modes of liability presentation_john mcmanus

8/6/2019 Modes of Liability Presentation_john Mcmanus

1/33

IRISH CENTRE FOR HUMAN RIGHTSIRISH CENTRE FOR HUMAN RIGHTS

SUMMER COURSE ON THESUMMER COURSE ON THEINTERNATIONAL CRIMINAL COURTINTERNATIONAL CRIMINAL COURT

20102010

MODES OF LIABILITYMODES OF LIABILITY


2/33

2

Modes of LiabilityModes of Liability

Criminal LiabilityCriminal LiabilityAn interpretation of the StatuteAn interpretation of the Statute based onbased onits object and purposeits object and purpose leads to theleads to the

conclusion that the Statute intends toconclusion that the Statute intends toextend the jurisdiction of the Internationalextend the jurisdiction of the InternationalTribunal toTribunal to allall those responsible forthose responsible forserious violations of internationalserious violations of international

humanitarian lawhumanitarian law


3/33

3


Criminal LiabilityCriminal LiabilityThus, all those who have engaged inThus, all those who have engaged inserious violations of internationalserious violations of international

humanitarian law, whatever the manner inhumanitarian law, whatever the manner inwhich they may have perpetrated, orwhich they may have perpetrated, orparticipated in the perpetration of thoseparticipated in the perpetration of thoseviolations, must be brought to justice.violations, must be brought to justice.


4/33

4


Criminal LiabilityCriminal LiabilityIf this is so, it is fair to conclude that theIf this is so, it is fair to conclude that theStatute does not confine itself to providingStatute does not confine itself to providing

for jurisdiction over those persons whofor jurisdiction over those persons whoplan, instigate, order, physicallyplan, instigate, order, physicallyperpetrate a crime or otherwise aid andperpetrate a crime or otherwise aid andabet in its planning, preparation orabet in its planning, preparation or

execution. The Statute does not stopexecution. The Statute does not stopthere.there. Prosecutor v.Prosecutor v. TadicTadic Judgement (ITJudgement (IT--9494--11--A)A)(Appeals) (15 July 1999) par 189(Appeals) (15 July 1999) par 189--190)190)


5/33

5


Criminal LiabilityCriminal LiabilityICTY Statute

Article 7 (Individual criminal responsibility)

1. A person who planned, instigated,ordered, committed or otherwise aidedand abetted in the planning, preparationor execution of a crime referred to inarticles 2 to 5 of the present Statute, shallbe individually responsible for the crime.


6/33

6


Criminal LiabilityCriminal Liability InIndubiodubio pro reopro reo

When indoubt, decide in favour of theWhen indoubt, decide in favour of theaccusedaccused

It is a universal principle thatif a penalItis a universal principle thatif a penalprovisionis reasonably capable of twoprovisionis reasonably capable of twointerpretations, thatinterpretationwhich isinterpretations, thatinterpretationwhich is

most favourable to the accused must bemost favourable to the accused must beadopted.adopted. Sweet v. ParsleySweet v. Parsley [1969] 2 W.L.[1969] 2 W.L.R. 470 at474 (H.L.)R. 470 at474 (H.L.)


7/33

7


Individual LiabilityIndividual LiabilityCrimes against international law areCrimes against international law arecommitted by men, not by abstractcommitted by men, not by abstract

entities, and only by punishing individualsentities, and only by punishing individualswho commit such crimes can thewho commit such crimes can theprovisions of international law beprovisions of international law beenforced.enforced. France et al v. Goering et al.,France et al v. Goering et al.,

(1946) 22 IMT 203(1946) 22 IMT 203


8/33


9/33

9


Individual LiabilityIndividual Liability The case as presented by the United States willThe case as presented by the United States will

be concerned with the brains and authority backbe concerned with the brains and authority backof all the crimes. These defendants were men ofof all the crimes. These defendants were men ofa station and rank which does not soil its owna station and rank which does not soil its own

hands with blood. They were men who knewhands with blood. They were men who knewhow to use lesser folk as tools. We want tohow to use lesser folk as tools. We want toreach the planners and designers, the incitersreach the planners and designers, the incitersand leaders without whose evil architecture theand leaders without whose evil architecture theworld would not have been for so long scourgedworld would not have been for so long scourgedwith the violence and lawlessness, of this terriblewith the violence and lawlessness, of this terriblewarwar Justice Jacksons Opening Address for the US atJustice Jacksons Opening Address for the US atNurembergNuremberg http://avalon.law.yale.edu/imt/chap_05.asphttp://avalon.law.yale.edu/imt/chap_05.asp


10/33

10


Rome Statute ProvisionsRome Statute ProvisionsArticle 25 (Individual criminal responsibility)

1. The Court shall have jurisdiction overnatural persons pursuant to thisStatute.

2. A person who commits a crimewithin the jurisdiction of the Court

shall be individually responsible andliable for punishment in accordancewith this Statute.


11/33

11


Rome Statute ProvisionsRome Statute Provisions3. In accordance with this Statute, a person

shall be criminally responsible and liable

for punishment for a crime within the

jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an

individual, jointly with another or throughanother person, regardless of whether that

other person is criminally responsible;


12/33

12


Control over the CrimeControl over the CrimePar 330:Par 330: The concept of control over the crimeThe concept of control over the crime

is that principals to a crime are not limited to is that principals to a crime are not limited tothose who physically carry out the objectivethose who physically carry out the objective

elements of the offence, but also include thoseelements of the offence, but also include thosewho, in spite of being removed from the scenewho, in spite of being removed from the sceneof the crime, control or mastermind itsof the crime, control or mastermind itscommission because they decide whether andcommission because they decide whether and

how the offence will be committed.how the offence will be committed. Situation in theSituation in theDemocratic Republic of the Congo,Democratic Republic of the Congo, P. v. ThomasP. v. Thomas LubangaLubanga DyiloDyilo,,ICCICC--01/0401/04--01/06, 29 January 200701/06, 29 January 2007


13/33

13


Rome Statute ProvisionsRome Statute Provisions(b) Orders, solicits or induces the

commission of such a crime which in fact

occurs or is attempted;

Person in authority uses that position to order/convince

someone to commit an offence (AkayesuIRTR Judgment

(Sept 1998) par 483; BlaskicICTY (March 2000) par 601)

Simply passing along an order is sufficient to ground a guilty

finding (KupreskicICTY (Jan 2000) par 862) Mens Rea: person giving order was aware of the substantial

likelihood that a crime would be committed (BlaskicAppeal

(July 2004) par 42)


14/33

14


Rome Statute ProvisionsRome Statute Provisions(c) For the purpose of facilitating the

commission of such a crime, aids,

abets or otherwiseassists in its

commission or its attempted

commission, including providing the

means for its commission;


15/33

15


Aiding and AbettingAiding and AbettingThe aider and abettor carries out actsThe aider and abettor carries out actsspecifically directed to assist, encourage or lendspecifically directed to assist, encourage or lendmoral support to the perpetration of a certainmoral support to the perpetration of a certain

specific crime and this support has aspecific crime and this support has asubstantialsubstantial effect upon the perpetration of theeffect upon the perpetration of thecrime the requisite mental element iscrime the requisite mental element isknowledge that the acts performed by the aiderknowledge that the acts performed by the aider

and abettor assist the commission of a specificand abettor assist the commission of a specificcrime by the principal.crime by the principal. TadicTadic appeal judgmentappeal judgment(1999) par 229(1999) par 229


16/33

16


Rome Statute ProvisionsRome Statute Provisions(d) In any other waycontributes to the commissionor attempted commission of such a crime byagroup ofpersons acting with a commonpurpose. 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, wheresuch activity or purpose involves thecommission of a crime within the jurisdiction of

the Court; or(ii) Be made in the knowledge of the intention of

the group to commit the crime;


17/33

17


Rome Statute ProvisionsRome Statute Provisions(e) In respect of the crime of genocide,

directly and publicly incites others to

commit genocide;


18/33

18


Rome Statute ProvisionsRome Statute Provisions(f) Attempts to commit such a crime by taking actionthat commences its execution by means of asubstantial step, but the crime does not occurbecause of circumstances independent of the

persons intentions. However, a person whoabandons the effort to commit the crime orotherwise prevents the completion of the crimeshall not be liable for punishment under thisStatute for the attempt to commit that crime if that

person completely and voluntarily gave up thecriminal purpose.

See P. v.. KatangaDecision on the Confirmation of the Charges(ICC-01/04-01/07, 30 Sept. 2008 pars 458-460


19/33

19


Case LawCase Law Situation in the Central African Republic,Situation in the Central African Republic, P. v.P. v.

JeanJean--Pierre BembaPierre Bemba GomboGombo, Decision Adjourning, Decision Adjourningthe Hearing pursuant to Article 61(7)(c)(ii), ICCthe Hearing pursuant to Article 61(7)(c)(ii), ICC--

01/0501/05--01/08, 3 March 200901/08, 3 March 2009 Situation in the Central African Republic,Situation in the Central African Republic, P. v.P. v.

JeanJean--Pierre BembaPierre Bemba GomboGombo, Decision Pursuant to, Decision Pursuant toArticle 61(7)(a) and (b) on the Charges of theArticle 61(7)(a) and (b) on the Charges of theProsecutor Against JeanProsecutor Against Jean--Pierre BembaPierre Bemba GomboGombo,,ICCICC--01/0501/05--01/08, 15 June 200901/08, 15 June 2009


20/33

20


Command ResponsibilityCommand ResponsibilityAnnex to Hague Convention IV Respecting the LawsAnnex to Hague Convention IV Respecting the Lawsand Customs of war on Land (1907)and Customs of war on Land (1907)

Art 1: The laws, rights, and duties of war apply notArt 1: The laws, rights, and duties of war apply notonly to armies, but also to militia and volunteeronly to armies, but also to militia and volunteer

corps fulfilling the following conditions:corps fulfilling the following conditions:1. To be commandedbyaperson responsible for1. To be commandedbyaperson responsible forhis subordinateshis subordinates;;

2. To have a fixed distinctive emblem recognizable2. To have a fixed distinctive emblem recognizable

at a distance;at a distance; 3. To carry arms openly; and3. To carry arms openly; and

4. To conduct their operations in accordance with4. To conduct their operations in accordance withthe laws and customs of war.the laws and customs of war.


21/33


22/33

22


Command ResponsibilityCommand ResponsibilityArticle 28

28. In addition to other grounds of criminalresponsibility under this Statute for crimes within

the jurisdiction of the Court:(a) A military commander or person effectively acting

as a military commander shall be criminallyresponsible for crimes within the jurisdiction of theCourt committed by forces under his or hereffective command and control, or effectiveauthority and control as the case may be, as aresult of his or her failure to exercise controlproperly over such forces, where:


23/33


24/33

24


Command ResponsibilityCommand Responsibility

(b) (i) The superior either knew, orconsciously disregarded informationwhich clearly indicated, that the

subordinates were committing orabout to commit such crimes;

(ii) The crimes concerned activitiesthat were within the effectiveresponsibility and control of thesuperior;


25/33

25


Command ResponsibilityCommand ResponsibilityThings to prove:Things to prove:

11 That there was a superior /subordinate relationship.That there was a superior /subordinate relationship.(doesnt have to be direct or immediate in nature)(doesnt have to be direct or immediate in nature)

De facto vs. de jure (prove de facto, but prove de jureDe facto vs. de jure (prove de facto, but prove de jureand force other side to prove otherwise)and force other side to prove otherwise)

Effectivecommand and controlEffectivecommand and control (the issue in(the issue inHalilovicHalilovic) (test: who stands up and salutes when the) (test: who stands up and salutes when theguy comes into the room)guy comes into the room)

Authority to give an order, and the power to punishAuthority to give an order, and the power to punishthose who disobey (or at least instigate a properthose who disobey (or at least instigate a properinvestigation) (material ability to prevent or punishinvestigation) (material ability to prevent or punishcriminal conductcriminal conduct CelebiciCelebici Appeal (Feb. 2001) par 256)Appeal (Feb. 2001) par 256)


26/33

26


MensMens ReaRea

Rome Statue Article 30

1. Unless otherwise provided, a person shall be criminallyresponsible 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 inthe conduct;

(b) In relation to a consequence, that person means to causethat consequence or is aware that it will occur in the

ordinary course of events.3. For the purposes of this article, knowledge meansawareness that a circumstance exists or a consequence willoccur in the ordinary course of events. Know andknowingly shall be construed accordingly.


27/33


28/33

28


Joint Criminal EnterpriseJoint Criminal EnterpriseCharter of the IMT (Nuremberg) Art 6Charter of the IMT (Nuremberg) Art 6

Charter for the IMT for the Far East (Tokyo)Charter for the IMT for the Far East (Tokyo)Art 5(c)Art 5(c)

6.6.Leaders, organizers, instigators andLeaders, organizers, instigators andaccomplices participating in the formulationaccomplices participating in the formulationor execution of aor execution of a common plancommon plan ororconspiracy to commit any of the foregoingconspiracy to commit any of the foregoing

crimes are responsible for all actscrimes are responsible for all actsperformed by any persons in execution ofperformed by any persons in execution ofsuch plan.such plan.


29/33

29


Joint Criminal EnterpriseJoint Criminal Enterprise

Three classes of JCE:Three classes of JCE:

1.1. CoCo--perpetration, where all of theperpetration, where all of the

participants in the common designparticipants in the common designpossess the same criminal intent topossess the same criminal intent to

commit a crime, and one or more ofcommit a crime, and one or more of

them actually commits the crimethem actually commits the crime

TheThe mmensens reareais the intent tois the intent to

perpetrate a crimeperpetrate a crime


30/33

30



2.2. The second is the soThe second is the so--called concentrationcalled concentration

camp cases, where the individuals knowcamp cases, where the individuals know

of the system of abuse (such as aof the system of abuse (such as a

concentration camp) and intend toconcentration camp) and intend toadvance or provide the opportunity for theadvance or provide the opportunity for the

abuseabuse

MensMens reareais both personal knowledge ofis both personal knowledge of

the system of illthe system of ill--treatment, and the intenttreatment, and the intentto further the common concerted systemto further the common concerted system

of illof ill--treatmenttreatment


31/33


32/33

32



Three common essential elements of JCE:Three common essential elements of JCE:

1.1. A plurality of personsA plurality of persons

2.2. The existence of a common plan, design orThe existence of a common plan, design or

purpose which amounts to or involves thepurpose which amounts to or involves thecommission of a crime provided for in thecommission of a crime provided for in theStatute;Statute;

3.3. Participation of the accused in theParticipation of the accused in the

common design involving the perpetrationcommon design involving the perpetrationof one of the crimes provided for in theof one of the crimes provided for in theStatute.Statute. TadicTadicAppeal decision par 227Appeal decision par 227


33/33

33

SUMMER COURSE ON THE ICCSUMMER COURSE ON THE ICC

20102010

MODES OF LIABILITY BIBLIOGRAPHYMODES OF LIABILITY BIBLIOGRAPHY

MettrauxMettraux,, GuenaelGuenael,, The Law of CommandThe Law of Command

ResponsibilityResponsibility Oxford UniversityPress, New YorkOxford UniversityPress, New York

(2009)(2009)Robinson, Darryl;Robinson, Darryl; The Identity Crisis of InternationalThe Identity Crisis of International

Criminal Law 21Criminal Law 21 Leiden J of Intl Law (2008) 925Leiden J of Intl Law (2008) 925

TalligrenTalligren, I.;, I.; The Sensibility and Sense ofThe Sensibility and Sense of

International Criminal LawInternational Criminal Law13 EJIL (2002) 56113 EJIL (2002) 561

modes of liability presentation_john mcmanus

Documents