Week 3(i) - General Principles of Liability Flashcards
What is the structure of international crimes? (5)
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
How may objective elements of crimes be categorised? (2)
1) Descriptive: e.g. ‘killing’
2) Normative: ‘civilian’ or ‘combatant’
What does the objective element of most international crimes consist of? (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?
What does it mean that a perpetrator must have intention under Rome Statute? (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)
What are the different modes of responsibility under Rome Statute? (7)
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
What are features about the indirect modes of responsibility? (2)
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
What type of entities may be liable under Rome Statute? (2)
1) Art 25(1) Rome Statute
2) Only natural persons
What does commision ‘jointly with another’ mean? (2)
1) Art 25(3)(a) Rome Statute
2) when 2 or more people act together in committing a crime
What is Joint Criminal Enterprise? (2)
1) 3 modes of responsibility developed by ICTY
2) comparable to the joint commission and contribution to commission by group under Rome Statute
What are the types of Joint Criminal Enterprise? (5)
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)
Is JCE part of CIL? (2)
1) ICTY: yes
2) ECCC: JCE 3 not part of CIL 1975-79
What is JCE 1? (3)
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
What is JCE 2? (3)
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
What is JCE 3? (3)
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
What are problems with JCE? (3)
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
Why is JCE’s status as primary liability problematic? (4)
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
What are advantages of JCE? (3)
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
What is JCE 3? (3)
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
What are the requirements for direct co-perpetration (‘jointly with another’)? (6)
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
Why is JCE’s status as primary liability problematic? (3)
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
What is the relevance of JCE under ICC? (2)
1) Katanga (ICC TC)
2) Art 25(3)(d) Rome Statute largely covers JCE I and JCE II but not JCE III
What are the requirements for direct co-perpetration (‘jointly with another’)? (6)
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
What are requirements for responsibility for ordering? (3)
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)
What is controversial about the commission through another? (2)
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)
