General Principles of Liability

Question 1

Which article of ICC statute deals with accountability?

Answer 1

Art 25 ICC Statute

Question 2

What do the general principles of liability do?

Answer 2

• Attribute conduct to a certain person.
• Apply across various different offences.
• Provide for the doctrines by which a person may commit, participate in or otherwise be found responsible for those crimes.

Question 3

Why do general principles of liability play a large role in international criminal law?

Answer 3

International crimes tend to occur against a backdrop of collective criminality.

Question 4

What is the ‘three-pronged approach’ to an international crime?

(Practice of ad hoc tribunals)

Answer 4

1) The Crime (objective and subjective element)
2) Individual criminal responsibility (modes or command responsibility)
3) The Defences

Question 5

What are the three aspects that make up the objective element of a crime?

Answer 5

1) Conduct
2) Consequence or causation
3) Special circumstances

Question 6

OBJECTIVE ELEMENT:

What constitutes conduct?

Answer 6

• Defined in elements of crimes (killing, torturing etc).

- Can be act or omission.

Question 7

OBJECTIVE ELEMENT:

What can consequence/ causation include?

Answer 7

Effects of the criminal conduct.

1) Harm occurred (physical suffering)
2) Danger to a protected right (endangering health of the victim)
3) Causal link between action and consequence.

Question 8

OBJECTIVE ELEMENT:

What are the special circumstances?

Answer 8

1) Objective circumstances: victim is younger than 15 years old (child soldiers)/ victim is a protected person.
2) Contextual circumstances: eg widespread and systematic attack.

Question 9

SUBJECTIVE ELEMENT:

Which article of ICC statute sets out the mental element?

Answer 9

Art 30

Question 10

SUBJECTIVE:

How does a person have intent in relation to conduct?

Answer 10

If they mean to engage in the conduct

Question 11

SUBJECTIVE:

How does a person have intent in relation to a consequence?

Answer 11

If they mean to cause that consequence.

Question 12

SUBJECTIVE:

What does knowledge mean?

Answer 12

They have awareness that a circumstance exists or a consequence will occur in ordinary course of events.

Question 13

What are the three modes of liability?

Answer 13

1) Commission
2) Encouragement
3) Assistance

Question 14

What are the three forms of perpetration?

Art 25(3)(a)

Answer 14

1) Basic perpetration (individual)
2) Co-perpetration (joint commission)
3) Indirect perpetration (commission of crime through another person)

Question 15

Under joint commission, can perpetration occur by omission?

Answer 15

CL = yes, so long as charge relates to a failure to live up to a duty to act, and the omission has ‘concrete’ influence.

ICJ statute - not mentioned.

ICC Elements of Crimes - avoided ‘acts’ in favour of ‘conduct.’

Question 16

What did Nuremberg and Tokyo IMT’s define JCE as?

Answer 16

A common plan or conspiracy to commit

Question 17

How was Joint Criminal Enterprise justified in Tadic?

Answer 17

TC: Was acquitted for the killing of five civilians by the armed groups as no evidence of personal involvement.

AC: Overturned - participated in a joint criminal enterprise

1) Looked at Art 7(1) of ICTY = purpose was to cover all those responsible for int crimes in former Yugoslavia.
2) Looked at nature of international crimes = mostly committed by large number of peoples.
3) Since no actus reus and mens really in ICTY Statute, AC looked to customary law in case law.

Question 18

How did ICTY determine there was customary basis for liability as part of JCE?

Answer 18

In post WW2 cases, there were three classes of cases:

1) Basic form: where participants act on basis of a common design with a common intention (JCE I).
2) Systemic form: so called concentration camp cases, members of military or administrative units rely on a common plan. (JCE II)
3) Extended joint enterprise: one of co-perpetrators engages in acts beyond the common plan but is a ‘natural and foreseeable consequence.’ (JCE III)

Question 19

What are the objective elements of JCE liability?

Answer 19

1) A plurality of persons
2) The existence of a common plan, design or purpose
3) The participation of the accused in the JCE by any ‘form of assistance in, or contribution to, the execution of the common purpose.’

Question 20

Do the objective and subjective elements of JCE apply to all three categories of JCE the same?

Answer 20

Objective - yes, applies equally to all three.

Subjective - no, subjective requirements vary.

Question 21

What is the mens rea for JCE I?

Answer 21

Shared intent of the co-perpetrators

Question 22

What is the mens rea for JCE II?

Answer 22

Demands perpetrator’s personal knowledge of the system of ill-treatment.

• Knows system of abuse and intends to advance it.

Question 23

What is mens rea for JCE III?

Answer 23

Requires the perpetrator’s intention

(i) to participate in the criminal purpose and further this purpose; and
(ii) To contribute to the commission of a crime by the group.
iii) It was foreseeable that the additional crime might be perpetrated…and
iv) The accused willingly took that risk.

Question 24

What happens in JCE III?

Answer 24

1) Individual intends to take part in the JCE enterprise and to further the criminal purpose of the enterprise
2) but other crimes, which are reasonable foreseeable, are committed by some members of the enterprise.

Question 25

What did Extraordinary Chambers of the Courts of Cambodia say about JCE III?

Answer 25

Said JCE wasn't customary international law.

Question 26

Has the ICC adopted JCE?

Answer 26

No, it relies on the theory of control act to distinguish between acts of perpetration and participation.

Question 27

How does ICC assess co-perpetration?

Answer 27

Departs from concept of co-perpetration in JCE doctrine , instead using theory of control over the act to attribute liability.

Question 28

What is the theory of control? (Lubanga)

Answer 28

Confirms existence of a hierarchical structure in Art 25(3). Forms of perpetration envisaged in Art 25(3)(a) prevail over the rest of accessorial forms of criminal participation referred to in (b)(c) and (d). Distinguishes those have have 'committed' the crime from those who have 'contributed'. An essential contribution is needed for it to be understood as commission.

Question 29

What were the problems with JCE III?

Answer 29

1) The foreseeable consequence standard : essential that contribution of each member of the JCE be related to common purpose/ plan in order to attribute them to each as form of co-perpetration. 2) Special intent crimes : Intent to destroy (genocide) can't be reconciled with mens rea for JCE III. No one can be held responsible as principal to a crime that requires special intent unless it is proved they possessed it.

Question 30

Other criticisms of JCE: | Cryer

Answer 30

- Lumping together different levels of culpability (no distinction between joint perpetrators, from more aiders and abettors). - Overbroad (relies on prosecutorial direction). - Mens rea (special intent).

Question 31

Under Art 25(3)(a), what constitutes direct co-perpetration?

Answer 31

Lubanga: 1) Common plan 2) Crimes = virtual certainty 3) Contribution must be essential (joint control over crime) 4) Co-perpetrators need to have mental element for crime 5) Foresight crimes 'will' occur (Bemba et al) or 'may' occur (Lubanga)

Question 32

How can co-perpetrator exist 'through another person?'

Answer 32

- If they use another person as a tool to commit the crime - perpetrator usually holds a superior position. - Liability is independent of whether the direct perpetrator is liable.

Question 33

What is leader to do if committed a crime through another person? (Katanga, ICC)

Answer 33

Use his control over the apparatus to execute crimes = mobilise his power and authority to ensure his orders are followed. Awareness of the nature of the organisations and their role within it required.

Question 34

What does Art 25(3)(b) set out?

Answer 34

Orders commission = criminally liable. Involves relationship of subordination/ use of authority

Question 35

What are objective and subjective elements of instigation? Art 25(3)(c)

Answer 35

2) Instigation Objective: - "solicits' or 'induces' another to a crime. - Prompts by act or omission. - Psychological or physical. Bemba (ICC) - person exerts pyschological influence = criminal act as a result. Mental: - Must wish to provoke or induce commission.

Question 36

What comes under Art 25(3)(c)?

Answer 36

Assisting the perpetrator

Question 37

What are the objective and mental elements of Art 25(3)(c)?

Answer 37

Objective = aids, abets or otherwise assists primary perpetrator. Recognised by CIL: ICTY Jurisprudence Mental: - knowledge, not purpose (ICTY). - Purpose of (ICC)

Question 38

What is ICTY jurisprudence on assisting the perpetrator?

Answer 38

- Need not be given at location or time - Enough to have substantial effect on the crime - Encouragement or granting of moral support sufficient. - No need for causal connection.

Question 39

How does ICC differ from ICTY when assisting the perpetrator?

Answer 39

Mental element ICTY: Knowledge, not purpose. ICC: For the purpose of...

Question 40

What does Art 25(3)(d) of ICC set out?

Answer 40

Assistance of commission of a crime by a group. - 3 people with common purpose - In any other way contributes; supplying weapons, financing and other indirect support Mental element: aim of furthering criminal activity or common purpose of with knowledge of group's intent.