Week 3(i) - General Principles of Liability

Question 1

What is the structure of international crimes? (5)

Answer 1

1) Common law-based 2-/3-pronged approach
2) Objective element
3) Subjective element

4) Individual criminal responsibility
- Modes of Responsibility
- Superior Responsibility

5) Defences

Question 2

How may objective elements of crimes be categorised? (2)

Answer 2

1) Descriptive: e.g. ‘killing’

2) Normative: ‘civilian’ or ‘combatant’

Question 3

What does the objective element of most international crimes consist of? (3)

Answer 3

1) Conduct
2) Consequences (and causation of conduct)

3) Circumstances
- Objective circumstances: is victim a protected person?
- Contextual Circumstances: is there an armed conflict?

Question 4

What does it mean that a perpetrator must have intention under Rome Statute? (4)

Answer 4

1) Art 30 Rome Statute
2) Conduct: must be result of voluntary action
3) Consequence: must either have been meant to be caused, or perpetrator must have been aware that it would occur in ordinary course of events
4) higher standard than in many national and international jurisdictions (perhaps due to gravity of offences)

Question 5

What are the different modes of responsibility under Rome Statute? (7)

Answer 5

1) Art 25 Rome Statute
2) Commission (individually, jointly or through another)
3) Ordering, soliciting or inducing
4) aids, abets or otherwise assists
5) contribution to (attempted) commission by group
6) Public incitement to genocide
7) Attempt

Question 6

What are features about the indirect modes of responsibility? (2)

Answer 6

1) lead to less responsibility since less consequential for the result
2) more important for ICL than domestic criminal law due to focus on individuals with authority

Question 7

What type of entities may be liable under Rome Statute? (2)

Answer 7

1) Art 25(1) Rome Statute

2) Only natural persons

Question 8

What does commision ‘jointly with another’ mean? (2)

Answer 8

1) Art 25(3)(a) Rome Statute

2) when 2 or more people act together in committing a crime

Question 9

What is Joint Criminal Enterprise? (2)

Answer 9

1) 3 modes of responsibility developed by ICTY

2) comparable to the joint commission and contribution to commission by group under Rome Statute

Question 10

What are the types of Joint Criminal Enterprise? (5)

Answer 10

1) Tadic ICTY
2) JCE 1: Co-perpetration
3) JCE 2: Concentration camp cases
4) JCE 3: Commission of unplanned crimes
5) all 3 are forms of primary liability (Milutinovic ICTY)

Question 11

Is JCE part of CIL? (2)

Answer 11

1) ICTY: yes

2) ECCC: JCE 3 not part of CIL 1975-79

Question 12

What is JCE 1? (3)

Answer 12

1) AR:
i) common plan/design involving commission of crime
ii) perpetrator participates in common plan

2) MR: shared intent of all perpetrators to commit the crime
3) similar to joint commission under Rome Statute

Question 13

What is JCE 2? (3)

Answer 13

1) Concentration camp cases
2) AR: common system of abuse

3) MR:
i) knowledge of the system of abuse; AND
ii) intent to further the common concerted system

Question 14

What is JCE 3? (3)

Answer 14

1) Commission of unplanned crimes
2) AR: a joint criminal enterprise

3) MR
i) intent to participate in and further criminal purpose; AND
ii) intention to contribute to the JCE or the commission of a crime; AND
iii) the additional crime was foreseeable and the accused willingly took the risk of it being committed

Question 15

What are problems with JCE? (3)

Answer 15

1) ICTY categorises as primary forms of liabilty (Milutinovic)
2) Liability too elastic and broad (difficult for defence to prepare)
3) Circumvents mens rea requirements (e.g. for genocide) and substitutes with recklessness

Question 16

Why is JCE’s status as primary liability problematic? (4)

Answer 16

1) esp. JCE 3 is controversial due to distance from crime
2) permits further secondary liability attaching (aiding and abetting JCE)
3) Cf. ICTY argues distance should be reflected in sentencing)
4) Cf. Art 25(3)(d) Rome Statute: secondary liability

Question 17

What are advantages of JCE? (3)

Answer 17

1) describes joint nature of many international crimes
2) catches and describes a unique type of responsibility
3) can be justified by perpetrator’s willing assumption of the risk of the offence occurring

Question 18

What is JCE 3? (3)

Answer 18

1) Commission of unplanned crimes

2) AR:
i) common plan/design involving commission of crime
ii) perpetrator participates in common plan

3) MR
i) intent to participate in and further criminal purpose; AND
ii) intention to contribute to the JCE or the commission of a crime; AND
iii) the additional crime was foreseeable and the accused willingly took the risk of it being committed

Question 19

What are the requirements for direct co-perpetration (‘jointly with another’)? (6)

Answer 19

1) Lubanga (ICC TC)
2) Common plan (not necessarily express)
3) crimes foreseen as virtual certainty of the plan
4) contribution of perpetrator must be essential
5) all co-perpetrators must have the mental element for the crime

6) foresight that crimes ‘will’ (Bemba) or ‘may’ (Lubanga) occur
- -> Bemba followed bc AC (not PTC) and later

Question 20

Why is JCE’s status as primary liability problematic? (3)

Answer 20

1) esp. JCE 3 is controversial due to distance from crime
2) permits further secondary liability attaching (aiding and abetting JCE)
3) Cf. ICTY argues distance should be reflected in sentencing)
4) Cf. Art 25(3)(d) Rome Statute: secondary liability

Question 21

What is the relevance of JCE under ICC? (2)

Answer 21

1) Katanga (ICC TC)

2) Art 25(3)(d) Rome Statute largely covers JCE I and JCE II but not JCE III

Question 22

What are the requirements for direct co-perpetration (‘jointly with another’)? (6)

Answer 22

1) Lubanga (ICC TC)
2) Common plan (not necessarily express)
3) crimes foreseen as virtual certainty of the plan
4) contribution of perpetrator must be essential
5) all co-perpetrators must have the mental element for the crime

6) foresight that crimes ‘will’ (Bemba) or ‘may’ (Lubanga) occur
- -> Bemba followed bc AC (not PTC) and later

Question 23

What are requirements for responsibility for ordering? (3)

Answer 23

1) Superior-subordinate relationship (de facto) (Semanza ICTR)
2) transmission of an order (anyone making/passing it down can be liable) (Kupreskic)
3) MR: awareness of substantial likelihood that crime will be committed in execution of the order (Blaskic ICTY)

Question 24

What is controversial about the commission through another? (2)

Answer 24

1) makes the background man the direct perpetrator rather than accomplice, even where culpable agency
2) this is arguably only necessary in systems where secondary offenders are necessarily given lower sentences (but this is not the case for ICL)

Question 25

What is indirect co-perpetration? (2)

Answer 25

1) combination of direct co-perpetration and commission through another (Katanga)
2) horizontal co-perpetrator in organisation made responsible for crimes by those for whom another co-perpetrator is vertically responsible

Question 26

What are requirements for responsibility for ordering?

Answer 26

1) Superior-subordinate relationship (de facto) (Semanza ICTR)
2) transmission of an order (anyone making/passing it down can be liable) (Kupreskic)
3) MR: awareness of substantial likelihood that crime will be committed in execution of the order (Blaskic ICTY)

Question 27

How does ICTY and ICC differ with regards to assistance? (2)

Answer 27

1) Causation:
i) ICTY: requires substantial effect on the perpetration (Tadic)
ii) ICC: seemingly no requirement for effect on commission (Bemba)

2) Purpose:
i) ICTY: no purpose requirement in assisting, only knowledge (Tadic)
ii) ICC: wording of Art 25(3)(c) requires purpose

Question 28

What are requirements for contributing to commission of crime by group? (5)

Answer 28

1) Art 25(3)(d) Rome Statute
2) Commission or attempted commissionby group
3) Group: 3 or more with common purpose
4) “in any way contributes”

5) MR:
i) aim of furthering criminal activity or common purpose; AND
ii) knowledge of group’s intent

Question 29

What is required for assisting a crime generally (shared between ICTY and ICC? (5)

Answer 29

1) Art 25(3)(c) Rome Statute
2) Assistance need not be at time or place of underlying offence
3) encouragement or moral support may suffice (Tadic)
4) no requirement for specific directions (ICTY)
5) MR: knowledge of what will be done

Question 30

How does ICTY and ICC differ with regards to assistance? (2)

Answer 30

1) Causation:
i) ICTY: requires substantial effect on the perpetration (Tadic)
ii) ICC: seemingly no requirement for effect on commission (Bemba)

2) Purpose:
i) ICTY: no purpose requirement in assisting, only knowledge (Tadic)
ii) ICC: wording of Art 25(3)(c) requires purpose

Question 31

What are requirements for contributing to commission of crime by group? (5)

Answer 31

1) Art 25(3)(d) Rome Statute
2) Commission or attempted commissionby group
3) Group: 3 or more with common purpose
4) “in any way contributes”

5) MR:
i) aim of furthering criminal activity or common purpose; AND
ii) knowledge of group’s intent

Question 32

What is Superior/Command Responsibility? (3)

Answer 32

1) Military commanders or civilian superiors
2) being made criminally liable for crimes
3) committed by their subordinates

Question 33

What is the rationale behind command responsibility? (2)

Answer 33

1) degree of responsibility often increases the further from the underlying crime
2) interest in deterring commanders from turning blind eye to commission of crimes

Question 34

Where can command responsibility be found and how should it be approached? (2)

Answer 34

1) Art 28 Rome Statute

2) however Art 25 should be examined first to see whether primary responsibility.

Question 35

What are the 4 elements of command responsibility?

Answer 35

1) Superior-subordinate relationship
2) mental element
3) failure to take reasonable and necessary measrues
4) Causation

Question 36

What are requirements for superior-subordinate relationship for command responsibility? (3)

Answer 36

1) position of effective control (Celebici ICTY)
2) evidenced by material ability to prevent and punish commission (Celebici)
3) de jure or de facto relationship suffices (Delalic ICTY)

Question 37

What are the requirements for ‘failure to take reasonable and necessary measures’ for command responsibility? (3)

Answer 37

1) breach of either:
i) duty to prevent; OR
ii) duty to repress

2) satisfaction of duty of repression does not preclude responsibility for breach of duty of prevention
3) only reasonable and necessary actions are required

Question 38

What are criticisms of command responsibility? (2)

Answer 38

1) Relaxed mens rea (too low for such serious crimes?)
- GER and CAN has made it separate offences in their implementation rather than as mean of vicarious liability for serious crimes

2) too broad mens mea? (from intentional to negligent breach of duty) –> fair labelling

Question 39

What are conclusions about the general principles of responsibility? (2)

Answer 39

1) built upon many principles known from national systems
- JCE = common law
- Art 25(3)(d) = conspiracy (common law)
- direct co-perpetration and commission through another = Civil (Claus Roxin)

2) but unique solutions also:
- command responsibility