. Of course, the public perception of a judicial body as ‘truly international’ is strengthened by the existence of numerous parties to an international treaty, but the number of parties thereto, once there are at least two, has no role to play in determining whether a judicial body satisfies this legal basis criterion of an international criminal judicial body.81 However, an international criminal judicial body, which is established by way of a treaty executed by a substantial part of the world community occupies a superior position within the hierarchy of international criminal judicial bodies and the jurisprudence emanating from such body is accorded a similar status. (II) Legal Basis of an International Criminal Judicial Body – UN Security Council Chapter VII Resolution Up until recent years, the common wisdom was that an international criminal judicial body could only be established by virtue of a treaty between two or more States. The establishment of the ICTY and ICTR, by way of UN Security Council resolutions 82782 and 95583 respectively, pursuant to Chapter VII (Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the UN Charter was to mark a significant departure from the traditional legal basis of an international criminal judicial body and thus proved contentious. Consequently, the constitutive documents and case law of each warrants close attention. Before turning our attention to this topic, it should be noted that the ICTY Appeals Chamber has treated the ICTY Statute84 as a treaty, even though it is clearly a UN Security Council Chapter VII resolution and even though the ICTY

79 80

81

82 83 84

See Prosecutor v Dusko Tadiü, supra note 8, § 1. The ICTY and ICTR, having been established by UN Security Council Chapter VII resolutions, see infra notes 82 and 83, and accordingly being binding on all UN member States, easily satisfy this proposed requirement, whereas international criminal judicial bodies established by way of a treaty possibly face a challenge in this regard. Robert Cryer takes issue with the ICTY’s statement and notes that in his view, although there was no German presence on the bench of the IMT, the IMT was an international court inter alia because the IMT Charter was adhered to by a number of States which were not occupying powers. See Cryer, supra note 7, pp. 38–39. S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., 1–2 U.N. Doc. S/RES/827 (25 May 1993). S.C. Res. 955, U.N. SCOR, 49th Sess., 3453rd mtg., at U.N. Doc. S/RES/955 (8 November 1994). Available at http://www.un.org/icty/legaldoc-e/index.htm (last visited 17 July 2007).

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Appeals Chamber has, itself, noted that the ICTY Statute is “legally a very different instrument from an international treaty”.85 Cassese, moreover, categorises the ICTY and ICTR Statutes86 as “secondary international legislation... in that they have been adopted by virtue of provisions contained in a treaty, the UN Charter”.87 Notwithstanding these views, in the author’s opinion, it is far-fetched to suggest that a UN Security Council Chapter VII resolution equates to a treaty between two or more States, for the purposes of determining the legal basis of an international criminal judicial body. This view is underscored by the rationale behind the traditional treaty-based legal basis of international criminal judicial bodies, i.e. that States by participating in the negotiation of the treaty have influence over the contents of the treaty and have the ability to exercise their sovereign rights to become parties to the treaty or not.88 Legal Basis of an International Criminal Judicial Body – UN Security Council Chapter VII Resolution: ICTY (i) Legislative history and constitutive documentation 89 Security Council resolution 808,90 which was adopted unanimously, authorised the establishment of “an international tribunal… for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. In doing so, the UN Security Council determined that the situation in the former Yugoslavia constituted “a threat to international peace and security” (although it did not specifically state that it was acting under its Chapter VII powers) and requested the UN Secretary-General to submit a report to the UN Security Council on all aspects of the tribunal. The UN Secretary-General’s report, which was presented to the UN Security Council on 3 May 1993, discussed the legal basis for the establishment of the ICTY and for international tribunals in general. 18. Security Council resolution 808… does not… indicate how such an international tribunal is to be established or on what legal basis. 85

86 87

88 89 90

See Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Judgment, App. Ch., 15 July 1999, § 282. See also Prosecutor v Slobodan Miloševiü, Case No.: IT-99–37-PT, “Decision on Preliminary Motions”, T. Ch. III, 8 November 2001, § 47 and Charles Lister, “What’s in a Name? Labels and the Statute of the International Criminal Tribunal for the Former Yugoslavia”, 18 Leiden J. Int’l L 77 (2005). Available at http://69.94.11.53/ENGLISH/basicdocs/statute.html (last visited 17 July 2007). See Cassese, supra note 8, pp. 26–27. See also Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, T. M. C. Asser Press, The Hague, 2003, p. 7, footnote 21 therein. See infra section 4.5.4.2 (Legal basis of an international criminal judicial body – treatybased). For a discussion of the other numerous objections to the establishment of the ICTY, over and above the issue of its legal basis, see Cassese, supra note 8, pp. 337–338. S.C. Res. 808, U.N. SCOR, 48th Sess., 3175th mtg., at 1, U.N. Doc. S/RES/808 (22 February 1993).

4.5 Defining Criteria of an International Criminal Judicial Body 289 19. The approach which, in the normal course of events, would be followed in establishing an international tribunal would be the conclusion of a treaty by which the State parties would establish a tribunal and approve its statute. This treaty would be drawn up and adopted by an appropriate international body… following which it would be opened for signature and ratification. Such an approach would have the advantage of allowing for a detailed examination and elaboration of all the issues pertaining to the establishment of the international tribunal. It would also allow the States participating in the negotiation and conclusion of the treaty fully to exercise their sovereign will, in particular whether they wish to become parties to the treaty or not. 20. …the treaty approach incurs the disadvantage of requiring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force. Even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective. 22. In the light of the disadvantages of the treaty approach in this particular case and of the need indicated in resolution 808 (1993) for an effective and expeditious implementation of the decision to establish an international tribunal, the UN Secretary-General believes that the International Tribunal should be established by a decision of the Security Council on the basis of Chapter VII of the Charter of the United Nations. Such a decision would constitute a measure to maintain or restore international peace and security, following the requisite determination of the existence of a threat to the peace, breach of the peace or act of aggression. 23. This approach would have the advantage of being expeditious and of being immediately effective as all States would be under a binding obligation to take whatever action is required to carry out a decision taken as an enforcement measure under Chapter VII. 91

Thus, the UN Secretary-General’s report recognised that the advocated approach of establishing an international criminal judicial body by way of a UN Security Council resolution was novel. Notwithstanding this, he was of the view that the establishment of the ICTY by means of a Chapter VII resolution “would be legally justified, both in terms of the object and purpose of the decision… and of past Security Council practice”.92 The UN Security Council, acting under its Chapter VII powers subsequently unanimously adopted resolution 827 establishing the ICTY.93 Considering the innovative approach being proposed, it is surprising that only a 91

92

93

Report of the UN Secretary-General, Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 (May 3, 1993), available at http://www. un.org/icty/legaldoc-e/basic/statut/s25704.htm (last visited 20 January 2007). The Report of the UN Secretary-General notes that the UN Security Council has in the past adopted decisions under Chapter VII aimed at restoring and maintaining international peace and security, which have involved the establishment of subsidiary organs for a variety of purposes, for example, Security Council resolution 687 (1991) and subsequent resolutions relating to the situation between Iraq and Kuwait. See ibid., § 27. The following States were members of the UN Security Council at the time of the adoption of resolutions 808, supra note 82 and 827, supra note 83: Brazil, Cape Verde, China, Djibouti, France, Hungary, Japan, Morocco, New Zealand, Pakistan, Russian Federation, Spain, United Kingdom of Great Britain and Northern Ireland, United States of America and Venezuela. Amendments to the draft Statute of the ICTY submitted by the UN Secretary-General were not permitted, as the likely prolonged discussions regarding such discussions would have delayed the adoption of the Statute.

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few delegates at the UN Security Council meetings discussing resolutions 808 and 827 expressed any real concern at such proposed action. The Brazilian representative, Mr. De Araujo Castro, did, however, in relation to the discussion on resolution 808, sound a warning, in noting that it was of particular importance that the ICTY rest on a solid legal foundation… it should be borne in mind that the authority of the Security Council is not self-constituted but originates from a delegation of powers by the whole membership of the Organization… [T]he Security Council, in the exercise of its responsibilities, acts on behalf of the States Members of the United Nations, in accordance with Article 24, paragraph 1, of the Charter… [T]he powers of the Council cannot be created, recreated or reinterpreted creatively by decisions of the Council itself, but must be based invariably on specific Charter provisions… Especially when the Council is being increasingly called upon to fully exercise the considerable powers entrusted to it, the definition of such powers must be construed strictly on the basis of the text of the relevant Charter provisions. To go beyond that would be legally inconsistent and politically unwise.94

The Spanish representative, Mr. Yañez-Barnuevo, acknowledged that some may harbour certain doubts about the competence of the Council to take this step, for it is a novel one. However, we do not share those doubts. We understand that this is a limited precise action with the clear objective of restoring peace, which is perfectly in keeping with the competence of the Council. In fact, tjhe Council is not attempting to establish any new jurisdictional or legislative frameworkj of a permanent nature. It is not setting itself up as a permanent judge or legislator. It is only attempting to create an ad hoc mechanism that, by applying existing laws, will assign responsibility for acts committed in an ongoing conflict that has already been seen to threaten and undermine peace.95

During the discussions on resolution 827, although a number of representatives noted that the step being taken by the UN Security Council was innovative,96 China, by way of its representative Zhaoxing Li, and Brazil, by way of its representative, Mr. Sardenberg, were the only members who deemed it necessary to emphasise that their vote in favour of the resolution should not be interpreted as their approval of the legal approach used to set up the ICTY. Zhaoxing Li stated [t]his political position of ours, however, should not be construed as our endorsement of the legal approach involved. We have always held that, to avoid setting any precedent for 94

95 96

See Provisional Verbatim Record of the Three Thousand One Hundred and SeventyFifth Meeting Held at Headquarters, New York, on Monday, 22 February 1993, at 11 a.m., reprinted in Virginia Morris and Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia – A Documentary History and Analysis, Transnational Publishers, Inc., Irvington-on-Hudson, New York, Vol. II, 1995, pp. 160–162. Ibid., pp. 171–174. See statements of Mr. Arria (Venezuela), Sir David Hannay (United Kingdom), Mr. Erdos (Hungary) and Mr. Maruyama (Japan). See Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting Held at Headquarters, New York, on Tuesday, 25 May 1993, at 9 p.m., reprinted in Morris and Scharf, ibid., pp. 181–184, 189-191, 191–192 and 193–195 respectively.

4.5 Defining Criteria of an International Criminal Judicial Body 291 abusing Chapter VII of the Charter, a prudent attitude should be adopted with regard to the establishment of an international tribunal by means of Security Council resolutions under Chapter VII. It is the consistent position of the Chinese delegation that an international tribunal should be established by concluding a treaty so as to provide a solid legal foundation for it and ensure its effective functioning.97

Mr. Sardenberg was also keen to point out that [g]iven the legal difficulties involved, which in the normal course of events would have required much more extensive study and deliberation and could have prevented us from supporting the initiative it was only the consideration of the unique and exceptionally serious circumstances in the former Yugoslavia that determined the vote we cast on the resolution we have just adopted. Our positive vote is to be understood as a political expression of our condemnation of the crimes committed in the former Yugoslavia… It should not be construed as an overall endorsement of legal formulas involved in the foundation or in the Statute of the International Tribunal.98

Brazil too would have preferred if the ICTY had been established by way of a multilateral treaty. As mentioned above, on the one hand, it is surprising that the representatives of the UN Security Council members were not more vocal in their criticisms of the legal basis of the ICTY, seeing that the approach being adopted was novel. However, on the other hand, perhaps it is understandable to the extent that the UN Security Council is essentially a political animal. While, of course, legal considerations have a role to play in the work of the UN Security Council, political considerations often lie behind the voting positions of the members. Indeed, as noted by many of the members’ representatives, the exceptional circumstances in the former Yugoslavia and the necessity for speedy action were decisive factors behind the unanimous votes on resolutions 808 and 827. The Deputy Prime Minister and Minister for Foreign Affairs of the Federal Republic of Yugoslavia, Mr. Vladislav Jovanoviü, was vocal in his criticisms of the legal approach being adopted for the establishment of the ICTY. In a letter dated 17 May 1993 – seven days before the unanimous adoption of resolution 827 by the UN Security Council – to the UN Secretary-General, he criticised the establishment of the ICTY on a number of grounds, inter alia, on the ground that the UN Charter did not give the UN Security Council a mandate to set up the ICTY or adopt its statute. He also posited that although Article 29 of the UN Charter authorises the UN Security Council to establish such subsidiary organs as it deems necessary for the performance of its functions, the ICTY could not be a subsidiary organ of the UN Security Council, as “[n]o independent tribunal, particularly an international tribunal, can be a subsidiary organ of any body, including the Security Council”.99 97 98 99

Ibid., pp. 199–200. Ibid., pp. 200–202. See Letter dated 19 May 1993 from the Chargé D’Affaires A. I. of the Permanent Mission of Yugoslavia (Serbia and Montenegro) to the UN addressed to the UN

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(ii) UN Charter The above-mentioned criticisms of the legal basis of the ICTY lead inevitably to the UN Charter.100 Does the UN Security Council have the power to create an international criminal judicial body by reliance on its Chapter VII powers? A brief review of the relevant UN Charter provisions is accordingly warranted, and is especially relevant bearing in mind the reliance on the same by ICTY defendants when challenging the legal basis of the ICTY. Article 1(1) states that the purposes of the UN are inter alia to maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.101 Article 24 provides that in order to ensure prompt and effective action by the UN, its members confer on the UN Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility, the UN Security Council acts on their behalf,102 and that in discharging these duties the UN Security Council shall act in accordance with the purposes and principles of the UN.103 Article 29 authorises the UN Security Council to establish such subsidiary organs as it deems necessary for the performance of its functions.104 Chapter VII – Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression – consists of Articles 39-51. Article 39 provides that the UN Security Council shall inter alia determine the existence of any threat to the peace, and shall make recommendations, or decide what measures shall be taken in accordance with inter alia Article 41 to maintain peace and security. Article 41 is central to the current discussion and accordingly will be set out in full.

100 101 102 103 104

Secretary-General A/48/170, S/25801, 21 May 1993, the annex of which contains the letter dated 17 May 1993 from the Deputy Prime Minister and Minister for Foreign Affairs of the Federal Republic of Yugoslavia to the UN Secretary-General, reprinted in Morris and Scharf, supra note 94, pp. 479–480. Mr. Jovanoviü also stated that Yugoslavia considered the attempts to establish an ad hoc tribunal discriminatory; that Yugoslavia has its doubts about the impartiality of the ad hoc tribunal; that the ongoing drive to establish the tribunal was politically motivated; that the proposed statute was inconsistent and replete with legal lacunae; and that the establishment of the tribunal was contrary to the provisions of the Constitution of the Federal Republic of Yugoslavia which prohibits the extradition of Yugoslav nationals. UN Charter, 26 June 1945, 59 Stat. 1031, 3 Bevans 1153, available at http://www. un.org/aboutun/charter/ (last visited 20 January 2007). Placed within Chapter 1 (Purposes and Principles) of the UN Charter, ibid. Article 24(1), ibid. Article 24(2), ibid. Both Article 24 and 29 are placed within Chapter V (The Security Council) of the UN Charter.

4.5 Defining Criteria of an International Criminal Judicial Body 293 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. (Emphasis added.)

In the case of the former Yugoslavia, the UN Security Council determined that the situation constituted a threat to international peace and security and in accordance with its right to determine the existence of any threat to the peace, and to decide inter alia what non-military measures should be taken in response thereto, it decided to establish an international tribunal, a subsidiary organ of the UN Security Council. The UN Security Council in doing so was acting on behalf of the members of the UN. Not surprisingly, due to the lack of express language in the UN Charter (even at times the essentially vague language of the UN Charter) authorising the UN Security Council to establish an international criminal judicial body and due to the novel approach adopted by the UN Security Council in establishing the ICTY, the legal basis of the ICTY has been challenged on more than one occasion by the accused before the ICTY. (iii) Challenges to the legal basis of the ICTY – Tadiü decision The most important decision in this regard is the decision of the ICTY Appeals Chamber in Prosecutor v Dusko Tadiü a/k/a “Dule” on the Defence motion for interlocutory appeal on jurisdiction (“Tadiü Jurisdiction Appeal”).105 The Appeals Chamber held, by four votes to one, that it was empowered to pronounce upon the Defence’s plea challenging the legality of the establishment of the ICTY, and then determined that such plea should be dismissed. The Trial Chamber’s decision on the same matter had previously concluded that it had no authority to judge the actions of the UN Security Council.106 Notwithstanding that decision, the Trial Chamber determined that it would be “inappropriate” to dismiss without comment the accused’s contentions107 and accordingly went on to comment on such contentions.108 For present purposes, attention will be paid to the Trial Chamber’s obiter dicta on the accused’s contention that the establishment of the ICTY exceeded the powers of the UN Security Council and the Appeal Chamber’s reasoning in dismissing the accused’s plea challenging the legality of the establishment of the ICTY. It is to this Trial Chamber decision that we first turn our attention.

105 106 107 108

Prosecutor v Dusko Tadiü, Case No.: IT-94-1, “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, App. Ch., 2 October 1995. Prosecutor v Dusko Tadiü, Case No.: IT-94–1, “Decision on the Defence Motion on Jurisdiction”, T. Ch., 10 August 1995. Ibid., § 6. See Prosecutor v Dusko Tadiü, ibid., §§ 1–40 and supra note 105, §§ 1-25. Although the question of whether a subsidiary organ of the UN Security Council has the right to decide upon the legality of its creation by that same Security Council makes for a particularly interesting legal discussion, such discussion is outside the scope of this thesis.

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Before the Trial Chamber, Tadiü challenged the powers of the ICTY inter alia on the following grounds (as paraphrased by the Trial Chamber): It is said that, to be duly established by law, the International Tribunal should have been created either by treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution of the Security Council. Called in aid of this general proposition are a number of considerations: that before the creation of the International Tribunal in 1993 it was never envisaged that such an ad hoc criminal tribunal might be set up; that the General Assembly, whose participation would at least have guaranteed full representation of the international community, was not involved in its creation; that it was never intended by the Charter that the Security Council should, under Chapter VII, establish a judicial body, let alone a criminal tribunal;…109

The Trial Chamber’s obiter dicta on the contentions of the accused, which are relevant for present purposes, can be paraphrased as follows: 1. The submission that the UN General Assembly should have been involved in the creation of the ICTY can only have meaning, if what is suggested is the creation of the ICTY by way of an amendment to the UN Charter. Such suggested amendment would be unnecessary and impractical and would, moreover, be an inappropriate response to the situation in the former Yugoslavia, when it seems clear that the ICTY can be created under Chapter VII.110 2. It is not relevant, that it, arguably, was not originally envisaged that the UN Security Council could use its Chapter VII powers to establish an ad hoc judicial tribunal. Chapter VII of the UN Charter confers very wide powers on the UN Security Council and no good reason has been put forward as to why Article 41 should be read as excluding the measure of establishing an ad hoc judicial tribunal. Indeed such a measure is a ”seemingly entirely appropriate reaction to a situation in which international peace is clearly endangered”.111 Even though

109

110 111

See supra note 106, § 2. Other grounds on which the powers of the ICTY were challenged by Tadiü were (as paraphrased by the Trial Chamber): “… that the Security Council had been inconsistent in creating this tribunal while not taking a similar step in the case of other areas of conflict in which violations of international humanitarian law may have occurred; that the establishment of the International Tribunal had neither promoted, nor was capable of promoting, international peace, as the current situation in the former Yugoslavia demonstrates; that the Security Council could not, in any event, create criminal liability on the part of individuals and that this is what the creation of the International Tribunal did; that there existed and exists now no such international emergency as would justify the action of the Security Council; that no political organ such as the Security Council is capable of establishing an independent and impartial tribunal; that there is an inherent defect in the creation, after the event, of ad hoc tribunals to try particular types of offences and finally, that to give the International Tribunal primacy over national courts is, in any event and in itself, inherently wrong.” Ibid. Tadiü also challenged the subject-matter jurisdiction of the ICTY. See supra note 106, § 38. Ibid., § 27.

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the examples set out in Article 41 are generally economic and political measures, even the Defence conceded that such list is not exhaustive.112 3. In response to the argument that no court created by the UN Security Council, a political body, can ever be independent and impartial, the Trial Chamber noted that criminal courts worldwide are created by legislatures, which are eminently political bodies. In the ICJ’s advisory opinion in the Effect of Awards of Compensation made by the UN Administrative Tribunal case (“Effect of Awards” case),113 the ICJ held that the UN General Assembly (a political organ of the UN) had the power to establish the UN Administrative Tribunal (which adjudicated disputes between the UN and its staff), and which the ICJ determined to be “an independent and truly judicial body”. The Trial Chamber continued “[t]he question whether a court is independent and impartial depends not upon the body that creates it but upon its constitution, its judges and the way in which they function. The International Tribunal has, as its Statute and Rules attest, been constituted so as to ensure a fair trial to an accused”.114 4. As regards the argument that Article 29 of Chapter VI (The Security Council) does not encompass the creation of an international judicial body as a subsidiary organ of the UN Security Council (based on the assertion that a judicial body cannot be an additional organ of another body), the Trial Chamber noted that Article 29 is very broad and does not appear to be limited to the creation of non-judicial bodies. In any case, the ICTY was created by the UN Security Council under Chapter VII, not Chapter VI. Moreover, the ICJ in the Effect of Awards case held that the UN General Assembly could create a judicial body, so why should the UN Security Council be prohibited from doing so?115 The Appeals Chamber, having decided that it was empowered to pronounce upon the plea challenging the legality of the establishment of the ICTY, turned inter alia to the Defence’s submission that the establishment of the ICTY is invalid under the UN Charter. The holdings of the Appeals Chamber which are relevant for current purposes can be summarised as follows: 1. Notwithstanding the very wide discretion of the UN Security Council under Article 39 of the UN Charter, its powers are not unlimited, in that they cannot go beyond the limits of the jurisdiction of the UN at large.116 The UN Security Council has a broad discretion (e.g. see Articles 39, 41 and 42) in deciding on the course of action to be taken when it determines that a particular situation poses a threat to the peace.117 112 113 114 115 116 117

Ibid., 106, § 28. Effect of Awards of Compensation made by the UN Administrative Tribunal, Advisory Opinion of July 13th 1954, 1954 I.C.J. 47. Effect of Awards Case, p. 53. See also supra note 106, § 32. See supra note 106, § 35. See Tadiü Jurisdiction Appeal, supra note 105, § 28. Ibid., § 31.

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2. Article 41 serves as the basis for the establishment of the ICTY. The submission that the measures provided for in Article 41 are limited to economic and political measures does not stand, as it is evident that such measures are merely “illustrative examples which obviously do not exclude other measures” (emphasis added).118 The Appeals Chamber also rejected the submission that the measures contemplated under Article 41 are all measures to be undertaken by member States, which was not what happened in the case of the establishment of the ICTY, holding that nothing in Article 41 suggests such a limitation. Article 41 only states that the measures should not involve the use of armed force. “Beyond that, it does not say or suggest what they have to be… Logically, if the Organization can undertake measures which have to be implemented through the intermediary of its Members, it can a fortiori undertake measures which it can implement directly via its organs, if it happens to have the resources to do so.”119 3. The Appeals Chamber rejected the submission that the UN Security Council, not being endowed with judicial powers, cannot establish a subsidiary organ possessing such powers. Such submission, in the opinion of the Appeals Chamber results from a “fundamental misunderstanding of the constitutional set-up of the Charter”.120 The establishment of the ICTY does not signify that the UN Security Council delegated some of its own functions or the exercise of some of its powers to the ICTY, or that the UN Security Council was usurping for itself part of a judicial function which it does not have. The ICTY is an instrument for the exercise of the UN Security Council’s own principal function of the maintenance of peace and security. The ICJ in the Effect of Awards case, held the same, when addressing a similar objection as regards the UN General Assembly’s creation of the Administrative Tribunal.121 4. The fact that the UN has no legislature does not mean that the UN Security Council is not empowered to establish the ICTY, if it is acting pursuant to an authority found within the UN Charter, its constitution. The Appeals Chamber held that the UN Security Council was empowered to establish the ICTY as a measure under Chapter VII following its determination that there existed a 118

119 120 121

Ibid., § 35. Geoffrey Robertson’s comments on Article 41 are noteworthy: “It is fair to say that the drafters of Article 41 did not have an international criminal tribunal in mind: it is hardly sui generis with the examples they chose to give of economic and diplomatic sanctions. But the power is a wide one and does not exclude the imposition of responsibility on persons whose capacity for acts of aggression can only be deterred by the prospect of punishment. Through resolutions 731 and 748, the Council had already imposed sanctions on Libya as a means of forcing Colonel Gadhafi to surrender for trial two of its nationals accused of the Lockerbie bombing; now it was imposing criminal sanctions on individuals more directly. The power of the UN to establish courts and tribunals to render binding civil judgments has been upheld by the ICJ [Effect of Awards case, supra note 113]; now it was establishing a court with the power to imprison rather than merely award compensation.” See Robertson, supra note 8, p. 270. Tadiü Jurisdiction Appeal, supra note 105, § 37. See also generally ibid., §§ 33–36. Ibid., § 37. Ibid., §§ 37–38.

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threat to the peace. Moreover, the establishment of the ICTY has been repeatedly approved and endorsed by the UN General Assembly.122 Neither the Trial Chamber nor the Appeals Chamber gave a direct answer to the Defence’s assertion that the ICTY should have been created by treaty only. The separate declaration of Judge J. Deschênes does, however, do so: It is also contended that the International Tribunal could only have been established by an international treaty amongst the Member States, or at least by the General Assembly by an amendment to the Charter. It is true that the treaty approach appears to be one of the ways of establishing a judicial body, but the alternative way found by the Security Council, as the delegate of all the sovereign Member States, to establish such a tribunal under its Chapter VII powers, cannot be treated as illegal. It is true that the step may have not met the views of some of the Member States, but no general assault was lodged against the measure by any substantial number of members when the Security Council took its decision on 22nd February 1993, or later after the Statute was approved. In fact the General Assembly was not even moved for a recommendation to raise an objection to the establishment of the Tribunal. The action being grounded in urgent necessity and being within the scope of enforcement action, grants a cover of validity to the establishment of the Tribunal. The other suggestion that the Tribunal could have been established by the General Assembly, I am afraid would have called for the amendment of the Charter, a more difficult objective to achieve than the purpose for which it was required. Both the submissions, therefore, have no weight and must be rejected.123

Judge J. Deschênes was of the view that establishment of an international criminal judicial body by way of an international treaty is only one form of establishment. Others do exist, including establishment by the UN Security Council as a Chapter VII measure. As the Appeals Chamber held that the UN Security Council could establish the ICTY as a Chapter VII measure, it can be deducted that it too was of the view that the legal basis of an international criminal judicial body can be something other than a treaty between two or more States, the terms of which specifically provide for the establishment of an international criminal judicial body. (iv) Challenges to the legal basis of the ICTY – Miloševiü and other decisions Not surprisingly, the legal basis of the ICTY has been challenged by other accused before the ICTY and the standard reply of the Prosecution has been to rely on the Tadiü Jurisdiction Appeal decision. In Prosecutor v Momþilo Krajišnik,124 the accused filed a motion challenging the jurisdiction of the ICTY inter alia on the alleged incompetence of the UN Security Council to establish the ICTY. The 122 123 124

Ibid., § 44. Tadiü Jurisdiction Appeal, supra note 105, Separate Declaration of Judge J. Deschênes, § 73. Prosecutor v Momþilo Krajišnik, Case No.: IT-00-39&40, “Decision on Motion Challenging Jurisdiction – With Reasons”, T. Ch., 22 September 2000.

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Trial Chamber relied on the Tadiü Jurisdiction Appeal decision in dismissing the motion and noting that on the basis of the Appeals Chamber’s Judgment in the Aleksovski case,125 decisions of the Appeals Chamber are binding upon the Trial Chamber.126 The Tadiü Jurisdiction Appeal decision was also relied upon by the Prosecution in the Prosecutor v Milan Milutinoviü, Dragoljub Ojdaniü and Nikola Šainoviü.127 However, the Trial Chamber held that while the Tadiü Jurisdiction Appeal decision was relevant to some of the jurisdictional issues raised, it was distinguishable from the current case, where the accused contended that the UN Security Council lacked the power to give the ICTY jurisdiction over offences committed in Kosovo, since the Federal Republic of Yugoslavia, of which Kosovo is a part, was not a member of the UN, both at the time of the adoption of the ICTY Statute and at the time of the commission of the alleged offences.128 Moreover, in Prosecutor v Vojislav Šešelj, the accused inter alia challenged the jurisdiction of the ICTY, asserting that the UN Security Council was not empowered to establish a subsidiary body with international legal authority.129 Although, the Trial Chamber could not consider this part of the accused’s motion,130 it noted that if it could, it would have dismissed the accused’s motion anyway, in view of the established case law of the ICTY, including the Tadiü Jurisdiction Appeal decision.131 None of these cases, however, shed any new light on the legal basis of an international criminal judicial body and whether such a court can be established only by way of an international treaty. Slobodan Miloševiü relied on the argument that the ICTY had “no basis in law” as it had been established by a UN Security Council resolution instead of by an international treaty, in his applications before the Hague District Court132 and the European Court of Human Rights133 requesting his release from the custody of the 125 126 127 128

129 130

131 132

133

Prosecutor v Zlatko Aleksovski, Case No.: IT-95-14/1-A, Judgment, App. Ch., 24 March 2000. See supra note 124, §§ 15-16. Prosecutor v Milan Milutinoviü, Dragoljub Ojdaniü and Nikola Šainoviü, Case No.: IT99-37-PT, “Decision on Motion Challenging Jurisdiction”, T. Ch., 6 May 2003. The Trial Chamber held that even if the Federal Republic of Yugoslavia was not a member of the UN at the relevant time, Chapter VII of the Charter is open to the interpretation that the UN Security Council had authority over the Federal Republic of Yugoslavia in the circumstances of the current case. See supra note 127, § 63. Prosecutor v Vojislav Šešelj, Case No.: IT-03-67/PT, “Decision on Motion by Vojislav Šešelj Challenging Jurisdiction and Form of Indictment”, T. Ch. II, 26 May 2004, §§ 7–12. As it fell outside the subject matter of motions which could be brought before the Trial Chamber in accordance with Rule 72 of the ICTY Rules of Evidence and Procedure, 13 September 2006, available at http://www.un.org/icty/legaldoc-e/index.htm (last visited 17 July 2007). See supra note 129, § 12. Miloševiü v. The Netherlands, KG 01/975, 31 August 2001, available at http://www. icrc.org/ihl-nat.nsf/0/012854276cd2950dc1256da20051ac68?OpenDoc ument (last visited 27 January 2007). Miloševiü v. The Netherlands, Application no. 77631/01, 19 March 2002.

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ICTY, and in his motion before the Trial Chamber of the ICTY challenging the legal basis of the ICTY (“Miloševiü Preliminary Motions” case).134 Miloševiü had been awaiting trial before the ICTY in the UN detention unit of the Scheveningen prison, The Netherlands when he lodged an application before the civil law division of the Hague District Court, requesting his release from the ICTY’s custody. In support of his request for release, Miloševiü contended inter alia that [t]he so-called Tribunal has no basis in law and possesses no democratic legitimacy. The Security Council is not competent to establish an international tribunal, as only a few UN member States are involved in it. The Tribunal has not been established by treaty. Neither the UN Charter nor international law provides any legal basis for the so-called Tribunal. Not a single rule of law exists that would entitle the Security Council to limit the sovereign rights of States. The establishment of the so-called Tribunal is a flagrant violation of the principle of the sovereign equality of all UN member States, as enshrined in Article 2, paragraph 1 of the UN Charter… That the so-called Tribunal can and should sit in judgment over its own lawfulness is neither credible nor acceptable.

The Hague District Court noted that The Netherlands’ primary line of defence was that the ICTY possessed exclusive competence to hear the application for release and held that in order to answer the question of competence, it was necessary for the Hague District Court to address Miloševiü’s contentions as regards the illegality of the ICTY; as “ [a]fter all, were it to be ruled at law that the [ICTY] possesses no legal validity, this would necessarily lead to the conclusion that the President [of the Hague District Court] is competent to hear the principal application for release...”.135 In response to Miloševiü’s submission as to the illegality of the ICTY, the Hague District Court noted that the issue of the UN Security Council competence had already been dealt with by the ICTY Trial Chamber in the Tadiü Jurisdiction Appeal and that it had concluded that the ICTY could be established by a UN Security Council Chapter VII resolution. It continued [c]ontrary to what the plaintiff apparently believes, it has by no means been established that the decision of 2 October 1995 [Tadiü Jurisdiction Appeal decision] is incorrect or that the grounds on which it was reached were unsound. Given the lengthy and detailed arguments furnished in support of the decision of 2 October 1995, the plaintiff’s contentions in this regard do not place the matter in a new light. Since the above leads to the conclusion that the said decision and the grounds upon which it was based are upheld in these proceedings, the plaintiff no longer has an interest in his proposition that the [ICTY] cannot and must not decide on its own jurisdiction. This proposition need not, therefore, be addressed.

The Hague District Court subsequently held that it had no jurisdiction to decide on Miloševiü’s application due to the terms of the Headquarters Agreement between The Netherlands and the UN dated 29 July 1994, which provided that jurisdiction to hear an application for release from detention was transferred from the Dutch 134 135

Prosecutor v Slobodan Miloševiü, Case No.: IT-02-54, “Decision on Preliminary Motions”, T. Ch., 8 November 2001. See supra note 132, § 3.2.

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courts to the ICTY,136 and accordingly, rejected Miloševiü’s application for release on 31 August 2001. Although the comments of the Hague District Court in relation to the legal basis of the ICTY were strictly obiter dicta, they can be interpreted as evidence of the acceptance of the principle that an international criminal judicial body can be established by a UN Security Council Chapter VII resolution. Miloševiü filed an appeal to the decision of the Hague District Court, but then withdrew it on 17 January 2002. He subsequently brought a case before the European Court of Human Rights (“ECHR”)137 claiming inter alia that under article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (right to liberty and security), his detention on Dutch territory was illegal under Dutch domestic law and that the ICTY itself lacked a basis in international law, having been established by a UN Security Council resolution and not by a multilateral treaty. The ECHR rejected Miloševiü’s application as inadmissible on 19 March 2002, due to non-exhaustion of domestic remedies, noting that Miloševiü had not made use of the possibilities available to him under Dutch law to challenge the decision of the Hague District Court.138 Accordingly, the ECHR did not have to decide if Miloševiü’s claim that the ICTY itself lacked a basis in international law, having been established by a UN Security Council resolution and not by a multilateral treaty, had any substance. The next judicial consideration of inter alia Miloševiü’s claim that the ICTY had no “basis in law” was the Miloševiü Preliminary Motions case.139 As in the Momþilo Krajišnik140 and Milan Milutinoviü, Dragoljub Ojdaniü and Nikola Šainoviü141 decisions, the Trial Chamber did not address directly the contentions that the ICTY could only have been established by way of an international treaty, but concluded that the UN Security Council had the power to establish the ICTY as a Chapter VII measure.142 Again, it can be deducted from the Trial Chamber’s decision in this case, that it too, was of the view that the legal basis of an international criminal judicial body can be something other than a treaty between two or more States. Legal Basis of an International Criminal Judicial Body – UN Security Council Chapter VII Resolution: ICTR (i) Legislative history and constitutive documentation By way of UN Security Council Chapter VII resolution 955, the UN Security Council established “an international tribunal for the sole purpose of prosecuting 136 137 138 139

140 141 142

See supra note 132, § 3.5–3.6. See supra note 133. Referred to as the “Regional Court of the Hague” in the decision of the ECHR. In this case, Miloševiü had refused the appointment of amicus curiae to protect his interests before the ICTY, because on his reasoning, he did not require legal counsel as the ICTY was “illegal, not being appointed by the UN General Assembly”. See supra note 124. See supra note 127. See supra note 134, §§ 5–11.

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persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994” and adopted the statute of the ICTR. Unlike in the circumstances of the ICTY, the Rwandan government itself requested the establishment of an international tribunal. Prior to the adoption of UN Security Council resolution 955, little discussion took place on whether the UN Security Council had the power to establish an international criminal judicial body by means of a Chapter VII resolution or not. UN Security Council resolution 827 seemed to have established a precedent for the establishment of an international criminal judicial body in such manner. Brazil and China who were, as members of the UN Security Council, still of the view that an international criminal judicial body should only be established by an international treaty, did not vote against the resolution, but instead voted in favour (Brazil) or abstained from voting (China). Rwanda, which was serving as a non-permanent member of the UN Security Council at the time UN Security Council resolution 955 came up for discussion, actually voted against the resolution inter alia due to dissatisfaction with the temporal and subject-matter jurisdiction of the ICTR and the fact that only two trial chambers were envisaged.143 An argument employed in criticising the action of the UN Security Council in establishing the ICTR (which did not play a role, nor have any application, in the circumstances of the ICTY) was that the UN Security Council could not establish an international criminal judicial body by way of a Chapter VII resolution, especially when at the time of the establishment of such tribunal, the atrocities, which initially lead to a UN Security Council assessment of there being a threat to international peace and security, had ceased, as was the case in Rwanda when the ICTR was established. The argument was, unsurprisingly, raised before the ICTR by Defence Counsel.144 (ii) Challenges to the legal basis of the ICTR The legal basis of the ICTR has been challenged before the ICTR, but again without any success. In Prosecutor v Joseph Kanyabashi,145 two objections raised by Defence Counsel were that (i) the sovereignty of States, in particular that of the Republic of Rwanda, was violated by the fact that the ICTR was not established by a treaty through the UN General Assembly, and (ii) the UN Security Council lacked competence to establish an ad hoc tribunal under Chapter VII of the UN Charter. 143

144 145

The Government of Rwanda objected to the primacy given to the ICTR over the local Rwandan courts, the absence of the death penalty as a potential punishment and the intention to locate the ICTR outside Rwanda. See Victor Peskin, “International Justice and Domestic Rebuilding: An Analysis of the Role of the International Criminal Tribunal for Rwanda”, The Journal of Humanitarian Assistance, 20 May 2000, available at http://www.jha.ac/greatlakes/b003.htm (last visited 25 May 2005). See infra section 4.5.4.2 (ICTR). Prosecutor v Joseph Kanyabashi, Case No.: ICTR-96-15-T, “Decision on the Defence Motion on Jurisdiction”, T. Ch. II, 18 June 1997.

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As regards the first argument, Defence Counsel submitted that the ICTR “should and in fact could only have been established by an international treaty upon recommendation of the General Assembly”.146 The Prosecution responded by pointing out that due to the urgency of the situation in Rwanda, the treaty approach would have been ineffective because of the time it would take to negotiate and ratify such treaty. Having held that the accused had locus standi to raise a plea of infringement of the sovereignty of States,147 the Trial Chamber went on to note that (i) membership of the UN entails certain limitations upon the sovereignty of the member States, in particular by virtue of the fact that pursuant to Article 25 of the UN Charter, members agree to accept and carry out the decisions of the UN Security Council in accordance with the UN Charter, and (ii) the Rwandan government itself requested the establishment of the ICTR, believing that such an institution would promote peace and reconciliation in Rwanda. Against this background, the Trial Chamber held that the UN Security Council’s establishment of the ICTR by way of a Chapter VII resolution and with the participation of the Rwandan government, rather than by way of a treaty adopted by UN members under the auspices of the UN General Assembly, did not violate Rwanda’s or any UN member’s sovereignty. The Trial Chamber then considered Defence Counsel’s second submission that the UN Security Council lacked competence to establish an ad hoc tribunal under Chapter VII. In connection with this submission, Defence Counsel had put forward the following five reasons for their position: 1. The conflict in Rwanda did not pose any threat to international peace and security: The Trial Chamber responded that the question of whether a threat to international peace and security exists is a matter to be decided exclusively by the UN Security Council.148 2. There was no international conflict to warrant any action by the UN Security Council: The Trial Chamber replied that “[t]he decisive pre-requisite for the UN Security Council’s prerogative under Article 39 and 41 of the UN Charter is not whether there exists an international conflict, but whether the conflict at hand entails a threat to international peace and security. Internal conflicts, too, may well have international implications which can justify Security Council action.”149 3. The UN Security Council could not act within Chapter VII as international peace and security had already been re-established by the time the UN Security Council decided to create the ICTY: The Trial Chamber’s response was that, this again, was something within the exclusive domain of the UN Security Council and that just because atrocities have ceased, this does not mean that 146 147 148 149

Ibid., § 9. Emphasis added. Relying on a similar conclusion in the Tadiü Jurisdiction Appeal decision, supra note 105. See ibid., §§ 11–12. See supra note 145, §§ 19–22. Ibid., § 24.

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international peace and security has been restored, “because peace and security cannot be said to be re-established adequately without justice being done.”150 4. The establishment of an ad hoc tribunal was never a measure contemplated by Article 41 of the UN Charter: The Trial Chamber responded that the list in Article 41 was not exhaustive.151 5. The UN Security Council has no authority to deal with the protection of human rights, as there exist international institutions whose task is the protection of the body of international human rights: The Trial Chamber rejected this argument noting that the existence of such institutions does not preclude the UN Security Council from taking action against violation of this body of law.152 Accordingly, the Trial Chamber dismissed the motion of the accused on inter alia these grounds. The 2001 decision of ICTR Trial Chamber II in Prosecutor v Édouard Karemera also dealt with similar submissions by the accused.153 Defence Counsel objected to the lack of jurisdiction of the ICTR due to the illegality of UN Security Council resolution 955, on the grounds that (i) the establishment of an international tribunal is not part of the measures that the UN Security Council is entitled to take under Chapter VII; and (ii) in any event, there existed no threat to international peace and security in Rwanda at the time the UN Security Council decided to establish the ICTR. The Prosecutor, in response sought to rely on the findings of the ICTY Appeals Chamber in the Tadiü Jurisdiction Appeal decision. In the end, the Trial Chamber dealt quite briefly with the issue by determining that it did not have the authority to assess or review the legality of UN Security Council resolution 955,154 and dismissed the accused’s motion on lack of jurisdiction. Interestingly, Édouard Karemera, along with Mathieu Ngirumpatse and Joseph Nzirorera, later tried to argue, that as there no longer existed a threat to peace in Rwanda, there was no reason for the activities of the ICTR to continue.155 This argument was swiftly rejected by ICTR Trial Chamber III which held, that “the functions and jurisdiction of the Tribunal are not related to the continued existence of a threat to international peace and security”.156

150 151 152 153

154 155

156

Ibid., § 26. Ibid., § 27. Ibid., §§ 28–29. Prosecutor v Édouard Karemera, Case No.: ICTR-98-44-T, “Decision on the Defence Motion, pursuant to Rule 72 of the Rules of Procedure and Evidence, pertaining to, inter alia, lack of jurisdiction and defects in the form of the Indictment”, T. Ch. II, 25 April 2001. Ibid., § 25. Prosecutor v Édouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera, Case No.: ICTR-98-44-R73, “Decision on renewed motion to dismiss for lack of jurisdiction: UN Charter, Chapter VII Powers, Rule 73 of the Rules of Procedure and Evidence”, T. Ch. III, 5 August 2005, §§ 5–6. Ibid., § 5.

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Conclusion What conclusion can be drawn from a review of the legislative history and relevant case law of the ICTY and ICTR as regards the legal basis of an international criminal judicial body? Are they evidence of a change from the traditional position that an international criminal judicial body could only be established by way of an international treaty between States? This question can, arguably, be answered in the affirmative. UN Security Council resolutions 827 and 955 have established a precedent for the establishment of an international criminal judicial body by way of a UN Security Council Chapter VII resolution. This conclusion is evidenced not only by the fact that the ICTY and ICTR have been successfully established by the UN Security Council, they are now wellestablished judicial bodies, and their legal basis has never been successfully challenged either before the ICTY or the ICTR, but also by, as noted in the Tadiü Jurisdiction Appeal decision, the unequivocal fact that “the establishment of the [ICTY] has been repeatedly approved and endorsed by the “representative” organ of the UN, the General Assembly: this body not only participated in its setting up, by electing the Judges and approving the budget, but also expressed its satisfaction with, and encouragement of the activities of the International Tribunal in various resolutions”.157 A similar comment could also be made in the context of the ICTR. Would such support and expressions of satisfaction by the UN General Assembly be so forthcoming if there were genuine concerns over the legal basis of such tribunals? The exercise of the UN Security Council’s Chapter VII powers to establish the ICTY and ICTR as two of its subsidiary organs, could, in theory, be challenged before the ICJ, either in the context of a contentious case between member States158 or in the context of a request for an advisory opinion, e.g. by the UN General Assembly;159 the probable basis for such challenge being that the UN Security Council’s establishment of the ICTY/ICTR was an ultra vires act. No such challenge or request has been brought to date before the ICJ in this regard. Of interest, however, is the submission of the amici curiae in the Miloševiü Preliminary Motions case, that in order to avoid the “criticisms of self determination of validity”, the ICTY should seek an advisory opinion on the question of its competence from the ICJ. The Prosecutor in that case, by way of reply, argued firstly, that 157 158

159

See supra note 105, § 44. See Articles 34 and 36 of the ICJ Statute, 26 June 1945, Department of State publications 2349 and 2353, Conference Series 71 and 74; entered into force 24 October 1945. The ICJ Statute provides that the ICJ shall be open, both to the member States of the UN, and to other non-member States in the circumstances set out in Article 35(2) of the ICJ Statute. See also Article 93(2) of the UN Charter, supra note 100. Ibid., Article 65. The UN General Assembly and the UN Security Council can request the ICJ to give an advisory opinion. Other UN organs, as well as specialised agencies authorised by the UN General Assembly may also request an advisory opinion “on legal questions arising within the scope of their activities”. See Article 96 UN Charter, supra note 100.

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the ICTY is not competent to request such an advisory opinion and secondly, that the Appeals Chamber’s decision in the Tadiü Jurisdiction Appeal held that the ICTY could adjudicate issues concerning its on its own jurisdiction. The ICTY declined the proposal of the amici curiae noting that it had jurisdiction to determine its own competence, as was held in the Tadiü Jurisdiction Appeal decision and held that there was no merit in the submission of the amici curiae.160 Admittedly, any such referral to the ICJ would not be unproblematic. As noted in the Certain Expenses of the United Nations case, “where the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the UN, the presumption is that such action is not ultra vires.”161 This presumption would need to be rebutted as a starting point in any case challenging an act of the UN Security Council. As Bassiouni notes, [t]o rebut the presumption of validity of the Security Council decision to establish the [ICTY], there would have to be a showing that the establishment of an international criminal tribunal to prosecute individuals charged with inter alia, genocide, crimes against humanity and war crimes during the course of an armed conflict is not rationally related to the establishment, restoration, and maintenance of peace. Considering the international character and jus cogens nature of these crimes and that their commission has disrupted… the peace and security of humankind in the Balkan region, it is hard to conceive that the establishment of the Tribunal could be deemed ultra vires.162

Moreover, even if the ICJ rendered a decision in a contentious case that the action of the UN Security Council was ultra vires, such decision would only be binding on the States that were parties in the case, and would not bind the UN Security Council.163 Additional evidence of the acceptance of the principle that an international criminal judicial body can be established by a UN Security Council Chapter VII resolution is to be found in the Hague District Court’s judgment in the Miloševiü case. Although the comments of the Hague District Court in relation to the legal basis of the ICTY were strictly obiter dicta, they can be interpreted as evidence of the acceptance of this principle. Before leaving this subject, two additional issues warrant comment. Firstly, although the UN Security Council only consists of 15 members, in establishing both the ICTY and the ICTR, the UN Security Council was not acting on behalf of those 15 members alone. It was acting on behalf of all UN member States, by tak-

160 161 162

163

See supra note 134, §§ 16–17. I.C.J. Reports 1962, 151, p. 168. M. Cherif Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia, Transnational Publishers INC., Irvington-on-Hudson, New York, 1996, pp. 241–242. See Article 59 of the ICJ Statute, supra note 158, which provides that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case”.

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ing action to ensure the maintenance of international peace and security.164 This is something that should be borne in mind generally, and especially when considering the submission that the only other legal alternative to an international criminal judicial body being established by way of a multilateral treaty is that it be established with the involvement of the UN General Assembly.165 Secondly, it is interesting to note that despite the rocky origins of this legal basis of an international criminal judicial body, this criterion appears to have come full circle. While previously it was questionable whether the legal basis of an international criminal tribunal could be a UN Security Council Chapter VII resolution, serious consideration was given, in the Taylor Decision, to whether a judicial body can be characterised as an international criminal judicial body if it does not have Chapter VII powers.166 The SCSL Appeals Chamber concluded that Chapter VII powers were not necessary for classification as an international criminal judicial body. However, the fact that this issue was discussed and indeed is one of the major issues of the SCSL Appeals Chamber’s decision, suggests an acceptance of a UN Security Council Chapter VII resolution as one of the legal bases of an international criminal judicial body. As will be seen below, as regards the ability of an international criminal judicial body to enforce its orders, it is preferable that its legal basis be a UN Security Council Chapter VII resolution, rather than an international treaty.167 Based on the above, the author is of the view that there is clear evidence to warrant the expansion of the fundamental criteria of an international criminal judicial body to include the creation of an international criminal judicial body by or by virtue of a UN Security Council Chapter VII resolution.168 164

165

166

167

168

See Article 24 of the UN Charter, supra note 100, which States that “[i]n order to ensure prompt and effective action by the UN, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf ” (emphasis added). For a discussion of the extent to which the UN Security Council can be said to be acting on behalf of all of the UN members, see infra section 4.5.4.2 (Legal basis of an international criminal judicial body – agreement between the UN and one or more States). See supra note 3, §§ 6–10 and 38. See also Professor Sands’ Amicus Curiae Brief, supra note 4, § 75 and Professor Orentlicher’s Amicus Curiae Brief, supra note 4, pp. 15–16. See also comments set out in section 4.5.4.13 (Existence of Chapter VII powers) infra. See infra section 4.5.4.13 (Existence of Chapter VII powers). A UN Security Council Chapter VII resolution legal basis is also preferable for the purposes of the removal of the immunity from prosecution of Heads of States etc. for international crimes. See infra section 4.7 and infra note 230. Notwithstanding this development in the legal basis of an international criminal judicial body, the treaty-based legal basis will, no doubt, continue to be the preferred method of establishment. The advantages to such method are clear. However, the establishment of an international criminal judicial body by way of a UN Security Council Chapter VII resolution is arguably the most appropriate route where the given circumstances demand an expeditious response, not only because the UN Secretary-General can act

4.5 Defining Criteria of an International Criminal Judicial Body 307

(III) Legal Basis of an International Criminal Judicial Body – Agreement Between the UN and One or More States The establishment of the SCSL by way of an agreement between the UN and the Government of Sierra Leone and the SCSL’s Appeals Chamber’s interpretation of those constitutive documents in the Taylor Decision169 suggest that the legal basis of an international criminal judicial body can also be an agreement between the UN and one or more States. This represents a significant departure from the traditional method of establishing an international criminal judicial body by way of an international treaty between two or more States. A review of the constitutive documentation and relevant case law of the SCSL is warranted for the purposes of this discussion. (i) Legislative history and constitutive documentation By way of UN Security Council resolution 1315 (2000),170 which was adopted unanimously,171 the UN Security Council expressed its deep concern at the “very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone and United Nations and associated personnel and at the prevailing situation of impunity” and requested the UN Secretary-General to negotiate an agreement with the Government of Sierra Leone to “create an independent special court consistent with this resolution” and to “submit a report to the UN Security Council on the implementation of this resolution, in particular on his consultations and negotiations with the Government of Sierra Leone concerning the establish-

169 170 171

relatively quickly, but also because the UN Security Council decision to establish such a tribunal would be effective immediately and would create binding obligations for all States. See Article 25 UN Charter, supra note 100. It is of interest that the International Law Commission (“ILC”), when considering the options available for the creation of the ICC, considered whether the ICC should be established by way of a Chapter VII resolution. This option was, ultimately, rejected, on two grounds: (i) because of potential challenges to the legitimacy of a court established in such manner; and (ii) because Chapter VII only enables the UN Security Council to establish a tribunal with respect to a particular situation, as opposed to establishing a permanent institution with general powers and competence. See Report of the International Law Commission on the work of its forty-sixth session, 2 May -22 July 1994, Official Records of the General Assembly, Forty-ninth session, Supplement No. 10, A/49/10, Yearbook of the International Law Commission, 1994, Vol. II(2), § 51 and John Dugard, “Obstacles in the Way of an International Criminal Court”, 56 Camb. L. J. 329 (1997), p. 340. For a summary of the confusing dicta issued by the SCSL Appeals Chamber in relation to this issue, see supra section 4.5.3.3. S.C. Res. 1315, U.N. SCOR, 55th Sess., 4186th mtg., U.N. Doc. S/RES/1315 (14 August 2000). Members of the UN Security Council at the time the resolution was passed were: Argentina, Bangladesh, Canada, China, France, Jamaica, Malaysia, Mali, Namibia, the Netherlands, the Russian Federation, Tunisia, the Ukraine, the United Kingdom of Great Britain and Northern Ireland and the United States of America.

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ment of the special court”.172 The resolution does not specifically state that in making such request the UN Security Council was acting in accordance with its Chapter VII powers. However, it did reiterate that the situation in Sierra Leone continued to constitute a “threat to international peace and security in the region”.173 The subsequent UN Secretary-General’s report discussed the legal basis for the SCSL: The legal nature of the Special Court, like that of any other legal entity, is determined by its constitutive instrument. Unlike either the International Tribunals for the Former Yugoslavia and for Rwanda, which were established by resolutions of the Security Council and constituted as subsidiary organs of the United Nations, or national courts established by law, the Special Court as foreseen, is established by an Agreement between the United Nations and the Government of Sierra Leone and is therefore a treaty-based sui generis court of mixed jurisdiction and composition. Its implementation at the national level would require that the agreement is incorporated in the national law of Sierra Leone in accordance with constitutional requirements… As a treaty-based organ the Special Court is not anchored in any existing system (i.e., United Nations administrative law or the national law of the State of the seat) which would be automatically applicable to its non-judicial, administrative and financial activities.174

The SCSL was established by way of the Special Court Agreement and this agreement was internally ratified by way of The Special Court Agreement, 2002, Ratification Act, 2002.175 Interestingly, the UN Secretary-General’s report did not dwell on any potential challenges to, or difficulties with, the legal basis of the SCSL. Neither did any of the representatives of the members of the UN Security Council see fit to raise any issues for discussion in relation to the legal basis of the SCSL when Security Council resolution 1315 was put to the vote.176 However, the legal basis of the SCSL has been challenged by some of the accused before the Appeals Chamber of the SCSL.

172 173 174 175

176

See supra note 170, opening paragraph and §§ 1 and 6. Ibid., § 13. Report of the UN Secretary-General, supra note 39, § 9. Available at http://www.sc-sl.org/ (last visited 21 January 2007). The legislation was passed by Parliament on 19 March 2002 and assented to by the President of Sierra Leone on 29 March 2002. See the record of the UN Security Council meeting held to discuss UN Security Council resolution 1315 on 14 August 2000, S/PV.4186, available at http://www.un.org/ Depts/dhl/resguide/scact2000.htm (last visited 21 January 2007). No speeches were delivered by representatives of UN Security Council members, other than by the President (Mr. Hasmy of Malaysia), whose comments were purely administrative. On the understanding that the UN Security Council was ready to proceed directly to a vote, the President put the draft resolution 1315 to the vote and it was adopted unanimously by the UN Security Council.

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(ii) Challenges to the legal basis of the SCSL The Appeals Chamber’s 2004 “Decision on the Preliminary Motion on Lack of Jurisdiction Materiae: Illegal Delegation of Powers by the United Nations” in the Prosecutor v Moinina Fofana case (“Fofana Decision”)177 is of significance for current purposes, as it deals with some of the fundamental issues in relation to the establishment of an international criminal judicial body by way of an agreement between the UN and one or more States.178 For example, can such an agreement be a valid legal basis for an international criminal judicial body? Has the UN Secretary-General the authority to conclude such an agreement on behalf of the UN, without the explicit granting of such authority to him?179 In the Fofana Decision, the Defence inter alia submitted that the establishment of the SCSL was an illegal delegation by the UN Security Council of its powers and accordingly the SCSL did not have jurisdiction to try Fofana. In support of such argument, the Defence argued that … the Security Council either delegated its powers in the field of international peace and security to the UN Secretary-General, or the UN Secretary-General used his own powers when concluding the Agreement between the United Nations and the Government of Sierra Leone… It is submitted that in both interpretations the powers of the… UN… were exceeded. In the first interpretation, it is argued that the delegation of powers to the Special Court is illegal because the Security Council did not remain empowered to terminate the operation of the tribunal or amend the terms of the statute. As to the second interpretation the Defence contends that while the UN Secretary-General may have independent powers to deal with peace and security, these do not extend to the establishment of an international tribunal. It is argued that within the UN, only the Security Council has the authority, under Article 39 of the UN Charter… to maintain international peace and security and, therefore, to conclude an agreement to establish the Special Court.180 177

178

179

180

Prosecutor v Moinina Fofana, Case No.: SCSL-2004-14-PT, “Decision on the Preliminary Motion on Lack of Jurisdiction Materiae: Illegal Delegation of Powers by the UN”, App. Ch., 25 May 2004. Other preliminary motions lodged challenging the jurisdiction of the SCSL include submissions of illegal delegation of jurisdiction by Sierra Leone (Prosecutor v Moinina Fofana, Case No.: SCSL-2004-14-AR72(E), “Decision on the Preliminary Motion on Lack of Jurisdiction: Illegal Delegation of Jurisdiction by Sierra Leone”, App. Ch., 25 May 2004); lack of jurisdiction due to the provisions of the Lomé Amnesty Agreement (Prosecutor v Morris Kallon and Brima Bazzy Kamara, Case No.: SCSL-2004-16AR72(E), “Decision on Challenge to Jurisdiction: Lomé Accord Amnesty”, App. Ch., 13 March 2004 and Prosecutor v Allieu Kondewa, Case No.: SCSL-2004-14-AR72(E), “Decision on Lack of Jurisdiction/Abuse of Process: Amnesty provides by the Lomé Accord”, App. Ch., 25 May 2004); violation of the constitution of Sierra Leone (Constitutionality Decision, supra note 71); and lack of judicial independence (Prosecutor v Sam Hinga Norman, Case No.: SCSL-2004-14-AR72(E), “Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence)”, App. Ch., 13 March 2004). Which was the case as regards the SCSL. UN Security Council Resolution 1315 only requested the UN Secretary-General to “negotiate” an agreement with the Government of Sierra Leone. See supra note 177, § 1.

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In response the Prosecution contended that the capacity of international organisations, particularly the UN, to enter into international treaties is well-established: “The UN Secretary-General represents the UN in the negotiation and conclusion of agreements with governments and other inter-governmental organisations. He directs the negotiation and conclusion of agreements, either at the request of an organ of the UN, with the approval of the UN General Assembly, or within the framework of the implied powers of the UN Secretary-General.”181 The Prosecution contended that the UN Secretary-General’s negotiation and conclusion of the Special Court Agreement was at the request of the UN Security Council, and that it was within the powers of the UN Security Council to make such request. It further contended that the UN Security Council had not delegated any of its substantive powers to the SCSL, but had instead created a new body exercising certain powers which the UN Security Council itself is unable to exercise and that the SCSL does not detract from the powers of the UN Security Council but rather complements them.182 The Appeals Chamber summarised the issues which called to be determined inter alia as follows: a) Does the Security Council have the power to delegate its powers to the UN Secretary-General to conclude an agreement between the United Nations and the Government of Sierra Leone? b) Does the UN Secretary-General have powers to conclude such an agreement on his own? c) Does the Security Council have the power to establish an international tribunal such as the Special Court for Sierra Leone through an agreement?183

In response to the first question, the Appeals Chamber noted that Article 24(1) of the UN Charter provides that the primary responsibility for the maintenance of international peace and security lies with the UN Security Council. By way of the provisions of Articles 97–100 of the UN Charter,184 the UN Secretary-General, as head of the Secretariat, is an executive organ. The Appeals Chamber held that as an executive organ the UN Secretary-General “has to fulfil the orders of the Security Council and does therefore not need a delegation of power to become active as his mandate consists in executing the orders given by the power-bearer, in this case the Security Council.”185 Accordingly, the question of whether the UN Security Council had the power to delegate its powers to the UN Secretary-General to conclude the Special Court Agreement was “not in issue”. The Appeals Chamber 181 182 183 184

185

Ibid., § 2. Ibid. Ibid., § 12. Which inter alia provide that the UN Secretary-General is the chief administrative officer of the UN (Article 97); the UN Secretary-General shall act in that capacity and perform such other functions as are entrusted to him/her by inter alia the UN Security Council (Article 98); and in the performance of his/her duties neither the UN SecretaryGeneral nor his staff shall seek nor receive instructions from any government or from any other authority external to the UN (Article 100). See supra note 177, § 16.

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also held that the UN Secretary-General acted at the request of the UN Security Council in concluding the Special Court Agreement, so it was not necessary to consider the second question mentioned above. As to the third question, the Appeals Chamber answered in the affirmative, holding that the establishment of the SCSL was an “effective collective measure” for the prevention and removal of threats to the peace as referred to in Article 1(1) of the UN Charter and “there is no reason why the UN Security Council could not have established an international criminal tribunal in a non-coercive way.”186 The findings of the Appeals Chamber were approved by the Appeals Chamber in its decision of the same date in Prosecutor v Augustine Gbao, “Preliminary Motion on the Invalidity of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court” (“Gbao Decision”).187 The Taylor Decision, decided just a few days after the Fofana and Gbao Decicions, did not involve an actual challenge to the legal basis of the SCSL. However, in its consideration of whether the SCSL was a national or international criminal judicial body for the purposes of the international rules of immunity from prosecution for core international crimes, the Appeals Chamber made some interesting remarks on the legal basis of the SCSL and more particularly, as to whether the legal basis of the SCSL could be a treaty between the UN and the Government of Sierra Leone. As noted above, it determined that the SCSL’s legal basis was the Special Court Agreement and not a UN Security Council Chapter VII resolution. It also determined, however, that the power of the UN Security Council to enter into an agreement for the establishment of the SCSL was derived from the UN Charter, in particular Articles 1, 39 and 41 and that the powers contained in such articles are wide enough to empower the UN Security Council to initiate the establishment of the SCSL by the Special Court Agreement.188 (iii) Comment In the author’s view, the classification of the legal basis of the SCSL can be dealt with in one of two fashions. Firstly, one could attempt to pigeonhole the Special Court Agreement into one of the pre-recognised legal bases of an international criminal judicial body, or secondly, one could argue the case for the development of a new legal basis of an international criminal judicial body.189 186 187

188 189

Ibid., § 21. Prosecutor v Augustine Gbao, Case No.: SCSL-2004-15-PT, “Decision on Preliminary Motion on the Invalidity of the Agreement Between the UN and the Government of Sierra Leone on the Establishment of the Special Court”, App. Ch., 25 May 2004. See supra note 3, § 37. As can be seen above (infra section 4.5.2), it had not been asserted prior to the establishment of the SCSL that the legal basis of an international criminal judicial body could be an agreement between an international organisation and a State. This is explicable bearing in mind the rationale behind this treaty-based legal basis of an international criminal judicial body (see infra section 4.5.4.2 Legal basis of an international criminal judicial body - treaty-based).

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(a) Pigeonholing the Special Court Agreement into one of the pre-recognised legal bases of an international criminal judicial body As regards the first scenario, the two possible existing legal bases that spring to mind are that of an international treaty between two or more States or a UN Security Council Chapter VII resolution. It is clear that, on a literal interpretation of the first criterion, the Special Court Agreement is not between two States, but between an international organisation and one State. Neither is the Special Court Agreement the result of a UN Security Council Chapter VII resolution. Would a purposive interpretation of the existing legal bases of an international criminal judicial body lead to a different result? This question can be examined from two perspectives. (a)(i) International treaty between two or more States The SCSL Appeals Chamber posited that the Special Court Agreement was between all members of the UN and Sierra Leone, as in carrying out its duties in relation to the maintenance of international peace and security, the UN Security Council acts on behalf of the members of the UN.190 For the purposes of the legal basis of an international criminal judicial body, can the Special Court Agreement be interpreted as an agreement between all of the members of the UN and Sierra Leone? The author is hesitant to support such an interpretation for three reasons. Firstly, such a broad interpretation of the consequences of UN membership was not envisaged when the UN Charter was adopted. Secondly, if the agreement was between all the UN member States and Sierra Leone, then such member States would assume obligations under such agreement.191 For example, such members would have to cooperate with the SCSL to ensure that it can effectively conduct its work. As is clear from the failure by Ghana to arrest Taylor in June 2003, UN member States, other than Sierra Leone, are not bound by any obligations contained in the Special Court Agreement, as is the case with, for example, State parties to the ICC Rome Convention.192 Thirdly, one of the reasons why traditionally an 190 191

192

See supra note 3, § 38. Deen-Racsmány posits that customary international law does not support the view that obligations may be implied for UN member States from a treaty concluded between the UN and a single member State. She notes that State practice in relation to UN status of forces agreements (“SOFA”s) shows a “remarkable lack of recognition” that SOFAs could impose obligations on all UN members. See Deen-Racsmány, supra note 15, pp. 312–313. The announcement of Taylor’s indictment before the SCSL and a warrant for his arrest was issued when Taylor was in Ghana attending peace talks. As Ghana was not a party to the SCSL Agreement and as Liberia had not waived the immunity of Taylor, Ghana could not have arrested Taylor without violating Taylor’s immunity. The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations provides that a treaty does not create either obligations or rights for a third State without the consent of that State. Article 34, Vienna

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international treaty between States was the only way to establish an international criminal judicial body was, as mentioned above, because it enabled States to have influence over the contents of the treaty and to exercise their sovereign right of becoming parties or not thereto. Becoming a party to a treaty ‘by interpretation’ does not respect the principles of State sovereignty.193 One could stretch this argument even further by opining that the criterion that the legal basis of an international criminal judicial body be an international treaty between two or more States is satisfied in the case of the SCSL, when one acknowledges that the legal basis of the SCSL is actually the UN Charter, which is an international treaty between numerous States, and not the Special Court Agreement. On signing the UN Charter, the UN members agreed to be bound by its terms, which terms (in particular Articles 1, 39 and 41), empower, albeit not specifically, the UN Security Council/UN Secretary-General to enter into an agreement on behalf of the UN with the Government of Sierra Leone for the establishment of the SCSL. In the author’s view, however, this argument is too far-fetched, for much the same reasons as stated above. Moreover, if it was the intention to bind all of the UN member States, without their specific and individual consent, then the correct approach would have been a UN Security Council Chapter VII resolution. However, such an approach was not adopted in the case of the SCSL. (a)(ii) UN Security Council Chapter VII resolution Does a purposive interpretation of the constitutive documents of the SCSL lead to the conclusion that its legal basis is a UN Security Council Chapter VII resolution? Notwithstanding that UN Security Council resolution 1315 determined that “the situation in Sierra Leone continues to constitute a threat to international peace and security”,194 and even if one agrees with the SCSL Appeals Chamber that [a]lthough the Special Court was established by treaty… it was clear that the power of the Security Council to enter into an agreement for the establishment of the court was derived from the Charter of the United Nations both in regard to the general purposes of the United Nations as expressed in Article 1 of the Charter and the specific powers of the Security Council in Articles 39 and 41. These powers are wide enough to empower the Security

193

194

Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986, adopted 21 March 1986, not yet in force, 25 ILM 543, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/ 1_2_1986.pdf (last visited 21 January 2007). See also ibid., Articles 35 and 36. Nouwen notes, moreover, that the view that every treaty concluded by the UN SecretaryGeneral on behalf of the UN, authorised by the UN Security Council, can be considered a treaty to which all member States are parties, would be difficult to reconcile with the independent international personality of the UN. “The UN is more than the sum of its members and the organization ‘occupies a position in certain respects in detachment from its Members’.” See Nouwen, supra note 15, p. 657. See also Frulli, supra note 15, p. 1124 who notes that instead of being actual parties to the Special Court Agreement, UN member States are merely third parties thereto, as the agreement is binding on the UN organisation itself and not its members. See supra note 170, p. 2.

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Council to initiate, as it did by Resolution 1315, the establishment of the Special Court by Agreement with Sierra Leone,195

the legal basis of the SCSL is the Special Court Agreement and not a UN Security Council Chapter VII resolution. The SCSL Appeals Chamber reached the same conclusion, notwithstanding its confusing dicta concerning this issue. The language of UN Security Council resolution 1315 does not indicate that the UN Security Council intended to adopt the resolution under Chapter VII, nor that it intended to be binding on UN member States. The UN Secretary-General’s own report emphasi-sed the absence of Chapter VII powers in connection with the SCSL.196 Accordingly, neither a literal nor purposive interpretation leads to the conclusion that the legal basis of the SCSL can be pigeonholed into one of the pre-recognised legal bases of an international criminal judicial body. Accordingly, our attention is drawn to the second option, which involves the recognition of a new legal basis of an international criminal judicial body, i.e. the establishment of an international criminal judicial body by way of an agreement between the UN and one or more States. (b) The development of a new legal basis of an international criminal judicial body – establishment by way of agreement between the UN and one or more States The establishment of an international criminal judicial body by way of an agreement between the UN and one or more States is a novel concept. One could argue that although traditionally the only recognised legal basis of an international criminal judicial body was an international treaty between two or more States, another legal basis has, over time, gained acceptance. It is now recognised that the legal basis of an international criminal judicial body can also be a UN Security Council Chapter VII resolution; so is it really such a leap to the recognition of an agreement between the UN and one or more States as the legal basis of an international criminal judicial body? In the author’s opinion, the answer is no, relying on the conclusions of the SCSL Appeals Chamber in the Fofana Decision. The UN Charter arguably permits the establishment of an international criminal judicial body “for the prevention and removal of threats to the peace”. If the UN Security Council can directly establish an ad hoc international criminal judicial body by way of a UN Security Council Chapter VII resolution, then there is arguably no legitimate argument against the establishment of such a body by way of an agreement between the UN and a State, where the UN Security Council specifically requests the UN Secretary-General to conclude such an agreement – particularly, if in doing so, the UN Security Council is acting in accordance with its Chapter VII powers.197 195 196 197

See supra note 3, § 37. See supra note 39, p. 3, § 10. As mentioned above, although UN Security Council resolution 1315 does not, when requesting the UN Secretary-General to negotiate an agreement with the Government of

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However, in the author’s view, it is unlikely that a ‘truly’ international criminal judicial body on par with the ICC would, in the future, be established in the same manner, due to the principle of State sovereignty and the rights such principle seeks to protect. It should be borne in mind that the SCSL is a hybrid criminal judicial body, with international and domestic elements, so it cannot necessarily be expected that its legal basis be identical to an international criminal judicial body. (IV) Legal Basis of an International Criminal Judicial Body – An Amendment to the UN Charter Another potential legal basis for the establishment of an international criminal judicial body is an amendment to the UN Charter specifically establishing such a judicial body. While such a route is theoretically possible, it is an unwieldy procedure, as any amendment to the UN Charter requires adoption by a vote of 2/3rds of the members of the UN General Assembly and ratification in accordance with their respective constitutional processes by 2/3rds of the members of the UN, including all the permanent members of the UN Security Council.198 Moreover, it is unlikely that it will ever be employed, bearing in mind the other legal bases which can be relied upon. (V) Legal Basis of an International Criminal Judicial Body – A Resolution of the UN General Assembly During UN Security Council discussions on the course of action to be taken in the former Yugoslavia, some States199 had suggested that the UN General Assembly – which consists of all the members of the UN, and hence is the most representative body of the UN – should play a role in the establishment of the ICTY.

198

199

Sierra Leone to create and independent special court, specifically State that in doing so it is acting under its Chapter VII powers, the resolution does refer to the situation in Sierra Leone constituting a threat to international peace and security, which is the language of Chapter VII. The author is not in agreement with Nouwen, who posits, without substantiating the same, that the legal nature of a judicial body is international (without more) if it is established by way of an agreement between an international organisation and a State. See Nouwen, supra note 15, p. 650. See Article 108, UN Charter, supra note 100. The ILC, in discussing the potential legal basis of the ICC, also considered whether the ICC should be established by way of an amendment to the UN Charter: “While recognizing the practical difficulties of… [this] approach, some members were not prepared to rule out the possibility of an amendment to the Charter which would make the draft statute an integral part of the Charter, like the Statute of the ICJ, with binding effect on all Member States when the requirements for its entry into force had been met.“ See Report of the International Law Commission on the work of its forty-sixth session, 2 May - 22 July 1994, supra note 168, § 52. However, this approach was, eventually, rejected due to the cumbersome nature of the procedure. See Dugard, supra note 168, p. 340. E.g. Brazil, France and Mexico. See the submissions of their representatives at U.N. Docs A/47/922-S/25540, S/25266 and S/25417, respectively. For an overview of the disadvantages involved in the participation of the UN General Assembly in the preparation of the ICTY Statute, see Morris and Scharf, supra note 94, Vol. I., pp. 40–42.

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However, these suggestions envisaged that the UN General Assembly should participate in the drafting and/or reviewing of the Statute, and did not envisage that the Statute should be adopted, or that the ICTY should be established by the UN General Assembly.200 In any event, the UN General Assembly has no authority to do so, as it cannot adopt binding resolutions.201 The ILC, in discussing the potential legal basis of the ICC, also considered whether the ICC should be established by way of a resolution of the UN General Assembly. However, this was rejected due to concerns about “whether such a resolution of a recommendatory nature would provide a sound legal basis for the establishment of a criminal court, and in particular the exercise of powers against individuals, and whether such an institution could be viewed as a subsidiary organ performing the functions entrusted to the Assembly under the Charter“.202 Accordingly, the Trial Chamber’s assessment in the Tadiü Jurisdiction Appeal decision, that the Accused’s submission that the UN General Assembly should have been involved in the creation of the ICTY can only have meaning, if what is suggested is the creation of the ICTY by way of an amendment to the UN Charter, is accurate.

200

201 202

The UN General Assembly played a role in the establishment of the Extraordinary Chambers of the Courts of Cambodia, see infra section 4.6.2.2. Following a request for assistance in establishing an international tribunal for Cambodia from the First and Second Prime Ministers of Cambodia in June 1997, the UN General Assembly asked the UN Secretary-General to examine such request. When the UN Secretary-General subsequently withdrew from negotiations with the Cambodian Government, due to concerns that the judicial body to be established would not be independent and would not ensure international standards of justice, the UN General Assembly requested the UN Secretary-General to resume negotiations. The UN General Assembly later approved the draft Agreement between the UN and the Royal Government of Cambodia concerning the Prosecution of Crimes Committed During the Period of Democratic Kampuchea and urged the UN Secretary-General and the Cambodian Government to take all measures necessary to allow the Agreement to enter into force. Despite its significant involvement in the establishment of the Extraordinary Chambers of the Courts of Cambodia, a UN General Assembly resolution did not establish the Extraordinary Chambers of the Courts of Cambodia. The legal basis of the Extraordinary Chambers of the Courts of Cambodia is the Agreement between the UN and the Royal Government of Cambodia concerning the Prosecution of Crimes Committed During the Period of Democratic Kampuchea. See infra section 4.6.2.2 and Cesare P. R. Romano, André Nollkaemper, and Jann K. Kleffner (eds.), Internationalized Criminal Courts and Tribunals, Sierra Leone, East Timor, Kosovo and Cambodia, Oxford University Press, Oxford, 2004, pp. 15-20. See also Morris and Scharf concerning the proper balance between the functions of the UN General Assembly and the UN Security Council, supra note 94. See Report of the International Law Commission on the work of its forty-sixth session, 2 May -22 July 1994, § 52 and Dugard, p. 340, both supra note 168.

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4.5.4.3 An International Criminal Judicial Body may not be Part of the Judiciary of One Single State This criterion was identified by Nørgaard and Brownlie makes an implied reference to it. Professor Sands also considered this an important criterion, noting that the SCSL is established outside the Sierra Leonean national court system and that it has primacy over the Sierra Leonean courts. Moreover, Professor Orentlicher and the Appeals Chamber of the SCSL considered this to be crucial to the categorisation of the SCSL as an international criminal judicial body. Clearly, an international criminal judicial body cannot be part of the judiciary of one single State. In the author’s view, this is a fundamental criterion of an international criminal judicial body. It needs to be independent of all national legal systems. As Brownlie notes, “[a] municipal tribunal may apply international law and when it does so is no longer merely an organ of the national system of law: but it is not acting independently of the national system, it is not settling issues between legal persons on the international plane and its jurisdiction does not rest on agreement on the international plane.”203 How does this criterion sit with the concept of hybrid criminal judicial bodies which have both international and national elements? Care should be taken not to confuse the issue at hand. The fact that a judicial body is empowered to apply both international and national law does not mean that such body is part of the judiciary of a particular State. Moreover, just as domestic judicial bodies can apply international law, international judicial bodies can apply domestic law, where their constitutive documents direct them to do so. Prior to the establishment of the hybrid criminal judicial bodies, examples of the latter were uncommon, but not completely unheard of.204 As will be seen below, many of the hybrid criminal judicial bodies considered below cannot be categorised as international criminal judicial bodies precisely because they fall foul of this criterion, notwithstanding the presence of many ‘international’ elements. 4.5.4.4 An International Criminal Judicial Body Shall Apply International Criminal Law Tomuschat, amongst others,205 specifically requires that the judicial body makes its decisions in accordance with law or by applying predetermined legal rules. Clearly, this is a requirement of any judicial body, whether international or not. With respect to international judicial bodies, Hudson noted in 1944, that “[a]ny 203 204

205

See Brownlie, supra note 36, pp. 675–676. See Manley O. Hudson, International Tribunals, Past and Future, Carnegie Endowment for International Peace and Brookings Institution, Washington, 1944, pp. 103–104. Hudson refers to the Convention for settlement of difficulties arising from the operation of a smelter at Trail B.C., between the United States of America and Canada, dated 15 April 1935, Article IV of which directed the tribunal constituted under the agreement to apply the law and practice followed in the USA, as well as international law and practice. See also Bosnek, Brower, Brownlie, Mosler, Nørgaard and Romano.

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international tribunal meriting characterization as such must function within established judicial limitations and must apply international law”.206 Although the constitutive documents of international criminal judicial bodies do not specifically require that the relevant international criminal judicial body makes its decisions in accordance with law, this is an implied requirement. This is particularly apparent from the manner in which such constitutive documents define the jurisdiction ratione materiae and applicable law of the particular international criminal judicial body, as well as the general principles of criminal law which are to be applied by such judicial body.207 In the context of international criminal judicial bodies, the criterion that a judicial body must apply international law, should be amended to provide that an international criminal judicial body must, more specifically, apply international criminal law. This is one of the fundamental criteria which must be fulfilled in order for a judicial body to be classified as an international criminal judicial body.208 The existence of hybrid criminal judicial bodies begs, however, the question of whether this fundamental criterion should be interpreted as excluding judicial bodies that apply both international and national criminal law. There is no evidence of support of this proposition, but that is hardly surprising, considering that hybrid criminal judicial bodies are a recent invention. In the author’s mind, there is no objection, in principle, to the classification of a hybrid criminal judicial body as an international criminal judicial body, on the grounds that it applies both international and national criminal law. As mentioned above, the fundamental criteria identified herein are intended as a source of guidance in the context of the discussion relating to the lifting of immunity from prosecution for core international crimes in international law. Once the judicial body in question applies international criminal law in determining whether an accused is entitled to immunity from prosecution for core international crimes and in determining his guilt, or otherwise, then the fact that it can also apply domestic criminal law, is in the author’s view, ire-levant and should not prevent it from being classified as an international criminal judicial body for this purpose. 4.5.4.5 The Jurisdiction Ratione Materiae and Ratione Personae of the International Criminal Judicial Body Must be International Nørgaard explains this criterion, identified in the context of his consideration of international judicial bodies, by stating that the jurisdiction of the tribunal must not be limited, i.e. “it shall exceed the jurisdiction which one single State itself can confer upon its municipal tribunals”. Clearly, if the jurisdiction of a criminal judicial body equates to that of an ordinary domestic criminal judicial body, then there 206 207 208

See Hudson, supra note 204, p. 99. For example, see ICC Statute, supra note 2, Articles 6–8, 21 and 22–33. Nouwen posits, in the context of the SCSL, that inter alia the law applied by the SCSL does not determine the legal nature of the SCSL. See Nouwen, supra note 15, pp. 649–650.

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is no justification for categorising that body as an international criminal judicial body. It remains a domestic criminal judicial body. This criterion could be more specifically interpreted as requiring that the judicial body in question have jurisdiction over core international crimes, as defined under international criminal law and such judicial body applies international criminal law in determining the guilt or innocence of the accused. This is clearly a fundamental criterion of an international criminal judicial body. If a judicial body applies domestic law or exercises its jurisdiction in accordance with domestic law in determining the guilt or otherwise of the accused, then the jurisdiction of such body is domestic. This is the case notwithstanding that such judicial body applies a domestic law which has been passed, in order to implement into domestic law, a State’s obligations under international criminal law. In such a case, the jurisdiction of such body would not exceed the jurisdiction which the State concerned could confer upon its domestic judicial bodies. As regards jurisdiction ratione personae, international criminal law tends to focus its efforts on the ‘big fish’ or persons who bear the greatest responsibility for the crimes in question. Accordingly, where a judicial body primarily has jurisdiction over those with the greatest responsibility, then it is indicative of the existence of an international criminal judicial body. As noted above, the fact that the jurisdiction ratione materiae and ratione personae of the SCSL was similar to that of the ICTY, ICTR and ICC was considered to be significant by Professor Sands and the SCSL Appeals Chamber in the classification of the SCSL as an international criminal judicial body. How does this jurisdiction ratione materiae and ratione personae criterion sit with hybrid criminal judicial bodies? Such bodies often have jurisdiction over crimes defined in both international law and domestic law and over accused irrespective of whether or not they are the main perpetrators of the crimes in question or nationals of the State concerned, or whether or not they are present on the territory of the State to which they have a connection.209 Accordingly, such bodies frequently exceed the jurisdiction which the relevant State can confer upon its own domestic criminal bodies. Is it of relevance that they also have jurisdiction over crimes and persons defined in their own national law, and that in exercising jurisdiction in relation to the same, they would not be exceeding the jurisdiction which the relevant national State could confer upon its municipal tribunals? Essentially, is this criterion unfulfilled if the jurisdiction of the judicial body concerned is international and national, as opposed to just international? In the author’s view, the answer should be in the negative. Once the judicial body’s jurisdiction ratione materiae and ratione personae is international, then it should be irrelevant whether its jurisdiction is solely international or both international and national. As mentioned above, the fundamental criteria identified herein are intended as a source of guidance in the 209

Although such bodies may have jurisdiction over accused that are not nationals of the State to which the hybrid criminal judicial body has a connection and over accused which are not present in the State’s territory, this does not mean that such bodies can automatically demand that another State, where the accused is residing, hand the accused over for prosecution.

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context of the discussion relating to the lifting of immunity from prosecution for core international crimes in international law. Once the jurisdiction of the judicial body when considering this question is international, then the fact that it also can apply domestic law, should not prevent it from being classified as an international criminal judicial body. 4.5.4.6 The Decisions of the International Criminal Judicial Body are Binding This criterion has been identified by a number of scholars.210 It is a fundamental criterion of an international criminal judicial body that it renders decisions that are binding. The constitutive documents of such body need not specifically declare that its decisions are binding. Once ordinary judicial powers have been conferred on the body, its decisions will be binding in nature.211 4.5.4.7 The Judiciary of an International Criminal Judicial Body is Impartial, Independent and International212 One criterion which is identified by the majority of scholars, who have expressed a view on this issue, is that of the independence and impartiality of the judiciary. Clearly, the judges of an international criminal judicial body must fulfil this criterion. A judge could not be independent, if he let his decisions be influenced by his own Government or a party to a dispute. As regards international criminal judicial bodies such as the ICC, ICTY, and ICTR, there should be little danger of the parties, before such judicial bodies, influencing the judiciary for two reasons. Firstly, the parties to the dispute are not States, but a prosecutor and the accused individual. It is questionable how much influence a single individual could bring to bear on the judiciary. Secondly, the judges that staff international criminal judicial bodies are international legal professionals, which have no connection to the case before them. The hybrid criminal judicial bodies are more likely to fall foul of this criterion, as they have some national judges sitting on the bench. Of course, it must be assumed as a starting point, that the national judges that serve on the benches of 210 211 212

See Tomuschat, Mosler, Boczek and Romano. See Hudson, supra note 204, p. 124. For a review of the factors taken into account in the selection of the members of international tribunals, at least in the 1940’s, e.g. moral integrity, nationality, profession, command of languages, age and economic and social outlook, see Hudson, supra note 204, pp. 32–47. See also generally, Chester Brown, “The Evolution and Application of Rules Concerning Independence of the “International Judiciary””, 2 The Law and Practice of International Courts and Tribunals 63 (2003), Gilbert Guillaume, “Some Thoughts on the Independence of International Judges vis-á-vis States”, 2 The Law and Practice of International Courts and Tribunals 163 (2003) and Shimon Shetreet, “Standards of Conduct of International Judges: Outside Activities”, 2 The Law and Practice of International Courts and Tribunals 127 (2003).

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hybrid criminal judicial bodies are independent and impartial. However, one could imagine how such judges could be less independent and impartial than their international colleagues, particularly if they have been personally affected by the conflict at hand. Moreover, if the accused was a previous state official, the national judges trying him may have their judgment clouded by their own prejudices as to whether such accused is guilty or not, or may feel pressure from the sitting government, to find an accused not guilty, if that is the finding such government or the national population desire. While certain rules could attempt to ensure the independence and impartiality of the judiciary by, for example, requiring that judges with a personal connection to the case before them, not hear such case,213 it could, however, prove difficult to assess the independence and impartiality of each individual judge in practice. Finally, is there a requirement that the majority of judges on the bench of an international criminal judicial body are international (i.e. non-national) judges? In the author’s opinion, no. However, the presence of numerous international judges on the bench of a judicial body emphasises its international character. 4.5.4.8 The Judiciary must not have been Appointed Ad Hoc by the Parties Romano suggested this criterion in the context of his discussion concerning international judicial bodies, his concern being that the judges should be appointed on an impartial basis before the dispute is heard by the court. This criterion is clearly only relevant in the context of disputes between States, where States have the option of appointing some of the judges. In international criminal judicial bodies, the judiciary is not appointed, elected or relieved of their duties by either the prosecutor or the accused individuals, so in this sense, this criterion has no role to play in the context of the defining criteria of an international criminal judicial body. However, the idea that the judges should be appointed on an impartial basis before a case is heard is also clearly relevant to international criminal judicial bodies. Nørgaard’s requirement that the parties in a case shall each have the right to have a judge of their own nationality on the bench is similarly inapplicable in the context of international criminal judicial bodies, as the parties have no right to demand that a judge of their own nationality sit on the bench. 4.5.4.9 Adjudication According to a Pre-Determined Set of Rules of Procedure and Evidence, which cannot be Modified by the Parties This criterion has been specified by a number of scholars.214 It clearly has its origins in the traditional understanding of an international judicial body which determines 213

214

For instance, if the accused, as the leader of a rebel organisation, is thought to be responsible for the death of a relative of a sitting judge, as well as being responsible for the crime of which he is accused. See Tomuschat, Boczek and indirectly Mosler.

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a dispute between two States, the concern being that States should not be permitted to change the rules applicable in the dispute before the relevant judicial body. It is very common for international criminal judicial bodies to have pre-determined rules of procedure and evidence. The parties appearing before an international criminal judicial body have no authority to amend the relevant body’s rules of procedure and evidence.215 While the fulfilment of this criterion indicates that a judicial body possibly can be classified as an international criminal judicial body, in the author’s view, it is not a fundamental criterion of an international criminal judicial body. Moreover, based on current practice, it is unlikely that an international criminal judicial body would be established, in the future, without appropriate rules of procedure and evidence being drawn up. 4.5.4.10 Relationship with the Domestic Courts of a State: Concurrent/Primacy or Complementarity Jurisdiction A matter, which is related to the criterion that an international criminal judicial body may not be part of the judiciary of one single State, is that of the relationship between the proposed international criminal judicial body and the domestic courts of States. In the Taylor Decision, Sands specifically noted that the SCSL has concurrent jurisdiction with and primacy over the Sierra Leonean courts. Is it a fundamental criterion of an international criminal judicial body that it has concurrent and/or primacy over the domestic courts of a particular State or States in general? The ICTY and ICTR have concurrent jurisdiction with national courts, but they also have primacy over national courts, where both national courts and the ICTY/ ICTR seek to exercise jurisdiction.216 On the other hand, the jurisdiction of the ICC “is complementary to national criminal jurisdictions”,217 the ICC only assuming jurisdiction if the State in question is unwilling or unable genuinely to carry out an investigation or prosecution, or where a State’s decision not to prosecute an accused resulted from the unwillingness or inability of the State to genuinely

215

216 217

Although amendments to the ICC Rules of Procedure and Evidence (available at http://www.icc-cpi.int/about/Official_Journal.html (last visited 17 July 2007)), may, for example, be proposed by the ICC Prosecutor, a party appearing before the ICC, he has no authority to amend such rules. Any amendments thereto only enter into force upon adoption by a two-thirds majority of the members of the Assembly of State Parties. See Article 51(1), ICC Statute, supra note 2. The accused has no right to propose an amendment to the ICC Rules of Procedure and Evidence. Other than the ICC Prosecutor, any State party or the judges of the ICC, acting by an absolute majority, can also propose amendments to the ICC Rules of Procedure and Evidence. See ICTY Statute, supra note 84, Article 9 and ICTR Statute, supra note 86, Article 8. See ICC Statute, supra note 2, Article 1. See Sands, supra note 20, pp. 40–42 for a discussion on the policy reasons underlying the differences in approach at the ICTY/ICTR and the ICC.

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prosecute.218 In the case of the ICC, delegates specifically rejected the concurrent/primacy approach.219 In the author’s view, it is not a fundamental criterion of an international criminal judicial body that such body has concurrent and/or primacy over the domestic courts of a particular State, or that its jurisdiction is complementary to national courts. Clearly though, where a criminal judicial body has primacy over domestic courts, or its jurisdiction is complementary to domestic courts, it can be indicative of the international criminal judicial body status of such body. Moreover, it is clear that international criminal judicial bodies must have some higher authority over the domestic courts of a State or States, in order to be effective.220 4.5.4.11 Independent Financing of the International Criminal Judicial Body In order for a judicial body to be an international criminal judicial body, it is preferable that it not be financially dependent on a particular State for its existence.221 This would be the case, where the judicial body is solely financed by the State where the crimes were committed, particularly if the persons on trial are current or former State agents. There is a danger that the judiciary and prosecutor would be pressurised by outside influences in their decision-making processes. Of course, to avoid any potential pressure being placed on either the prosecutor or the judiciary of an international criminal judicial body as a result of financial backing, the optimal solution would be that the State, of which the accused is a national, does not make any financial contribution to such body. However, such a stringent approach does not reflect the reality of international criminal judicial bodies and, moreover, is not absolutely necessary. The ICC, for example, is 218 219

220

221

See ICC Statute, supra note 2, Article 17. See John T. Holmes, “Complementarity: National Courts versus the ICC”, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, Vol. I, p. 672. Reference is made to the domestic courts of a State or States, because depending on the circumstances at hand, an international criminal judicial body may be ‘superior’ to the domestic courts of one State or a number of States. For example, if the crimes committed only concern one particular State or each of the accused are nationals of one State, an international criminal judicial body established to adjudicate such crimes or persons may only be endowed, for example, by way of the international treaty establishing it, with primacy over the domestic courts of such particular State. However, international criminal judicial bodies established by way of a UN Security Council Chapter VII resolution have primacy over the domestic courts of all UN States, if specified in the statute of the international criminal judicial body concerned. In the context of international judicial bodies, Hudson was not in favour of the suggestion that a permanent court should be made financially independent of the States which may appear before it as litigants. He argued that a permanent court is only useful if it is used and “it is more likely to be used if States have a continuing responsibility for meeting its financial needs and the fresh interest which a discharge of the responsibility is likely to engender.” See Hudson, supra note 204, p. 66.

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funded by way of assessed contributions made by State parties to the ICC Statute and funds provided by the UN, subject to the approval of the UN General Assembly. Moreover, the ICC may receive and employ, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities.222 Even if state agents of a State party to the ICC Statute were to come before the ICC, there would not be any immediate prejudice, notwithstanding that such State partially funds the costs of the ICC by way of its assessed contribution. 4.5.4.12 Fulfilment of the Criteria Associated with Classical International Organisations 223 Professor Sands noted in his Amicus Curiae Brief that the SCSL fulfils the criteria associated with classical international organisations, thereby suggesting that this should be a defining criterion of an international criminal judicial body. The SCSL Appeals Chamber also relied on this criterion and reached the same conclusion as Sands concerning the SCSL.224 Criteria associated with classical international organisations include the following: (i) the premises and archives of the entity are inviolable and its property, funds and assets are immune from interference; (ii) it has the juridical capacity to enter into agreements with States, as may be necessary for the exercise of its functions; (iii) its judges, prosecutor and registrar enjoy privileges and immunities in accordance with the 1961 Vienna Convention on Diplomatic Relations; and (iv) it has an autonomous will distinct from that of the persons/entities that established it. Professor Sands Amicus Curiae Brief and the SCSL in the Taylor Decision were the first to identify the fulfilment of the criteria associated with classical international organisations, as a defining criterion of an international criminal judicial body. In the author’s view, while a judicial body which lacks such characteristics would arguably have difficulties in functioning as an autonomous judicial body, such criterion only warrants categorisation as an indicative criterion of an international criminal judicial body. 4.5.4.13 Existence of Chapter VII Powers As noted above, at the time the ICTY was established, it was considered groundbreaking that an international criminal judicial body could be established by way of a UN Security Council Chapter VII resolution, instead of by way of the traditional method of an international treaty. It is interesting that within the past decade this discussion has come full circle. In the Taylor Decision, the SCSL Appeals Chamber specifically considered whether the presence or absence of Chapter VII powers defined the legal status of the SCSL. Instead of having to defend the 222 223 224

ICC Statute, supra note 2, Articles 115 and 116. See generally Kenneth S. Gallant, “The International Criminal Court in the System of States and International Organizations”, 16 Leiden J. Int’l L 553 (2003). See also in this regard, Frulli, supra note 15, p. 1123.

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Chapter VII legal basis of an international criminal judicial body, the tables have turned, so that the focus is now on attempting to prove that the legal basis of a judicial body is a UN Security Council Chapter VII resolution, and where this cannot be proved, on disproving the perceived requirement that an international criminal judicial body must have Chapter VII powers (which is what happened in the Taylor Decision). In the Taylor case, one of the Defence’s preliminary motions was that the SCSL does not have Chapter VII powers and therefore its judicial orders “have the quality of judicial orders from a national court”.225 The Prosecution rejected this statement outright, noting that the lack of Chapter VII powers did not affect the SCSL’s jurisdiction over a Head of State.226 Professor Sands’ Amicus Curiae Brief specifically discussed this issue noting that had the SCSL been established under Chapter VII, then … undoubtedly its acts… would be legally enforceable to the extent that it could be said that they were giving effect to the will of the Security Council. That said, Chapter VII is not a sine qua non for obligations to arise from Security Council action: in our submission Chapter VII powers may not be relevant at all to the question of the Court’s exercise of jurisdiction… or that such a Chapter VII basis is necessarily required in order for the Special Court to be able to enforce cooperation with third States.227

Professor Orentlicher also discussed this issue, noting that as regards determining whether the SCSL is an international criminal judicial body, it is significant that the SCSL was established pursuant to a mandate of the UN Security Council and that there “is no reason to suppose that the Security Council’s authority to act on behalf of UN Member States in the performance of its responsibilities is confined to actions taken under Chapter VII of the UN Charter”.228 Finally, the SCSL Appeals Chamber in the Taylor Decision noted that much issue had been made of the absence of Chapter VII powers in the SCSL. The language and contents of the decision indicate that the SCSL Appeals Chamber tried strenuously to determine that the legal basis of the SCSL was a UN Security Council Chapter VII resolution. In the end, it determined that a “proper understanding of those powers shows that the absence of the so-called Chapter VII powers does not by itself define the legal status of the Special Court”.229 In the author’s view, it is not a fundamental criterion of an international criminal judicial body that it be endowed with Chapter VII powers. The absence or otherwise does not affect the classification of a judicial body as an international criminal judicial body. Such issue is relevant as regards a judicial body’s ability to

225 226 227 228 229

Taylor Decision, supra note 3, § 6 (emphasis added). Ibid., § 9. See supra note 4, § 75. See supra note 4, p 19. See Taylor Decision, supra note 3, § 38.

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enforce its orders, for example, requesting the cooperation of another State.230 Nonetheless, the endowment of Chapter VII powers on a criminal judicial body is indicative of the classification of such body as an international criminal judicial body. 4.5.4.14 Intention of the Parties to Establish an International Criminal Judicial Body Nørgaard identifies as a general characteristic of an international tribunal that the parties intended to establish an international tribunal. Applied in the context of international criminal judicial bodies, this would require that the parties intended to establish an international criminal judicial body. Taken literally, this criterion would exclude all the hybrid criminal judicial bodies from classification as international criminal judicial bodies. The whole thinking behind the hybrid criminal judicial bodies, also referred to as the ”third generation of criminal bodies,”231 was precisely that they would not be like the ICTY and ICTR and their structure was intended to circumvent some of the perceived problems with the ad hoc international criminal tribunals. There was never an intention to establish (solely) international criminal judicial bodies, but an intention to establish hybrid criminal judicial bodies that apply both international and domestic criminal law. Does having the intention to establish an international criminal judicial body exclude an intention to establish a hybrid criminal judicial body? At first glance, the answer is arguably yes. However, one could also argue that such a literal interpretation is too strict. In establishing hybrid criminal judicial bodies, there was an intention to create a mixed international and national court and the presence of the latter intention should not, arguably, automatically result in this criterion not being fulfilled. In this regard, it is interesting to note that in determining whether the SCSL was an international court or not, Professors Sands and Orentlicher and the SCSL Appeals Chamber considered it noteworthy that the intention existed to create an independent court, which was not a part of any legal system, either UN administrative law or the domestic legal system of Sierra Leone and that the UN Security Council 230

231

Despite initial concerns as regards the establishment of an international criminal judicial body by way of a UN Security Council Chapter VII resolution, for the purposes of the international rules concerning the lack of immunity in relation to core international crimes, it is clear that it is preferable that an international criminal judicial body be established by way of a UN Security Council Chapter VII resolution, where the statute of such body removes immunity for international crimes. Such resolution is binding on all UN States, whereas the statute of an international criminal judicial body established by way of an international treaty, including any provision therein denying a Head of State of immunity, is generally only binding on the parties thereto. See infra section 4.7. See Project on International Courts and Tribunals, “Hybrid Courts”, available at http://www.pict-pcti.org/courts/hybrid.html (last visited 12 December 2006). The IMT and IMTFE are considered to be the first generation of international criminal judicial bodies, while the ICTY, ICTR and ICC are considered to be the second generation of international criminal judicial bodies.

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intended the SCSL to have a jurisdiction that was generally analogous to that of the ad hoc criminal tribunals. While not determining outright that the intention was to create an international criminal judicial body, much focus was placed on the evidence emanating from various constitutive documents of an intention not to create a national criminal judicial body and the fact that the SCSL is not part of the domestic legal system of Sierra Leone. An intention not to create a national criminal judicial body is, of course, not the same as the existence of an intention to create an international criminal judicial body. The fact that a judicial body is not a domestic judicial body does not automatically make it an international judicial body and this is certainly the case with hybrid criminal judicial bodies which, as their name indicates, are hybrid bodies. In the light of the establishment of the third generation of criminal bodies, in the author’s view, this criterion should be interpreted broadly, so that it is satisfied both where there was an intention to create both a solely international criminal judicial body and a mixed international and national criminal judicial body. This criterion should not, in the author’s view be fundamental, but should be treated as an indicator of the establishment of an international criminal judicial body. Judicial institutions evolve over time and the fact that a criminal judicial body was not at the time of its inception intended to be an international criminal judicial body or an international-national criminal judicial body, should not prevent it from being considered so in the future, once the fundamental criteria of such institutions are fulfilled in every other respect. 4.5.4.15 Designation of a Judicial Body as International Nørgaard identifies as a general characteristic of an international tribunal that it be designated as international. While the designation of an international criminal judicial body as international could be an indicator of its status as an international criminal judicial body, it should not, in the author’s view be a fundamental criterion. As a starting point, it would automatically exclude all hybrid criminal judicial bodies, as they are specifically not designated as international in nature, but as hybrid. Moreover, the author is in agreement with Manley O. Hudson, that “[t]he duty to apply international law is not dependent on the title given to it, nor upon the terms employed in describing its functions”.232 4.5.4.16 Express Lifting of Immunity from Prosecution for Core International Crimes Is the criteria that there exist an express provision in the constitutive documents of the judicial body under review denying Heads of States and Heads of Government immunity from prosecution for core international crimes a fundamental criterion of an international criminal judicial body? In the author’s view, the answer should be in the negative. The absence or presence of such a provision does not define an 232

See Hudson, supra note 204, p. 99.

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international criminal judicial body. A judicial body can be classified as an international criminal judicial body in the absence of such a provision. However, the absence or presence of such a provision has a bearing on whether an international criminal judicial body has jurisdiction over a Head of State etc. accused of international crimes. As the ICJ noted in the Yerodia case, notwithstanding the immunities enjoyed under international law, an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before “certain international criminal courts, where they have jurisdiction”. It did not state that such immunity disappears before all international criminal judicial bodies, only certain international bodies and furthermore that the conduct of criminal proceedings is subject to the additional proviso that the international criminal judicial body concerned has jurisdiction. Notwithstanding that this criterion is not a fundamental criterion of an international criminal judicial body, it is one of the indicia of an international criminal judicial body. 4.5.4.17 Does an International Criminal Judicial Body have to be Permanent ? Romano has interpreted the criteria that an international court/tribunal must be permanent as meaning, that “its existence must be independent from the vicissitudes of a given case.”233 In the author’s view, the fulfilment of such criteria should not be determined to be a fundamental criterion of an international criminal judicial body. The only current international criminal judicial body that is permanent is the ICC.234 Both the ICTY and ICTR are temporary bodies, as well as each of the hybrid criminal judicial bodies. 4.5.4.18 Jurisdiction Between States and the Equality of the Parties Nørgaard suggests as one criterion of an international tribunal, that the tribunal shall have jurisdiction in cases between States, while Romano identifies as an additional criteria of an international judicial body that it must decide disputes between two or more entities, of which at least one is a sovereign State or an international organisation. While such criteria are relevant in the context of a traditional international judicial body, they have no role to play in the context of international criminal judicial bodies. The main purpose behind the contemporary international criminal judicial bodies and hybrid criminal judicial bodies is to 233 234

See supra note 17, p. 714. This criterion has also been identified by Tomuschat. Of course, permanency in this context does not mean ‘everlasting’. The international treaty establishing the ICC could be terminated one day, dissolving the ICC. No deadline has been set by which the ICC must complete its work, whereas the UN Security Council has requested the ICTY and ICTR to complete their work in 2010. See S.C. Res. 1503, U.N. SCOR, 58th Sess., 4817th mtg., U.N. Doc. S/RES/1503 (28 August 2003) and S.C. Res. 1534, U.N. SCOR, 59th Sess., 4935th mtg., U.N. Doc. S/RES/1534 (26 March 2004).

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ensure that individuals - as opposed to States - are held criminally responsible for the crimes falling within the subject-matter jurisdiction of the relevant international or hybrid criminal judicial body. They do not have jurisdiction in cases bettween States. Accordingly, this criterion has no role to play in the analysis of the fundamental criteria of an international criminal judicial body. Likewise, Mosler’s requirement of the equality of the parties in the application of the law and in the proceedings of the court applies, as noted by Mosler himself, only to inter-State disputes. Accordingly, it has no relevance to the current analysis. Boczek’s requirement of equality between the parties can also be disregarded on the same ground. Finally, the identification by Brower of the criteria that an international judicial body shall determine a dispute between “controlling parties who possess international legal personality” or “between legal persons on the international plane” is problematic in the context of individual criminal bodies which adjudge the criminal liability of individuals. Even if it were accepted to interpret ‘dispute’ to include a criminal prosecution of an individual, the answer as to whether the individual being tried is a “legal person on the international plane” is not straightforward. The status of the individual as a subject of international law is a source of disagreement and would depend on which theory of the individual as a subject of international law is supported.235 235

For a comprehensive synopsis of the various theories put forward in relation to this subject, see Nørgaard, supra note 7, pp. 34–77. See also Alexander Orakhelashvili, “The Position of the Individual in International Law”, 31 Cal. W. Int’l L. J. 241 (2001). Three general theories have been put forward: (i) Only States are the subjects of international law (advocated inter alia by Georg Schwarzenberger, Dionisio Anzilotti and Torsten Gihl); (ii) Both States and individuals are the subjects of international law (advocated inter alia by Hersh Lauterpacht, Hans Kelsen, Alfred Verdross, Philip C. Jessup and Alf Ross); and (iii) Only individuals are the subjects of international law (advocated inter alia by Lèon Duguit and Marc Réglade). For some general reading in relation to this topic, see Georg Schwarzenberger, International Law, Stevens & Sons Limited, London, 1957, pp. 139–155; Robert K. Woetzel, The Nuremberg Trials in International Law with a Postlude on the Eichmann Case, Stevens & Sons Limited, London and Frederick A. Praeger Inc., New York, 1962, pp. 96–121; Bin Cheng, “Introduction to Subjects of International Law”; and Antonio Cassese, “Individuals”, both in Mohammed Bedjaoui (ed.), International Law: Achievements and Prospects, Martinus Nijhoff Publishers, Dordrecht/Boston/London and UNESCO, Paris, 1991, pp. 23–40 and pp. 113–120 respectively; Erica-Irene A. Daes, Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities, Freedom of the Individual under Law: A Study of the Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights, UN, New York, 1990, Erica-Irene A. Daes, Special Rapporteur, Status of the Individual and Contemporary International Law: Promotion, Protection and Restoration of Human Rights at National, Regional and International Levels, UN, New York, 1992; Elizabeth Zoller, “International Criminal Responsibility of Individuals for International Crimes”, in The Nuremberg Trial and International Law, George Ginsburgs and V.N. Kudriavtsev (eds.), Martin Nijhoff Publishers, Dordrecht/Boston/ London, 1990 pp. 99–102; and Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1986, pp. 74–104.

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4.5.4.19 The International Criminal Judicial Body Shall have Jurisdiction only in Cases in Which the Parties, Either in General, or by Special Agreement have Accepted the Jurisdiction of the Tribunal This criterion, identified by Nørgaard in the context of international judicial bodies, is again primarily relevant to inter-State disputes. The jurisdiction of an international criminal judicial body is not subject to the parties before it, i.e. the prosecutor and the accused, having accepted its jurisdiction. An issue which is relevant, in the case of treaty-based international criminal judicial bodies, is whether a particular State has accepted the jurisdiction of the body in question. For example, a State party to the ICC Statute automatically accepts the jurisdiction of the ICC.236 A non-State party may also make a declaration of acceptance of the jurisdiction of the ICC in a particular case.237 Therefore, a non-State party which does not make a declaration of acceptance can, in theory, prevent the ICC from claiming jurisdiction over its nationals. So, in this sense, some acceptance of jurisdiction of an international criminal judicial body is required, not however by the parties but by the State of which the accused is a national. However, even a non-State party cannot protect its nationals from the jurisdiction of the ICC. If the State on the territory of which the crime occurred accepts the jurisdiction of the ICC, then the State of which the accused is a national is not required. Thus, one of the reasons that the USA has entered into Article 98 agreements with various States as well as depriving funding to States which would not enter into such an agreement. In the case of the ICTY and ICTR, no acceptance of the jurisdiction of these tribunals by a State is required to prosecute an accused. This, as noted above, is because the legal basis of these international criminal judicial bodies is a UN Security Council Chapter VII resolution. Notwithstanding the above discussion, in the author’s view, this criterion should not be identified as a criterion for the classification of a judicial body as an international criminal judicial body. Whether a State has accepted the jurisdiction of a particular international criminal judicial body or not, is not a defining characteristic of an international criminal judicial body. It is decisive in determining whether such body has jurisdiction over an accused, not whether the body itself can be classified as an international criminal judicial body. 4.5.4.20 Other Potential Criteria/Indicia of an International Criminal Judicial Body The Entity in whose Name the Accused is Being Prosecuted is not a State The entity in whose name the accused is being prosecuted can also be an indicative criterion of an international criminal judicial body. For example, if an in236 237

ICC Statute, supra note 2, Article 12(1). Ibid., Article 12(3).

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dividual is being prosecuted in the name of a particular State, that would indicate that the judicial body before which the accused is being prosecuted is part of the national apparatus of a State and accordingly cannot be classified as an international criminal judicial body. The International Community Undertakes an Active Role in the Establishment and Administration of a Judicial Body As noted above, in the Taylor Decision, the SCSL Appeals Chamber interpreted the statement in UN Security Council resolution 1315 that “the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law”, as a clear indication that the SCSL “was established to fulfil an international mandate and is part of the machinery of international justice”.238 In the author’s view, this statement can be interpreted in a number of ways and accordingly, it does not by itself, indicate the international criminal judicial body status of a judicial body. As will be seen in section 4.6, hybrid criminal judicial bodies, which cannot, in the author’s view, be classified as international criminal judicial bodies, can also be the result of the international community exerting every effort to bring criminals to justice in accordance with international standards of justice, fairness and due process of law. The fact that the international community plays a role in establishing such bodies does not automatically result in the classification of such body as part of the machinery of international justice or as an international criminal judicial body, even where such hybrid criminal judicial body, due to the involvement of international legal professionals and the application of international law etc., results in the criminals being brought to justice in accordance with international standards of justice.239 However, an active role by the international community in the establishment and administration of a judicial body is indicative of the establishment of an international criminal judicial body. Cooperation with States Although an international criminal judicial body may not be part of the judiciary of a State, it should be noted that cooperation between an international criminal judicial body and a State(s) is not prohibited. In fact, such a relationship is indispensable. International criminal judicial bodies do not have their own police or enforcement system. So, they are reliant on the assistance of States as regards the enforcement of their orders, decisions, and judgments, for example, in relation 238 239

See supra note 3, § 39. Of course, the phrase “part of the machinery of international justice” is also open to interpretation. It could be argued that hybrid criminal judicial bodies, which cannot be classified as international criminal judicial bodies, are still part of the machinery of international justice in a broad sense. However, this phrase, considered in context, arguably leads to the conclusion that the Appeals Chamber intended that the phrase have a narrower meaning, i.e. that the SCSL can be classified as an international criminal judicial body.

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to the arrest and transfer of suspects, their detention, witness protection and the enforcement of any sentences handed down. An international criminal judicial body established by way of a treaty cannot require cooperation from a non-party State in the fulfilment of such body’s requests and is, accordingly, very much dependent on the existence of the political will to comply with such requests. However, an international criminal judicial body established by a UN Security Council Chapter VII resolution faces less difficulty in this regard, as all UN member States are obligated to comply with such judicial body’s requests. 4.5.5 Summary of the Fundamental and Indicative Criteria of an International Criminal Judicial Body As discussed above, in the author’s view, the fundamental criteria of an international criminal judicial body, for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes are as follows: 1. The legal basis of the judicial body is either (i) an international treaty between two or more States; (ii) a UN Security Council Chapter VII resolution; (iii) an agreement between the UN and one or more States; or (iv) an amendment to the UN Charter. 2. The judicial body is not part of the judiciary of one single State. 3. The judicial body applies international criminal law. The fact that such judicial body also applies domestic law does not preclude the fulfilment of this criterion. 4. The judicial body’s jurisdiction ratione materiae and ratione personae is international. The fact that such judicial body‘s jurisdiction ratione materiae and ratione personae is also domestic does not preclude the fulfilment of this criterion. 5. The decisions of the judicial body are binding. As noted at the outset, the fulfilment of each of these fundamental criteria is, in the author’s view, required before a judicial body can be characterised as an international criminal judicial body. If just one of these fundamental criteria remains unfulfilled, then the judicial body concerned cannot be characterised as an international criminal judicial body. Other matters which, in the author’s view, can be indicative of an international criminal judicial body, for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes are as follows:240

240

Clearly, not all of the identified indicative criteria carry equal weight. Some criteria are stronger than others, e.g. the fact that a judicial body has Chapter VII powers, carries, arguably, more weight than the designation of a judicial body as international.

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1. The judiciary is independent and impartial, including a requirement that at least some international judges sit on the bench. 2. Adjudication before the judicial body is governed by a predetermined set of rules of procedure and evidence. 3. The judicial body has concurrent jurisdiction with and primacy over national courts or its jurisdiction is complementary to national courts. 4. Independent financing of the judicial body, i.e. the judicial body is not financially dependent on a particular State for its existence. 5. The judicial body fulfils the criteria associated with classical international organisations. 6. The judicial body has Chapter VII powers. 7. The parties establishing the judicial body intended to establish a solely international criminal judicial body or a mixed international-national criminal judicial body. 8. The designation of the judicial body as international. 9. The constitutive documentation of the judicial body contains an express provision denying Heads of State and Government immunity from prosecution for core international crimes.241 10. The entity in whose name the accused is being prosecuted is not a State. 11. The international community undertakes an active role in the establishment and administration of the judicial body. Although the fulfilment of these indicative criteria is not, in the author’s view, absolutely required in order for a judicial body to be characterised as an international criminal judicial body, their fulfilment is useful in underscoring the international criminal judicial body status of the judicial body under review. It is, moreover, likely that international criminal judicial bodies would fulfil many of the indicative criteria as well as the fundamental criteria identified. An international criminal judicial body which satisfies each of the fundamental criteria and as many of the indicative criteria as possible, occupies a superior position within the hierarchy of international criminal judicial bodies.242 For example, as regards pronunciations on international criminal law, a ‘truly’ international criminal judicial body, such as the ICC, has greater ‘status’, than for example a hybrid criminal judicial body, which is, however, determined to be an international criminal judicial body, for the purposes of the rules in international law on the lifting of immunity from prosecution for core international crimes.

241

242

However, all criteria have been listed herein, as each criterion identified, is a valid indicative criterion, albeit that some criteria carry more weight than others. Although this criterion has been categorised as an indicative criterion, it plays a crucial role in determining whether a Head of State or Government etc. is not entitled to immunity before an international criminal judicial body. See infra section 4.7. For a similar argument in relation to the ICJ and mixed arbitral tribunals see Schwarzenberger, supra note 235, pp. 30–31.

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4.6 Analysis of Hybrid Criminal Judicial Bodies243 4.6.1 Introduction Having identified the defining characteristics of an international criminal judicial body, this section analyses the existing hybrid criminal judicial bodies to determine whether such bodies can be characterised as international criminal judicial bodies, for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes. As noted at the outset, the SCSL Appeals Chamber determined that the SCSL was an international criminal court for the purposes of determining whether Charles Taylor, the now former president of the Republic of Liberia, was immune from the jurisdiction of the SCSL. This section inter alia seeks to establish if this determination was correct. A review of the other hybrid criminal judicial bodies in existence today is warranted, as it is conceivable that they may also have to determine whether they are international criminal judicial bodies, for the purposes of the rules in international law on the lifting of immunity from prosecution for core international crimes. To begin with, such analysis will focus on the fundamental criteria identified above, the logic behind such approach being, that if just one of these fundamental criteria remains unfulfilled, the hybrid criminal judicial body concerned cannot be characterised as an international criminal judicial body. Where the fundamental criteria are determined to be fulfilled, consideration will then be given to the indicative criteria identified, to determine which indicative criteria are fulfilled by the hybrid criminal judicial body in question. Whereas the SCSL, Extraordinary Chambers of the Courts of Cambodia, Special Panels for Serious Crimes of the District Court of Dili (East Timor) and the ‘Regulation 64’ Panels of Kosovo are the conventional examples of hybrid criminal judicial bodies, consideration will also be given to the War Crimes Chamber of the State Court of Bosnia and Herzegovina and the Supreme Iraqi Criminal Tribunal. Moreover, the soon to be established STL will also be analysed. 4.6.2 Analysis 4.6.2.1 Special Court for Sierra Leone As noted above, the legal basis of the SCSL is an agreement between the UN and the Government of Sierra Leone, the Special Court Agreement.244 Accordingly, 243

For some general background reading on the SCSL, the Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili (East Timor) and the ‘Regulation 64’ Panels of Kosovo, see Kai Ambos and Mohamed Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg im Breisgau, 2003 and Romano, Nollkaemper, and Kleffner, supra note 200.

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the first fundamental criterion for characterisation as an international criminal judicial body is satisfied. The second fundamental criterion requires that the judicial body is not part of the judiciary of one single State. The SCSL is not established within the court system of Sierra Leone or the national court system of any other country. A number of factors lead to this conclusion. The Special Court Agreement, 2002, Ratification Act 2002 specifically states that the “Special Court shall not form part of the Judiciary of Sierra Leone”.245 In addition, the report of the UN Secretary-General to the UN Security Council clearly emphasises the non-national nature of the SCSL, e.g. the report notes that “[a]s a treaty-based organ, the SCSL is not anchored in any existing system (i.e. United Nations administrative law or the national law of the State of the seat)” and “[l]ike the two International Tribunals [ICTY and ICTR], the Special Court for Sierra Leone is established outside the national courts system”.246 Although, the SCSL and the national courts of Sierra Leone have concurrent jurisdiction, the SCSL has primacy over the national courts of Sierra Leone and it may formally request a national court to defer to its competence.247 Neither are the expenses of the SCSL borne by the regular budget of the Sierra Leonean Government. The SCSL is funded by voluntary contributions from the international community.248 Finally, prosecutions are conducted by the office of the Prosecutor of the SCSL, which is an independent organ of the SCSL, and not in the name of the Sierra Leonean State.249 The case law of the SCSL also supports the conclusion that the SCSL is not part of the Sierra Leonean judiciary. In the Constitutionality Decision, the Appeals Chamber considered submissions by Defence Counsel that the SCSL was unconstitutional on the ground inter alia that the Special Court Agreement had not been incorporated into the national law of Sierra Leone in accordance with constitutional requirements. One of the arguments put forward by Defence Counsel for Sam Hinga Norman was that the establishment of the SCSL amended the judicial framework and court structure of Sierra Leone. However, the Appeals Chamber rejected such submission, holding that the SCSL was established outside the national court system of Sierra Leone.250 The SCSL also satisfies the third and fourth fundamental criteria in that it applies international criminal law and its jurisdiction ratione materiae and ratione 244 245 246 247

248 249 250

See supra note 39, and supra section 4.5.4.2 (Legal basis of an international criminal judicial body – Agreement between the UN and one or more States). Dated 25 April 2002, available at http://www.sc-sl.org/Documents/SCSL-ratificationact.pdf (last visited 18 July 2007), Section 11(2). Report of the UN Secretary-General, supra note 39, §§ 9 and 39 respectively. SCSL Statute, supra note 39, Article 8. Note the specific language of Article 8. It does not refer to the SCSL and the other national courts of Sierra Leone having concurrent jurisdiction, thereby suggesting that the SCSL is another national court of Sierra Leone. The language indicates that the SCSL is not a national court. Special Court Agreement, supra note 39, Article 6. SCSL Statute, supra note 39, Article 15(1). See supra note 71, §§ 47–53.

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personae is international. The SCSL’s jurisdiction ratione materiae extends to both international crimes (crimes against humanity, violations of Article 3 common to the Geneva conventions and of Additional Protocol II, and other serious violations of international humanitarian law) and domestic crimes (offences relating to the abuse of girls under the Prevention of Cruelty to Children Act 1926 and wanton destruction of property under the Malicious Damage Act 1861).251 However, as noted above, this does not hinder fulfilment of the criterion that an international criminal judicial body’s jurisdiction ratione materiae is international.252 The jurisdiction ratione personae of the SCSL is set out in Article 1(1) of the SCSL Statute, which provides that the SCSL shall “... have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone...”. Finally, the SCSL also satisfies the fifth fundamental criterion, in that its decisions are binding. Although the SCSL Statute does not specifically state that its decisions are binding, it is implied by a number of the SCSL Statute provisions.253 A number of the indicative criteria are also fulfilled by the SCSL. Its judiciary is independent and impartial. Article 13(1) provides that “[t]he judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. They shall be independent in the performance of their functions, and shall not accept or seek instructions from any Government or any other source”. The SCSL has two Trial Chambers and one Appeals Chamber. Each Trial Chamber consists of three judges, one of whom is appointed by the Government of Sierra Leone, while two are appointed by the UN Secretary-General. The Appeals Chamber consists of five judges, two of whom are appointed by the Government of Sierra Leone, while three are appointed by the UN Secretary-General.254 Currently only two of the eleven judges sitting on the bench of the Special Court are Sierra Leonean.255 The nationality of the remaining judges is mixed.256

251 252 253 254 255

256

See SCSL Statute, supra note 39, Articles 2–5. See supra section 4.5.4.5. SCSL Statute, supra note 39, Articles 18–23. See Special Court Agreement, supra note 39, Article 2. Justice George Gelaga King, President, Appeals Chamber and Justice Rosolu John Bankole Thompson, Presiding Judge, Trial Chamber I. Both judges were nominated by the Government of Sierra Leone. Justice Geoffrey Robertson QC (U.K.), Appeals Chamber and Justice Richard Lussick (Samoa), Presiding Judge, Trial Chamber II were also nominated by the Government of Sierra Leone. The Alternate Judge, Justice El Hadji Malick Sow is from Senegal. Austria (Justice Renate Winter), Cameroon (Justice Benjamin Mutanga Itoe), Canada (Justice Pierre G. Boutet), Nigeria (Justice Emmanuel Ayoola), Northern Ireland (Justice Teresa Doherty), Sri Lanka (Justice A. Raja N. Fernando), Uganda (Justice Julia Sebutinde) and UK (Justice Geoffrey Robertson QC). See http://www.sc-sl.org/ chambers.html (last visited 25 January 2007).

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Adjudication before the SCSL is governed by the SCSL’s Rules of Procedure and Evidence.257 The SCSL and the Sierra Leonean courts have concurrent jurisdiction, but the SCSL has primacy over the Sierra Leonean courts.258 The expenses of the SCSL are funded by voluntary contributions from the international community.259 The SCSL fulfils the criteria associated with classical international organisations, i.e. (i) the premises and archives of the SCSL are inviolable and its property funds and assets are immune from interference;260 (ii) it has the juridical capacity to enter into agreements with States as may be necessary for the exercise of its functions for the operation of the SCSL;261 (iii) the SCSL’s judges, prosecutor and registrar enjoy privileges and immunities in accordance with the 1961 Vienna Convention on Diplomatic Relations;262 and (iv) it has an autonomous will distinct from the UN and the Government of Sierra Leone.263 The parties establishing the judicial body intended to establish an international criminal judicial body, albeit a mixed international-national criminal judicial body.264 The constitutive documentation of the SCSL contains an express provision denying Heads of State and Government immunity from prosecution for core international crimes.265 As noted above, prosecutions are conducted by the office of the Prosecutor of the SCSL, which is an independent organ of the SCSL, and not in the name of the Sierra Leonean State.266 The international community undertook an active role in the establishment

257

258 259

260 261 262 263

264

265 266

Rules of Procedure and Evidence of the Special Court for Sierra Leone, last amended on 14 May 2007, available at http://www.sc-sl.org/rulesofprocedureandevidence.pdf (last visited 25 July 2007). SCSL Statute, supra note 39, Article 8. Special Court Agreement, supra note 39, Article 6. The UN Secretary-General was actually opposed to this method of funding because he feared that such a system would not provide the “assured and continuous source of funding” which would be required to appoint the judiciary, the prosecutor and the registrar, to contract the services of all administrative and support staff and to purchase the necessary equipment. See UN Secretary-General Report, supra note 39, § 70. Special Court Agreement, ibid., Article 8. Ibid., Article 11. Ibid., Article 12. Although the constitutive documents of the SCSL do not specifically state that the SCSL has an autonomous will distinct from that of the UN and the Government of Sierra Leone, that is the clear implication from the various provisions of the SCSL constitutive documents. The SCSL was specifically established as a hybrid criminal judicial body. This was considered by the UN and the Sierra Leonean Government as the most appropriate body for the prosecution of crimes committed in the country’s civil war and recourse to Sierra Leonean law was deemed necessary where “a specific situation or an aspect of it was considered to be either unregulated or inadequately regulated under international law”. See Report of the UN Secretary-General, supra note 39, § 19. SCSL Statute, supra note 39, Article 8. Ibid., Article 15(1).

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of the SCSL. The UN Secretary-General, as representative of the UN member States, moreover, continues to have an active role in the administration of the SCSL, inter alia as regards his ability to appoint judges to the SCSL bench, as well as the SCSL Prosecutor and Registrar, the UN Secretary-General’s involvement in obtaining adequate funding for the SCSL,267 and his participation in the Management Committee established by interested States “to assist the UN SecretaryGeneral in obtaining adequate funding, and provide advice and policy direction on all non-judicial aspects of the operation of the Court, including questions of efficiency, and to perform other functions as agreed by interested States”.268 The SCSL does not satisfy the remaining indicative criteria of an international criminal judicial body. Firstly, the SCSL does not have Chapter VII powers; and secondly, neither is it entirely accurate to state that the SCSL has been designated as international. It is an international-domestic hybrid criminal judicial body. As the SCSL satisfies each of the fundamental criteria for an international criminal judicial body, the SCSL can, in the author’s view, be characterised as an international criminal judicial body for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes. The fact that the SCSL also satisfies nine of the 11 identified indicative criteria underscores the status of the SCSL as an international criminal judicial body, for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes. This remains the case, notwithstanding that the SCSL can also be characterised as a hybrid criminal judicial body. As noted above, the SCSL Appeals Chamber determined in the Taylor Decision that the SCSL can be characterised as an international criminal judicial body. Although, the author is in agreement with the conclusion reached by the Appeals Chamber, the basis on which the Appeals Chamber reached such conclusion is subject to criticism. While the Appeals Chamber considered the legal basis of the SCSL, its conclusion that although the legal basis of the SCSL was the Special Court Agreement and not a UN Security Council Chapter VII resolution, the SCSL was nonetheless established within the framework of Chapter VII of the UN Charter is confusing and unhelpful. Moreover, the Appeal Chamber’s decision would have benefited from a thorough consideration and identification of all of the defining criteria of an international criminal judicial body, instead of settling for a cursory and vague treatment of the subject at hand. Its determination, that the constitutive documents of the SCSL contain “indicia too numerous to enumerate“ to justify the conclusion that the SCSL is an international criminal court, is decidedly unsatisfactory.269

267 268 269

Special Court Agreement, supra note 39, Articles 2-6. Ibid., Article 7. See Taylor Decision, supra note 3, § 42.

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4.6.2.2 Extraordinary Chambers of the Courts of Cambodia270 Similar to the SCSL, the legal basis of the Extraordinary Chambers of the Courts of Cambodia (“Extraordinary Chambers”) is an agreement between the UN and the Royal Government of Cambodia dated 6 June 2003.271 The purpose of this agreement is to “regulate the cooperation between the United Nations and the Royal Government of Cambodia in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979”.272 By way of UN General Assembly resolution 228, the UN General Assembly approved the draft agreement between the UN and the Royal Government of Cambodia and the Agreement was eventually ratified by the Royal Government of Cambodia on 19 October 2004.273 Accordingly, the Extraordinary Chambers satisfy the first fundamental criterion of an international criminal judicial body. The second fundamental criterion of an international criminal judicial body cannot, however, be fulfilled by the Extraordinary Chambers. The Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (”Extraordinary Chambers Law”) specifically provides that the Extraordinary Chambers are part of the existing court structure of Cambodia.274 The third and fourth fundamental criteria of an international criminal judicial body are satisfied by the Extraordinary Chambers in that they apply international 270

271

272 273

274

See generally Subhash C. Kashyap, “The Framework of the Prosecutions in Cambodia”, in Ambos and Othman, supra note 243, pp. 189–205 and Ernestine E. Meijer, “The Extraordinary Chambers in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal”, in Romano, Nollkaemper and Kleffner, supra note 200, pp. 207–232. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 6 June 2003, signed by UN legal counsel Hans Correll and Cambodia Chief Negotiatior Sok An (“Extraordinary Chambers Agreement“). See the Annex of G.A. Res. 228, U.N. SCOR 57th Sess., U.N. Doc. A/RES/57/228 (22 May 2003). Also available at http://www.cambodia.gov.kh/krt/pdfs/Agreement%20 between%20UN%20and%20RGC.pdf (last visited 27 January 2007). Ibid., Article 1. See G.A. Res. 57/228, 27 February 2003, and Instrument of Ratification on the Agreement between the UN and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 19 October 2004, signed by the Cambodian Minister of Foreign Affairs and International Cooperation, Hor Namhong, available at http://www.cambodia.gov.kh/ krt/english/draft%20agreement.htm (last visited 27 January 2007). Signed on 10 August 2001, available at http://www.derechos.org/human-rights/seasia/ doc/krlaw.html (last visited 27 January 2007). See Article 2. Also available in Ambos and Othman, supra note 243, pp. 267– 280.

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criminal law and their jurisdiction ratione materiae and jurisdiction ratione personae is international. Although the Extraordinary Chambers have jurisdiction over homicide, torture and religious persecution as defined in the 1956 Penal Code of Cambodia, they also have jurisdiction over the crime of genocide, crimes against humanity, grave breaches of the Geneva Convention of 12 August 1949, the destruction of cultural property and crimes against internationally protected persons, as those crimes are defined in international criminal law.275 Their ratione personae is confined to the “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom and international conventions recognized by Cambodia”.276 Finally, the Extraordinary Chambers satisfy the fifth fundamental criterion in that their decisions are binding. Although neither the Extraordinary Chambers Agreement nor the Extraordinary Chambers Law specifically state that the decisions of the Extraordinary Chambers are binding, it is implied by the terms of these constitutive documents. As the Extraordinary Chambers do not satisfy the second fundamental criterion of an international criminal judicial body, being part of the judiciary of Cambodia, they cannot be characterised as an international criminal judicial body for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes.277

275 276 277

Ibid., Articles 3-8. Ibid., Article 1. Other ‘international’ elements of interest in relation to the Extraordinary Chambers include the presence of international judges on the Extraordinary Chambers’ bench. The trial court of the Extraordinary Chambers shall be composed of two international judges and three Cambodian judges (one of whom shall be president of the court), whereas its appeals court shall be composed of three international judges and four Cambodian judges (one of which shall be president of the court). Ibid., Article 9. The supreme court of the Extraordinary Chambers shall be composed of four international judges and five Cambodian judges (one of whom shall be president of the court). Ibid., Article 9. Moreover, the judges shall be independent in the performance of their duties and shall not accept or seek instructions from any government or any other source. Ibid., Article 10. One of the co-prosecutors shall be international, the other Cambodian. Ibid., Article 16. Likewise, one of the two investigating judges on each investigation shall be international, the other Cambodian. Ibid., Article 23. The judges and prosecutors of the Extraordinary Chambers shall be supervised by an Office of Administration, which office shall have two directors, one international and one Cambodian. Ibid., Article 30. The expenses of the international administrative officials and staff, the international judges and the international co-prosecutor and investigator shall be borne by the UN Trust Fund, whereas their salaries shall be borne by the countries that contribute them at the request of the UN Secretary-General. Ibid., Article 44(2) and 44(3). The expenses and salaries of the Cambodian administrative officials, judiciary and prosecutors shall be borne by the Cambodian national budget. Ibid., Article 44(1). The Extraordinary Chambers may, moreover, receive additional assistance for their expenses from other voluntary funds contributed by foreign governments, international institutions, non-

4.6 Analysis of Hybrid Criminal Judicial Bodies 341

4.6.2.3 Special Panels for Serious Crimes of the District Court of Dili (East Timor) 278 The legal basis of the Special Panels for Serious Crimes of the District Court of Dili (“Special Panels”) is complex. In October 1999, the UN Security Council, acting under Chapter VII of the UN Charter, decided to establish a UN Transitional Administration in East Timor (UNTAET), which was endowed with overall responsibility for the administration of East Timor and was empowered “to exercise all legislative and executive authority, including the administration of justice”.279 UN Security Council resolution 1272 defined the mandate of UNTAET as including the maintenance of law and order throughout the territory of East Timor and authorised UNTAET to take all “necessary measures” to fulfil its mandate.280 It, moreover, welcomed the intention of the UN Secretary-General to appoint a Special Representative, who as the Transitional Administrator in East Timor, would inter alia have the power to enact new laws and regulations and to amend, suspend or repeal existing ones.281 By way of Regulation No. 1999/1 on the Authority of the Transitional Administration in East Timor, the Transitional Administrator, the late Sergio Vieira de Mello, promulgated that all legislative and executive authority with respect to East Timor, including the administration of the judiciary was vested in UNTAET and was to be exercised by the Transitional Administrator and that the Transitional Administrator would, as necessary, issue legislative acts in the form of regulations.282 Regulation No. 2000/11 on the Organization of Courts in East Timor provides that the judiciary in East Timor shall be composed of District Courts and one Court of Appeal, that the District Court of Dili shall have exclusive jurisdiction over “the following serious criminal offences: (a) genocide (b) war crimes (c) crimes against humanity (d) murder (e) sexual offences (f) torture”, and that the Transitional Administrator, after consultation with the President of the Court of Appeal may establish panels (and appeal panels) with the expertise to exercise exclusive jurisdiction over such crimes, such panels to be composed of both East Timorese and international judges.283 It is Regulation No. 2000/15 on the

278 279 280 281 282

283

governmental organisations and other persons wishing to assist the proceedings. Ibid., Article 44(5). See generally Mohamed Othman, “The Framework of Prosecutions and the Court System in East Timor”, in Ambos and Othman, supra note 243, pp. 85–112. S.C. Res. 1272, U.N. SCOR, 54th Sess., 4057th mtg., U.N. Doc. S/RES/1272 (25 October 1999), § 1. Reprinted in Ambos and Othman, supra note 243, pp. 225–228. Ibid., §§ 2(a) and 4. Ibid., § 6. Dated 27 November 1999, UNTAET/REG/1999/1, available at http://www.un.org/peace/etimor/UntaetN.htm (last visited 27 January 2007). Reprinted in Ambos and Othman, supra note 243, pp. 228–231. Dated 6 March 2000, UNTAET/REG/2000/11, as amended by Regulation No. 2000/14 of 10 May 2000, UNTAET/REG/2000/14, as further amended by Regulation No. 2001/25 of 14 September 2001, UNTAET/REG/20001/25, all available at http://www.

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Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences which, as it name suggests, actually establishes the Special Panels. The Regulation provides that panels of judges shall be established within the District Court in Dili with exclusive jurisdiction to deal with serious criminal offences (as defined in Regulation No. 2000/11) and that panels shall be established within the Court of Appeal in Dili to hear and decide an appeal concerning serious criminal offences.284 Unlike the ICTY or ICTR, the Special Panels were not established specifically by the terms of a UN Security Council Chapter VII resolution. Instead, a UN Security Council Chapter VII resolution established an institution, UNTAET, which it endowed with the powers to exercise all legislative and executive authority in East Timor and authorised it to take all necessary measures to fulfil its mandate and this institution itself then established the Special Panels. Although the legal basis of the Special Panels is not expressly a UN Security Council Chapter VII resolution itself, it could be argued that its legal basis is, nonetheless, a UN Security Council Chapter VII resolution, as UN Security Council resolution 1272 endowed UNTAET with the powers to establish the Special Panels of the District Court and of the Court of Appeal in Dili. The second fundamental criterion of an international criminal judicial body cannot, however, be fulfilled by the Special Panels, as such panels are clearly part of the national judicial system of East Timor. Regulation No. 2000/15 specifically provides that the Special Panels shall be established within the District Court in Dili or within the Court of Appeal in Dili, as appropriate.285 Regulation No. 2000/11, moreover, states that the establishment of panels with exclusive jurisdiction over serious criminal offences shall not preclude the jurisdiction of an international tribunal for East Timor over these offences, once such a tribunal is established.286 The third and fourth fundamental criteria of an international criminal judicial body are not satisfied by the Special Panels. The applicable law of the Special Panels is defined as (i) the law of East Timor as promulgated by Sections 2 and 3 of UNTAET Regulation No. 1999/1 and any subsequent UNTAET regulations and directives and (ii) where appropriate, applicable treaties and recognised principles and norms of international law, including the established principles of the international law of armed conflict.287 While the definitions of genocide, crimes against humanity and war crimes in Regulation No. 2000/15 are identical to the equivalent ICC Statute provisions, these definitions are incorporated by way of Regulation No. 2000/15 into the domestic law of East Timor. Moreover, Regulation No. 2000/15

284

285 286 287

un.org/peace/etimor/UntaetN.htm (last visited 27 January 2007). See sections 4 and 9 (previously section 10). Dated 6 June 2000, UNTAET/REG/2000/15, available at http://www.un.org/peace/ etimor/UntaetN.htm (last visited 27 January 2007), sections 1.1 and 1.2 respectively. Reprinted in Ambos and Othman, supra note 243, pp. 231–242. Ibid., sections 1.1 and 1.2. See supra note 283, section 10.4. Regulation No. 2000/15, supra note 284, section 3.

4.6 Analysis of Hybrid Criminal Judicial Bodies 343

does not specifically restrict the jurisdiction ratione personae of the Special Panels to the persons who bear the greatest responsibility for the crimes in question. The fifth and final fundamental criterion, that the judicial body’s decisions are binding, is satisfied by the Special Panels, notwithstanding that no specific reference is made to this matter in its constitutive documents. As the Special Panels do not satisfy a number of the fundamental criteria of an international criminal judicial body, they cannot be characterised as an international criminal judicial body for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes.288 4.6.2.4 ‘Regulation 64’ Panels of Kosovo 289 The legal basis of the Regulation 64 Panels of Kosovo (“Regulation 64 Panels”) is similar to that of the Special Panels. UN Security Council Chapter VII resolution 1244 authorised the UN Secretary-General to establish “an international civil presence in Kosovo [UN Interim Administration Mission in Kosovo (UNMIK)] in order to provide an interim administration for Kosovo… which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo”.290 It also requested the UN Secretary-General to appoint a Special Representative to control the implementation of the international civil presence.291 By way of Regulation No. 1999/1 on the Authority of the Interim Administration in Kosovo, the then Special Representative Bernard Kouchner, promulgated that all legislative and executive authority with respect to Kosovo, including the administration of the judiciary, was vested in UNMIK and was to be exercised by the Special Representative, and that UNMIK would issue legislative acts in the form of regulations, as necessary.292 288

289

290 291 292

With regard to other ‘international’ elements of the Special Panels, it is interesting to note that the Special Panels in the District Court and the Court of Appeal in Dili shall be composed of two international judges and one East Timorese judge. Where a case is of “special importance or gravity”, the panel shall consist of three international judges and two East Timorese judges. See Regulation No. 2000/15, ibid., section 22. See generally Michael Bohlander, “Kosovo: The Legal Framework of the Prosecution and the Courts”, in Ambos and Othman, supra note 243, pp. 21–59, John Cerone and Clive Baldwin, “Explaining and Evaluating the UNMIK Court System” and JeanChristian Cady and Nicholas Booth, “Internationalized Courts in Kosovo: An UNMIK Perspective”, both in Romano, Nollkaemper and Kleffner, supra note 200, pp. 41–57 and pp. 59–78 respectively and International Center for Transitional Justice, Lessons from the Deployment of International Judges and Prosecutors in Kosovo, March 2006, available at http://www.ictj.org/static/Prosecutions/Kosovo.study.pdf (last visited 29 January 2007). S.C. Res. 1244, U.N. SCOR, 54th Sess., 4011th mtg., U.N. Doc. S/RES/1244 (10 June 1999), § 10. Reprinted in Ambos and Othman, supra note 243, pp. 208–212. Ibid., at § 6. Dated 25 July 1999, UNMIK/REG/1999/1, available at http://www.unmikonline.org/ regulations/1999/reg01-99.htm (last visited 27 January 2007), sections 1 and 4 respectively.

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Regulation No. 2000/64 on Assignment of International Judges/Prosecutors and/or Change of Venue established the Regulation 64 Panels (from which regulation the panels derived their name).293 It provides that at any stage in any criminal proceedings, the competent prosecutor, the accused or the defence counsel may submit to the Department of Justice, a petition for an assignment of international judges/prosecutors and/or change of venue where this is “considered necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice”. The Department of Justice may on the basis of such a petition or on its own motion, submit a recommendation to the Special Representative for the assignment of international judges/prosecutors and/or change of venue if it determines that this is necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice.294 Upon the approval of the Special Representative, the Department of Justice shall expeditiously designate an international prosecutor and international investigating judge, and/or a panel composed only of three judges, two of whom must be international judges.295 The rationale behind the establishment of the Regulation 64 Panels was to counter fears about perceived bias of, or concerns about, local prosecutors or judges, or the intimidation of judges. Regulation 2000/64 recognised that “the presence of security threats may undermine the independence and impartiality of the judiciary and impede the ability of the judiciary to properly prosecute crimes which gravely undermine the peace process and the full establishment of the rule of law in Kosovo and that the Regulation 64 Panels were established to ensure “the independence and impartiality of the judiciary and the proper administration of justice”. Although the legal basis of the Regulation 64 Panels is not expressly a UN Security Council Chapter VII resolution itself, it can be argued, that their legal basis is, nonetheless, a UN Security Council Chapter VII resolution, as Security Council resolution 1244 is the constitutive document on which the Special Representative of the UN Secretary-General bases his actions, including the issuance of Regulation No. 2000/64.

293

294 295

Reprinted in Ambos and Othman, supra note 243, pp. 213–214. UNMIK/REG/1999/1 was amended by UNMIK/REG/1999/25 dated 12 December 1999, UNMIK/REG/ 2001/13 dated 21 December 2001, all available at http://www.unmikonline.org/regulations/index_reg_1999.htm (last visited 27 January 2007). UNMIK/REG/1999/25 is reprinted in Ambos and Othman, supra note 243, p. 215. UNMIK/REG/2000/64 dated 15 December 2000, as amended by UNMIK/REG/2001/ 34 dated 15 December 2001, UNMIK/REG/2002/20 dated 14 December 2002 and UNMIK/ REG/2003/36 dated 14 December 2003, UNMIK/REG/2004/54 dated 15 December 2004, all of which are available at http://www.unmikonline.org/regulations/ index.htm (last visited 27 January 2007); and as amended by UNMIK/REG/2005/50 dated 12 December 2005, available at http://www.unmikonline.org/regulations/unmikgazette/ 02english/E2005regs/E2005regs.htm (last visited 27 January 2007). Ibid., §§ 1.1 and 1.2. Ibid., at section 2. The regulation entered into force on 15 December 2000 and was to remain in force for an initial period of 12 months. This period has been continually extended.

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The second fundamental criterion of an international criminal judicial body is not satisfied as the Regulation 64 Panels form part of the domestic court system of Kosovo.296 The Regulation 64 Panels do not apply international criminal law and their jurisdiction ratione materiae and jurisdiction ratione personae is not international. The jurisdiction of the Regulation 64 Panels is the same as the domestic courts of Kosovo. They apply local domestic laws.297 The international crimes of genocide and war crimes have been incorporated into domestic law. The Regulation 64 Panels, in addition to having jurisdiction as regards certain international crimes, also have jurisdiction over crimes such as corruption, terrorism or organised crimes. They are not confined to trying persons with the greatest responsibility, but can try all suspects, irrespective of their level of responsibility. The fifth fundamental criterion for international criminal judicial bodies is satisfied in that the decisions of the Regulation 64 Panels are binding, notwithstanding the absence of a specific provision to this effect. As the Regulation 64 Panels do not satisfy a number of the fundamental criteria of an international criminal judicial body, they cannot be characterised as an international criminal judicial body for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes.298 4.6.2.5 War Crimes Chamber of the State Court of Bosnia and Herzegovina 299 Just like a number of the hybrid criminal judicial bodies mentioned above, the legal basis of the War Crimes Chamber of the State Court of Bosnia and Herzegovina (“War Crimes Chamber”) is not a straightforward matter. By way of Annex 10 (Agreement on Civilian Implementation) to the General Framework Agreement for Peace in Bosnia and Herzegovina (the “Dayton Peace Agreement”), which was approved by the UN Security Council, the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia requested the 296 297 298

299

See generally the terms of Regulation 2000/64, supra note 293. The determination of the actual applicable criminal law in Kosovo has proved quite complex. See Bohlander, supra note 289, pp. 22–58. In late 1999, negotiations began on the establishment of the proposed Kosovo War and Ethnic Crimes Court, which was to be an internationally-led ad hoc court, with a mixture of international and domestic professionals. Its seat was to be in Kosovo, but it was intended to be independent of the national domestic judicial system. Even though negotiations for its establishment reached an advanced stage, it was eventually decided to abandon the court’s establishment. See International Center for Transitional Justice, supra note 289, pp. 10–12. The proposed establishment of the War Crimes Chamber was the result of a joint initiative between the ICTY and the Office of the High Representative for Bosnia and Herzegovina, in order to assist the ICTY in the fulfilment of its completion strategy. This strategy was endorsed by the UN Security Council. See statement of the president of the Security Council, S/2002/PRST/21 of 23 July 2002 and S.C. Res. 1503, U.N. SCOR, 58th Sess., 4817th mtg., U.N. Doc. S/RES/1503 (28 August 2003).

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designation of a High Representative to inter alia oversee the implementation of the Dayton Peace Agreement on behalf of the international community and requested him to inter alia “facilitate the resolution of any difficulties arising in connection with civilian implementation”.300 The Office of the High Representative (“OHR”), exercising the powers assigned to it in the Dayton Peace Agreement, enacted a new Law on Court of Bosnia and Herzegovina, which established a State Court of Bosnia and Herzegovina with three divisions, the Criminal Division, the Administrative Division and the Appellate Division. The Criminal Division and the Appellate Division each have three sections. The three sections of the Criminal Division are: Section I for War Crimes, Section II for Organized Crime, Economic Crime and Corruption, Section III for All Other Crimes under the Jurisdiction of the Court. The Appellate Division has corresponding sections, Section I being established to appeal against judgments of Section I of the Criminal Division concerning war crimes.301 The Court of Bosnia and Herzegovina has inter alia jurisdiction over the criminal offences defined in the new Criminal Code of Bosnia and Herzegovina which was also enacted by the OHR.302 The legislation contains definitions of inter alia genocide; crimes against humanity; war crimes against civilians; war crimes against the wounded and sick; war crimes against prisoners of war; organising a group of people and instigating the perpetration of genocide, crimes against humanity and war crimes; unlawful killing or wounding of the enemy; marauding the killed and wounded at the battlefield; violating the laws and practices of warfare; violating the protection granted to bearers of flags of truce; unjustified delays of the repatriation of prisoners of war; destruction of cultural, historical and religious monuments; misuse of international emblems; establishment of slavery and transport of slaves; torture and other cruel, inhuman or degrading treatment; and endangering internationally protected persons. 303 Accordingly, the legal basis of the War Crimes Chamber is a treaty between two or more States. Although the precise terms of the Dayton Peace Agreement do not establish the War Crimes Chamber, the treaty, in general terms authorises the OHR to do so.

300

301

302 303

The General Framework Agreement for Peace in Bosnia and Herzegovina between the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia dated 14 December 1995, available at http://www.ohr.int/ print?content_id=379 (last visited 29 January 2007). Ibid., Annex 10, Article II.1(d). Law on Court of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, 29/00, 16/02, 24/02, 3/03, 37/03, 42/03, 37/03, 04/04, 9/04, 35/04, 61/04, and 32/07 available at http://www.sudbih.gov.ba/?opcija=sadrzaj&kat=6&jezik=e (last visited 25 July 2007). Ibid., Articles 19, 24 and 26. Ibid., Article 13(1). Criminal Code of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina 37/03, available at http://www.ohr.int/decisions/judicialrdec/default.asp?conte-nt_id= 29095 (last visited 27 January 2007), entered into force on 1 March 2003. Chapter 17, Articles 171-179, 181-185, 190, and 192.

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The War Crimes Chamber is, however, part of the domestic court system of Bosnia and Herzegovina and accordingly does not fulfil the second fundamental criterion of an international criminal judicial body. Neither does it fulfil the third and fourth fundamental criteria for an international criminal judicial body, as it does not apply international criminal law and its jurisdiction ratione materiae and ratione personae is not international. Although the War Crimes Chamber has jurisdiction over certain core international crimes, these crimes have been incorporated into domestic law, and in determining these cases the War Crimes Chamber will be applying domestic law. Moreover, the jurisdiction ratione personae is not restricted to those who bear the greatest responsibility for the crimes committed. Anyone can be tried before the War Crimes Chamber, irrespective of the level of his responsibility in the crime. In fact, the whole rationale behind the War Crimes Chamber is that it can prosecute the ‘smaller fish’, leaving it to the ICTY to prosecute the ‘big fish’, in the first instance. Moreover, as part of the ICTY’s completion strategy, the War Crimes Chamber expects the ICTY to transfer 15 intermediate and lower-ranking ICTY indictees and 50 ICTY prosecution files to the War Crimes Chamber in due course.304 As of November 2006, nine ICTY indictees had been transferred to the War Crimes Chamber.305 The fifth fundamental criterion for international criminal judicial bodies is satisfied in that the decisions of the War Crimes Chamber are binding, notwithstanding the absence of a specific provision to this effect. As the War Crimes Chamber does not satisfy a number of the fundamental criteria of an international criminal judicial body, it cannot be characterised as an international criminal judicial body for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes.306 4.6.2.6 Supreme Iraqi Criminal Tribunal The legal basis of the Supreme Iraqi Criminal Tribunal, formerly known as the Iraqi Special Tribunal for Crimes against Humanity (“Iraqi Special Tribunal”) is a 304

305

306

See statement of the Senior Deputy High Representative, Bernard Fassier, at the 4837th meeting of the UN Security Council. See press release SC/7888, 8 October 2003. See also International Justice Tribune, No. 31, 12 September 2005, p. 1 and No. 60, 22 January 2007, p. 4. Assessment and report of Judge Fausto Pocar, President of the International Tribunal for the Former Yugoslavia, provided to the UN Security Council pursuant to paragraph 6 of Council resolution 1534 (2004), 16 November 2006, S/20006/898, p. 5, available at http://www.un.org/icty/publications-e/assessments/documents/2006-898eng.pdf (last visited 27 January 2007). With regard to other ‘international’ elements of interest in relation to the War Crimes Chamber, it can be noted that during a transitional period, an international registrar shall be appointed as the Chief Registrar for Section I - War Crimes (“Section I”) and Section II - Organized Crime, Economic Crime and Corruption (“Section II”) of the Criminal Division of the State Court of Bosnia and Herzegovina. Moreover, both international and national judges will serve in Section I and Section II panels.

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national Iraqi law. The Statute of the Iraqi Special Tribunal was enacted by the U.S.-appointed Iraqi Governing Council on 10 December 2003.307 At that time, the Coalition Provisional Authority (“CPA”) was vested with legislative authority in Iraq, and its authority was exercised by the CPA Administrator, Paul Bremmer.308 However, in order to enable the Statute of the Iraqi Special Court to be enacted by the Iraqi Governing Council (“Council”) directly, Paul Bremmer temporarily ceded legislative authority to the Council for that purpose. The CPA and the Council were replaced by the Iraqi Interim Government in June 2004 and following the Iraqi Transitional National Assembly election in January 2005, the Iraqi Interim Government was replaced by the Iraqi Transitional Government on 3 May 2005.309 The Iraqi Transitional National Assembly310 adopted the Law of the Supreme Iraqi Criminal Tribunal on 11 August 2005, which inter alia changed the name of the Iraqi Special Tribunal to the Supreme Iraqi Criminal Tribunal.311 Accordingly, the first fundamental criterion of an international criminal judicial body is not satisfied by the Supreme Iraqi Criminal Tribunal, as its legal basis is a national Iraqi law adopted by the Iraqi Transitional National Assembly. Neither is the second fundamental criterion of an international criminal judicial body satisfied, as the Supreme Iraqi Criminal Tribunal is a part of the Iraqi national court system. The Supreme Iraqi Criminal Tribunal has jurisdiction over the crime of genocide, crimes against humanity, war crimes and the violation of certain domestic laws.312 However, as regards exercising jurisdiction over genocide, crimes against humanity and war crimes, it is not entirely clear whether the law which the Supreme Iraqi Criminal Tribunal is to apply in relation to these crimes is domestic law or international criminal law. For example, the definition of war crimes in the Law of the Supreme Iraqi Criminal Tribunal requires the application of international criminal law, referring inter alia to grave breaches of the Geneva Conventions of 12 August 1949, to other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of 307 308 309 310 311

312

The Statute of the Iraqi Special Tribunal, 10 December 2003, available at http://www. cpa-iraq.org/human_rights/Statute.htm (last visited 30 January 2007). See Coalition Provisional Authority Regulation No. 1, of 16 May 2003, section 1, available at http://www.cpa-iraq.org/regulations/ (last visited 30 January 2007). The Iraqi Transitional Government was replaced by the first permanent government of Iraq on 20 May 1996. Replaced by the Council of Representatives in accordance with the Iraqi Constitution, Chapter 1. Law of the Supreme Iraqi Criminal Tribunal, No. 10 of 2005, Official Gazette of the Republic of Iraq, No. 4006, 47th year, 18 October 2005. An English translation of the law is available at http://www.ictj.org/static/MENA/Iraq/iraq.statute.engtrans.pdf (last visited 30 January 2007). For a commentary on the differences between the original Iraqi Special Tribunal statute and the statute of the Supreme Iraqi Criminal Tribunal, see Guénaël Mettraux, “The 2005 Revision of the Statute of the Iraqi Special Tribunal“, 5 J. Int’l Crim. Jus. 287 (2007). Law of the Supreme Iraqi Criminal Tribunal, supra note 311, Articles 1 and 11–14.

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international law, and to other serious violations of the laws and customs of war applicable in armed conflict not of an international character.313 Clearly, this involves the application of international criminal law. However, the definition of crimes against humanity makes no specific reference to international criminal law and refers to the term ‘crimes against humanity’ (which is clearly based on the equivalent provision of the ICC Statute) having the prescribed meaning “[f]or the purposes of this Law…”.314 Accordingly, at first glance, it would appear that the exercise of jurisdiction over crimes against humanity appears to amount to the application of Iraqi law, albeit the reliance on international criminal law to determine the scope of crimes against humanity for the purposes of the domestic legislation. However, Article 1 of the Law of the Supreme Iraqi Criminal Tribunal states that the Supreme Iraqi Criminal Tribunal has jurisdiction over genocide, crimes against humanity, war crimes and “violations of Iraqi laws listed in Article 14 of this law”. The clear distinction made between violations of Iraqi law and the international crimes over which the Supreme Iraqi Criminal Tribunal has jurisdiction would suggest that notwithstanding the wording of Article 12 defining crimes against humanity, it is intended that the Supreme Iraqi Criminal Tribunal apply international criminal law when exercising jurisdiction over genocide, crimes against humanity and war crimes.315 As to jurisdiction ratione personae, the Supreme Iraqi Criminal Tribunal has jurisdiction over all persons, “whether Iraqi or nonIraqi resident[s]” accused of committing any of the crimes over which the Supreme Iraqi Criminal Tribunal has jurisdiction.316 Its jurisdiction ratione personae is not confined to those bearing the greatest responsibility for the crimes committed. Accordingly, the Supreme Iraqi Criminal Tribunal does not satisfy, in full, the third and fourth fundamental criteria of an international criminal judicial body. The fifth fundamental criterion of an international criminal judicial body is satisfied in that the decisions of the Supreme Iraqi Criminal Tribunal are binding, notwithstanding the absence of a specific provision to this effect in its constitutive document. As the Supreme Iraqi Criminal Tribunal does not satisfy a number of the fundamental criteria of an international criminal judicial body, it cannot be characterised as an international criminal judicial body for the purposes of the rules of

313 314 315

316

Ibid., Article 13. Ibid., Article 12, opening paragraph. SCSL Statute, Article 2 which defines crimes against humanity does not specifically provide for the application of international criminal law either, when the SCSL exercises jurisdiction over this crime. However, such application is clear both from the constitutive documentation of the SCSL and also by the fact that the intention was always that recourse should be had to international law for the purposes of exercising jurisdiction over the international crimes identified and that recourse to Sierra Leonean law was only made where “a specific situation or an aspect of it was considered to be either unregulated or inadequately regulated under international law”. See Report of the UN Secretary-General, supra note 39, § 19. Law of the Supreme Iraqi Criminal Tribunal, supra note 311, Article 1.

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international law concerning the lifting of immunity from prosecution for core international crimes.317 4.6.2.7 Special Tribunal for Lebanon The STL, similar to the SCSL, was established by way of an agreement between the UN and a State, namely the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon (“STL Agreement”).318 However, unlike in the case of the SCSL, a UN Security Council Chapter VII resolution was passed in order to ensure that the STL Agreement entered into force. The STL Agreement was signed by the Lebanese Government and the UN on 23 January 2007 and 6 February 2007, respectively. The Lebanese Government then sought to ensure, that the Lebanese constitutional process was adhered to, which inter alia required that the STL Agreement be approved by the Lebanese parliament and eventually ratified. However, the mainly pro-Syrian opposition blocked attempts to do so. The UN Security Council stepped in and decided that the provisions of the STL Statute should enter into force on 10 June 2007, should the necessary domestic legislation not be passed (Security Council resolution 1757).319 It should be noted, however, that although a UN Security Council Chapter VII resolution was passed in order to bring the STL Agreement into force, the STL is not the same type of legal animal as the ICTY/ICTR, and neither can the legal basis of the STL, in the author’s view, be said to be a UN Security Council Chapter VII resolution. Resolution 1757 was necessary in order to overcome domestic

317

318 319

As regards the other ‘international’ elements of the Supreme Iraqi Criminal Tribunal, the following should be noted: The general premise is that the judges, investigating judges, and prosecutors of the Supreme Iraqi Criminal Tribunal are to be Iraqi. However, the Council of Ministers may, on the basis of a proposal by the President of the Supreme Iraqi Criminal Tribunal, appoint non-Iraqi judges, which judges shall be appointed with the assistance of the international community, including the UN. Law of the Supreme Iraqi Criminal Tribunal, supra note 311, Article 3(5). The President of the Supreme Iraqi Criminal Tribunal may appoint non-Iraqi experts to work in the Trial and Appeals Chambers to provide “assistance in the field of international law and similar areas”. Ibid., Article 7(2). The Investigative Judge may similarly appoint non-Iraqi experts to provide “judicial assistance… in the investigation of cases… whether international or otherwise”, Ibid., Article 8(9). Finally, the Chief Prosecutor, in consultation with the President of the Supreme Iraqi Criminal Tribunal, may appoint non-Iraqi experts to provide “assistance to the Prosecutors with regard to the investigation and prosecution of cases… whether international or otherwise”. Ibid., Article 9(8). Moreover, an accused is entitled to have non-Iraqi legal representation so long as his principal lawyer is Iraqi. Ibid., Article 19(4). Annexed to S.C. Res. 1757, U.N. SCOR, 58th Sess., 5685th mtg., U.N. Doc. S/RES/1757 (30 May 2007). 10 votes in favour, five abstentions and no veto by a permanent Security Council member. Ibid.

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legislative problems; it did not, like resolution 827 (ICTY) 320 and resolution 955 (ICTR),321 actually establish the STL. As noted in the Report of the UN Secretary-General on the establishment of a special tribunal for Lebanon, albeit this report was written before Resolution 1757 was passed, the legal basis of the STL is the STL Agreement.322 Unlike the ICTY and ICTR, the STL is not a subsidiary organ of the UN.323 Accordingly, the STL satisfies the first fundamental criterion for characterisation as an international criminal judicial body, being established by way of an agreement between the UN and a State. The STL also satisfies the second fundamental criterion as it does not form part of the judiciary of one single State. As noted in the Report of the UN SecretaryGeneral on the establishment of a special tribunal for Lebanon, the STL is “neither a subsidiary organ of the United Nations, nor is it a part of the Lebanese court system”.324 Although, the STL and the national courts of Lebanon have concurrent jurisdiction, the STL shall have primacy over the national courts of Lebanon, as 320 321 322 323

324

See supra note 82. See supra note 83. Report of the UN Secretary-General on the establishment of a special tribunal for Lebanon, U.N. Doc. S/2006/893 (15 November 2006), p. 2, §§ 6 and 7. Moreover, in the author’s view, notwithstanding Resolution 1757, the STL does not have Chapter VII powers. This may prove important in the future, as regards any Syrian nationals accused of involvement in the death of the former Lebanese Prime Minister Rafiq Hariri. Syrian President Bashar Assad is reported to have said that any Syrian suspects would be tried in Syria and that he would not release them to the STL, see “UN approves Hariri murder court”, BBC News, 31 May 2007, available at http:// news.bbc.co.uk/2/hi/middle_east/6703587.stm (last visited 19 July 2007). If the STL had Chapter VII powers, Syria would be legally obligated to hand over any Syrian accused to the STL, if requested to do so (being a UN member State, bound to comply with UN Security Council resolutions). However, the absence of the same does not mean that Syria could not be obligated to hand over such suspects. As it is, S.C. Res. 1644, U.N. SCOR, 56th Sess., 5329th mtg., U.N. Doc. S/RES/1644 (15 December 2005), which is a Chapter VII resolution, “[u]nderscores Syria’s obligation and commitment to cooperate fully and unconditionally with the Commission [International Independent Investigation Commission (“IIIC”)] and specifically demands that Syria responds unambiguously and immediately in those areas adduced by the Commissioner [of the IIIC] and also that it implements without delay any future request of the Commission”. The UN Security Council could also, by way of a Chapter VII resolution, resolve that Syria hand over any accused to the STL, if this was deemed to be necessary. The Report of the UN Secretary-General on the establishment of a special tribunal for Lebanon appears to hint at such a course of action: “In maintaining the logic of Security Council resolutions 1595 (2005), 1636 (2005) and 1644 (2005), under which Member States are obliged to cooperate fully with the Commission [IIIC] in its investigation of the Hariri assassination, the Council may wish, at the appropriate stages and as necessary, to consider similar measures to enable the special tribunal more effectively to prosecute those responsible for the attack against Rafiq Hariri and for other attacks falling within the jurisdiction of the tribunal.” See supra note 322, § 53. See supra note 322, p. 2, § 6.

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regards the matters falling within its jurisdiction.325 Furthermore, the STL Statute explicitly provides that the STL Prosecutor “shall act independently as a separate organ of the STL. He or she shall not seek or receive instructions from any Government or from any other source.”326 The STL shall, moreover, have its seat outside Lebanon.327 The STL falls, however, foul of the third and fourth criteria for characterisation as an international criminal judicial body, which require that it apply international criminal law and that its jurisdiction ratione materiae and ratione personae be international. The STL has jurisdiction over the persons responsible for the attack of 14 February 2005 resulting in the death of the former Lebanese Prime Minister Rafiq Hariri and for the death or injury of other persons, as well as persons responsible for other ‘connected’ attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, of a nature and gravity similar to the attack of 14 February 2005.328 The applicable criminal law of the STL is stated to be the provisions of the Lebanese Criminal Code “relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences, including the rules regarding the material elements of a crime, criminal participation and conspiracy”, as well as Articles 6 and 7 of the Lebanese law of 11 January 1958 on “increasing the penalties for sedition, civil war and interfaith struggle”.329 It had been suggested early on in the negotiations for the STL that the jurisdiction of the STL should also extend to crimes against humanity and that the killing of the former Lebanese Prime Minister Rafiq Hariri and the death or injury of other persons could be classified as a crime against humanity. However, there was insufficient support for the inclusion of crimes against humanity within the subject matter jurisdiction of the STL, and accordingly, jurisdiction over such crimes was not incorporated into the STL Statute.330

325

326 327 328 329 330

Statute of the Special Tribunal for Lebanon (“STL Statute“), attached to the STL Agreement, supra note 318, Article 4. Whereas the SCSL is fully funded by voluntary contributions from the international community, the expenses of the STL are to be financed by voluntary contributions from States (51%) and the Lebanese Government (49%). See STL Agreement, supra note 318, Article 5. Ibid., Article 11(2). STL Agreement, supra note 318, Article 8(1). STL Statute, supra note 325, Article 1. Ibid., Article 2. See Report of the UN Secretary-General on the establishment of a special tribunal for Lebanon, supra note 322, p. 6, §§ 22–25 and Report of the UN Secretary-General on the establishment of a special tribunal for Lebanon, Addendum, Statement by Mr. Nicolas Michel, Under-Secretary-General for Legal Affairs, the Legal Counsel, at the informal consultations held by the Security Council on 20 November 2006, U.N. Doc. S/2006/ 893/Add.1 (21 November 2006), p. 2, § (2). Presumably, political considerations played a significant role in the absence of support for the inclusion of crimes against humanity within the subject matter jurisdiction of the STL.

4.6 Analysis of Hybrid Criminal Judicial Bodies 353

The death of former Prime Minister Rafiq Hariri and any others killed in the attack has subsequently been classified as a terrorist act, not as a core international crime.331 Although, it is concluded in Chapter 5 that certain manifestations of terrorism are encompassed by the concept of crimes against humanity in general international law today, in the author’s view, it would be difficult to successfully argue that the STL has jurisdiction over crimes against humanity, as such viewpoint was specifically rejected by STL negotiators. Moreover, as noted above, the STL Statute specifically provides that the applicable law of the STL is the Lebanese Criminal Code. It is not empowered to apply international criminal law. Accordingly, the STL does not apply international criminal law and its jurisdiction ratione materiae is not international. Neither is its jurisdiction ratione personae international, as if the STL does not have jurisdiction over core international crimes, then neither can its jurisdiction ratione personae be said to be international. Finally, the STL satisfies the fifth fundamental criterion of an international criminal judicial body, for current purposes, in that its decisions are binding, notwithstanding that an express provision to this effect is not to be found in the STL Statute. Thus, as the STL does not satisfy the third and fourth fundamental criteria of an international criminal judicial body, it cannot be characterised as an international criminal judicial body for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes.332 Indeed, the question of the lifting of immunity from prosecution for core international crimes would never arise before the STL, as it currently does not have jurisdiction over core international crimes.333 331

332

333

See, for example, resolution 1757, supra note 318, preamble, § 2 (“Reaffirming its strongest condemnation of the 14 February 2005 terrorist bombings…”) and § 13 (“Reaffirming its determination that this terrorist act and its implications constitute a threat to international peace and security“). Emphasis added. Additional international features of the STL include the following: (i) The single pretrial judge, two of the three judges serving in the Trial Chamber, three of the five judges serving in the Appeals Chamber, and one of the two alternate judges of the STL shall be international (i.e. non-Lebanese); STL Statute, supra note 325, Article 8(1). (ii) Lebanese judges shall be appointed by the UN Secretary-General from a list of 12 persons provided by the Lebanese Government upon the proposal of the Lebanese Supreme Council of the Judiciary, and international judges shall be appointed by the UN Secretary-General upon nominations forwarded by States at the invitation of the UN Secretary-General, as well as by competent persons; STL Agreement, supra note 318, Article 2(5). (iii) The UN Secretary-General, after consultation with the Lebanese Government, shall appoint a prosecutor (presumably a non-Lebanese national, although this is not expressly required) and the Lebanese Government, in consultation with the UN Secretary-General, shall appoint a Lebanese deputy prosecutor. Moreover, the STL Prosecutor shall be assisted by both Lebanese and international staff; STL Agreement, ibid., Article 3. (iv) The STL Registrar shall be a staff member of the UN; STL Agreement, ibid., Article 4(2). (v) Imprisonment shall be served in a State designated by the President of the STL from a list of States that have indicated their willingness to accept persons convicted by the STL; STL Statute, ibid., Article 29. Interestingly, the constitutive documentation of the STL, unlike that of the SCSL and ECCC (see SCSL Statute, supra note 39, Article 6(2) and Extraordinary Chambers

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4.6.3 Conclusion The SCSL can be categorised as an international criminal judicial body for the purposes of the rules of international law on the lifting of immunity from prosecution for core international crimes. Although the author is in agreement with the conclusion of the SCSL Appeals Chamber in relation to the international criminal judicial body status of the SCSL, the basis on which the Appeals Chamber reached such conclusion is subject to criticism. While the Appeals Chamber considered the legal basis of the SCSL in detail, its conclusion that although the legal basis of the SCSL was the Special Court Agreement and not a UN Security Council Chapter VII resolution, the SCSL was nonetheless established within the framework of Chapter VII of the UN Charter is confusing and unhelpful. Moreover, the Appeal Chamber’s decision would have benefited from a thorough consideration and identification of all of the defining criteria of an international criminal judicial body, instead of settling for a cursory and vague treatment of the subject at hand. Its determination, that the constitutive documents of the SCSL contain indicia too numerous to enumerate to justify the conclusion that the SCSL is an international criminal court, is decidedly unsatisfactory. The SCSL is the only hybrid criminal judicial body which can be categorised as an international criminal judicial body for the purposes of the international law rules on the lifting of immunity from prosecution for core international crimes. The Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili (East Timor), the ‘Regulation 64’ Panels of Kosovo, the War Crimes Chamber of the State Court of Bosnia and Herzegovina and the Supreme Iraqi Criminal Tribunal cannot be categorised as international criminal judicial bodies for the purposes of the international law rules on the lifting of immunity from prosecution for core international crimes; primarily because they each form part of the judiciary of a State. The STL does not form part of the judiciary of a single State. However, it cannot be categorised as an international criminal judicial body for current purposes, as it does not apply international criminal law and its jurisdiction ratione materiae and ratione personae is not international.

4.7 Final Note Although a judicial body is determined to be an international criminal judicial body, that does not necessarily entail that a Head of State or Government etc. is not entitled to immunity from prosecution for core international crimes before such body. The conduct of criminal proceedings is subject to the additional provisos, Law, supra note 274, Article 29), does not contain an express provision denying Heads of State and Government immunity from prosecution. The UN Secretary-General’s reports on the STL do not mention the reason behind the absence of this provision, but it may be because the crimes within the jurisdiction of the STL are considered to be domestic crimes, not core international crimes.

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firstly, that the international criminal judicial body concerned has jurisdiction over the crimes in question and the accused in question and secondly, that the constitutive documents of such international criminal judicial body expressly provide for the removal of such immunity.334 In relation to the first proviso, a distinction needs to be drawn between international criminal judicial bodies established by way of a UN Security Council Chapter VII resolution and those established by way of an international treaty. The statutes of international criminal judicial bodies established by way of a UN Security Council Chapter VII resolution are binding on all UN member States, as a result of Article 25 of the UN Charter.335 Accordingly, if the statute of such bodies have a specific provision removing immunity from Heads of State, as is the case, for example, as regards the ICTY and ICTR,336 then the consent of the affected member State is not required.337 Such State, in its capacity as a UN member State is bound by the UN Security Council resolution establishing the international criminal judicial body before which a Head of State etc. is stripped of his immunity from prosecution for core international crimes. Therefore, such State has indirectly agreed to recognise the removal of Head of State etc. immunity. The conclusion is different, however, as regards international criminal judicial bodies established by way of an international treaty. At the moment, there is no clear evidence either in international case law, State practice or opinio juris of a move in favour of a general rule denying state official immunity from prosecution for core international crimes before international criminal judicial bodies, without more.338 As Akande notes “since only parties to a treaty are bound by its provisions, a treaty establishing an international tribunal cannot remove immunities that international law grants to the officials of States that are not party to the treaty. Those immunities are rights belonging to the non-party States and those States may not be deprived of their rights by a treaty to which they are not party”.339 334

335

336 337 338 339

No clear rule has yet developed in customary international law waiving the immunity of state officials from prosecution before international criminal judicial bodies. Cassese argues though that there exists a customary rule which removes functional immunity for state officials accused of international crimes. See Cassese, supra note 15, pp. 870–874. The waiver of immunity before the ICC, ICTY and ICTR results from the presence of a specific provision in their statutes waiving such immunity and not because of their classification as an international criminal judicial bodies. See Nouwen, supra note 15, p. 657 and Akande, supra note 15, pp. 415–419. Article 25 of the UN Charter, supra note 100, reads “[t]he members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” ICTY Statute, supra note 84, Article 7(2) and ICTR Statute, supra note 86, Article 6(2). This is why Slobodan Miloševiü could be indicted when he was the serving President of the Federal Republic of Yugoslavia. See Frulli, supra note 15, pp. 1127–1128. See Akande, supra note 15, p. 417. The SCSL, being established by an international treaty, falls within this rule. Accordingly, the Special Court Agreement cannot remove the immunities that international law grants to the serving officials of States, which are

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A case in point is the ICC. Even though the ICC Statute specifically denies immunity to Heads of State etc., in principle, this provision does not encompass the serving Heads of State etc. of non-party States unless the non-party State agrees to the jurisdiction of the ICC, or at least waives the state official immunity of the official concerned.340 There is an additional layer to this discussion. As noted already, the immunity of a state official can be overridden where an international criminal judicial body is established by way of a UN Security Council Chapter VII resolution. Is it, therefore, also accurate to state that the immunity of a state official of a non-party State before the ICC, a treaty-based international criminal judicial body, can be overridden by a UN Security Council Chapter VII resolution referring a situation to the ICC Prosecutor in accordance with Article 13(b) of the ICC Statute?341 In the author’s view, a resolution merely referring a situation to the ICC, without expressly revoking the immunity of the state official(s) of the non-party State concerned, would not be sufficient. In this regard, it is interesting to examine the language used in UN Security Council Chapter VII resolution 1593 referring the situation in Darfur to the ICC Prosecutor. It provides that the UN Security Council

340

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not party to the Special Court Agreement, supra note 39. This is the case, notwithstanding the SCSL Appeals Chamber’s determination in the Taylor Decision, that while on the one hand the legal basis of the SCSL is the Special Court Agreement, on the other hand, the SCSL was established within the framework of Chapter VII of the UN Charter, supra note 100. Therefore, as long as Taylor was the serving President of Liberia, the SCSL had, in the author’s view, no jurisdiction over him, without the consent of Liberia. The SCSL Appeal Chamber, relying on its determination that the SCSL was established within the framework of Chapter VII of the UN Charter, supra note 100, tried to equate the SCSL with the ICTR and ICTY and determined that it had jurisdiction over Taylor when he was the incumbent President of Liberia. In the author’s view, this conclusion is incorrect. Now that Taylor has stepped down as President of Liberia, the consent of Liberia is not required in order for the SCSL Prosecutor to prosecute him. As the former President of Liberia, his right to personal immunity has fallen away. The question of whether he can invoke functional immunity or not is not clear-cut. See the references set out supra note 15. See also supra note 334. ICC Statute, supra note 2, Articles 12(3) and 27. For a review of the extent to which Article 27 departs from customary international rules, see Paola Gaeta, “Official Capacity and Immunities”, in Cassese, Gaeta and Jones (eds.), supra note 219, pp. 990–1001. For a discussion of the relationship between Articles 27(1) (removing the immunity of Heads of State etc. for international crimes) and 98 (1) (providing that the ICC may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to inter alia the state immunity of a person, unless the ICC can obtain the cooperation of that third State for the waiver of immunity) of the ICC Statute, see Akande, supra note 15, pp. 419–433. See also Dapo Akande, “The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits”, 1 J. Int’l Crim. Jus. 618 (2003), pp. 640–646 and Dapo Akande, “The Application of International Law Immunities in Prosecutions for International Crimes”, in Harrington, Milde and Vernon (eds.), supra note 8, pp. 47–98. See Daryl Robinson, “The Rome Statute and its Impact on National Law”, in Cassese, Gaeta and Jones, supra note 219, p. 1857.

4.7 Conclusion 357 Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court; Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully342

A request to Sudan, a non-party State to the ICC, to “cooperate fully” with the ICC does not, in the author’s view, amount to resolving that the state officials of Sudan can be stripped of state official immunity before the ICC, should any be indicted by the ICC Prosecutor. Resolution 1593 itself acknowledges the lack of obligations on non-party States. Stronger language would need to be employed to deny the state officials of a non-party State of immunity before the ICC. In principle though, in the author’s view, it would be possible to strip a state official of a non-party State of immunity before the ICC, on the basis of a clearly worded UN Security Council Chapter VII resolution. Whether such a resolution would ever be passed, however, is another question.

4.8 Conclusion The fundamental criteria of an international criminal judicial body for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes are as follows: (i) The legal basis of an international criminal judicial body is either an international treaty between two or more States, a UN Security Council Chapter VII resolution, an agreement between the UN and one or more States, or an amendment to the UN Charter; (ii) it is not part of the judiciary of one single State; (iii) it applies international criminal law; (iv) its jurisdiction ratione materiae and ratione personae is international; and (iv) its decisions are binding. Other matters which can be indicative of an international criminal judicial body, for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes are as follows: (i) its judiciary is independent and impartial; (ii) adjudication before the international criminal judicial body is governed by a predetermined set of rules of procedure and evidence; (iii) it has concurrent jurisdiction with and primacy over national courts or its jurisdiction is complementary to national courts; (iv) it is independently financed; (v) it fulfils the criteria associated with classical international organisations; (vi) it has Chapter VII powers; (vii) the parties establishing the international criminal judicial body intended to establish a solely international criminal judicial body or a mixed international-national criminal judicial body; (viii) it is designated as ‘international’; (ix) its constitutive documentation contains an express provision 342

S.C. Res. 1593, U.N. SCOR, 60th Sess., 51587th mtg., U.N. Doc. S/RES/1593 (31 March 2005), §§ 1–2 (emphasis added).

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denying Heads of State and Heads of Government immunity from prosecution for core international crimes; (x) the entity in whose name the accused is being prosecuted before such body is not a State; and (xi) the international community undertakes an active role in the establishment and administration of such body. Although the author is in agreement with the conclusion of the SCSL Appeals Chamber in relation to the international criminal judicial body status of the SCSL, the basis on which the Appeals Chamber reached such conclusion is subject to criticism. While the Appeals Chamber considered the legal basis of the SCSL in some detail, its conclusions in relation to the same are confusing and unhelpful. Moreover, the Appeal Chamber’s decision would have benefited from a thorough consideration and identification of all of the defining criteria of an international criminal judicial body, instead of settling for a cursory and vague treatment of the subject at hand. The SCSL is the only hybrid criminal judicial body which can be categorised as an international criminal judicial body for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes. The Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili (East Timor), the ‘Regulation 64’ Panels of Kosovo, the War Crimes Chamber of the State Court of Bosnia and Herzegovina and the Supreme Iraqi Criminal Tribunal cannot be categorised as international criminal judicial bodies for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes; primarily because they each form part of the judiciary of a State. The STL cannot be categorised as an international criminal judicial body for current purposes, as it does not apply international criminal law and its jurisdiction ratione materiae and ratione personae is not international.

5 Individual Criminal Responsibility for Terrorism as a Crime against Humanity: An Appropriate Expansive Adaptation of the Subject Matter of Core International Crimes?

5.1 Introduction and Overview Acts of terrorism - for example, the terrorist attacks of September 11th, 2001 in the USA, the October 12th, 2002 Bali attacks, the March 11th, 2004 Madrid train bombings and the July 7th, 2005 bombings in London – increasingly afflict our world, and generate much legal debate, including a consideration of the legal remedies which can be found in international criminal law to impose individual criminal responsibility for such acts. The principal aim of this chapter is to consider the concept of the imposition of individual criminal responsibility for terrorism as a crime against humanity, a core international crime, which novel assertion, came to prominence in the aftermath of the September 11th attacks.1 Such assertion, if accurate, would, arguably, amount to an expansive adaptation of the subject matter of core international crimes, which warrants serious consideration. This chapter also briefly considers the imposition of individual criminal responsibility for terrorism inter alia as a war crime and as an act of genocide, both of which are also core international crimes. The imposition of individual criminal responsibility for terrorism as a crime against humanity is the primary focus of this chapter chiefly because, from a current day perspective, it is the most interesting and divisive debate in the context of the imposition of individual criminal responsibility for terrorism as a core international crime. On the other hand, there is ample support for the contention that acts of terrorism can be classified as war crimes; and while the argument could be made that acts of terrorism could potentially fall within the definition of the crime of genocide, it is unlikely that such acts would satisfy the strict intent requirements of the crime of genocide. In order to determine whether individual criminal responsibility for terrorism, as a crime against humanity can be imposed, a distinction needs to be drawn, at the 1

Many contemporary acts of terrorism occur outside the traditional confines of an armed conflict, which has led to the assertion that terrorism ought to/can be classified as a crime against humanity, because such crimes can be committed both in peacetime and in war.

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outset, between individual criminal responsibility for terrorism, as a distinct crime in its own right (or as a stand-alone crime) and individual criminal responsibility for certain manifestations of terrorism. This distinction is crucial to the current discussion and accordingly will be addressed in this chapter. Another interesting issue is the suggestion, made quite frequently, that acts of terrorism can, and should, be prosecuted before the ICC. Is there, however, any real substance behind these contentions, or do they amount to ‘wishful thinking’?2 Often the ICC is heralded as the panacea to the evils of international crimes - frequently unjustifiably, in the opinion of the author - but is it really the missing key in the fight against acts of terrorism? This chapter will, therefore, also consider this issue in detail, in particular the history of the crime of terrorism in relation to the ICC Statute;3 whether acts of terrorism fall within the definition of crimes against humanity of the ICC Statute (Article 7); the existing obstacles to the prosecution of terrorism before the ICC; and whether acts of terrorism should actually fall within the jurisdiction of the ICC. Finally, consideration will be given to the question posed in the title to this chapter – is it an appropriate expansive adaptation of the subject matter of core international crimes to impose individual criminal responsibility for terrorism as a crime against humanity? The objective behind this chapter is to attempt to provide a detailed analysis of the contention that acts of terrorism fall within the definition of crimes against humanity in general international law, in general, and the ICC Statute, in particular. By doing so, the author hopes to substantively contribute to an understanding of this issue, on which there is much disagreement. The author concludes in this chapter that, firstly, there is no agreed legal definition of terrorism, as a distinct crime in its own right under general international law; and thus argues that the imposition of individual criminal responsibility for terrorism as a crime against humanity, as a distinct crime in its own right, would violate two of the main components of the nullum crimen sine lege principle, i.e. the principle of non-retroactivity of criminal laws and the principle of specificity. Accordingly, in the author’s view, terrorism, as a distinct crime in its own right, is not encompassed by crimes against humanity, as that term is understood in general international law. Secondly, the author concludes that certain manifestations of terrorism are encompassed by the concept of crimes against humanity in general international law today. The significance of this determination is inter alia that certain manifestations of terrorism are thus elevated to jus cogens crimes.4 Such classification reinforces the gravity of certain manifestations of terrorism, and arguably strengthens the system of enforcement of the principle of individual 2

3 4

Of interest in this regard is the upcoming 2009 ICC Review Conference, which has been specifically requested to consider the crime of terrorism for inclusion in the list of crimes within the jurisdiction of the Court. See infra, section 5.8.1.5. Available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English. pdf (last visited 19 July 2007). The actual consequences attaching to such classification is, however, in dispute. See supra Chapter 2, at footnote 178.

5.2 Clarification 361

criminal responsibility for such crimes. Moreover, there is a clear ‘perception’ value in a perpetrator of terrorism being convicted for having perpetrated a crime against humanity, rather than an ‘ordinary’ terrorist crime. Thirdly, on a literal interpretation of Article 7 of the ICC Statute, certain manifestations of terrorism conceivably fall within the scope of Article 7. There are no general factors common to all current manifestations of terrorism that militate against their classification as crimes against humanity for the purposes of the ICC Statute. However, there also exist very weighty arguments against the inclusion of terrorism within the scope of Article 7, in particular the principle of legality (as regards terrorism, as a distinct crime in its own right) and the very clear evidence that it was not the intention of the drafters that such acts be included within the scope of Article 7. Notwithstanding that on a literal interpretation of Article 7, certain manifestations of terrorism conceivably fall within the scope of Article 7, when a number of other relevant factors are taken into account, it cannot, in the author’s view, be determined that terrorism as a distinct crime in itself, or certain manifestations of terrorism, currently fall(s) within the specific, or otherwise, subject matter jurisdiction of the ICC. Should the ICC specifically acquire subject matter jurisdiction over terrorism in the future, the prosecution of such crime before the ICC is, in the author’s view, at best going to be a rare event. However, the fact that such a prosecution may prove to be a rarity does not detract from the value of having the ICC, in the future, as a back-up option to catch those situations which, for whatever reason, cannot be dealt with in another forum. Finally, in the author’s view, it is an appropriate expansive adaptation of the subject matter of core international crimes to categorise certain manifestations of terrorism as crimes against humanity in general international law, for which individual criminal responsibility can be imposed. Such conclusion does not offend the principle of legality, and is an appropriate response to the challenges presented by contemporary terrorism. It should be noted, however, that the additional prosecutorial avenue created by the potential classification of certain manifestations of terrorism as crimes against humanity in general international law, may, in reality, only be utilised rarely. Notwithstanding this, there is nevertheless merit in having this additional prosecutorial avenue, and its existence underscores the seriousness of terrorism.

5.2 Clarification This chapter is alone concerned with acts of international terrorism (not acts of internal terrorism), as international law only governs the former. The primary argument in support of the prosecution of the perpetrators of acts of international terrorism at an international level is that without such legal avenue, perpetrators may escape prosecution, due to the circumstances of the domestic criminal system

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of the State in whose custody they find themselves (the “custodial state”),5 or because the custodial State is politically unwilling to either prosecute or extradite the perpetrators concerned.6 Bearing in mind the increased ease with which acts of international terrorism can be committed today (e.g. due to improved access to information, technology, communications, as well as biological, chemical and nuclear weapons) and the realities of life which have expanded the concept of terrorism to include, not just terrorist acts committed by one State against another State, or in the context of a civil war, but also terrorist acts by ideologically motivated non-State actors7 against a State, there is even greater reason for the prosecution of international terrorism at an international level.

5

6

7

For example, the act of international terrorism may not be a crime under the domestic law of the custodial State; such domestic laws may not permit its courts to exercise jurisdiction over such crime; or if the custodial State is not an affected State, its domestic laws may not grant its domestic courts the necessary universal jurisdiction over the crime in question. In each of these scenarios, the perpetrators may escape prosecution unless the custodial State extradites the perpetrators to another affected State whose domestic laws enable it to exercise jurisdiction over the crime in question. See Kris Verdoodt of The Institute for International Law of the K.U. Leuven Faculty of Law, “Working Paper No. 26 – August 2002 – A role for the International Criminal Court in the Fight Against Terrorism?”, August 2002, pp. 18–23, available at http:// www.law.kuleuven.ac.be/iir/ (last visited 28 January 2003) for a detailed consideration of the reasons that a custodial State may refuse to extradite the perpetrator of an act of international terrorism, e.g. because the (i) requesting State does not provide a politically neutral forum, (ii) custodial State is pressurised by its own population, other countries or the threat of severe retaliation, or (iii) custodial State wishes to shield the accused from prosecution. M. Cherif Bassiouni describes the general characteristics of ideologically motivated groups in the following terms: “Ideologically motivated groups tend to have fewer members/adherents and do not have the capability of effectuating a regime change, but their terror-violence techniques are capable of destabilizing a regime and inflicting harm on members of its society to achieve politically related, often vengeful, goals. For instance, by revealing a regime’s weaknesses, thereby causing terror in the society by exposing its vulnerability, such terrorist groups place the regime in a situation where it is likely to overreact or commit unlawful acts, and thereby delegitimize itself [e.g. the killing, in error, of Brazilian Jean Charles de Menezes in London on 22 July 2005 by the British police]… Ideologically motivated groups engage in strategies of terrorviolence to achieve a desired political result, propagandise a political message, punish the society with whom they deem themselves at odds or at war, obtain political concessions in exchange for either desisting from harm they can inflict (e.g. threat to bomb) or providing articles/persons they have taken from the regime (e.g. hostages)”. See M. Cherif Bassiouni, “Legal Control of International Terrorism: A Policy-Oriented Assessment”, 43 Harv. Int’l L. J. 83 (Winter 2002), pp. 85–86.

5.4 Individual Criminal Responsibility for Terrorism, as a Distinct Crime 363

5.3 Individual Criminal Responsibility for Terrorism: Defining the Categories of Criminalisation In order to set the stage for the review of terrorism as a crime against humanity, brief consideration will be given to the other potential methods of imposing individual criminal responsibility for terrorism which currently exist, as these other methods have, to some degree, a bearing on the classification of terrorism as a crime against humanity. The imposition of individual criminal responsibility for terrorism, can be examined with respect to five categories, (i) terrorism, as a distinct crime in its own right; (ii) certain manifestations of terrorism; (iii) terrorism, as a war crime; (iv) terrorism, as genocide; and (v) terrorism as a crime against humanity.8

5.4 Individual Criminal Responsibility for Terrorism, as a Distinct Crime9 There is currently no agreement on a single legal definition of terrorism. One study documented that already, in 1988, there were 109 official and academic definitions of terrorism.10 The term is a politically value-laden term and the level 8

9

10

For a discussion of terrorism as aggression, see Roberta Arnold, The ICC as a New Instrument for Repressing Terrorism, Transnational Publishers, Inc. Ardsely, New York, 2004, pp. 302–334. This classification is not discussed herein, due to the absence of a definition of aggression. The ICC will only have jurisdiction over the crime of aggression, when a definition of the same has been agreed upon. See supra Chapter 2, at footnote 180. Douglas R. Burgess Jr. makes the novel assertion that terrorism can be prosecuted as piracy. See Burgess, “Hostis Humani Generi: Piracy, Terrorism and a New International Law”, 13 U. Miami Int'l & Comp. L. Rev. 293 (Spring 2006). By way of a clarifying note, it should be noted that the purpose of this section is to determine whether individual criminal responsibility can be imposed for terrorism, as a distinct crime in its own right. It is not the intention of this section to evaluate the current draft definition of terrorism or to comment on what such definition should contain, as these issues are not, in the view of the author, of critical importance to the question of whether individual criminal responsibility can be imposed for terrorism, as a distinct crime in its own right. See Alex P. Schmidt and Albert J. Jongman, Political Terrorism, North Holland Publishing Company, Amsterdam, 1988. The study indicates that 83.5% of such definitions referred to elements of violence, 65% to political goals, 21% to arbitrariness and indiscrimination in the choice of targets and only 17.5% to the victimisation of civilians. George Fletcher has identified eight primary factors that have a bearing on terrorism. See Fletcher, “The Indefinable Concept of Terrorism”, 4 J. Int'l Crim. Jus. 894 (2006). For a consideration of the political factors which play a role in the determination of a definition of international terrorism, see Jörg Friedrichs, “Defining the International Public Enemy: The Political Struggle behind the Legal Debate on International Terrorism”, 19 Leiden J. Int’l L 69 (2006).

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of disagreement in relation to its interpretation is profound. The main reason for this is encapsulated in the oft-quoted phrase “one man’s terrorist is another man’s freedom fighter” or “what is terrorism to some is heroism to others”. Third world countries in particular, require that the violent acts of freedom fighters, i.e. individuals or groups seeking self-determination, not be defined as terrorism. It is difficult to formulate a comprehensive definition that satisfies such opposing views. Neither has a single global comprehensive treaty on terrorism ever entered into force,11 primarily because of the difficulty of reaching agreement on the definition of terrorism. This does not mean that the concept of terrorism has not been dealt with at all, on an international level. It has, but the approach adopted has been piecemeal, preference being given to dealing with individual manifestations of terrorism, as opposed to adopting a comprehensive treaty on terrorism. To date there are 30 major global or regional treaties dealing with terrorism: Global treaties dealing with terrorism (“sectoral conventions”) 1. Convention on Offences and Certain Other Acts Committed on Board Aircraft;12 2. Convention for the Suppression of Unlawful Seizure of Aircraft;13 3. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation;14 4. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents;15 5. Convention Against the Taking of Hostages;16 6. Convention on the Physical Protection of Nuclear Material;17 7. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation;18 8. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation;19 11

12 13 14 15

16 17 18

A global treaty on terrorism under the auspices of the League of Nations was adopted, i.e. the 1937 Geneva Convention for the Prevention and Punishment of Terrorism, C.546.M.383.1937.V., série de publications de la Société des Nations, Questions Juridiques, 1937, Vol. 10. However, it never entered into force, having only received one instrument of ratification. Signed at Tokyo on 14 September 1963 and entered into force on 4 December 1969. Signed at The Hague on 16 December 1970 and entered into force on 14 October 1971. Signed at Montreal on 23 September 1971 and entered into force on 26 January 1973. United Nations, Treaty Series, Vol. 1035, p. 167. Adopted by the UN General Assembly in Resolution 3166 (XXVIII) of 14 December 1973 and entered into force on 20 February 1977. United Nations, Treaty Series, Vol. 1316, at p. 205. Adopted by the UN General Assembly in Resolution 34/146 of 17 December 1979 and entered into force on 3 June 1983. Adopted at Vienna on 26 October 1979 and entered into force on 8 February 1987. Signed at Montreal on 24 February 1988 and entered into force on 6 August 1989.

5.4 Individual Criminal Responsibility for Terrorism, as a Distinct Crime 365

9. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf;20 10. Convention on the Marking of Plastic Explosives for the Purpose of Detection;21 11. International Convention for the Suppression of Terrorist Bombings;22 12. International Convention on the Suppression of Financing of Terrorism;23 13. International Convention for the Suppression of Acts of Nuclear Terrorism;24 14. Amendment to the Convention on the Physical Protection of Nuclear Material;25 15. Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation;26 and 16. Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf.27 Regional treaties dealing with terrorism 1. Arab Convention on the Suppression of Terrorism;28 2. Islamic Convention on Combating International Terrorism;29 3. European Convention on the Suppression of Terrorism;30 19 20 21 22 23

24 25

26

27 28

29

30

Adopted in Rome on 10 March 1988 and entered into force on 1 March 1992. Adopted in Rome on 10 March 1988 and entered into force on 1 March 1992. Done at Montreal on 1 March 1991 and entered into force on 21 June 1998. Adopted by the UN General Assembly in Resolution 52/164 of 15 December 1997 and entered into force on 23 May 2001. Adopted by the UN General Assembly in Resolution 54/109 of 9 December 1999 and entered into force on 10 April 2002. All global treaties dealing with international terrorism are available at http://untreaty.un.org/English/Terrorism.asp (last visited 12 June 2007). Adopted by the UN General Assembly in Resolution 59/290 of 13 April 2005 and entered into force on 7 July 2007. Done at Vienna on 8 July 2005; has not entered into force. Available at http:// www.iaea.org/Publications/Documents/Infcircs/Others/inf274r1.shtml (last visited 12 June 2007). Done at London on 14 October 2005; has not entered into force. Available at http:// www.austlii.edu.au/au/other/dfat/treaties/notinforce/2005/30.html (last visited 12 June 2007). Done at London on 14 October 2005; has not entered into force. Available at http:// www.state.gov/t/isn/trty/81728.htm (last visited 12 June 2007). Developed by the League of Arab States; signed at Cairo on 22 April 1998 and entered into force on 7 May 1999. Available at http://www.al-bab.com/arab/docs/league/ terrorism98.htm (last visited 29 July 2005). Developed by the Organization of the Islamic Conference; adopted at Ouagadougou on 1 July 1999 and entered into force in November 2002. Available at http://www. ciaonet.org/cbr/cbr00/video/cbr_ctd/cbr_ctd_25.html (last visited 29 July 2005). Developed by the Council of Europe; opened for signature at Strasbourg, France on 27 January 1977 and entered into force on 4 August 1978. Available at http://conventions.coe.int/Treaty/EN/Treaties/Html/090.htm (last visited 29 July 2005).

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4. American States Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance;31 5. African Union Convention on the Prevention and Combating of Terrorism;32 6. South Asian Regional Convention on Suppression of Terrorism;33 7. Treaty on Cooperation among the State Members of the Commonwealth of Independent States in Combating Terrorism;34 8. Shanghai Convention on Combating Terrorism, Separatism and Extremism;35 9. Inter-American Convention against Terrorism;36 10. Protocol Amending the European Convention on the Suppression of Terrorism;37 11. Additional Protocol to the South Asian Regional Convention on the Suppression of Terrorism;38 12. Protocol to the OAU Convention on the Prevention and Combating of Terrorism;39 13. Council of Europe Convention on the Prevention of Terrorism;40 and 14. Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism.41

31

32

33

34 35 36

37

38 39

40 41

Developed by the Organization of American States; signed at Washington D.C. on 2 February 1971 and entered into force on 16 October 1973. Available at http://www.oas.org/ juridico/english/Sigs/a-49.html (last visited 29 July 2005). Developed by the African Union (formerly the Organization of African Unity); adopted at Algiers on 14 July 1999 and entered into force on 6 December 2002. Available at http://untreaty.un.org/English/Terrorism/oau_e.pdf (last visited 29 July 2005). Developed by the South Asian Association for Regional Cooperation; signed at Kathmandu on 4 November 1987 and entered into force on 22 August 1988. Available at http://untreaty.un.org/English/Terrorism/Conv18.pdf (last visited 29 July 2005). Developed by the Commonwealth of Independent States; adopted at Minsk on 4 June 1999; and entered into force in accordance with its Article 22. Adopted at Shanghai on 15 June 2001 and entered into force on 29 March 2003. Developed by the Organization of American States; adopted at Bridgetown on 3 June 2002 and entered into force on 10 July 2003. Available at http://www.oas.org/xxxiiga/ english/docs_en/docs_items/AGres1840_02.htm (last visited 29 July 2005). Adopted at Strasbourg on 15 May 2003. The Protocol has not entered into force yet. Available at http://conventions.coe.int/Treaty/en/Treaties/Html/190.htm (last visited 29 July 2005). Adopted at Islamabad on 6 January 2004 and entered into force on 12 January 2006. Adopted in Addis Ababa on 8 July 2004; has not entered into force yet. Available at http://www.africa-union.org/root/au/Documents/Treaties/Text/The%20Protocol%20on% 20Terrorism%2026July2004.pdf (last visited 12 June 2007). Adopted at Warsaw on 16 May 2005 and entered into force on 1 June 2007. Available at http://conventions.coe.int/Treaty/EN/Treaties/Html/196.htm (last visited 12 June 2007). Adopted at Warsaw on 16 May 2005; has not entered into force. Available at http:// conventions.coe.int/Treaty/en/Treaties/Html/198.htm (last visited 12 June 2007).

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In addition, there have been numerous declarations,42 resolutions43 and reports44 by UN bodies relating to terrorism. The UN has taken a leading role in the fight against terrorism, as can be seen from the multiple documents produced by its various bodies over the years.45 On 8 September 2006, the UN General Assembly adopted the United Nations Global Counter-Terrorism Strategy (“UN Global Strategy”), the aim of which inter alia is to bring the various counter-terrorism activities of the UN system into a common framework.46 For the purposes of the current consideration of a definition of terrorism, the most interesting aspect of the present activities of the UN is the work of the UN General Assembly Ad Hoc Committee47 on a Draft Comprehensive Convention on International Terrorism (“Draft Comprehensive Convention”), which will be considered below. Brief reference ought to first be made to the other international instruments which have attempted to formulate a definition of the same, in order to highlight the absence of agreement on this issue. The definition formulated in the 1994 Declaration on Measures to Eliminate International Terrorism suggests that the three main elements of terrorism are that (i) the act in question must be a criminal act 42

43

44

45

46 47

Both by the UN Security Council and the UN General Assembly. See Declaration on the issue of combating terrorism (S/RES/1456 (2003)); Declaration on the global effort to combat terrorism (S/RES/1377 (2001)), Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism (A/RES/51/210 (1997)); and Declaration on Measures to Eliminate International Terrorism (A/RES/49/60 (1995)); all available at http://www.un.org/terror-ism/declarations.html (last visited 12 June 2007). Both the UN Security Council and UN General Assembly have adopted copious resolutions relating to terrorism over the years. UN Security Council resolutions are available at http://www.un.org/terrorism/sc-res.html (last visited 12 June 2007), whereas UN General Assembly resolutions are available at http://www.un.org/terrorism/resolutions.html (last visited 12 June 2007). The UN Secretary-General has produced numerous reports on this issue, the latest being on the protection of human rights and fundamental freedoms while countering terrorism (A/61/353 (2006)). All relevant Secretary-General reports are available at http://www.un.org/terrorism/sg-reports.html (last visited 12 June 2007). Reports of the UN General Assembly Sixth Committee relating to terrorism are available at http:// www.un.org/terrorism/sixthcom.html (last visited 12 June 2007), whereas the reports of the Working Group of the Sixth Committee are available at http://www. un.org/ terrorism/workgroupsix.html (last visited 12 June 2007) and the reports of the Ad Hoc Committee are available at http://www.un.org/terrorism/adhoccom.html (last visited 7 June 2007). For example, the 1267 Committee, the Counter Terrorism Committee, the Counter Terrorism Committee Executive Directorate, the 1540 Committee, the UN General Assembly Sixth Committee and Working Group of the Sixth Committee. See http:// www.un.org/terrorism/securitycouncil.html and http://www.un. org/terrorism/ga.html (last visited 12 June 2007). A/RES/60/288 (2006), available at http://www.un.org/terrorism/strategy-counter-terrorism. html (last visited 12 June 2007). The Ad Hoc Committee was established in 1996 by UN General Assembly Resolution 51/210 of 17 December 1996.

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under international law; (ii) the act is intended or calculated to provoke a state of terror in the public or persons/groups of persons, and (iii) the act must be politically motivated.48 Article 24 of the 1991 Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission restricted its definition of terrorism to acts committed by State actors alone and retained the requirement of such acts creating a state of terror in the minds of public figures, groups of persons or the general public.49 The revised draft of Article 24 in 1995 expanded the concept of terrorism to include terrorism by both State and non-State actors and retained the ‘state of terror’ element.50 In the end, the crime of terrorism, as a distinct crime in itself, was not included in the final 1996 version of the Draft Code of Crimes.51 The Special Rapporteur noted that if the crime of terrorism were to be retained in the Draft Code of Crimes, it would be necessary to draft a more precise definition.52 The latest draft of Article 2 of the Draft Comprehensive Convention provides 1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes: Death or serious bodily injury to any person; or Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of the present article, resulting or likely to result in major economic loss;

48 49 50 51

52

A/RES/49/60, Annex 1, § 3. Report of the International Law Commission on the work of its forty-third session (29 April to 19 July 1991), A/46/10, YILC (1991) Vol. II (Part Two), § 176. See Report of the International Law Commission on the work of its forty-seventh session (2 May-21 July 1995), YILC (1995) Vol. II (Part Two), note 62. Report of the Commission to the General Assembly on the work of its forty-eight session (6 May to 26 July 1996); A/51/10, YILC (1996) Vol. II, (Part Two), § 50. Reference is made to “acts of terrorism” in Article 20(f)(iv) of the 1996 Draft Code of Crimes, but only in the context of war crimes. See supra note 50, § 138. The summary of the debate on the Special Rapporteur’s thirteenth report notes that, “[s]ome members expressed serious doubts as to the possibility of elaborating a general definition with the necessary precision for criminal law. There were also differing views as to whether the existing international instruments dealing with specific aspects of the problem would provide the necessary guidance for a general definition. In this regard, a distinction was drawn between the crimes that could be prosecuted based on general international law, including aggression, war crimes, genocide and other crimes against humanity, and the crimes that presupposed the existence of a convention for their prosecution, including international terrorism”. See ibid., § 105.

5.4 Individual Criminal Responsibility for Terrorism, as a Distinct Crime 369 when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.53

While the definition of terrorism as set out in Article 2 certainly remains one of the issues which have hindered the adoption of the Draft Comprehensive Convention, in recent years, one of the more problematic issues has proved to be Article 18, concerning whether the activities of the armed forces of States in (i) armed conflicts, including in situations of foreign occupation, and (ii) the exercise of their official duties, should fall outside the scope of the Draft Comprehensive Convention.54 The formulation of Article 18 appears currently to be the key stumbling block to the finalisation of the Draft Comprehensive Convention.55 The December 2004 Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, A more secure world: Our shared responsibility (“High-level Panel Report”), also contributed to the debate on the formulation of a definition of terrorism.56 It made some specific, albeit not legally precise, suggestions as to certain elements which should be included in the definition of terrorism for the purposes of the Draft Comprehensive Convention.57 UN Security Council Resolution 1566 of 8 October 2004, adopted under Chapter VII of the UN Charter (Action with respect to threats of the peace, breaches of the peace and acts of aggression) also suggested proposed elements of the definition of terrorism.58 Moreover, the March 2005 Report of the Secretary-General, In larger freedom: towards development, security and human rights for all (“Secretary-General Report”), endorsed the comments of the High-level Panel on the elements of the definition of terrorism.59 The UN General Assembly Ad Hoc Committee has taken on board each of the elements of the definition of terrorism suggested in these 53 54

55 56 57 58 59

See General Assembly, Fifty-ninth Session, Measures to Eliminate International Terrorism, A/59/894 dated 12 August 2005. See Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Eleventh Session (5, 6 and 15 February 2007), UN. Doc. GAOR 62nd Sess. Supp. No. 37 (A/62/37), pp. 7–10 and Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Tenth Session (27 February – 3 March 2006), UN. Doc. GAOR 61st Sess. Supp. No. 37 (A/61/37), pp. 4–5. See also ibid., pp. 3–5. See also Mahmoud Hmoud, “Negotiating the Draft Comprehensive Convention on International Terrorism, Major Bones of Contention“, 4 J. Int’l Crim. Jus. 1031 (2006). See General Assembly, Sixth Committee, Summary Record of the 21st Meeting, A/C. 6/61/SR.21 dated 27 November 2006, § 40. Dated 2 December 2004, U.N. Doc. GAOR, 59th Sess. (A/59/565), available at http://www.un.org/secureworld/ (last visited 2 August 2005). Ibid., §§ 157–164. S/RES/1566 (2004), § 3, available at http://www.un.org/Docs/sc/unsc_resolutions 04.html (last visited 2 August 2005). Dated 21 March 2005, U.N.Doc. GAOR, 59th Sess. (A/59/2005), §§ 87-94, available at http://www.un.org/largerfreedom/ (last visited 2 August 2005).

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documents, but on the whole, delegations were of the view that the essential elements of the proposals of the High-level Panel were already covered by the current draft of Article 2 of the Draft Comprehensive Convention.60 Interestingly, the negotiations of the Ad Hoc Committee, as well as the two above-mentioned reports and UN Security Council Resolution 1566 have each emphasised, as a crucial element of the definition of terrorism, the purpose and objective of terrorist acts, i.e. to provoke and keep a state of terror in the general public, or in a group of persons or particular persons;61 to intimidate a population;62 or to compel a Government or an international organisation to do or to abstain from doing any act.63 The negotiations of the Ad Hoc Committee indicate that in reaching agreement on a definition of terrorism, the delegations have expressed a strong preference for focusing on the purpose and objective of terrorist acts, rather than on a description of perpetrators.64 The UN Secretary-General had urged the conclusion of the Draft Comprehensive Convention by the end of the 60th session of the UN General Assembly (i.e. prior to September 2006).65 However, the draft convention has not been finalised yet. The UN Global Strategy provides that the UN member states resolve to make every effort to reach an agreement on and conclude a comprehensive convention on terrorism.66 While it is clear that no definition of terrorism, as a distinct crime in its own right has been agreed by States yet, is it correct to conclude that hence, there is no individual criminal responsibility for terrorism, as a distinct crime in its own right in accordance with general international law? That certainly appears to be the prevailing view amongst scholars. However, Antonio Cassese takes issue with this conclusion, arguing that a definition of terrorism as a distinct crime in itself does exist, and that what could not be agreed upon was the exception to the definition, i.e. excluding acts of national liberation movements or freedom fighters from the definition of terrorism, rather than the definition of terrorism itself.67 In support of the proposition that a definition of terrorism as a distinct crime in itself does exist 60

61 62 63 64 65 66 67

Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Ninth Session (28 March – 1 April 2005), UN. Doc. GAOR 60th Sess. Supp. No. 37 (A/60/37), Annex II., p. 28, § 31. A/60/37, ibid., § 20; and S/RES 1566, supra note 58, § 3. High-level Panel Report, supra note 56, § 164; S/RES 1566, supra note 58, § 3; and Secretary-General Report, supra note 59, § 91. A/60/37, supra note 60, p. 20, § 20; High-level Panel Report, supra note 56, § 164; S/RES 1566, supra note 58, § 3; and Secretary-General Report, supra note 59, § 91. A/60/37, supra note 60, p. 20, § 20. See Secretary-General Report, supra note 59, § 91 and A/60/37, supra note 60, p. 28, § 30. See supra note 46, Annex, § 2(a). Antonio Cassese, International Criminal Law, Oxford University Press, Oxford, 2003, pp. 120–125 and “The Multifaceted Criminal Notion of Terrorism in International Law“, 4 J. Int’l Crim. Jus. 933 (2006). See also Cassese, “Terrorism as an International Crime“, in Andrea Bianchi (ed.), Enforcing International Law Norms against Terrorism, Hart Publishing, Oxford and Portland Oregon, 2004, p. 213.

5.4 Individual Criminal Responsibility for Terrorism, as a Distinct Crime 371

in customary international law, Cassese refers to the various international instruments which explicitly categorise acts of terrorism as war crimes, but without providing a definition of the term ‘acts of terrorism’.68 He also relies inter alia on Article 4 of the ICTR Statute,69 which classifies ‘acts of terrorism’ (again without defining this term), as a war crime, the International Convention on the Suppression of Financing of Terrorism,70 which defines terrorism by reference to a list of sectoral conventions (Article 2(a)) and then by way of a sweep-up provision (Article 2(b)), national laws prohibiting terrorism, various UN General Assembly resolutions and certain regional treaties on terrorism. He then identifies, as the three main elements of terrorism, as a distinct crime in itself that: (i) the acts must constitute a criminal offence under most national legal systems, (ii) they must be aimed at spreading terror in the population or to coerce a state or an international organisation to take some sort of action; and (iii) they must be politically, religiously, or otherwise ideologically motivated, that is, not motivated by the pursuit of private means. While Cassese’s arguments are valuable, it would, in the author’s view, be one step too far to conclude that based on this hotchpotch of sources, individual criminal responsibility for terrorism, as a distinct crime in itself can be imposed.71 The main argument against such a conclusion is the nullum crimen sine lege principle, or the principle of legality of crimes, which provides that a person cannot be individually criminally responsible for a crime unless the conduct in question constitutes, at the time it takes place, a crime under the applicable law. One could argue that individuals were prosecuted for crimes against humanity and crimes against peace before the IMT, notwithstanding that such prosecutions arguably violated the principle of legality of crimes by prosecuting individuals for crimes that were codified, after such crimes had been committed; so in what way would the prosecution today of individuals for terrorism, as a distinct crime in itself, be distinguishable from the prosecution of crimes against humanity and crimes against peace after the Second World War? The distinction can perhaps be explained by the different doctrines upon which international criminal law was/is based at these different points in time. Up until the Second World War, the system of international criminal justice was founded on the principle of substantive justice, the aim of which was to “prohibit… and punish… any conduct that is socially harmful or causes danger to society, whether or not that conduct has already been criminalized at the moment it is taken.”72 This was because, up until the Second World War, there

68 69

70 71 72

The provisions of these international instruments are discussed infra, section 5.6. Statute of the International Criminal Tribunal for Rwanda, adopted 8 November 1994 by UN Security Council Resolution 955, as amended, available at http://69.94.11.53/ ENGLISH/basicdocs/statute.html (last visited 17 July 2007). See supra note 23. Cassese himself notes that agreement has not yet been reached on the Draft Comprehensive Convention. See Cassese (2006), supra note 67, p. 937. See Cassese (2003), supra note 67, p. 139. See generally ibid., pp. 139–145.

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really only existed customary rules prohibiting war crimes. Adopting the substantive justice approach enabled international criminal law to prosecute the perpetrators of other serious crimes of concern to the international community. Since the Second World War, the founding doctrine of the international criminal justice system has changed to adopt the strict liability doctrine, which advocates what we understand to be encompassed by the principle of legality of crimes today, i.e. that a person cannot be individually criminally responsible for a crime unless the conduct in question constitutes, at the time it takes place, a crime under the applicable law.73 The principle of legality of crimes, based on the strict liability doctrine, has played a role before the ICTY and ICTR,74 and is specifically accommodated by the ICC Statute.75 The imposition of individual criminal responsibility for terrorism as a distinct crime in itself would, in the author’s view, violate two of the main components of the nullum crimen sine lege principle, i.e. the principle of non-retroactivity of criminal laws and the principle of specificity, which requires that laws imposing criminal responsibility should be as specific as possible, so that a potential perpetrator is aware of the mens rea and actus reus elements of the crime concerned.76 The recognition of the principle of non-retroactivity in international criminal law is not controversial.77 However, the principle of specificity is not applied absolutely in international criminal law. Due to the way the system has developed, there are many international criminal law rules which rely on vague and imprecise concepts and their subjective and objective elements are not clear.78 Cassese gives as examples of these vague and imprecise concepts, inter alia the concepts of inhumane treatment, rape, torture, persecution, and enslavement.79 While admittedly, there is no codifying instrument of international law which sets out the subjective and objective elements of these concepts, the jurisprudence of the ICTY and ICTR, as well as the provisions of the ICC has made a significant contribution 73

74

75 76 77 78

79

Cassese identifies two reasons for this change of policy: (i) The ratification by States of a number of human rights treaties which required adherence by national courts to the nullum crimen sine lege principle, which in turn impacted on the international justice system; and (ii) The ratification of a number of international treaties which specifically imposed individual criminal responsibility for certain crimes and the development of jurisprudence which fleshed out the parameters of the basic elements of international criminal law. See Cassese (2003), supra note 67, pp. 144–145. See Susan Lamb, “Nullum crimen, nulla poena sine lege in International Criminal Law”, in Cassese, Gaeta and Jones, The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, Vol. I, pp. 742–746. Article 22, ICC Statute, supra note 3. See also Lamb, ibid., pp. 746–754. See generally, Cassese (2003), supra note 67, pp. 139-157 and Lamb, supra note 74, pp. 733–766. See for example, Cassese (2003), supra note 67, pp. 147–149. See Cassese (2003), supra note 67, pp. 145–147. Lamb does not comment specifically on the principle of specificity but posits that the nullum crimen sine lege principle is a well-established norm of customary international law. See Lamb, supra note 74, p. 734. See Cassese (2003), supra note 67, p. 145 and Lamb, supra note 74, p. 734.

5.4 Individual Criminal Responsibility for Terrorism, as a Distinct Crime 373

to the clarification of these concepts.80 Notwithstanding that the principle of specificity is not applied absolutely in international criminal law, in the author’s view, it would be incorrect to deny its application, or indeed the application of the principle of the non-retroactivity of criminal laws, to the concept of terrorism, as a distinct crime, for two reasons. Firstly, the majority of States and academics hold the view that there is no agreed definition of the crime of terrorism as a distinct crime in itself. The subjective and objective elements of the crime are vague and have not been clarified by the jurisprudence or founding documents of an international criminal tribunal/ court. This position is emphasised by current attempts to conclude negotiations on the Draft Comprehensive Convention and by calls by the UN Secretary-General and the High Level Panel appointed by him, that the Draft Comprehensive Convention, which is to include a definition of terrorism as a distinct crime in itself, be concluded. Moreover, as will be seen below, during the ICC negotiations, attempts to extend the jurisdiction of the ICC to terrorism either as a distinct crime in its own right,81 to certain manifestations of terrorism (as treaty-based crimes) or as a crime against humanity, were all rejected. A consistent theme of concern throughout the ICC negotiations on terrorism was the lack of a general definition of terrorism. Although the ICC Statute does not codify international criminal law, it may be regarded as indicative of the legal views (i.e. opinio juris) of a great number of States and depending on the matter at issue, it may be taken to restate, reflect or clarify customary rules or crystallise them.82 Accordingly, it is significant that terrorism, as a distinct crime in itself was not specifically included within the statute of the ICC. Clearly, if the majority of States hold the view that there is no agreed definition of terrorism as a distinct crime in its own right, then it hardly seems justifiable to impose individual criminal liability for a crime, the subjective and objective elements of which are, in the view of the majority of States, not settled. Indeed, how can there be a law prohibiting a certain act as a crime, if its most basic elements are not clearly identified? Moreover, the imposition of individual criminal responsibility for terrorism, as a distinct crime in its own right, notwithstanding the majority view of the absence of an agreed definition, would have unwanted consequences in the context of the ICC Statute. If hypothetically, it could be said that terrorism as a distinct crime in its own right fell within the jurisdiction of the

80

81 82

For example, enslavement, torture, and persecution are all defined in Article 7(2), ICC Statute, supra note 3. The concept of rape has also been discussed and defined inter alia in Prosecutor v Zejnil Delaliü, et al., Case No.: IT-96-21-T, Judgment, T. Ch., 16 November 1998, Prosecutor v Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgment, T. Ch., 2 September 1998, and Prosecutor v Dragoljub Kunarac, Radomir Kovac og ZoranVukovic, Case No.: IT-96-23-T and IT-96-23/1-T, Judgment, T. Ch., 22 February 2001. See the 1997 definition of the Preparatory Committee’s Working Group, § (1) discussed infra, section 5.8.1.3. See supra Chapter 2, section 2.4.3.3.

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ICC because there is an agreed definition of the crime,83 in reality the fact that majority of States hold the view that there is no such agreement, would mean that States may not be able to prevent the complementary provisions of the ICC taking effect, as in the eyes of the State, the individual may not have committed a crime and thus the State would not be seeking to prosecute him under domestic law.84 This was clearly not the intention of the States which ratified the ICC Statute. Secondly, there appears to be no legitimate justification for the non-application of the principles of non-retroactivity of criminal laws and specificity to terrorism, as a distinct crime, on the grounds that such principles can be ignored in the interests of defending society against such behaviour (a justification for the substantive justice doctrine), as the perpetrators of terrorism can, as will be seen below, already be held individually criminally responsible for certain manifestations of terrorism. Why deny the application of the principles, when the end result can be the same, once another categorisation of criminalisation is applied? The Highlevel Panel Report admits that “[l]egally, virtually all forms of terrorism are prohibited by one of 12 international counter-terrorism conventions, international customary law, the Geneva Conventions, or the Rome Statute.”85 The perpetrators of terrorism can still be held individually criminally responsible for their crimes, when prosecuted for certain manifestations of terrorism, rather than the distinct crime of terrorism. The downsides to the inability of States to conclude the Draft Comprehensive Convention are seen as preventing the UN “from exerting its moral authority [note, not its legal authority] and from sending an unequivocal message that terrorism is never an acceptable tactic, even for the most defensible of causes” and “undermin[ing] the normative and moral stance against terrorism and [this lack of agreement] has stained the United Nations image.”86 “Achieving a comprehensive convention on terrorism, including a clear definition is a political imperative [note, not a legal imperative].”87 The Secretary-General Report speaks in similar terms.88 It has been argued that the conclusion of a comprehensive convention on terrorism would implement a clear normative framework in relation to this issue. However, this may not be entirely accurate. Article 3 of the Draft Comprehensive Convention currently provides that “[w]here the present Convention and a treaty dealing with a specific category of terrorist offence would be

83

84 85 86 87 88

Which is extremely unlikely bearing in mind the negotiating history of the Statute and the provisions of Article 22 of the ICC Statute, supra note 3, which specifically incorporates the principle of legality into the ICC Statute (Article 22(1)) and also provides that the definition of a crime shall be strictly construed and in case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted of convicted (Article 22(2)). See Article 17, ICC Statute, supra note 3 and infra, section 5.9.1.2. Supra note 56, § 159. Emphasis added. Ibid., §§ 158 and 159. Emphasis added. Ibid., § 159. Supra note 59, § 90.

5.6 Individual Criminal Responsibility for Terrorism, as a War Crime 375

applicable in relation to the same act as between States that are parties to both the present Convention and the said treaty, the provisions of the latter shall prevail.”89 Thus, clearly, based on the current draft, having a comprehensive convention on terrorism would not completely remove the necessity to address a hotchpotch of different legal instruments. The comprehensive convention would complement, but not supersede the sectoral conventions on certain manifestations of terrorism. Thus, in the author’s view, today, individual criminal responsibility cannot be imposed under general international law for terrorism as a distinct crime in its own right. To do so, would breach the principle of legality, in particular, the principle of non-retroactivity of criminal laws and the principle of specificity.

5.5 Individual Criminal Responsibility for Certain Manifestations of Terrorism Although, in the author’s view, individual criminal responsibility for terrorism as a distinct crime in its own right, cannot be imposed under general international law, primarily due to the absence of an agreed legal definition of the same, it is clear that based on the sectoral conventions listed above, individual criminal responsibility for terrorism can be imposed for certain manifestations of terrorism, for example, hijacking aircraft, crimes against internationally protected persons, including diplomatic agents, hostage-taking, violence at civilian airports, seizing ships, terrorist bombings, and the financing of terrorism.

5.6 Individual Criminal Responsibility for Terrorism, as a War Crime Terrorism has specifically been categorised as a war crime in certain international instruments. For example, Article 33(1) of Geneva Convention IV provides that “[c]ollective penalties and likewise all measures of intimidation or of terrorism are prohibited.” Moreover, Article 51(2) of Additional Protocol I provides that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” As regards non-international armed conflicts, Article 4(2)(d) of Additional Protocol II provides that acts of terrorism against persons who do not take a direct part, or who have ceased to take a direct part, in hostilities are prohibited, whereas Article 13(2) thereof, provides that acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited. Moreover, Article 4(d) of the ICTR Statute specifically provides that ‘acts of terrorism’ amount to violations of Article 3 common to the Geneva conventions and of Additional Protocol II. As noted above,

89

See supra note 53.

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however, each of these international instruments employs the term ‘terrorism’ without defining its scope. Arguably, certain manifestations of terrorism, once they satisfy the chapeau elements of war crimes, i.e. they are committed during and in connection with an armed conflict, are also encompassed by Article 4(a)-(c), (e) and (h) of the ICTR Statute (concerning violations of Article 3 common to the Geneva Conventions and of Additional Protocol II), Articles 2(a)-(d), 2(h) and 3(b)-(d) of the ICTY Statute (concerning grave breaches of the Geneva Conventions and violations of the laws or customs of war, respectively),90 and Article 8(2)(a)(i)-(iv), 8(2)(b)(i)-(ii), (v), (ix), (xvii), and (xviii), as well as Articles 8(c)(i), (iii), and 8(d)(i) of the ICC Statute (concerning war crimes), on a literal interpretation of such instruments.91

5.7 Individual Criminal Responsibility for Terrorism, as Genocide The argument can be made that certain acts of terrorism could potentially fall within the definition of the crime of genocide. However, it is unlikely that such acts would satisfy the strict intent requirement of the crime of genocide, i.e. that the acts be committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.92

5.8 Individual Criminal Responsibility for Terrorism, as a Crime Against Humanity Subsequent to the attacks of 11 September 2001, various interested parties attempted to inter alia pigeonhole these reportedly terrorist attacks as crimes against humanity.93 Moreover, during negotiations for the Special Tribunal for Lebanon,

90

91

92

93

Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May 1993 by UN Security Council Resolution 827, as amended, available at http:// www.un.org/icty/legaldoc-e/index.htm (last visited 17 July 2007). For a discussion of terrorism as a war crime within the jurisdiction of the ICC, see Hanne Sophie Greve, “Acts of terrorism and crimes within the jurisdiction of the International Criminal Court”, in Morten Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden, Marinus Nijhoff Publishers, Leiden/Boston, 2003, p. 75. See also, Arnold, supra note 8, pp. 66–202. See supra Chapter 2, section 2.5.3.1. See also Arnold, supra note 8, pp. 276–302 and James D. Fry, “Terrorism as a Crime against Humanity and Genocide: The Backdoor to Universal Jurisdiction”, 7 UCLA J. Int’l L. & For. Aff. 169 (Spring/Summer 2002). E.g. (i) Robert Badinter, see Antonio Cassese, “Terrorism is also Disrupting Some Crucial Legal Categories of International Law”, 12 EJIL 993 (2001), note 5; (ii) UN Secretary–General Kofi Annan, ibid.; (iii) UN High Commissioner for Human Rights

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it was considered, whether the jurisdiction of the tribunal should extend to crimes against humanity in the context of the attack on inter alia former Prime Minister Rafiq Hariri, which was classified as a terrorist act.94

94

(at the time) Mary Robinson, see UN Daily Highlights 25 September 2001 available at www.un.org/news/dh/20010925.htm (last visited 28 January 2003); (iv) Alain Pellet; see Le Monde, 21 September 2001; (v) Geoffrey Robertson QC, see the Guardian, 14 September 2001 available at http://www.guardian.co.uk/wtccrash/story/0,1300, 551607,00.html (last visited 6 October 2004); (vi) Antonio Cassese, see Cassese ibid., p. 995; (vii) Benjamin Ferencz, former IMT prosecutor, see interview with Ferencz, available at http://www.ratical.org/ratville/CAH/Ferencz.html (last visited 11 June 2007); (viii) Christopher Greenwood QC, see Greenwood, “International law and the “war against terrorism””, 78 International Affairs 301 (2002); (ix) Jordan Paust, see Paust, “There is No Need to Revise the Laws of War in Light of September 11th”, The American Society of International Law Task Force on Terrorism, November 2002, p. 2, available at http://www.asil.org/taskforce/paust.pdf (last visited 6 October 2004); (x) Frederic L. Kirgis, see Kirgis, “Terrorist Attacks on the World Trade Center and the Pentagon”, ASIL Insights, September 2002, p. 1, available at http://www.asil.org/insights/insigh77.htm (last visited 6 October 2004); (xi) David Scheffer, “Staying the Course with the International Criminal Court”, 35 Cornell Int’l L. J. 47 (November 2001/February 2002); (xii) Human Rights Watch, “September 11: One Year On“, available at www.hrw.org/ press/2002/09/sept11.htm (last visited 5 June 2007); (xiii) Chibli Mallat, “The Original Sin: “Terrorism“ or “Crimes against Humanity”, 34 Case W. Res. J. Int'l L. 245 (Fall 2002); and (xiv) Mark A. Drumbl, “Terrorist Crime, Taliban Guilt, Western victims, and International Law“, 31 Denv. J. Int'l L. & Pol'y 69 (Fall 2002). See also Asli U. Bali, “International Law and the Challenge of Terrorism“, 9 J. Islamic L. & Culture 1 (Fall/Winter 2004). For an example of the contrary view, see generally, William A. Schabas, “Is Terrorism a Crime against Humanity“, 8 International Peacekeeping: The Yearbook of International Peace Operations 255 (2004). The September 11th attacks were also claimed to amount to an act of aggression (see Nicole Witen, “A Difficult Road for the International Criminal Court”, October 2001, available at http://www.mcc.org/ respub/un/2001/10_Oct/road.html (last visited 28 January 2003)), and to war crimes (see Anthony Dworkin, “The Yemen Strike: The War on Terrorism Goes Global”, 14 November 2002, available at http://crimesofwar.org/print/onnews/ yemen-print.html (last visited 2 July 2007). The now defunct Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Con-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001) promulgated by President George Bush authorising the trial of non-citizens suspected of complicity in the September 11th attacks before specially convened military commissions and its successor, the Military Commissions Act 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006) are both predicated upon the belief that the terrorist acts amounted to an act of war and that suspected terrorists should be treated as war criminals; see also Christopher M. Evans, “Terrorism on Trial: The President’s Constitutional Authority to Order the Prosecution of Suspected Terrorists by Military Commission”, 51 Duke L. J. 1831 (April 2002), Ruth Wedgwood, “Agora: Military Commissions: Al Qaeda, Terrorism, and Military Commissions”, 96 AJIL 328 (April 2002), and Daryl A. Mundis, “Agora: Military Commissions: The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts”, 96 A.J.I.L. 320 (April 2002). This proposal was ultimately rejected, however. See supra Chapter 4, section 4.6.2.7.

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As mentioned above, this issue warrants closer attention, as the contemporary acts of terrorism, which currently afflict our world – as evidenced by the terrorist attacks of September 11th, 2001 in the USA, the October 12th, 2002 Bali attacks, the March 11th, 2004 Madrid train bombings and the July 7th, 2005 bombings in London – generally occur outside the traditional confines of an armed conflict; and crimes against humanity can be committed in peacetime as well as in war.95 Moreover, it is frequently suggested by commentators and the media alike, that terrorism can, and should be, prosecuted before the ICC.96 This chapter seeks to determine whether individuals can be individually criminally responsible for terrorism, as a crime against humanity both (i) under general international law and/or (ii) in accordance with the ICC Statute. The distinction is made, because although individual criminal responsibility for terrorism, as a crime against humanity may be recognised in general international law, this conclusion does not automatically imply that individual criminal responsibility for terrorism, as a crime against humanity is encompassed by the ICC Statute. The significance of terrorism, being categorised as a crime against humanity under general international law, for which there attaches individual criminal responsibility, is that terrorism, when satisfying the requirements of this category, is elevated to a jus cogens crime.97

95

96

97

For a consideration of the characteristics of terrorism today, as compared with terrorism from the 1970’s and 1980’s, see Michael Whine, “The New Terrorism“, (2001) available at http://www.tau.ac.il/Anti-Semitism/asw2000-1/whine.htm (last visited 15 June 2007). Drumbl identifies the advantages and disadvantages of prosecuting terrorists before international courts in the following terms: “An international criminal process captures the evil of the attack, adroitly involves the global public in eradicating terrorism, and provides the opportunity for universal cross-cultural condemnation. It also presents a number of strategic advantages over proceeding domestically. First… international criminal law has limited discovery procedures that permit sensitive information to be controlled. Secondly, the international tribunal could be situated in a neutral, isolated location, thereby reducing security threats to the U.S. Witnesses can testify through voice-altering technology, from behind screens and there are no juries. Third, international tribunals have juridical experience with the thorny questions of command responsibility and conspiracy. Fourth, international prosecutions offer the benefit of coordination… Responding internationally can reduce the transaction costs of coordinating various domestic prosecutions. It can also bridge barriers caused by differential human rights standards among prosecuting countries. Fifth, a coordinated international approach can lay the groundwork for a global intelligence network and anti-terrorism police unit. To be sure, there are drawbacks to international prosecutions. The number of possible defendants could challenge the capacity of international tribunals… Funding could be expensive… Should it take too long to organize a tribunal, the impetus to stamp out terrorism could wane. Moreover, the death penalty is disfavoured under international law.” See Drumbl, ibid., p. 73. See also Drumbl, “Victimhood in our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order”, 81 N. C. L. Rev. 1 (December 2002), pp. 71–74. See supra section 5.1 and supra note 4.

5.8 Individual Criminal Responsibility for Terrorism 379

The two proposed areas of research are interconnected. This section will focus primarily on whether terrorism is encompassed by Article 7 of the ICC Statute (which defines crimes against humanity for the purposes of the ICC Statute), as not only will this assist in the determination of whether individuals can be individually criminally responsible for terrorism, as a crime against humanity in accordance with the ICC Statute, it will also assist in the determination of whether terrorism amounts to a crime against humanity under general international law generally. This is because, as noted in Chapter 2, there exists no single legal authoritative definition of crimes against humanity under international law and Article 7 of the ICC Statute represents the most recent attempt at defining the concept.98 Moreover, Article 7 is, generally speaking, based on customary international law, subject to certain exceptions.99 Accordingly, if terrorism is determined to fall within the scope of Article 7 of the ICC Statute, then it is likely that it can be posited that such acts also come within the scope of crimes against humanity under general international law. 5.8.1 History of the Crime of Terrorism and the ICC Statute The ICC does not currently have specific subject matter jurisdiction over the crime of terrorism.100 However, a review of the history of the drafting of the ICC Statute shows that at different stages during the course of the negotiations on the ICC Statute, it was proposed that the ICC have specific subject matter jurisdiction over (i) certain manifestations of terrorism (1994 draft definition of the International Law Commission), referred to as ‘treaty-based crimes’, (ii) both terrorism, as a distinct crime in its own right and at the same time, certain manifestations of terrorism (1997 definition of the Preparatory Committee’s Working Group), and (iii) all acts of terrorism as a general concept, as crimes against humanity (1998 Rome Diplomatic Conference of Plenipotentiaries, first proposal) and all acts of terrorism as a general concept plus certain manifestations of terrorism, as crimes against humanity (1998 Rome Diplomatic Conference of Plenipotentiaries, second proposal). 5.8.1.1 1994 Draft Definition of the International Law Commission Article 20 of the International Law Commission’s draft statute for an international criminal court101 granted subject matter jurisdiction to the ICC with respect to the 98 99 100

101

See supra Chapter 2, section 2.5.3.3. Ibid. See generally Verdoodt, supra note 6, for a consideration of the arguments in support of and against including terrorism within the subject matter jurisdiction of the ICC. See also Arnold, supra note 8, p. 344. See Report of the International Law Commission on the work of its forty-sixth session, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10, p. 29.

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380

crimes of genocide,102 aggression,103 serious violations of the laws and customs applicable in armed conflict,104 crimes against humanity105 and “crimes, established under or pursuant to the treaty provisions listed in the Annex, which, having regard to the conduct alleged, constitute exceptionally serious crimes of international concern”,106 commonly referred to as ‘treaty-based crimes’. The definition of treaty-based crimes included the following crimes: Annex Crimes pursuant to Treaties... 2. 3. 5. 6. 8.

The unlawful seizure of aircraft as defined in Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970. The crimes defined by Article 1 of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971… The crimes defined by Article 2 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973. Hostage-taking and related crimes as defined by Article 1 of the International Convention against the Taking of Hostages of 17 December 1979… The crimes defined by Article 3 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988 and by Article 2 of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 10 March 1988.

Accordingly, it is clear that in 1994, it was envisaged that the ICC be given specific subject matter jurisdiction over certain manifestations of terrorism and that these crimes were distinct from crimes against humanity.107 Arguments put forward in favour of including the proposed treaty-based terrorism crimes included that the ICC was not meant to replace existing mechanisms for the prosecution of crimes of terrorism, but was intended to be an option available to determine whether a particular crime was better dealt with at the domestic or international level; and that many countries do not have the resources to engage in the large-scale intelligence gathering required for the prosecution of terrorist crimes.108 However, not all delegates to the Ad Hoc Committee on the Establishment of an International Criminal Court were convinced in 1995 of the wisdom of including treaty-based crimes within the jurisdiction of the ICC.

102 103 104 105 106 107 108

Article 20(a). Article 20(b). Article 20(c). Article 20(d). Article 20(e). Encompassed by Article 20(d). See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995), § 82.

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381

… the view was expressed that the offences established in the treaties listed in the annex may be of lesser magnitude than the other offences provided for in article 20 and that their inclusion within the jurisdiction of the international criminal court entailed a risk of trivializing the role of the court, which should focus on the most serious crimes of concern to the international community as a whole. Also in favour of the exclusion of the crimes in question from the jurisdiction of the court, it was argued that the said crimes were more effectively dealt with by national courts or through international cooperation. With specific reference to terrorism and illegal drug trafficking, concern was expressed that extending the jurisdiction of the court to the corresponding crimes would result in an overburdening of the court. … The view was expressed that it was necessary to include the conventions dealing with acts of terrorism in the list contained in the annex so as to bring the acts in question within the court’s jurisdiction without prejudice to the principle of complementarity and national jurisdiction. Other delegations, however, expressed grave doubts as to the wisdom and feasibility of proceeding along those lines.109

There was also concern that the treaty crimes were not part of customary international law and accordingly only qualified as international crimes for the State parties to the treaties in question.110 5.8.1.2 1996 Preparatory Committee Session Reports of the sessions of the Preparatory Committee on the Establishment of an International Criminal Court held a year later also illustrate the different views held by delegates. The representative of India stated that terrorism posed a challenge to the international community and due to the vast destruction of lives and property caused by terrorism, it should be included among the core crimes over which the ICC should have jurisdiction.111 The Russian representative supported the inclusion of terrorism within the jurisdiction of the ICC, but said that only the most serious cases of terrorism should be prosecuted,112 while the representative of the United States stated that her government did not favour the empowerment of the ICC to prosecute terrorism – while that crime had an international dimension, that was not itself a sufficient rationale for the crime of terrorism to be placed within the purview of the ICC.113 Representatives of Austria, Malaysia, the Republic of Korea, Sweden and the Netherlands all opined that terrorism should be adjudicated at the national level alone,114 while the representatives of Lebanon, 109 110 111

112 113 114

Ibid., §§ 81-83. See John Dugard, “Obstacles in the Way of an International Criminal Court”, 56 Camb. L J. 329 (1997), p. 334. See CICC Documents and Reports: Preparatory Committee Sessions – “Terrorism Should Be “Core Crime” of Proposed International Court India Tells Preparatory Committee”, 27 March 1996, §§ 1 and 2, available at www.iccnow.org/romearchive/ documentsreportsprepcmt.html (last visited 29 January 2003). Ibid., § 2. Ibid., § 6. Ibid., § 10.

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Libya and Qatar urged that a distinction be drawn between terrorism and the struggle for national liberation and self-determination.115 The 1996 Report of the Preparatory Committee on the Establishment of an International Criminal Court summarised the views of opponents to the inclusion of terrorism within the subject matter jurisdiction of the ICC in the following terms: A number of other delegations were of the view that international terrorism should not be included because there was no general definition of the crime and elaborating such a definition would substantially delay the establishment of the Court; these crimes were often similar to common crimes under national law in contrast to the crimes listed in other subparagraphs of article 20; the inclusion of these crimes would impose a substantial burden on the Court and significantly increase its costs while detracting from the other core crimes; these crimes would be more effectively investigated and prosecuted by national authorities under existing international cooperation arrangements for reasons similar to those relating to drug trafficking; and the inclusion of the crimes could lessen the resolve of States to conduct national investigations and prosecutions and politicise the functions of the Court.116 5.8.1.3 1997 Definition of the Preparatory Committee’s Working Group The Preparatory Committee’s Working Group on the Definition of Crimes formulated the following text in February 1997 in relation to crimes of terrorism: The Court has jurisdiction with respect to the following terrorist crimes: (1) Undertaking, organizing, sponsoring, ordering, facilitating, financing, encouraging or tolerating acts of violence against another State directed at persons or property and of such a nature as to create terror, fear or insecurity in the minds of public figures, groups of persons, the general public or populations, for whatever considerations and purposes of a political, philosophical, ideological, racial, ethnic, religious or such other nature that may be invoked to justify them; (2) An offence under the following Conventions: (a) Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; (b) Convention for the Suppression of Unlawful Seizure of Aircraft; (c) Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; (d) International Convention against the Taking of Hostages; (e) Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; (f) Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf;

115 116

Ibid., § 11. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, Supp. No. 22, U.N. Doc. A/51/22 (1996), Vol. I, § 106.

5.8 Individual Criminal Responsibility for Terrorism 383 (3) An offence involving use of firearms, weapons, explosives and dangerous substances when used as a means to perpetrate indiscriminate violence involving death or serious bodily injury to persons or groups of persons or populations or serious damage to property.117

What is striking about this definition is that it fails to distinguish between acts of terrorism and the right to self-determination, freedom and independence of persons forcibly deprived of that right, which was an important distinction in the opinion of a number of the Preparatory Committee delegates.118 The report of the intersessional meeting in Zutphen, the Netherlands in January 1998 did not contribute to the formulation of a more comprehensive definition, almost reproducing verbatim the definition formulated in 1997 by the Preparatory Committee’s Working Group on the Definition of Crimes.119 5.8.1.4 1998 Rome Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court At the Rome Diplomatic Conference in 1998, when it was realised that there may not be time to reach agreement on the inclusion of the treaty-based crimes in the subject matter jurisdiction of the ICC,120 a proposal was made to include terrorism 117

118 119

120

See Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Definition of Crimes, A/AC.249/1997/WG.1/CRP.4 (20 February 1997), available at www.iccnow.org/romearchive/documentsreports/3PrepCmt/Wrk Grp1 TerrorismFeb97.pdf (last visited 29 January 2003). The Working Group did not however recommend to the Preparatory Committee the text of the definition of crimes of terrorism in its 1997 report (presumably because the Working Group had only discussed this crime in a general manner and did not have the time to examine it as thoroughly as some of the other crimes), but it did recommend the text of the definition for further consideration at a future time (see Report of the Working Group on the Definition of Crimes, A/AC.249/1997/L.2 (21 February 1997), available at www. iccnow.org/ romearchive/documents reports/3PrepCmt/ReportWrkGrp1DefiniFeb97.pdf (last visited 29 January 2003)); see Decisions taken by the Preparatory Committee at its session held from 11 to 21 February 1997, A/AC.249/1997/L.5, 1997, note 36, available at www.npwj.org/iccrome/cdrom/february/february.pdf (last visited 29 January 2003). The Preparatory Committee took note of the Working Group’s recommendation in relation to the text of the definition of crimes of terrorism, ibid., § 1. See supra note 116, § 106. See Report of The Intersessional Meeting – Draft Statute for the International Criminal Court, 19-30 January 1998, available at www.iccnow.org/romearchive/zutphenneeting. html (last visited 29 January 2003). Dugard notes, however, that “… one suspects that the main reason for resistance to the inclusion of treaty crimes is that powerful states prefer the present arrangement under the treaties creating international crimes that obliges signatory states either to extradite or try offenders (aut dedere aut judicare)”, see supra note 110, p. 334. As regards the exclusion of treaty crimes generally, see Neil Boister, “The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics”, 3 Journal of Conflict and Security Law 27 (1998).

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within the definition of crimes against humanity. The proposal, which was put forward by Algeria, India, Sri Lanka and Turkey and received the support of Azerbaijan, Benin, Guatemala, Lebanon, Mexico, Samoa and Uganda, defined terrorism in the following terms: Any act of terrorism, in all its forms and manifestations involving the use of indiscriminate violence, is a crime committed against persons or property intended or calculated to provoke a state of terror, fear and insecurity in the minds of the general public or population resulting in death or serious bodily injury to mental or physical health and serious damage to property irrespective of any consideration and purpose of a political, ideological, philosophical, racial ethnic, religious or such other nature that may be invoked to justify it.121

However, states such as Canada, Denmark, Liechtenstein, Oman and the United States opposed the proposal on the grounds that (i) agreement could not be reached on the definition of terrorism; (ii) terrorism had never been categorised as a crime against humanity; (iii) the inclusion of terrorism within the jurisdiction of the ICC would politicise the ICC; (iv) not every act of terrorism is sufficiently serious to be prosecuted before the ICC; (v) national tribunals were better suited than international courts to the prosecution of crimes of terrorism; and (vi) (in the opinion of a number of developing countries) the ICC Statute did not distinguish between terrorism and the struggle of peoples under foreign or colonial domination for self-determination and independence. In the end, the proposal to encompass within the ICC’s definition of crimes against humanity, all acts of terrorism as a general concept was rejected, as was a second proposal by India, Sri Lanka and Turkey defining as crimes against humanity, both all acts of terrorism as a general concept and certain manifestations of terrorism.122 5.8.1.5 End Result In the end, it was decided that the specific subject matter jurisdiction of the ICC should not extend to terrorism, whether defined as a treaty-based crime, a mixture of terrorism as a distinct crime and certain manifestations of terrorism, or as a crime against humanity. However, this is not necessarily the end of the line for terrorism as a crime falling within the specific subject matter jurisdiction of the ICC. The 1998 Rome Diplomatic Conference of Plenipotentiaries adopted a resolution recognising that terrorist acts, by whoever and whenever perpetrated and whatever their forms, methods or motives, are serious crimes of concern to the

121 122

See A/CONF.183/C.1/L27. The second proposal was similar to the first but provided in addition, that the crime would also apply to any crime in a multilateral treaty for the suppression of terrorism that obliges the parties either to extradite or to prosecute the offender; see A/CONF. 183/C.1/L27/REV 1.

5.8 Individual Criminal Responsibility for Terrorism 385

international community and recommending that a Review Conference123 consider the crime of terrorism “with a view to arriving at an acceptable definition and… [its] inclusion in the list of crimes within the jurisdiction of the Court”.124 Accordingly, it may be that the crime of terrorism will come within the specific subject matter jurisdiction of the ICC in the future, but in any event, it will not be before 1 July 2009. The main stumbling block that militates against this is whether agreement can be reached on a definition of terrorism. 5.8.2 Terrorism, as a Crime Against Humanity in Accordance with the ICC Statute and/or Under General International Law? Although the ICC currently does not have specific subject matter jurisdiction over the crime of terrorism, this does not mean that the ICC categorically does not have jurisdiction over the perpetrators of terrorism. If an act of terrorism can be said to fall within the definition of crimes against humanity as defined in Article 7 of the ICC Statute, being a crime over which the ICC has specific subject matter jurisdiction, it may well be that the ICC has, albeit indirectly, jurisdiction over terrorism. Before commencing this review, a few initial remarks are warranted. Terrorism has many manifestations, for example, the hijacking of civil aircraft, the sabotage of civil aircraft and air navigation facilities, attacks on international airports, attacks on internationally protected persons, the kidnapping of diplomats, the taking of hostages, attacks on civil maritime targets and fixed platforms on the continental shelf, the financing of terrorist activities, and the use of explosive or other lethal devices against civilian installations and persons. No doubt new manifestations of terrorism will appear in the future. Accordingly, it is inconceivable that this research can deal with all manifestations of terrorism. The comments and conclusions below will, of necessity, be general in nature. Whether any one specific act of terrorism falls within the scope of Article 7 very much depends on the individual scenario at hand. However, the general observations set out below should assist in determining whether there are general factors, common to all manifestations of terrorism, which militate against the determination that terrorism is a crime against humanity within the scope of Article 7 of the ICC Statute. 5.8.2.1 Literal Interpretation of Article 7 of the ICC Statute In order to prove the commission of a crime against humanity in accordance with Article 7, a prosecutor must prove the commission of a specific crime considered 123

Pursuant to Article 123 of the ICC Statute, supra note 3, which provides that seven years after the entry into force of the ICC Statute, a Review Conference shall be convened to consider any amendments to the ICC Statute.

124

See the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, Resolution E, U.N. Doc. A/CONF. 183/10, Annex I.

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to be a crime against humanity,125 and also that the chapeau elements of crimes against humanity have been fulfilled, i.e. the crime(s) has been committed as part of a widespread or systematic attack, directed against any civilian population, with knowledge of the attack.126 Accordingly, a consideration of whether terrorism can conceivably fulfill these criteria warrants attention. Commission of Specific Crimes Amounting to Crimes Against Humanity It is conceivable that many acts of terrorism would result in the commission of some of the specific crimes considered to be crimes against humanity in accordance with Article 7, e.g. murder, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.127 Committed as Part of a Widespread or Systematic Attack This particular chapeau element is especially important in the current context, as it could prove problematic to satisfy in the context of terrorism. For current purposes, the earlier discussion concerning whether the ‘widespread or systematic attack’ should be interpreted as being conjunctive or disjunctive is central.128 As noted previously, the ICTR Trial Chamber in Prosecutor v Jean-Paul Akayesu defined ‘widespread’ as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims”.129 It stated that the concept of ‘systematic’ “may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy”.130

125 126 127

128 129 130

I.e. those set out in Article 7(1)(a) to 7(1)(k), ICC Statute, supra note 3. Set out in the opening paragraph of Article 7(1), ICC Statute, supra note 3. Each of these crimes is considered to be a crime against humanity under customary international law (subject to the fulfilment of the chapeau elements of crimes against humanity). If the acts of terrorism committed by individuals consisted of the crimes of forced pregnancy, apartheid or enforced disappearance of persons, (which is very unlikely in the case of forced pregnancy and apartheid, considering the current known manifestations of terrorism), then such crimes would not currently be recognised as crimes against humanity under customary international law. See supra Chapter 2, section 2.5.3.3 (Widespread or systematic). Prosecutor v Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgment, T. Ch. I., 2 September 1998, § 580. Ibid.

5.8 Individual Criminal Responsibility for Terrorism 387

A disjunctive interpretation is in conformity with customary international law.131 This means that, once an act of terrorism satisfies the requirements of being committed as part of a ‘widespread’ or a ‘systematic’ attack, it can be classified as a crime against humanity.132 Accordingly, large-scale acts of terrorism, such as the attacks of September 11th, could easily satisfy the requirement of a ‘widespread’ attack against a civilian population, notwithstanding that the attack on the civilian population could not be proved to have been committed as part of a ‘systematic’ attack. In addition, based on the disjunctive interpretation of this criterion, arguably an act of terrorism that satisfies the criteria of being committed as part of a ‘systematic’ attack on a civilian population could also amount to a crime against humanity, notwithstanding that the attack could not be described as large scale or affecting a multiplicity of victims (i.e. it cannot be described as being committed as part of a ‘widespread’ attack”).133 Therefore, an act of terrorism against a single victim or a limited number of victims, could also amount to a crime against humanity, once it was committed as part of a ‘systematic’ attack against a civilian population.134 Thus, the number of victims would not have to be on the scale of the September 11th attacks to constitute a crime against humanity. In practice however, from an evidential point of view, it would, often, be easier to prove that an act of terrorism was committed as part of a ‘widespread’ attack on a civilian population rather than as part of a ‘systematic’ attack on such civilian population. Accordingly, the conclusion that can be drawn from this review is that, it is conceivable that certain acts of terrorism perpetrated by individuals can satisfy the requirement of being committed as part of a widespread or systematic attack. However, if the ‘systematic’ requirement cannot be met, certain acts of terrorism will fail to meet the criteria required of a crime against humanity by Article 7, because they are not particularly grave and massive in character (i.e. they do satisfy the ‘widespread’ criterion either). Thus, an act of terrorism with few victims perpetrated by a lone terrorist, whose act was not perpetrated on the basis of a common organisational policy as part of a systematic attack would fall outside the

131 132 133 134

See supra note 128. Assuming, of course, that all other criteria for a crime against humanity have been satisfied. Again, assuming of course, that all other criteria for a crime against humanity have been satisfied. The act of denouncing a Jewish neighbour to the Nazi authorities, if committed against a background of widespread persecution has been regarded as amounting to a crime against humanity. See Prosecutor v Zoran Kupreskic and Others, Case No.: IT-95-16-T, ICTY T. Ch. II., 14 January 2000, § 550. Steven R. Ratner and Jason S. Abrams refer to the execution by Soviet authorities of Hungarian leader Imre Nagy in 1956, as an example of a crime against humanity in the absence of a large number of direct victims: “In such a case, even though the murder itself is not on a widespread or mass scale, because the killing of a political (or religious) leader is systematic insofar as it is meant to intimidate the entire ‘civilian population’ of his supporters (or coreligionists), it would represent a crime against humanity.” See Ratner and Abrams, Accountability for Human Rights Atrocities in International Law, Oxford University Press, Oxford, 2nd ed., 2001, p. 61.

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scope of crimes against humanity in Article 7 of the ICC Statute, on a literal interpretation of such article. Attack Directed Against any Civilian Population135 It is conceivable that many acts of terrorism perpetrated by individuals satisfy the requirement of an ‘attack directed against any civilian population’. Terrorist acts by their very nature directly impact upon civilians. Attacks on civilians are precisely what terrorists use to create terror among the population and are one of the distinguishing characteristics of terrorist acts. The ICC Statute provides for an attack directed against a civilian population to be “pursuant to or in furtherance of a State or organizational policy to commit such attack”.136 The ICC Statute reflects the development in international law, that it is no longer necessary that such attacks be pursuant to, or in furtherance of, a state policy alone. They can also be pursuant to, or in furtherance of, an organisational policy to commit such attacks. In particular, the expansion of the concept of crimes against humanity to include action by terrorists as non-State actors has been specifically recognised.137 This development enables acts of terrorism to be more easily classified as crimes against humanity for the purposes of this criterion. Previously it would have been one of the insurmountable hurdles to the classification of such acts as crimes against humanity, as many contemporary acts of terrorism are not committed pursuant to, or in furtherance of, a State policy.

135

Cassese posits that although the statutes of the various international criminal tribunals/court requires that the attack must be directed against a civilian population and thus the victims of crimes against humanity must be civilians, customary international law does not stipulate such a requirement. Accordingly, he posits that under customary international law, crimes against humanity may also be perpetrated against “military personnel and members of other enforcement agencies“. See Cassese, supra note 67, pp. 949 and 957. The ICTR held that “[m]embers of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause. Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character. “See Prosecutor v Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgment, T. Ch., 2 September 1998, § 582. See also Arnold, supra note 8, pp. 223–227.

136

Emphasis added. See Article 7(2)(a), ICC Statute, supra note 3. The ICC Elements of Crime state that the acts in question need not constitute a military attack and that it is “understood that “policy to commit such attack” requires that… organization actively promote or encourage such an attack against a civilian population”. See Elements of Crimes, available at http://www.icc-cpi.int/library/about/officialjournal/Rules _of_ procedure_and_Evidence_English.pdf (last visited 17 July 2007), p. 9, § 3 to the commentary on Article 7.

137

See supra Chapter 2, section 2.5.3.3 (State action or policy).

5.8 Individual Criminal Responsibility for Terrorism 389

With Knowledge of the Attack 138 Again, it is quite conceivable that many acts of terrorism perpetrated by individuals satisfy this requirement, the perpetrators having had knowledge of the attack. Other Criteria As noted earlier, although it was previously required by international law that crimes against humanity be connected with war or an international or internal armed conflict, most scholars today take the view that a nexus to war or to an armed conflict is no longer required.139 This position is also adopted by the ICC Statute, which does not require a nexus to war or to an armed conflict. This development has made it easier for acts of terrorism perpetrated by individuals to fall within the definition of crimes against humanity. As is clear from the terrorist attacks in the USA (2001), Bali (2002), Madrid (2004) and London (2005), not all acts of terrorism occur in the context of a war or an armed conflict. In addition, as noted earlier, notwithstanding the terms of Article 3 of the ICTR Statute, most authorities are of the view that a discriminatory element is only required in relation to ‘persecution type crimes’.140 This conclusion will make it less problematic for acts of terrorism to fall within the scope of crimes against humanity. 5.8.2.2 Indicia that Militate Against the Inclusion of Terrorism Perpetrated by Individuals Within the Scope of Article 7 of the ICC Statute In the context of this analysis, consideration should also be given to the indicia that militate against the inclusion of terrorism perpetrated by individuals within the scope of Article 7 of the ICC Statute. Such indicia include: 1. The history of the drafting procedure of the ICC Statute indicates that until the 1998 Rome Diplomatic Conference of Plenipotentiaries, any attempts to include terrorism within the specific subject matter jurisdiction of the ICC were 138

139 140

I.e. the perpetrator has knowledge of the broader context of the crime over and above any intent to, for example commit murder. The wording of Article 7(1) seems to suggest that the test to be applied is an objective test, whereby this chapeau element is satisfied where it is proved that the alleged perpetrator knew or ought to have known of the attack (as opposed to having to prove that he actually knew of the attack), applying the ‘reasonable person’ standard. See Lyal S. Sunga, “The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5-10)”, 6 European Journal of Crime, Criminal Law and Criminal Justice 61 (1998), pp. 71–72. See supra Chapter 2, section 2.5.3.3 (Nexus with a war or an armed conflict). See supra Chapter 2, section 2.5.3.3 (Discriminatory intent/grounds required for each crime against humanity).

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limited to treating terrorism as a separate crime (either by defining certain manifestations of terrorism, or simultaneously defining terrorism, as a distinct crime in its own right and certain manifestations of terrorism), distinct from any suggestion that it should be treated as falling within the scope of crimes against humanity. 2. The 1998 Rome Diplomatic Conference of Plenipotentiaries adopted a resolution recommending that a Review Conference specifically consider the crime of terrorism with a view to its inclusion in the list of crimes within the specific subject matter jurisdiction of the ICC, thus arguably indicating that acts of terrorism are not intended to fall within the scope of the current ICC Statute.141 3. The generally accepted approach in relation to the formulation of the ICC Statute was that it should consist of the codification of pre-existing rules of customary international law. Article 7 of the ICC Statute is, generally speaking, based on customary international law. If acts of terrorism fell within the realm of crimes against humanity in accordance with customary international law, as existed at the time of the adoption of the ICC Statute, then logically, terrorism as a crime against humanity should have been expressly included in Article 7. Of additional importance in this regard, is that the ICC delegates chose to define as crimes against humanity, the crimes of forced pregnancy, enforced disappearances of persons, and apartheid, notwithstanding that such crimes are not considered to be crimes against humanity under customary international law; however they did not take the opportunity (even when a direct proposal was made) to expand the definition of crimes against humanity to terrorism. 4. If it were determined that terrorism fell within the scope of Article 7, a perpetrator of such acts could arguably rely successfully on the argument that there has been a breach of the principle of legality. Article 22(2) of the ICC Statute provides “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted” (emphasis added). In addition, the ICC Elements of Crime specifically provide “[s]ince article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole”.142 As noted above,143 the principle 141

142 143

Moreover, William Schabas has noted the danger of interpreting Article 7 of the ICC Statute, supra note 3, broadly. He notes “… supporters of the ICC should consider the damage that an excessively liberal interpretation may do to the ratification campaign. Concerns about a “flexible” interpretation of the definition of “crime against humanity” are surely very much in the minds of the many States who have signed the Rome Statute, but hesitated at ratification.” See William A. Schabas, “Theorical and International Framework: Punishment of Non-State Actors in Non-international Armed Conflict”, 26 Fordham Int’l L. J. 907 (2003), pp. 931–932. Emphasis added. See ICC Elements of Crimes, supra note 136, p. 9, § 1 to the commentary on Article 7. See supra section 5.4.

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of legality is a well-established principle of law and cannot be easily ignored, especially when it could result in the deprivation of one’s liberty. 5. The Vienna Convention on the Law of Treaties 1969 (which is applicable to the ICC Statute as it is a multilateral treaty) provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and that recourse may be had to supplementary means of interpretation, “including the preparatory work of the treaty and the circumstances of its conclusion”, in order to determine the meaning of the provisions of the treaty.144 The records of the deliberations of the various drafting committees indicate that the crime of terrorism was not intended to fall within the jurisdiction of the ICC. The considerations set out above indicate that any constructive interpretation of Article 7 to expand the scope of Article 7 to include terrorism would be against the spirit within which Article 7 was conceived. 6. The intent to spread terror, or to intimidate a population or to compel a Government or an international organisation to do or abstain from doing an act, is one of the particular features of terrorism.145 If terrorism were treated as falling within the scope of Article 7, no special account would be taken of this feature. Neither does Article 7 distinguish between terrorism and the struggle for national liberation and self-determination. Indicia that Acts of Terrorism Fall Outside the Scope of Crimes Against Humanity in General International Law Consideration should also be given to indicia that terrorism perpetrated by individuals falls outside the scope of crimes against humanity as that concept is defined in general international law. Such indicia include: 1. As noted by opponents to the proposal that terrorism be classified as a crime against humanity at the 1998 Rome Conference, terrorism had never (at least not before 1998) been categorised as a crime against humanity. 2. The definition of crimes against humanity set out in Article 6(c) of the Nuremberg Charter (which did not include terrorism) has acquired a custom144 145

Articles 31(1) and 32. United Nations, Treaty Series, Vol. 1155, p. 331. Adopted on 22 May 1969 and entered into force on 27 January 1980. For example, the Secretary-General Report emphasises the purpose of intimidating a population or compelling a Government or an international organisation to do or abstain from doing an act, see supra note 59, § 91, as does the High-level Panel Report, supra note 56, § 164, S/RES/1566, supra note 58, § 3, and the International Convention for the Suppression of the Financing of Terrorism, supra note 23, Article 2(1)(b). The International Convention for the Suppression of Terrorist Bombings, supra note 22, Article 5 and the International Convention for the Suppression of Acts of Nuclear Terrorism, supra note 24, Article 6, make specific reference to acts of terrorism provoking a state of terror, as does S/RES/1566, supra note 58, § 3. See also A/60/37, supra note 60, p. 20, § 20.

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ary character. It would, arguably, be foolhardy to recognise the extension of the definition of crimes against humanity to include the crime of terrorism or any manifestations thereof. 3. Domestic decisions of the US and French courts have opined that terrorism is not an international crime. The United States Court of Appeals, District of Columbia Circuit in the 1984 case of Tel Oren v. Libyan Arab Republic, held that as there existed no agreement on terrorism as an international crime, it was not a crime over which there existed universal jurisdiction.146 In March 2001, the French Cour de Cassation held, in a case against the Libyan leader, Ghaddafi, for complicity in acts of terrorism leading to murder and the destruction of aircraft, that terrorism was not an international crime under customary law.147 Moreover, in 2003, the United States Court of Appeals for the Second Circuit in United States v Yousef and Others reaffirmed the view taken in the Tel Oren case, determining that due to the disagreement between States on the scope of the term ‘terrorism’, it did not provide a basis for universal jurisdiction.148

5.8.3 Conclusion The above review of Article 7 of the ICC Statute indicates that, on a literal interpretation of Article 7, certain manifestations of terrorism (but not terrorism, as a distinct crime in its own right) conceivably fall within the scope of Article 7. There are no general factors common to all current manifestations of terrorism that militate against their classification as crimes against humanity for the purposes of the ICC Statute. However, there also exist very weighty arguments against the inclusion of terrorism (both certain manifestations of terrorism, and terrorism as a distinct crime in its own right) within the scope of Article 7 of the ICC Statute, in particular the principle of legality (in the case of terrorism, as a distinct crime in its own right) and the very clear evidence that it was not the intention of the drafters that terrorism be included within the scope of Article 7. In the author’s view, notwithstanding that on a literal interpretation of Article 7, certain manifestations of terrorism conceivably fall within the scope of Article 7, when all the other factors mentioned above are taken into account, it cannot be determined that terrorism, either as a distinct crime in itself, or certain manifestations of terrorism, currently falls within the specific, or otherwise, subject matter jurisdiction of the ICC.149 146 147

148 149

726 F.2d 774 (D.C. Cir. 1984) at 796. See Arrêt of the Cour de Cassation, 13 March 2001, No. 1414. However, see also Salvatore Zappalà, “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation”, 12 EJIL 595 (2001), who seeks to show why the decision is questionable in four respects, including that the court did not explain why it considered that terrorism was not an international crime under customary law. 327 F.3d 56 at 86. For a contrary view, see Lucy Martinez, “Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems”, 34 Rutgers L. J. 1 (2002) and Vincent-Joel

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The above review also indicates that, on a literal interpretation of the concept of crimes against humanity in general international law, certain manifestations of terrorism (but not terrorism, as a distinct crime in its own right) perpetrated by individuals conceivably fall within the scope of crimes against humanity in general international law.150 Indeed, the International Law Commission has conceded

150

Proulx, “Rethinking the Jurisdiction of the International Criminal Court in the PostSeptember 11th Era: Should Acts of Terrorism Qualify as Crimes against Humanity”, 19 Am. U. Int’l L. Rev. 1009 (2004), (who both argue for a broad and flexible interpretation of Article 7). See also Christian Much, “Symposium: From Nuremberg to Abu Ghraib: The Relevance of International Criminal Law to the Global War on Terror: February 7th, 2005: The International Criminal Court (ICC) and Terrorism as an International Crime”, 14 Mich. St. J. Int'l L. 121 (2006), p. 127 and Francine Guesnier, “Acts of Terrorism as Crimes against Humanity under the Rome Statute”, in Siehno Yee (ed.), International Crime and Punishment Selected Issues, University Press of America Inc., Lanham, 2004, Vol. 2. Arnold also takes the opposite view, see supra note 8, pp. 202–272 and Arnold, “The Prosecution of Terrorism as a Crime against Humanity“, 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, no. 4, 979 (2004). She inter alia cites international jurisprudence from the IMT, ICTY and ICTR which in her view supports the classification of terrorism as a crime against humanity. Ibid., pp. 236–254. However, many of the instances referred to, for example, the Nazi’s “policy of terror” directed towards German Jews and political opponents, Slobodan Miloševiü’s systematic campaign of terror and violence directed against the Kosovo Albanian population and the use of concentration camps, do not reflect the colloquial understanding of terrorism today (i.e. acts of individual terrorism and not State-sponsered terrorism, e.g. similar to the nature of the September 11th attacks or the London or Bali bombings). Arnold does not consider the negotiation history of the ICC on terrorism as excluding certain manifestations of terrorism from the jurisdiction of the ICC. Her main argument for this position is that pre-ICC negotiations excluded terrorism as treaty crimes from the jurisdiction of the ICC, primarily because not all of treaties that provided the basis for these treaty crimes had yet found universal acceptance and were not subject to universal jurisdiction; however, she posits that this conclusion did not exclude certain manifestations of terrorism as international core crimes (e.g. as crimes against humanity) from falling indirectly within the jurisdiction of the ICC. See Ibid., pp. 53–62. As noted above however, the pre-ICC negotiations rejected terrorism in all its forms from the jurisdiction of the ICC, both terrorism as a distinct crime in itself and manifestations of terrorism both when defined specifically by reference to certain treaties or in more general terms. Moreover, as noted above, the negotiation history of the ICC indicates that the lack of universality of the applicable terrorism treaties was not the single factor responsible for the express exclusion of terrorism from the jurisdiction of the ICC. Other factors which played a role were inter alia (i) that terrorism had never been categorised as a crime against humanity prior to the ICC negotiations, (ii) the view that crimes of terrorism were more effectively dealt with by national courts or through international cooperation and (iii) the overburdening of the ICC. These concerns are applicable both to terrorism when defined as a treaty crime or as an international core crime. Inter alia because Article 7 of the ICC Statute, supra note 3, is generally speaking based on customary international law, subject to the exceptions emphasised above, which have been taken into account for the purposes of this review.

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that, in its opinion, some terrorist acts could qualify as crimes against humanity under general international law.151 As noted above, there exist, however, valid arguments against the inclusion of terrorism within the scope of crimes against humanity in general international law. However, in the author’s view, many of these arguments or indicia are more applicable to terrorism, as a distinct crime in its own right, rather than to the manifestations of terrorism. One of the predominant concerns of delegates in relation to terrorism and the ICC Statute was the underlying reality that there existed no agreed legal definition of terrorism. However, this concern has no role to play as regards manifestations of terrorism, as those manifestations have been clearly defined in the sectoral conventions. It is indisputable that, no attempt had been made, at least not before 1998, to expressly define terrorism as a crime against humanity. However, this is not surprising bearing in mind the circumstances within which terrorism was perpetrated until relatively recently and the outcome of those terrorist acts. Until recently, many acts of terrorism were perpetrated within the traditional confines of an armed conflict. The law of war crimes categorised terrorism perpetrated in these circumstances as a war crime. Moreover, the acts of terrorism perpetrated generally did not come anywhere near satisfying the ‘widespread’ requirement of a crime against humanity. Thus, there was no need to provide that terrorism be encompassed by crimes against humanity, taking these circumstances into account. However, the face of terrorism has changed substantially in recent years. Contemporary acts of terrorism are committed outside the traditional confines of an armed conflict, instead increasingly being committed in peacetime, and a number of the contemporary acts of terrorism could, arguably, easily satisfy the ‘widespread’ requirement of crimes against humanity. International law cannot exist in limbo or remain stagnant. Developments in international law are often brought about due to the occurrence of events which are not adequately provided for by existing international law, or as Allan Pellet puts it “[t]he great advances in the law are always the fruit of major crises”.152 In the author’s view, certain manifestations of terrorism are encompassed by the concept of crimes against humanity in general international law today, once the 151

152

See Report of the International Law Commission of the Work of its Forty-Sixth Session, U.N. GAOR Supp. No. 10, A/49/10, § 21 of the commentary to Article 20. See also the reference by the ICTY Trial Chamber in Prosecutor v Dusko Tadiü, to the commentary of the International Law Commission to the 1991 Draft Code of Crimes Against the Peace and Security of Mankind; see Prosecutor v Dusko Tadiü, Case No.: IT-94-1-T, Judgment, T.Ch. II, 7 May 1997, § 655. In addition, it should be noted that the summary of the debate in the International Law Commission on the Special Rapporteur’s thirteenth report notes that “[i]t was suggested that international terrorism might constitute a crime against the peace and security of mankind when the terrorist acts were particularly grave and massive in character and that consideration could be given to its inclusion as a crimes against humanity…”; see Report of the Commission to the General Assembly on the work of its forty-seventh session, (2 May-21 July 1995), YILC (1995) Vol. II (Part Two), § 106. Allan Pellet, “The Attack on the World Trade Center: Legal Responses – No, This is not War!”, 3 October 2001, last paragraph, available at www.ejil.org/forum_WTC/nypellet.html (last visited 1 June 2007).

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manifestation of terrorism in question satisfies the requirements of (i) amounting to a specific crime considered to be a crime against humanity, and (ii) the chapeau elements of crimes against humanity. Once these requirements are met, it does not seem unfair to classify such manifestation as a crime against humanity, notwithstanding that it represents a novel way of thinking. Why should the murder of numerous civilians committed as part of a widespread attack against a civilian population, where the perpetrators had knowledge of the attack, not be categorised as a crime against humanity, just because such murders happened to be the outcome of the detonation of a terrorist bomb, whereas if the murders had been committed outside the context of a terrorist act, such murders would be categorised as a crime against humanity? Neither does the recognition of certain manifestations of terrorism as crimes against humanity in general international law, in the author’s view, conflict with the principle of legality. A new crime or new law is not, in the author’s view, being created. The classification of certain manifestations of terrorism as crimes against humanity instead amounts to an “expansive adaptation of some legal ingredients of criminal rules to new social conditions”.153 The rules have not changed, but are merely being applied to the new set of circumstances which have arisen. The recognition that certain manifestations of terrorism can amount to crimes against humanity in general international law is not an extension or an amendment of the definition of crimes against humanity in general international law; but instead represents the application of existing rules to the new face of terrorism.154 By way of clarification, in the author’s view, terrorism, as a distinct crime in its own right, is not encompassed by crimes against humanity, as that term is understood in general international law. The absence of an agreed legal definition of terrorism, as a distinct crime in its own right would create problems with the principle of legality, if an attempt was made to classify terrorism, as a distinct crime in its own right, as a crime against humanity, as the scope of the crime is not clear. Even if agreement was reached on a legal definition of terrorism, as a distinct crime in its own right, the classification of terrorism, as a distinct crime in its own

153 154

To borrow an expression used by Antoinio Cassese. See Cassese, supra note 67, pp. 149–155. In the author’s view, the corollary to this conclusion is that certain manifestations of terrorism can also potentially amount to crimes against humanity under customary international law, taking into account that Article 7 of the ICC Statute, supra note 3, is generally speaking based on customary international law, that the author has concluded that on a literal interpretation of Article 7, certain manifestations of terrorism conceivably fall within the scope of Article 7, and that the author has concluded that the classification of certain manifestations of terrorism as crimes against humanity in general international law amounts to an “expansive adaptation of some legal ingredients of criminal rules to new social conditions”, as opposed to new law. The same considerations can be applied in the context of customary international law. The classification of certain manifestations of terrorism as crimes against humanity in customary international law does not amount to a change in customary international law, but to the application of existing customary international law to new circumstances.

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right, as a crime against humanity would amount to new law, as such proposition does not currently form part of general international law.155 What is the actual significance of certain manifestations of terrorism being encompassed by crimes against humanity under general international law? As will be seen below, the prosecution of terrorism has traditionally occurred, and currently occurs, at the domestic level, relying on domestic terrorism legislation and this method has been relatively successful to date. So, it is questionable whether another weapon in the anti-terrorism legal armoury is required. However, this matter aside, one significant feature of the classification of certain manifestations of terrorism as crimes against humanity in general international law is that certain manifestations of terrorism, due to their classification as crimes against humanity are now elevated to jus cogens crimes. Notwithstanding that the actual consequences attaching to such classification are in dispute, this elevated status reinforces the gravity of certain manifestations of terrorism, and arguably strengthens the system of enforcement of the principle of individual criminal responsibility for such crimes.156 Moreover, there is a clear ‘perception’ value in a perpetrator of terrorism being convicted for having perpetrated a crime against humanity, rather than an ‘ordinary’ terrorist crime.

5.9 Other Issues Relating to the Prosecution of Terrorism Before the ICC It is frequently asserted by commentators and the media alike, that the perpetrators of terrorism can and should be prosecuted before the ICC.157 As noted above, in the author’s view, notwithstanding that on a literal interpretation of Article 7, certain manifestations of terrorism conceivably fall within the scope of Article 7, when all the other factors mentioned above are taken into account, it cannot be determined that terrorism, either as a distinct crime in its own right, or certain manifestations of terrorism, currently falls within the specific, or otherwise, subject matter jurisdiction of the ICC. However, even if we were to assume that terrorism currently falls within the jurisdiction of the ICC, where it can be categorised as a crime against humanity, there are many other obstacles that must be overcome 155 156 157

Or customary international law. See supra note 4. It is of interest that the ICC website, in response to the question whether the ICC can deal with terrorist acts within its existing jurisdiction, responds that the ICC “will have jurisdiction over genocide, crimes against humanity and war crimes. The ICC may be able to prosecute terrorist acts only if they fall within these categories.” Emphasis added. See http://www.icc-cpi.int/about/ataglance/faq.html (last visited 15 June 2007). In addition, the ICC Chief Prosecutor, Luis Moreno Ocampo, has indicated that certain acts of terrorism may fall within the jurisdiction of the ICC as a crime against humanity. See James Podgers, “An Unused Weapon”, ABA Journal, 19 September 2003, available at http://www.globalpolicy.org/intljustice/icc/2003/0922iccterror.htm (last visited 8 October 2004).

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before terrorism can be prosecuted before the ICC. This section attempts to identify these additional obstacles. The merits of including terrorism within the subject matter jurisdiction of the ICC are also considered. 5.9.1 Additional Obstacles to the Prosecution of Terrorism before the ICC 5.9.1.1 Jurisdictional Obstacles There are a number of jurisdictional obstacles that should be borne in mind when attempting to prosecute a perpetrator of terrorism before the ICC. Firstly, the ICC only has jurisdiction with respect to crimes committed after the entry into force of the ICC Statute.158 As regards a State that becomes a party to the ICC Statute after its entry into force, the ICC may only exercise jurisdiction with respect to crimes committed after the entry into force of the ICC Statute for that State, unless such State has made a declaration in accordance with Article 12(3) of the ICC Statute.159 Secondly, as mentioned above, the specific act of terrorism must actually satisfy the criteria of a crime against humanity, i.e. that act must fall within one or more of the crimes actually defined as crimes against humanity and the chapeau elements of a crime against humanity must also be satisfied. Thirdly, although, the ICC may exercise jurisdiction over a crime within its jurisdiction in three situations, i.e. (i) where a situation in which a crime within the jurisdiction of the ICC appears to have been committed is referred to the Prosecutor by a State party (“State party referral”); (ii) where such a situation is referred to the Prosecutor by the UN Security Council acting under Chapter VII of the UN Charter (“Security Council referral”); or (iii) where the Prosecutor has initiated an investigation in respect of such a crime (“Prosecutor initiated investigation”), 160 in the case of a State party referral or a Prosecutor initiated investigation, the ICC may only exercise its jurisdiction where the State upon whose territory the crime was committed (the “territorial State”) and/or the State of which the accused is a national (the “national State”) are parties to the ICC Statute or have accepted the jurisdiction of the ICC.161 Thus, an act of terrorism, committed by nationals of a non-party, non-accepting State, on the territory of a non-party, non-accepting State, does not fall within the jurisdiction of the ICC, unless such act is referred to the Prosecutor by the UN Security Council. It is not problematic to imagine such a scenario arising, for example, in the case of an act of terrorism committed on the territory of the USA by a national of a non-State party. The USA is not a party to the ICC and is currently unlikely to accept the jurisdiction of the ICC in almost

158 159 160 161

Article 11(1), ICC Statute, supra note 3. Article 11(2), ICC Statute, supra note 3. Article 13, ICC Statute, supra note 3. See Article 12(2)-(3), ICC Statute, supra note 3.

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any situation.162 It is also likely that the non-party State of the national would not accept the jurisdiction of the ICC either, particularly if the act of terrorism were condoned by such State. In such a scenario, the act of terrorism could not fall within the jurisdiction of the ICC, unless the UN Security Council referred the situation to the Prosecutor. Realistically, referrals by the UN Security Council are presumably going to be the exception rather than the rule,163 and in the scenario just described, even if the majority of members of the UN Security Council wanted to refer the matter to the Prosecutor, the USA could block such action due to its right of veto. 5.9.1.2 Obstacle of Complementarity The jurisdiction of the ICC is complementary to national criminal jurisdictions.164 A case is inadmissible inter alia where (i) it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is “unwilling or unable genuinely” to investigate or prosecute; or (ii) it has been investigated by a State with jurisdiction over it and the State has decided not to prosecute unless the decision “resulted from the unwillingness or inability of the State genuinely to prosecute”.165 Thus, where an act of terrorism is being investigated or prosecuted by a State that has jurisdiction over it, the ICC will not exercise jurisdiction.166 In addition, where the Prosecutor determines that there is a reasonable basis to commence an investigation, the Prosecutor is obliged to notify all State parties and States which would normally exercise jurisdiction over the crimes concerned.167 Within one month of such notification a State may inform the Prosecutor that it is investigating or has investigated its nationals or other persons within its jurisdiction with regard to the crime in question and may ask the Prosecutor to defer to such State’s investigation.168 Although such deferral if granted, is not irreversible, it could be used by a State that sponsors or condones terrorism to delay the prosecution of the perpetrators concerned.169 A State could also make use of the provisions of Article 19 of the ICC Statute to delay a prosecution. Article 19 provides that (i) a State which has jurisdiction over a case on the ground that it is investigating or prosecuting a case or has done so, (ii) the territorial State or (iii) the national State may challenge the admissibility of a case or the jurisdiction of the 162 163 164 165 166 167 168 169

Both because to do so would undermine its current position and because it is likely that the USA would wish to prosecute the perpetrators themselves. The only one to date being the referral by the UN Security Council of the situation in Darfur to the ICC. Article 1, ICC Statute, supra note 3. Article 17(1)(a) and (b), ICC Statute, supra note 3. Assuming that the State is willing and genuinely able to investigate/prosecute. This obligation only applies as regards a State party referral and a Prosecutor initiated investigation, not a Security Council referral. See Article 18(1), ICC Statute, supra note 3. Article 18(1) and (2), ICC Statute, supra note 3. Article 18(2)-(3) and (6), ICC Statute, supra note 3.

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ICC. Where such a challenge is made, the Prosecutor is required to suspend his investigation until the ICC has made a decision on such challenge.170 The presence of these complementary provisions begs the question: In what circumstances, if ever, will the ICC exercise subject matter jurisdiction over terrorism, if in reality the States that would be willing to refer a case to the ICC, or are parties to the ICC, are the same States that would be willing to prosecute terrorists at the domestic level? One scenario is the case of State sponsored or condoned terrorism, where the state concerned cannot be entrusted to prosecute the persons who committed the act of terrorism. A case in point is the Lockerbie case concerning the prosecution of two Libyan nationals for the bombing of Pan Am flight 103 on 21 December 1988, whom it was suspected had been sponsored in their act of terrorism by Libya. Libya would not extradite the suspects to either the USA or UK for trial and instead announced that it would be trying the accused before its own national courts. The USA was concerned that any trial by the Libyan courts would be superficial, resulting either in the imposition of an inadequate sentence, or the release of the accused; while Libya questioned the neutrality of the USA and the potential treatment to which the suspects would be subjected in the USA. In the end a trial was held before a Scottish court sitting in the Netherlands. Trial before a permanent international court, perceived as being impartial and fair by the majority of States, could prove acceptable to both the territorial State and the national State, if a Lockerbie situation were to arise again in the future.171 5.9.1.3 Other Obstacles Even if the ICC Statute is amended to specifically include terrorism within its jurisdiction, in accordance with the resolution adopted at the 1998 Rome Diplomatic Conference of Plenipotentiaries, this does not mean that the ICC will have jurisdiction in relation to such crime when committed by the nationals of each and every State party or on such State party’s territory. Only State parties that have accepted an amendment to the subject matter jurisdiction of the ICC will be bound by such amendment. Thus, where a State party decides not to accept an amendment (e.g. extending the specific subject matter jurisdiction of the ICC to terrorism), the ICC shall not exercise its jurisdiction as regards such crime when committed by that State party’s nationals or on its territory.172 170

171

172

Notwithstanding the suspension of the investigation, the ICC may authorise the Prosecutor to continue some aspects of the investigation in certain circumstances. See Article 19(8), ICC Statute, supra note 3. But presumably not if it involved the USA, as the USA would be undermining its own position in relation to the ICC by condoning the prosecution of terrorists before it, in a case where the USA is the territorial State. Article 121(5), ICC Statute, supra note 3. Madeline Morris also identifies certain “limitations arising from the international law of immunities” which, in her view, place constraints on the ICC’s capacity to prosecute terrorism. See Madeline Morris, “Terrorism and Unilateralism: Criminal Jurisdiction and International Relations”, 36 Cornell Int’l L. J. 473 (2004), pp. 483–484.

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5.9.2 Should Terrorism Fall within the Jurisdiction of the ICC? Before leaving this subject, it seems pertinent to consider briefly whether terrorism should actually fall within the jurisdiction of the ICC. The September 11th attacks were the catalyst for calls that terrorism should be categorised as a crime against humanity falling within the jurisdiction of the ICC. But what purpose, if any, is actually served by determining that certain manifestations of terrorism currently fall within the ICC’s definition of crimes against humanity? Bearing in mind the type of crime involved, three potential purposes spring to mind: to deter perpetrators from committing such crimes, to better protect society, and/or to ensure accountability for such crimes. It is unlikely that the former is served, as events have shown that many terrorists are quite happy to sacrifice their own lives for their cause – and are, in some cases, even revered for doing so.173 Thus, it is doubtful that the possibility of trial before the ICC and any subsequent incarceration is going to deter them. It is also questionable whether the second purpose is served, if the perpetrators are not deterred from committing such crimes. The knowledge that terrorists may be prosecuted before the ICC may provide society with more peace of mind, but that does not equate to protecting society from these crimes. The third purpose - ensuring accountability for such crimes - is the most likely purpose to be served. However, are the current accountability mechanisms inadequate so that we actually need an alternative accountability mechanism? The prosecution of terrorism has traditionally occurred, and currently occurs, at the domestic level and this method has been relatively successful on the whole.174 Concerns voiced about terrorism, generally, do not focus on the lack of

173

174

Guesnier is more hopeful. See supra note 149, p. 68. As regards the ineffectiveness of legal deterrents when terrorism is motivated by beliefs powerful enough to provoke suicide attacks, see Jean-Paul Laborde and Michael DeFeo, “Problems and Prospects of Implementing UN Action against Terrorism“, 4 J. Int’l Crim. Jus. 1087 (2006). Ben Saul posits, that “[i]t may well be too much to expect that the criminal law will have any real effect in suppressing terrorist violence. Such expectation may indeed be an exercise of deception, irrationality or quasi-religious hope”. See Saul, “International Terrorism as a European Crime: The Policy Rationale for Criminalization”, 11 European Journal of Crime, Criminal Law and Criminal Justice 323 (2003), p. 349. For example, the conviction before US courts of the perpetrators of the 1998 U.S. embassy bombings in Kenya and Tanzania and the 1993 bombing of the World Trade Center. See Martinez, supra note 149, p. 52. Four men have also been convicted before the British courts for having plotted the failed bomb attacks in London on 21 July 2005. Kimmo Nuotio argues that “national jurisdictions remain the key bodies on the front lines of confronting terrorism”. See Nuotio, “Terrorism as a Catalyst for the Emergence, Harmonization and Reform of Criminal Law”, 4 J. Int'l Crim. Jus. 998 (2006). For a review of the advantages and disadvantages of trying terrorists before regular US civilian courts, military tribunals, courts outside the US or before an international tribunal, see Detlev F. Vagts, “Which Courts Should Try Persons Accused of Terrorism?”, 14 EJIL 313 (2003). Vagts concludes that in most circumstances, the regular US civilian courts are preferable.

5.9 Other Issues Relating to the Prosecution of Terrorism Before the ICC 401

legal forums for the prosecution of such crimes,175 but instead on the inability of our intelligence services to prevent such crimes or the difficulty of reaching agreement on the definition of terrorism, as a distinct crime in its own right.176 Thus, the ‘problem’ is not a lack of forum, but rather the prevention/definition of terrorism. This is not to say, however, that the prosecution of terrorists as perpetrators of crimes against humanity before the ICC would be without merit. It clearly would. Not only would it be useful to have a back-up accountability mechanism where domestic prosecutions, for whatever reason, are not possible; as noted above, there would also be much ‘perception’ value in a terrorist being convicted of having committed a crime against humanity rather than an ‘ordinary‘ terrorist crime. 5.9.3 Conclusion As noted above, in the author’s view, while a literal reading of Article 7 of the ICC Statute accommodates the possibility that certain manifestations of terrorism could fall within the subject matter jurisdiction of the ICC, a purposive reading of the Statute indicates the contrary. Even if the ICC Statute is amended in the future to specifically include terrorism, the ICC cannot exercise its jurisdiction as regards such crime when committed on the territory, or by the nationals of, a State party who has not accepted such amendment. Should the ICC specifically acquire subject matter jurisdiction over terrorism in the future, the prosecution of such crime before the ICC is, in the author’s view, at best going to be a rare event.177 The reasons for this are many: the traditional practice that terrorists are prosecuted before national courts; the relative success of such practice; the reluctance of territorial States to hand over terrorists which have injured their nationals to a third party; the jurisdictional and complementary hurdles in the ICC Statute; and the non-participation of the USA (which not only is currently a prime target for international terrorists, but also has many investigative and law enforcement resources at its disposal).178 However, the fact that such a prosecution may prove to be a

175 176

177

178

The Lockerbie case is, of course, an exception. See also Schabas, supra note 93, who notes that “[t]he problem with contemporary terrorist groups is apprehending the perpetrators, and not with finding some legal framework by which the courts of the territory where the crimes were committed may prosecute”. Ibid., p. 260. The ICC Prosecutor is currently reviewing a number of situations which have either been brought to the attention of the ICC by a State party or which have been initiated by the Prosecutor himself following the receipt of information from an external source. None of the press releases concerning such investigations suggests that the ICC is going to be asked to adjudicate over an act of terrorism in the near future. For a consideration of the view that the non-participation of the US in the ICC and/or its attacks on the ICC, are actually hindering the ability of the US to fight terrorism, see Moreno Ocampo, supra note 157, and Fiona McKay, “U.S. Unilateralism and International Crimes: The International Criminal Court and Terrorism”, 36 Cornell Int’l L. J. 455 (2004).

402 5 Individual Criminal Responsibility for Terrorism as a Crime against Humanity

rarity does not detract from the value of having the ICC in the future, as a back-up option to catch those situations which, for whatever reason, cannot be dealt with in another forum. Thus, to conclude, the ICC is not, in the author’s view, currently a viable forum for the prosecution of acts of terrorism, either as a distinct crime in itself or as a crime against humanity; however, it has the potential to be so in the future, albeit in reality, such forum may not be utilised regularly.

5.10 Appropriate Expansive Adaptation of Core International Crimes? Finally, consideration should be given to the question posed in the title to this chapter – is it an appropriate expansive adaptation of the subject matter of core international crimes to classify terrorism as a crime against humanity, to which individual criminal responsibility attaches? In the author’s view, the answer should be in the affirmative. A number of issues ought to be borne in mind. Firstly, the conclusion that terrorism can amount to a crime against humanity does not undermine, or intrude on the on-going debate about the absence/existence of a legal definition of terrorism, as a distinct crime in itself. It has only been concluded that certain manifestations of terrorism can potentially amount to crimes against humanity and not that terrorism, as a distinct crime in itself, can be classified as a crime against humanity, under general international law. Secondly, as noted above, international law cannot exist in limbo or remain stagnant. The type of terrorist acts to which our society has borne witness to in recent years, i.e. outside the traditional confines of an armed conflict and with large civilian fatalities, were inconceivable, even as late as the start of this decade. The world is changing and as a result of those changes an increasing number of crimes, which can be described as “serious crimes of concern to the international community” and which threaten peace and security can be identified – among them being the new face of terrorism. Thirdly, as noted above, the classification of certain manifestations of terrorism, as crimes against humanity does not, in the author’s view, offend the principle of legality. As long as the manifestation of terrorism in question satisfies the requirements (i) of amounting to a specific crime considered to be a crime against humanity, and (ii) of the chapeau elements of crimes against humanity, then it does not seem unfair to classify such manifestation as a crime against humanity, notwithstanding that it represents a new way of thinking. A new crime or new law is not, in the author’s view, being created. The classification of certain manifestations of terrorism as crimes against humanity instead amounts to an expansive adaptation of some legal ingredients of criminal rules to new social conditions. Bearing these issues in mind, the expansive adaptation of the subject matter of core international crimes to encompass certain manifestations of terrorism as crimes against humanity, for which individual criminal responsibility can be imposed, is, in the author’s view, an appropriate and legitimate response to the challenges presented by contemporary terrorism. It should be noted, however, that the additional

5.10 Appropriate Expansive Adaptation of Core International Crimes? 403

prosecutorial avenue created by the potential classification of certain manifestations of terrorism as crimes against humanity in general international law, may, in reality, be utilised only rarely, due to the plethora of sectoral conventions in existence and the current and continuing preference to prosecute the perpetrators of terrorism under domestic terrorism legislation. Notwithstanding this, there is nevertheless merit in having this additional prosecutorial avenue, and its existence underscores the seriousness of terrorism.

6 Summary

6.1 Introduction The purpose of this chapter is to recapitulate the main conclusions reached in Chapters 3, 4 and 5, concerning the three selected pertinent issues analysed herein in relation to the concept of individual criminal responsibility for core international crimes.

6.2 Summary Chapter 3 concerns the JCED, which, in general terms, provides that where a preexisting plan to commit core international crimes exists, or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and contribute to, the realisation of this purpose may be held individually criminally responsible. In accordance with this doctrine, a person can also be convicted for crimes which he did not intend nor actually personally commit, but which were a ‘natural and foreseeable consequence’ of the common purpose or purpose of the JCE (JCE Category 3). An analysis and evaluation of the JCED is undertaken in Chapter 3 and certain reservations concerning the doctrine are highlighted. Moreover, an examination is undertaken to determine whether, on balance, the claim that the doctrine amounts to a “monster theory of liability” is accurate, or whether the doctrine is a legitimate and satisfactory tool in the prosecution of the perpetrators of core international crimes. The author concludes that notwithstanding that the JCED is frequently employed before the ICTY, ICTR and SCSL and that it also seems likely to be employed regularly before the ICC, there are some serious reservations concerning the JCED. As a general matter, the JCED has, warranted or not, negative connotations of being a form of collective responsibility. This is especially the case as regards JCE Category 3. The employment by the ICC Prosecutor of the broadened aiding and abetting mode of liability of the ICC Statute to cover cases, which previously would have been charged under the JCE mode of liability is preferable, as at least it avoids connotations of collective responsibility. Secondly, in the author’s view, a case can be made that the JCED breaches the nullum crimen sine lege principle, particularly as regards the JCE mode of liability articulated in the ICC Statute. It seems inherently unfair to expect an ordinary individual to understand the complexities of the JCED and to appreciate that he may

405

406

6 Summary

be liable for a core international crime in accordance with this doctrine, in particular JCE Category 3. Thirdly, the impreciseness and vagueness of some of the indictments charging the JCE mode of liability gives cause for concern. Although the special nature of core international crimes should be accommodated, the right of the accused to a fair trial should not be infringed. An accused should, at the very least, be aware of the nature of the charges laid against him. It should not be a matter of interpretation for the courts. It is precisely because of the heinous nature of such crimes, with the resulting serious consequences for an accused found guilty of committing such crimes, that every safeguard should be put in place to ensure that the accused is not unfairly disadvantaged. Bearing in mind the substantial jurisprudence on the form of pleading of the JCED in indictments, it is no longer acceptable for the Prosecution to issue vague and imprecise indictments when charging the JCED. The international judiciary should not accept such vague indictments and should reject indictments which are defective. There should be some adverse consequence to the issuing of vague and imprecise indictments by the Prosecution. Neither should the doctrine be treated as an escape route from the Prosecution’s duty to prove the guilt of the accused beyond reasonable doubt, notwithstanding the particular evidential difficulties presented by core international crimes. It is crucial that the courts be satisfied, that sufficient evidence has been presented before the court to support a conviction on the basis of the JCED. Fourthly, it should be part of the actus reus of the JCED that the participation of the accused in the JCE be significant. Currently, any level of participation is encompassed by the JCED. This is, arguably, inappropriate, particularly bearing in mind the considerable reservations concerning this mode of liability. Fifthly, it is, arguably, inappropriate to apply the JCED to the ‘little fish’, as has sometimes been the case to date. This is primarily because of the concerns in relation to this doctrine, but also because it has always been intended that international criminal law deal with the ‘big fish’, and not those who play a more minor role in the core international crimes committed. Sixthly, although the debate as to whether the doctrine is a form of principal liability or accomplice liability is insignificant as regards sentencing before the ICTY/ICTR, from a theoretical perspective, it is important inter alia from a practical perspective, as well as in relation to the truth-telling function of the international criminal law system. The distinction has, moreover, implications in relation to sentencing before the ICC. Seventhly, it is likely that the application of the JCED before the ICC is going to be problematic. Not only are the mens rea and actus reus elements of the JCED articulated in the ICC Statute different to those articulated in the ICTY jurisprudence, Article 25(3)(d) of the ICC Statute could, as noted above, arguably, be challenged as a breach of the nullum crimen sine lege principle. In addition, Article 25(3)(d) does not seem to encompass JCE Category 3, which inter alia raises the question as to why the liability of the accused should depend upon the forum before which he appears. However, the upside to this is, that if the ICC determines that JCE Category 3 is not encompassed by Article 25(3)(d), then at least no prosecutions can take place before the ICC based on this questionable mode of

6.2 Summary 407

liability. For those states which do not recognise the JCED in their national laws, the complementarity provisions will provide no ‘protection’ before the ICC, a fact which ICC signatory states may not appreciate. Even if State parties do amend their domestic legislation, where necessary, to enable the domestic prosecution of international crimes by reliance on the JCED, it is also questionable whether this is desirable, as it effectively amounts to the incorporation of the JCED into domestic legislation through the back door. Nevertheless, at least if the ICC determines that JCE Category 3 is not encompassed by Article 25(3)(d), then JCE Category 3 will not be incorporated into the domestic legislation of State parties, which do not already recognise such mode of liability in their domestic systems (unless of course the domestic legislature or courts concerned determine otherwise). Finally, while it is, of course, desirable that as many perpetrators of core international crimes be prosecuted and convicted, such convictions should not come at any price, for example, by undermining basic principles of criminal law (such as the fundamental rights of the accused) and/or the entire international criminal law system, including its very legitimacy. The author, moreover, concludes, that while the description of the doctrine as a “monster theory of liability” is not entirely fair, neither can it be said, without any reservation, that the doctrine is a legitimate and satisfactory tool in the prosecution of the perpetrators of core international crimes. The serious concerns identified in relation to the doctrine significantly undermine its legitimacy and satisfactoriness as a prosecutorial tool and as a consequence thereof, also undermines the legitimacy of the international criminal law system. Chapter 4 examines the defining criteria of an international criminal judicial body, for the purposes of the rules in international law on the lifting of immunity from prosecution of state officials for core international crimes. It then applies those criteria to the SCSL and the other hybrid criminal judicial bodies to determine if each of them can be categorised as international criminal judicial bodies, for the purposes of the rules in international law on the lifting of state official immunity. Such examination is warranted in the light of the determination of the ICJ in the Yerodia case, that an incumbent or former Minister for Foreign Affairs may be subject to criminal prosecution for war crimes and crimes against humanity before certain international criminal tribunals, where such tribunals have jurisdiction over the crime in question,1 and the subsequent application of this determination by the SCSL in the Taylor Decision.2 Chapter 4 concludes that the fundamental defining criteria of an international criminal judicial body for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes (which criteria must be fulfilled) are as follows:

1 2

Case concerning Yerodia of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, 14 February 2002, §§ 60-61. Prosecutor v Charles Ghankay Taylor, Case No.: SCSL-2003-01-I, “Decision on Immunity from Jurisdiction”, App. Ch., 31 May 2004.

408 6 Summary

1. The legal basis of the judicial body is either (i) an international treaty between two or more States; (ii) a UN Security Council Chapter VII resolution; (iii) an agreement between the UN and one or more States; or (iv) an amendment to the UN Charter. 2. The judicial body is not part of the judiciary of one single State. 3. The judicial body applies international criminal law. The fact that such judicial body also applies domestic law does not preclude the fulfilment of this criterion. 4. The judicial body’s jurisdiction ratione materiae and ratione personae is international. The fact that such judicial body‘s jurisdiction ratione materiae and ratione personae is also domestic does not preclude the fulfilment of this criterion. 5. The decisions of the judicial body are binding. Other matters which, in the author’s view, can be indicative of an international criminal judicial body, for the purposes of the rules of international law concerning the lifting of immunity from prosecution for core international crimes are as follows: 1. The judiciary is independent and impartial, including a requirement that at least some international judges sit on the bench. 2. Adjudication before the judicial body is governed by a predetermined set of rules of procedure and evidence. 3. The judicial body has concurrent jurisdiction with and primacy over national courts or its jurisdiction is complementary to national courts. 4. Independent financing of the judicial body, i.e. the judicial body is not financially dependent on a particular State for its existence. 5. The judicial body fulfils the criteria associated with classical international organisations. 6. The judicial body has Chapter VII powers. 7. The parties establishing the judicial body intended to establish a solely international criminal judicial body or a mixed international-national criminal judicial body. 8. The designation of the judicial body as international. 9. The constitutive documentation of the judicial body contains an express provision denying Heads of State and Government immunity from prosecution for core international crimes. 10. The entity in whose name the accused is being prosecuted is not a State. 11. The international community undertakes an active role in the establishment and administration of the judicial body. The author, moreover, concludes that the SCSL can be categorised as an international criminal judicial body, for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes. Although the author is in agreement with the conclusion of the SCSL Appeals Chamber in relation to the international criminal judicial body status of the SCSL,

6.2 Summary 409

the basis on which the Appeals Chamber reached such conclusion is, in the author’s view, subject to criticism. Finally, the author concludes that the Extraordinary Chambers of the Courts of Cambodia, the Special Panels for Serious Crimes of the District Court of Dili (East Timor), the ‘Regulation 64’ Panels of Kosovo, the War Crimes Chamber of the State Court of Bosnia and Herzegovina and the Supreme Iraqi Criminal Tribunal cannot be categorised as international criminal judicial bodies for the purposes of the international law rules relating to the lifting of immunity from prosecution for core international crimes; primarily because they each form part of the judiciary of a single State. Moreover, although, the STL does not form part of the judiciary of a single State, it cannot be categorised as an international criminal judicial body for current purposes, as it does not apply international criminal law and its jurisdiction ratione materiae and ratione personae is not international. Chapter 5 considers individual criminal responsibility for terrorism as a crime against humanity. In the aftermath of the September 11th, 2001 terrorist attacks in the USA, a consideration of the legal remedies which can be found in international criminal law to impose individual criminal responsibility for such acts was undertaken. One of the novel ideas put forward was that terrorism could be classified as a crime against humanity and individual criminal responsibility could be imposed by reliance on such classification. It has also been posited that terrorists can be prosecuted before the ICC. Chapter 5 seeks to determine whether these assertions are accurate and also to determine whether, if acts of terrorism can be classified as crimes against humanity, it is an appropriate expansive adaptation of the subject matter of core international crimes to impose individual criminal responsibility for terrorism as a crime against humanity. The author concludes that, on a literal interpretation of Article 7 of the ICC Statute, certain manifestations of terrorism (but not terrorism, as a distinct crime in its own right) conceivably fall within the scope of Article 7. There are no general factors common to all current manifestations of terrorism that militate against their classification as crimes against humanity for the purposes of the ICC Statute. However, there also exist very weighty arguments against the inclusion of terrorism (both certain manifestations of terrorism, and terrorism as a distinct crime in its own right) within the scope of Article 7 of the ICC Statute, in particular the principle of legality (in the case of terrorism, as a distinct crime in its own right) and the very clear evidence that it was not the intention of the drafters that terrorism be included within the scope of Article 7. Notwithstanding that on a literal interpretation of Article 7, certain manifestations of terrorism conceivably fall within the scope of Article 7, a purposive construction of Article 7 indicates that it cannot be determined that terrorism, either as a distinct crime in itself, or certain manifestations of terrorism, currently falls within the specific, or otherwise, subject matter jurisdiction of the ICC. Even if the ICC Statute is amended in the future to specifically include terrorism, the ICC cannot exercise its jurisdiction as regards such crime when committed on the territory, or by the nationals of, a State party who has not accepted such amendment, unless such act is referred to the ICC Prosecutor by the UN Security Council. Should the ICC specifically acquire subject matter jurisdiction over terrorism in the

410 6 Summary

future, the prosecution of such crime before the ICC is, in the author’s view, at best going to be a rare event. However, this does not detract from the value of having the ICC in the future, as a back-up option to catch those situations which, for whatever reason, cannot be dealt with in another forum. The author also concludes that, on a literal interpretation of the concept of crimes against humanity in general international law, certain manifestations of terrorism (but not terrorism, as a distinct crime in its own right) perpetrated by individuals conceivably fall within the scope of crimes against humanity in general international law; once the manifestation of terrorism in question satisfies the requirements of (i) amounting to a specific crime considered to be a crime against humanity, and (ii) the chapeau elements of crimes against humanity. While valid arguments against the inclusion of terrorism within the scope of crimes against humanity in general international law exist, in the author’s view, many of these arguments or indicia are more applicable to terrorism, as a distinct crime in its own right, rather than to the manifestations of terrorism. Finally, in the author’s view, it is an appropriate expansive adaptation of the subject matter of core international crimes to classify terrorism as a crime against humanity, to which individual criminal responsibility attaches. The conclusion that certain manifestations of terrorism can amount to a crime against humanity under general international law does not undermine, or intrude on the on-going debate about the absence/existence of a legal definition of terrorism, as a distinct crime in itself. Moreover, international law cannot exist in limbo or remain stagnant. The type of terrorist acts to which our society has borne witness in recent years, i.e. acts occurring outside the traditional confines of an armed conflict and with large civilian fatalities, reflect a changing world to which international criminal law must adapt. Finally, the classification of certain manifestations of terrorism, as crimes against humanity does not, in the author’s view, offend the principle of legality. As long as the manifestation of terrorism in question satisfies the requirements of (i) amounting to a specific crime considered to be a crime against humanity, and (ii) the chapeau elements of crimes against humanity, then it does not seem unfair to classify such manifestation as a crime against humanity, notwithstanding that it represents a new way of thinking. A new crime or new law is not, in the author’s view, being created. The classification of certain manifestations of terrorism as crimes against humanity instead amounts to an “expansive adaptation” of some legal ingredients of criminal rules to new social conditions. The additional prosecutorial avenue created by the potential classification of certain manifestations of terrorism as crimes against humanity in general international law, may, however, in reality, only be utilised rarely, due to the plethora of sectoral conventions in existence and the current and continuing preference to prosecute the perpetrators of terrorism under domestic terrorism legislation. Notwithstanding this, there is nevertheless merit in having this additional prosecutorial avenue, and its existence underscores the seriousness of terrorism.

6.3 Significance of Conclusions 411

6.3 Significance of Conclusions The underlying theme of this thesis is individual criminal responsibility for core international crimes in international criminal law. The impact, which each of the three selected pertinent issues has had/continues to have on the concept of individual criminal responsibility for core international crimes in international criminal law, ought to be addressed. How have these pertinent issues affected the application and/or scope of the concept of individual criminal responsibility for core international crimes? The JCED has had, and continues to have, an enormous impact on the concept of individual criminal responsibility for core international crimes. Notwithstanding the determination of the Tadiü Appeals Chamber that the doctrine was, at least in 1999, firmly established in customary international law, the doctrine was first employed before an international criminal tribunal in the Tadiü Appeals Judgment.3 Since that time, numerous accused have been held individually criminally responsible for various core international crimes on the basis of this mode of liability. Arguably, it would not have been possible to secure such convictions, had reliance on the JCE mode of liability not been possible. This is because the JCE mode of liability is only relied upon, when the evidence available does not support liability under one of the other modes of liability, such as principal, accessory or command responsibility. Accordingly, the employment of the JCE mode of liability has undoubtedly resulted in an increase in the number of individuals upon whom individual criminal responsibility for core international crimes can be imposed and enforced. While this occurrence is, in principle, to be applauded, it is, as previously noted, weakened by the serious reservations concerning this doctrine. Whilst a determination that a judicial body is an international criminal judicial body does not, without more, necessarily entail that a senior State official is not entitled to immunity from prosecution for core international crimes before such body, the possibility that such immunity may be lifted and individual criminal responsibility imposed is clearly enhanced.4 As noted previously, the ICTY lifted the immunity of Slobodan Miloševiü and indicted him when he was still the serving President of the Federal Republic of Yugoslavia,5 while the SCSL in the Taylor Decision determined that Charles Taylor, the now former president of the Republic of Liberia, could not rely on state immunity before the SCSL.6 When State official immunity for core international crimes is lifted before an international criminal judicial body, individual criminal responsibility for core international crimes can be imposed on State officials, who previously would have escaped accountability. Finally, the possible classification of certain manifestations of international terrorism as crimes against humanity in general international law expands the subject

3 4 5 6

Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Judgment, App. Ch., 15 July 1999. See supra Chapter 4, section 4.7. See supra Chapter 4, at footnote 337. See supra Chapter 4, at footnote 339.

412 6 Summary

matter of core international crimes, as such manifestations would previously not have been considered as having been encompassed by the definition of core international crimes. Accordingly the number and type of actions for which individual criminal responsibility can be imposed in international criminal law is augmented. Accordingly, while the first two pertinent issues clearly increase the number of individuals upon whom individual criminal responsibility for core international crimes can be imposed and enforced, the latter expands the scope of the subject matter of core international crimes, for which individual criminal responsibility can be imposed. The end result is that the selected pertinent issues, each in their own way and despite their alleged defects, expand, and strengthen the practical enforcement of, the principle of individual criminal responsibility for core international crimes in international criminal law.

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Jurisprudence

International Courts ICC Situation in Darfur, The Sudan, Case No.: ICC-02/05. Situation in the Democratic Republic of the Congo in the Case of the Prosecutor vs Thomas Lubanga Dyilo, Case No.: ICC-01/04-01/06.

ICJ Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of Genocide, 1951 I.C.J. 23. Application of the Convention on the Prevention and Punishment on the Crime of Genocide (Provisional Measures), 1993 I.C.J. Case concerning Yerodia of 11 April 2000 (Democratic Republic of the Congo v Belgium), 2002 ICJ. Certain Expenses of the United Nations 1962 I.C.J. Reports 151. Effect of Awards of Compensation made by the United Nations Administrative Tribunal, 1954 I.C.J. 47 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 I.C.J. 14. North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 1969 I.C.J. 3.

439

440

Jurisprudence

ICTR Prosecutor v Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgment, T. Ch., 2 September 1998. Prosecutor v Jean Bosco Barayagwiza, Case No.: ICTR-97-19-AR72, “Decision, Prosecutor’s Request for Review or Reconsideration”, Separate Opinion of Judge Shahabuddeen, App. Ch., 31 March 2000. Prosecutor v Casimir Bizimungu, Justin Mugenzi, Jérôme-Clément Bicamumpaka & Prosper Mugiraneza, Case No.: ICTR-99-50-T, “Decision on Jérôme Bicamumpaka’s Request for a Declaration that the Indictment does not Allege that He is Liable for Any Form of Joint Criminal Enterprise”, T. Ch. II, 23 March 2006. Prosecutor v Sylvestre Gacumbtsi, Case No.: ICTR-2001-64-A, Judgment, App. Ch., 7 July 2006. Prosecutor v Juvénal Kajelijeli, Case No.: ICTR-98-44A-T, Judgment and Sentence, T. Ch. II, 1 December 2003. Prosecutor v Joseph Kanyabashi, Case No.: ICTR-96-15-T, “Decision on the Defence Motion on Jurisdiction”, T. Ch. II, 18 June 1997. Prosecutor v Édouard Karemera, Case No.: ICTR-98-44-T, “Decision on the Defence Motion, pursuant to Rule 72 of the Rules of Procedure and Evidence, pertaining to, inter alia, lack of jurisdiction and defects in the form of the Indictment”, T. Ch. II, 25 April 2001. Prosecutor v Édourad Karemera, Mathieu Ngirumpatse, Joseph Nzirorera and André Rwamakuba, Case No.: ICTR-98-44-T, “Decision on the Preliminary Motions by the Defence of Joseph Nzirorera, Édourad Karemera, André Rwamakuba and Mathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise”, T. Ch. III, 11 May 2004. Prosecutor v Édouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera, Case No.: ICTR-98-44-R73, “Decision on renewed motion to dismiss for lack of jurisdiction: United Nations Charter, Chapter VII Powers, Rule 73 of the Rules of Procedure and Evidence”, T. Ch. III, 5 August 2005. Prosecutor v Édourad Karemera, Mathieu Ngirumpatse & Joseph Nzirorera, Case No.: ICTR-98-44-T, “Decision on Defence Motions Challenging the Pleading

Jurisprudence 441

of a Joint Criminal Enterprise in a Count of Complicity in Genocide in the Amended Indictment”, T. Ch. III, 18 May 2006. Prosecutor v Édourad Karemera, Mathieu Ngirumpatse & Joseph Nzirorera, Case No.: ICTR-98-44-AR72.7, “Decision on Motion to Withdraw Appeal Regarding the Pleading of Joint Criminal Enterprise in a Count of Complicity in Genocide”, App. Ch., 25 August 2006. Prosecutor v Kayishema and Ruzindana, Case No.: ICTR-95-1-T, Judgment, T. Ch., 21 May 1999. Prosecutor v Jean Mpambara, Case No.: ICTR-01-65-T, Judgment, 11 September 2006. Prosecutor v. Tharcisse Muyunyi, Case No.: ICTR-2000-55A-T, Judgment and Sentence, T. Ch. II, 12 September 2006. Prosecutor v Hormisdad Nsengimana, Case No.: ICTR-2001-69-I, “Decision on Prosecution Motion for Leave to File an Amended Indictment”, T. Ch. II, 29 March 2007. Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos.: ICTR-96-10-A and ICTR-96-17-A, Judgment, App. Ch., 13 December 2004. Prosecutor v Joseph Nzirorera, Case No.: ICTR-98-44-AR72.3, “Decision on Validity of Appeal of Joseph Nzirorera Regarding Joint Criminal Enterprise Pursuant to Rule 72(E) of the Rules of Procedure and Evidence”, App. Ch., 11 June 2004. Prosecutor v Georges Ruggiu, Case No.: ICTR-97-32-I, Judgment and Sentence, T. Ch. I, 1 June 2000. Prosecutor v Georges Anderson Nderubumwe Rutaganda, Case No.: ICTR-963-T, Judgment and Sentence, T. Ch., 6 December 1999. Prosecutor v Georges Anderson Nderubumwe Rutaganda, Case No.: ICTR-96-3A, Judgment, App. Ch., 26 May 2003. Prosecutor v André Rwamakuba, Case No.: ICTR-98-44-AR72.4, “Decision on Interlocutory Appeal regarding Application of Joint Criminal Enterprise to the Crime of Genocide”, App. Ch., 22 October 2004. Prosecutor v Omar Serushago, Case No.: ICTR-98-39-S, Sentence, T. Ch. I, 5 February 1999.

442

Jurisprudence

Prosecutor v Aloys Simba, Case No.: ICTR-01-76-I, “Decision on Preliminary Defence Motion Regarding Defects in the Form of the Indictment”, T. Ch. I, 6 May 2004.

ICTY Prosecutor v Aleksovski, Case No.: IT-95-14/1-A, Judgment, App. Ch., 24 March 2000. Prosecutor v Milan Babiü, Case No.: IT-03-72-A, Judgment on Sentencing Appeal, App. Ch., 18 July 2005. Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, Case No.: IT-02-60-T, “Judgment on Motions for Acquittal Pursuant to Rule 98 Bis”, T. Ch. I, Section A, 5 April 2004. Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, Case No.: IT-02-60-T, Judgment, T. Ch. I, 17 January 2005. Prosecutor v Vidoje Blagojeviü and Dragan Jokiü, Case No.: IT-02-60-A, Judgment, App. Ch., 9 May 2007. Prosecutor v Tihomir Blaškiü, Case No.: IT-95-14-T, Judgment, T. Ch., 3 March 2000. Prosecutor v Tihomir Blaškiü, Case No.: IT-95-14-A, Judgment, App. Ch., 29 July 2004. Prosecutor v Radoslav Brÿanin & Momir Talic, Case No.: IT-99-36/1, “Decision on Objections by Radoslav Brdanin to the Form of the Amended Indictment”, T. Ch. II, 20 February 2001. Prosecutor v Radoslav Brdanin & Momir Talic, Case No.: IT-99-36/1, “Decision on Motion by Momir Talic for Provisional Release”, T. Ch. II, 28 March 2001. Prosecutor v Radoslav Brÿanin & Momir Talic, Case No.: IT-99-36/1, “Decision on Form of Further Amended Indictment and Prosecution Application to Amend”, T. Ch. II, 26 June 2001. Prosecutor v Radoslav Brdanin, Case No.: IT-99-36-T, “Decision on Motion for Acquittal Pursuant to Rule 98 Bis”, T. Ch., 28 November 2003. Prosecutor v Radoslav Brdanin, Case No.: IT-99-36-A, “Decision on Interlocutory Appeal”, App. Ch., 19 March 2004.

Jurisprudence 443

Prosecutor v Radoslav Brÿanin, Case No.: IT-99-36-T, Judgment, T. Ch. II, 1 September 2004. Prosecutor v Radoslav Brÿanin, Case No.: IT-99-36-A, Judgment, App. Ch., 3 April 2007. Prosecutor v Ivan ýermak & Mladen Markaþ, Case No.: IT-03-73-PT, “Decision on Ivan ýermak’s and Mladen Markaþ’s Motions on Form of Indictment”, T. Ch. II, 8 March 2005. Prosecutor v Ivan ýermak & Mladen Markaþ, Case No.: IT-03-73-PT, “Decision on Prosecution Motion Seeking Leave to Amend the Indictment”, T. Ch. II, 19 October 2005. Prosecutor v Ivan ýermak & Mladen Markaþ, Case No.: IT-03-73-PT, “Decision on the Prosecution’s Motion for Modification of the Trial Chamber's Decision Issued on 19 October 2005”, T. Ch. II, 9 December 2005. Prosecutor v Zejnil Delaliü, Zdravko Muciü, Hazim Deliü and Esad LandĨo, Case No.: IT-96-21, Judgment, T. Ch., 16 November 1998. Prosecutor v Zejnil Delaliü, Zdravko Muciü, Hazim Deliü and Esad Landžo, Case No.: IT-96-21-A, App. Ch., Judgment, 20 February 2001. Prosecutor v Drazen Erdemovic, Case No.: IT-96-22-T, Sentencing Judgment, T. Ch., 29 November 1996. Prosecutor v Dražen Erdemoviü, Case No.: IT-96-22-A, Judgment, “Separate and Dissenting Opinion of Judge Stephen”, App. Ch., 7 October 1997. Prosecutor v Drazen Erdemovic, Case No.: IT-96-22, Sentencing Judgment, T. Ch., 5 March 1998. Prosecutor v Anto Furundžija, Case No.: IT-95-17/1, Judgment, T. Ch., 10 December 1998. Prosecutor v Anto Furundžija, Case No.: IT-95-17/1, Judgment, App. Ch., 21 July 2000. Prosecutor v Ramush Haradinaj, Idriz Balaj & Lahi Brahimaj, Case No.: IT-0484-PT, “Decision on Motion to Amend the Indictment and on Challenges to the Form of the Amended Indictment”, T. Ch. II, 25 October 2006. Prosecutor v Dario Kordiü and Mario ûerkez, Case No.: IT-95-14/2-T, T. Ch., Judgment, 26 February 2001.

444

Jurisprudence

Prosecutor v Momþilo Krajišnik, Case No.: IT-00-39&40, “Decision on Motion Challenging Jurisdiction – With Reasons”, T. Ch., 22 September 2000. Prosecutor v Momþilo Krajišnik, Case No.: IT-00-39-T, Judgment, T. Ch. I, 27 September 2006. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25, “Decision on the Defence Preliminary Motion on the Form of the Indictment”, T. Ch. II, 24 February 1999. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25, “Decision on Preliminary Motion on Form of Amended Indictment”, T. Ch. II, 11 February 2000. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25, “Decision on Form of Second Amended Indictment”, T. Ch. II, 11 May 2000. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25-T, Judgment, T. Ch. II, 15 March 2002. Prosecutor v Milorad Krnojelac, Case No.: IT-97-25-A, Judgment, App. Ch., 17 September 2003. Prosecutor v Radislav Krstiü, Case No.: IT-98-33-T, Judgment, T. Ch., 2 August 2001. Prosecutor v Radislav Krstiü, Case No.: IT-98-33-A, Judgment, App. Ch., 19 April 2004. Prosecutor v Dragoljub Kunarac, Radomir Kovac og ZoranVukovic, Case Nos.: IT-96-23-T and IT-96-23/1-T, Judgment, T. Ch., 22 February 2001. Prosecutor v Zoran Kupreškiü and Others, Case No.: IT-95-16-T, Judgment, T. Ch. II, 14 January 2000. Prosecutor v Zoran Kupreškiü, Mirjan Kupreškiü, Vlatko Kupreškiü, Drago Josipoviü, Dragan Papiü and Vladimir Šantiü, Case No.: IT-95-16-A, App. Ch. Judgment, 23 October 2001. Prosecutor v Miroslav Kvoüka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, Case No.: IT-98-30/1, “Decision on Defence Preliminary Motions on the Form of the Indictment”, T. Ch., 12 April 1999. Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, Case No.: IT-98-30/1-T, Judgment, T. Ch., 2 November 2001.

Jurisprudence 445

Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, Case No.: IT-98-30/1-A, Judgment, App. Ch., 28 February 2005. Prosecutor v Fatmir Limaj, Haradin Bala & Isak Musliu, Case No.: IT-03-66-T, Judgment, T. Ch. II, 30 November 2005. Prosecutor v Milan Martiü, Case No.: IT-95-11-T, Judgment, T. Ch. I, 12 June 2007. Prosecutor v Slobodan Miloševiü, Case No.: IT-99-37-PT, “Decision on Preliminary Motions”, T. Ch. III, 8 November 2001. Prosecutor v Slobodan Miloševiü, Case No.: IT-02-54-AR73.2, “Decision on Admissibility of Prosecution Investigator’s Evidence”, App. Ch., 20 September 2002. Prosecutor v Slobodan Miloševiü, Case No.: IT-02-54-AR73.4, “Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements”, App. Ch., 21 October 2003. Prosecutor v Slobodan Miloševiü, Case No.: IT-02-54-T, “Decision on Motion for Judgment of Acquittal”, T. Ch., 16 June 2004. Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, Case No.: IT-99-37-AR72, “Motion re Joint Criminal Enterprise”, 28 February 2003. Prosecutor v Milan Milutinoviü, Dragoljub Ojdaniü and Nikola Šainoviü, Case No.: IT-99-37-PT, “Decision on Motion Challenging Jurisdiction”, T. Ch., 6 May 2003. Prosecutor v Milan Milutinoviü, Nikola Šainoviü & Dragoljub Ojdaniü, Case No.: IT-99-37-AR72, “Decision on Dragoljub Ojdaniü’s Motion Challenging Jurisdiction – Joint Criminal Enterprise”, App. Ch., 21 May 2003. Prosecutor v Milan Milutinoviü, Nikola Šainoviü, Dragoljub Ojdaniü, Nebojša Pavkoviü,Vladimir Lazareviü, Vlastimir Ðjorÿjeviü & Sreten Lukiü, Case No.: IT-05-87-PT, “Decision on Ojdaniü’s Motion Challenging Jurisdiction: Indirect Co-perpetration”, T. Ch., 22 March 2006. Prosecutor v Mile Mrkšiü, Case No.: IT-95-13/1-PT, “Decision on Form of the Indictment”, T. Ch. II, 19 June 2003.

446

Jurisprudence

Prosecutor v Mile Mrkšiü, Miroslav Radiü and Veselin Šljivanþanin, Case No.: IT95-13/1-PT, “Decision on Form of Consolidated Amended Indictment and on Prosecution Application to Amend”, T. Ch. II., 23 January 2004. Prosecutor v Momir Nikoliü, Case No.: IT-02-60/1-S, Sentencing Judgment, T. Ch. I, 2 December 2003. Prosecutor v Nebojša Pavkoviü, Vladimir Lazareviü, Vlastimir Ðorÿeviü & Sreten Lukiü, Case No.: IT-03-70-PT, “Decision on Vladimir Lazareviü’s Preliminary Motion on Form of Indictment”, T. Ch., 8 July 2005. Prosecutor v Jadranko Prliü, (Bruno Stojiü), Slobodan Praljak, Milivoj Petkoviü, (Valentin ûoriü) & (Berislav Pušiü), Case No.: IT-04-74-PT, “Decision to Dismiss the Preliminary Objections against the Tribunal’s Jurisdiction”, T. Ch. I, 26 September 2005. Prosecutor v Jadranko Prliü, Bruno Stojiü, Slobodan Praljak, Milivoj Petkoviü, Valentin ûoriü and Berislav Pušiü, Case No.: IT-04-74-PT, “Decision on Defence Motion to strike from the amended indictment certain parts alleging co-perpetration, indirect co-perpetration, indirect perpetration and aiding and abetting of joint criminal enterprise”, T. Ch. III, 25 April 2007. Prosecutor v Mitar Raševiü, Case No.: IT-97-25/1-PT, “Decision Regarding Defence Preliminary Motion on the Form of the Indictment”, T. Ch. II, 28 April 2004. Prosecutor v Laurent Semanza, Case No.: ICTR-97-20-A, Decision, App. Ch., 31 May 2000. Prosecutor v Vojislav Šešelj, Case No.: IT-03-67/PT, “Decision on Motion by Vojislav Šešelj Challenging Jurisdiction and Form of Indictment”, T. Ch. II, 26 May 2004. Prosecutor v Blagoje Simiü, Miroslav Tadiü & Simo Zariü, Case No.: IT-95-9-T, Judgment, Separate and Partly Dissenting Opinion, T. Ch. II, 17 October 2003. Prosecutor v Milomir Stakiü, Case No.: IT-97-24-T, Judgment, T. Ch. II, 31 July 2003. Prosecutor v Milomir Stakiü, Case No.: IT-97-24-A, Judgment, App. Ch., 22 March 2006. Prosecutor v Dusko Tadiü, Case No.: IT-94-1, “Decision on the Defence Motion on Jurisdiction”, T. Ch., 10 August 1995.

Jurisprudence 447

Prosecutor v Dusko Tadiü, Case No.: IT-94-1, “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, App. Ch., 2 October 1995. Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Opinion and Judgment, T Ch., 7 May 1997. Prosecutor v Duško Tadiü, Case No.: IT-94-1-T, Sentencing Judgment, T. Ch., 14 July 1997. Prosecutor v Duško Tadiü, Case No.: IT-94-1-I, Judgment, App. Ch., 15 July 1999. Prosecutor v Stevan Todorovic, Case No.: IT-95-9/1-S, Sentencing Judgment, T. Ch., 31 July 2001. Prosecutor v Mitar Vasiljeviü, Case No.: IT-98-32-T, Judgment, T. Ch. II, 29 November 2002. Prosecutor v Mitar Vasiljeviü, Case No.: IT-98-32-A, Judgment, App. Ch., 25 February 2004.

IMT Judgement of the International Military Tribunal, Trial of Major War Criminals before the IMT, Nuremberg, (14 Nov. 1945 – Oct. 1946)

Hybrid International-Domestic Bodies

SCSL Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No.: SCSL-04-16-PT, “Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment”, T. Ch., 1 April 2004. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No.: SCSL-04-16-T, Judgment, T. Ch. II, 20 June 2007.

448

Jurisprudence

Prosecutor v Moinina Fofana, Case No.: SCSL-2004-14-AR72(E), “Decision on the Preliminary Motion on Lack of Jurisdiction: Illegal Delegation of Jurisdiction by Sierra Leone”, App. Ch., 25 May 2004. Prosecutor v Moinina Fofana, Case No.: SCSL-2004-14-PT, “Decision on the Preliminary Motion on Lack of Jurisdiction Materiae: Illegal Delegation of Powers by the United Nations”, App. Ch., 25 May 2004. Prosecutor v Moinina Fofana and Allieu Kondewa, Case No.: SCSL-04-14-T, Judgment, T. Ch. I, 2 August 2007. Prosecutor v Augustine Gbao, Case No.: SCSL-2004-15-PT, “Decision on Preliminary Motion on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court”, App. Ch., 25 May 2004. Prosecutor v Morris Kallon and Brima Bazzy Kamara, Case No.: SCSL-200416-AR72(E), “Decision on Challenge to Jurisdiction: Lomé Accord Amnesty”, App. Ch., 13 March 2004. Prosecutor v Morris Kallon, Sam Hinga Norman and Brima Bazzy Kamara, Case No.: SCSL-2004-14-AR72E, Decision on Constitutionality and Lack of Jurisdiction, App. Ch., 13 March 2004. Prosecutor v Santigie Borbor Kanu, Case No.: SCSL-2003-13-PT, “Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment”, T. Ch., 19 November 2003. Prosecutor v Allieu Kondewa, Case No.: SCSL-2004-14-AR72(E), “Decision on Lack of Jurisdiction/Abuse of Process: Amnesty provides by the Lomé Accord”, App. Ch., 25 May 2004. Prosecutor v Sam Hinga Norman, Case No.: SCSL-2004-14-AR72(E), “Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence)”, App. Ch., 13 March 2004. Prosecutor against Sam Hinga Norman, Case No.: SCSL-2004-14-AR72(E), “Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)”, App. Ch., 31 May 2004. Prosecutor v Issa Hassan Sesay, Case No.: SCSL-2003-05-PT, “Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment”, T. Ch., 13 October 2003.

Jurisprudence 449

Prosecutor v Charles Ghankay Taylor, Case No.: SCSL-2003-01-I, “Decision on Immunity from Jurisdiction”, App. Ch., 31 May 2004.

National Military Courts

British Trial of Feurstein and others (“Ponzano” case), British Military Court, Proceedings of a War Crimes Trial held at Hamburg, Germany (4-24 August 1948, Judgment of 24 August 1948). Kiel Gestapo case, British Military Court, UNWCC, Vol. XI, p. 42. Trial of Erich Heyer and six others, British Military Court for the Trial of War Criminals, Essen, 18th –19th and 21st –22nd December, 1945, UNWCC, Vol. I, p. 88. Trial of Gustav Alfred Jepsen and others, British Military Court, Proceedings of a War Crimes Trial held at Luneberg, Germany (13-23 August 1946). Trial of Josef Kramer and forty-four others, British Military Court, Luneberg, 17th September – 17th November 1945, UNWCC, Vol. II., p. 1. Trial of Otto Sandrock and three others, UNWCC, Vol. I, p. 35. Trial of Franz Schonfeld and others, British Military Court, Essen, June 11th-26th 1946, UNWCC Vol. XI, p. 68. Trial of Max Wielen and 17 others, British Military Court, Hamburg, Germany, 1st July – 3rd September 1947, UNWCC, Vol. XI, p. 34.

Canadian Hoelzer et al., Canadian Military Court, Aurish, Germany, Record of Proceedings 25 March - 6 April 1946, UNWCC, Vol. I, p. 341.

450

Jurisprudence

United States of America United States of America v. Josef Altstoetter et al. (“Justice” case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, Vol. III, p. 974. United States of America v. Friedrich Flick, et al. (“Flick” case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, Vol. VI, p. 1212. United States of America v. Wilhelm List, et al.) (“Hostage” case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 8 July 1947 – 19 February 1948, UNWCC, Vol. VIII, p. 38. United States of America v. Otto Ohlenforf et al. (“Einsatzgruppen” case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, Vol. IV, p. 3. United States of America v. Wilhelm von Leeb, et al. (“High Command ” case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 30 December 1947 – 28 October 1948, UNWCC, Vol. XII, p.1. United States of America v. Martin Gottfried Weiss and thirty-nine others, General Military Government Court of the United States Zone, Dachau, Germany, 15th November – 13th December 1945, UNWCC, Vol. XI, p. 5.

US Military Commission United States of America v David Hicks, “Defence Reply on Motion to dismiss Charge 1 [Conspiracy] for Failure to State an Offense Triable by Military Commission”, 26 October 2004.

Jurisprudence

451

National Courts

Canada R v. Finta, 73 C.C.C. (3d) 65 (Ont. C.A. 1992).

England and Wales Regina v. Bartle and the Comm'r of Police for the Metropolis and Others Ex Parte Pinochet, [1998] 3 W.L.R. 1456. R v. Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte, (No. 3) (HL(E)) [2000] 1 AC 147. East, Pleas of the Crown, 1806, Vol. II.

France Ghaddafi Case, Arrêt of the Cour de Cassation, 13 March 2001, No. 1414.

Germany Judgment in Case of Lieutenants Dithmar and Boldt Hospital Ship “Llandovery Castle”, 1922 16 AJIL 708. Judgment in Case of Commander Karl Neumann Hospital Ship “Dover Castle”, 1922 16 AJIL 704.

Israel Israel v. Demjanjuk, Crim. App. No. 347/88 (Sup. Ct. of Israel, Jul. 29, 1993). Attorney General of the Government of Israel v Eichmann, 36 ILR 5.

452

Jurisprudence

Italy Aratano et al., Court of Cassation, Criminal Section II, Judgment of 21 February 1949, no. 102. D’Ottavio et al., Court of Cassation, Criminal Section I, Judgment of 12 March 1947, no. 270. Manelli et al., Court of Cassation, Criminal Section I, Judgment of 20 July 1949, no. 914. Tossani Case, Court of Cassation, Criminal Section II, Judgment of 17 September 1946, no. 1446.

Japan Shimoda v. Japan, 32 I.L.R. 626 (1964).

The Netherlands Miloševiü v. The Netherlands, KG 01/975, 31 August 2001, available at http://www.icrc.org/ihl-nat.nsf/0/012854276cd2950dc1256da20051ac68?Open Document (last visited 27 January 2007).

United States of America Salim Ahmed Hamdan v. United States Secretary of Defense Donald H. Rumsfield et al., 126 S.Ct. 2749 (2006). Ex parte Quirin, 317 U.S. 1 (1942). Respublica v. De Longchamps, 1 Dallas (1784). Tel Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir.) (1984). United States v Yousef and Others, 327 F.3d 56 (2003).

Index

International criminal court defining criteria adjudication according to a pre-determined set of rules of procedure and evidence, 321, 322 applies international criminal law, 317, 318 binding decisions, 320 concurrent/primacy or complementarity jurisdiction, 322, 323 cooperation with States, 331, 332 designation of a judicial body as international, 327 entity in whose name the accused is being prosecuted is not a State, 330, 331 existence of Chapter VII powers, 324–326 express lifting of immunity from prosecution for core international crimes, 327, 328 fulfilment of the criteria associated with classical international organisations, 324 fundamental, 270, 332, 333 independent and international judiciary, 320, 321 independent financing, 323, 324 indicative, 332, 333 international community undertakes an active role, 331 jurisdiction ratione materiae and ratione personae are international, 318–320 legal basis, 315, 316 legal basis (agreement between the UN and one or more States), 307–315

C Core international crimes crimes against humanity, 72–77 definition, 57–60 genocide, 62–64 war crimes, 64–72 Crimes against humanity discriminatory intent/grounds required for each crime against humanity, 81–83 nexus with war or an armed conflict, 77–79 state action or policy, 83–85 widespread or systematic action, 79–81 I Individual as a subject of international law, 328, 329 Individual criminal responsibility evolution, 85–105 18th, 19th and early 20th centuries, 90–94 ancient civilisations up to the 17th century, 87–90 ICTY and beyond, 113–123 ICTY, ICTR and ICC Statutes, 113–123 IMT and IMTFE, 98–105 Nuremberg and Tokyo up to the 1990s, 98–105 post Nuremberg and Tokyo, 105–112 pre-Nuremberg and Tokyo, 87–97 World War I and its aftermath, 94–97 meaning, 12–15 objectives, 15–27 omission, 120, 121

453

454

Index

legal basis (amendment to the UN Charter), 315 legal basis (resolution of the UN General Assembly), 315, 316 legal basis (treaty-based), 286, 287 legal basis (UN Security Council Chapter VII resolution), 287, 288 not appointed ad hoc by the parties, 321 not part of the judiciary of one single State, 317 parties’ intention to establish an international criminal judicial body, 326, 327 distinction between domestic and international courts, rationale for, 271, 272 hybrid criminal judicial bodies ‘Regulation 64’ Panels of Kosovo, 343–345 definition, 266, 267 Extraordinary Chambers of the Courts of Cambodia, 339, 340 other potential institutions with an international element, 266, 267 Special Court for Sierra Leone, 334–338 Special Panels for Serious Crimes of the District Court of Dili (East Timor), 341–343 Special Tribunal for Lebanon, 350–353 Supreme Iraqi Criminal Tribunal, 347–350 War Crimes Chamber of the State Court of Bosnia and Herzegovina, 345–347 IMT, 264, 265, 282 IMTFE, 265, 282 legal basis ICTR, 300–303 ICTY, 288–300 SCSL, 307–315 Taylor Decision, 283–284 terminology, 270–271 UN Security Council, creation by, 294, 306 Yerodia case, 271–272 International criminal judicial body defining criteria, 273

International criminal law article 38, ICJ Statute, 30 significance of the ICC, ICTY and ICTR Statutes other than as a binding source of law, 47, 48 source ad hoc international criminal tribunals, 36 CCL 10, 49 custom, 32, 33 Draft Code of Crimes against the Peace and Security of Mankind, 48, 49 general principles of law recognised by civilised nations, 34, 35 ICC, 44–47 judicial decisions, 35–42 ad hoc international criminal tribunals, 36 ICC, 36, 37 ICJ, 37 IMT and IMTFE, 37 national courts, 38, 39 post World War II military tribunals applying CCL 10, 38 US Military Commission, 39–42 Nuremberg Principles, 48 other potential sources, 48 reports of the International Law Commission, 50 resolutions of the UN General Assembly and UN Security Council, 50 teachings of the most highly qualified publicists, 42 treaties, 31, 32 sources general, 29, 30 sources relevant to adjudication before the ICC and the ad hoc international criminal tribunals, 43 International judicial body defining criteria, 273–303 J Joint criminal enterprise aiding and abetting, already covered by, 242–245 aiding and abetting, distinguish, 183, 184

Index application to internal armed conflicts, 164, 165 categories, 145, 146 collective responsibility, 236–238 common purpose not criminal, 179 complicity in genocide, 166 conspiracy, distinguish, 184–188 co-perpetration, compare, 159, 163, 164 critique, 234–258 customary international law, 142, 235 desire, 155 Draft Code of Crimes against the Peace and Security of Mankind, 178 form of principal and accomplice liability, 203–211 form of principal or accomplice liability, 193, 194, 245–247 genocide and JCE Category 3, 212–218, 247, 248 history, 132–135 ICC, 167–177, 255–258 actus reus elements are not identical, 174–176 complementarity provisions, 255–258 Future employment of the JCED, 177 JCE as separate mode of liability, 168, 169 JCE Category 3 not encompassed, 176, 177 mens rea elements are not identical, 169–174 ICTR, 163–166 Karemera JCE Decision, 164 ICTY, 136–163 Ojdaniü JCE Decision, 157–159 Prosecutor v Anto Furundžija, 149, 150 Prosecutor v Milomir Stakiü, 159–163 Prosecutor v Milorad Krnojelac, 155, 156 Prosecutor v Miroslav Kvoþka, Milojica Kos, Mlaćo Radiü, Zoran Žigiü and Dragoljub Prcaü, 150–155 Prosecutor v Radislav Krstiü, 156, 157 Prosecutor v Radoslav Brÿanin & Momir Talic, 150

455

Tadiü Appeals Judgment, 137–148 little fish, application to, 150, 253, 254 membership of a criminal organisation, distinguish, 188–193 natural and foreseeable, 154, 155, 156, 157 nullum crimen sine lege, 157–159, 162–164, 172, 173, 238–241 object, 150 opportunistic visitor, 251, 252 pleading, 218–234, 248–250 alternative charging categories, 233 blanket pleading, 221–226 pre-trial brief, 227–229 relevant provisions of various statutes, 219–221 unspecified charging category, 229–232 rationale, 235–236 restraint in the application of the JCED, examples of, 253, 254 significant level of participation, 155, 156, 250–253 Special Court for Sierra Leone, 178, 179 Supreme Iraqi Criminal Tribunal, 180 terminology, 130, 131, 211, 212 US Military Commission, 180–182 Judicial precedent ad hoc international criminal tribunals and the SCSL, 51–55 ICC, 55 S State official immunity functional immunity, 269, 271, 272 personal immunity, 271, 272 private acts, 273 T Terrorism, as a crime against humanity, 376–379 additional obstacles to the prosecution of terrorism before the ICC, 397–399 history of the crime of terrorism and the ICC Statute, 379–385 literal interpretation of Article 7 of the ICC Statute, 385–389

456

Index

should terrorism fall within the jurisdiction of the ICC?, 400–401 Terrorism, as a distinct crime in its own right, 363–375 definition of terrorism, 363, 364 Draft Comprehensive Convention, 368, 369

regional treaties dealing with terrorism, 365, 366 sectoral conventions, 364, 365 Terrorism, as a war crime, 375, 376 Terrorism, as genocide, 376 Terrorism, manifestations of, 375