Chapter 3. Extended Responsibility In International Criminal Law: Jurisprudence

Difficulties arise in the process of the judicial attribution of criminal responsibilities following the commission of international crimes such as war crimes, crimes against humanity or genocide (the so called 'core crimes'), which are characterized as mass crimes involving multi-level responsibilities. There is a tendency in international criminal law to broaden the boundaries of commission or more generally to extend the concept of perpetration for the sake of justice. A sophisticated form of co-perpetration based on the notion of control over the crime has emerged in the jurisprudence of the International Criminal Court (ICC) as a mode of liability applicable pursuant to Article 25(3)(a) of the Rome Statute in the cases of joint commission of crimes. The International Criminal Tribunal for the former Yugoslavia (ICTY) developed in its jurisprudence the 'joint criminal enterprise' doctrine (JCE) in the context of the modes of liability under Article 7(1) of the ICTY Statute. Keywords:co-perpetration; ICTY; international criminal court (ICC); international criminal law; joint criminal enterprise (JCE); Rome Statute; war crimes

Joint criminal enterprise (JCE) as a mode of liability in international criminal law is a concept widely upheld by international case law. It has, however, been harshly attacked by commentators, particularly with regard to what has come to be known as the ‘third category’ of the notion, that of liability based on foreseeability and the voluntary taking of the risk that a crime outside the common plan or enterprise be perpetrated. This author considers that while most criticisms are off the mark, at least two are pertinent: (i) that the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in Tadic (1999) was wrong in indiscriminately using terminology typical of both the civil law and common law tradition, and (ii) that the foreseeability standard, being somewhat loose as a penal law category of culpability and causation, needs some qualification or precision. Generally speaking, the notion of JCE needs some tightening up. For instance, in Kvocka, an ICTY Trial Chamber rightly stressed that the contribution of a participant in a common criminal plan must be ‘substantial’ (the Appeals Chamber, however, disagreed to some extent in the same case). Furthermore, with specific regard to the third category of JCE, the author, after setting out the social and legal foundations of the foreseeability standard and the motivations behind its acceptance in international criminal law, suggests various ways of qualifying and straightening it out. One of them could lie in assigning to the ‘primary offender’ (i.e. the person who, in addition to committing the concerted crimes, also perpetrates a crime not part of the common plan or purpose) liability for all the crimes involved, while charging the ‘secondary offender’ with liability for a lesser crime, whenever this is legally possible. The author then suggests, contrary to a 2004 decision of the ICTY Appeals Chamber in Brđanin, that the third category of JCE may not be admissible when the crime other than that agreed upon requires special intent (this applies to genocide, persecution as a crime against humanity, and aggression). In such cases, the other participants in JCE could only be charged with aiding and abetting the crimes committed by the ‘primary offender’ if the requisite conditions for aiding and abetting do exist. The author then suggests that the view propounded in 2004 by an ICTY Trial Chamber in Brđanin is sound, namely that the general notion of JCE may not be resorted to when the physical perpetrators of the crimes charged were not part of the criminal plan or agreement, but rather committed the crimes unaware that a plan or agreement had been entered into by another group of persons. In conclusion, he contends that this qualified notion of JCE, in addition to being provided for in customary international law, does not appear to be inconsistent with a broad interpretation of the provision of the ICC Statute governing individual criminal responsibility, that is, Article 25, in particular 25(3)(d).

A Valid International Problem vs. A Valid International Law: Shifting modes of Responsibility in International Criminal Law

The principle of command responsibility is an important doctrine in international criminal law that allows military commanders to be held accountable for crimes committed by subordinates under their control. This doctrine is grounded in the concept of hierarchical accountability, namely the obligation of superiors to prevent, supervise, and take action against violations of international humanitarian law. This study aims to analyze the normative construction and application of the principle of command responsibility in the Bosnia conflict of 1992–1995 based on the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as to assess its conformity with the principle of legality and the principle of culpability in international criminal law. This study employed a normative juridical method with statutory, case, and conceptual approaches. The results show that the main elements of command responsibility include the superior-subordinate relationship, effective control, and the knowledge element (knew or should have known), all of which must be proven factually. The ICTY affirmed that responsibility does not arise automatically from formal position, but rather from the actual ability to control and prevent crimes. Although there is debate regarding the limits of the interpretation of effective control and the should have known standard, the application of this doctrine in the Bosnia cases generally remained within the framework of the principles of nullum crimen sine lege and nulla poena sine culpa. These findings indicate that the principle of command responsibility in ICTY jurisprudence is consistent with the fundamental principles of international criminal law and strengthens the legitimacy of this doctrine in enforcing command criminal accountability.

On 22 March 2006, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) rendered its Judgment in the Stakic case. One of the issues which the Appeals Chamber addressed propio motu was the mode of liability attributed to the Appellant by the Trial Chamber. In examining the criminal responsibility of Dr. Milomir Stakic for the crimes alleged, the Trial Chamber applied a mode of liability which it termed ‘co-perpetratorship’ (committing ‘jointly with another person’), in lieu of ‘joint criminal enterprise’ (JCE). In so doing, the Stakic Trial Chamber avoided “the misleading impression that a new crime [membership in a criminal organization] not foreseen in the Statute of this Tribunal has been introduced through the backdoor.” However, “[t]he introduction of new modes of liability [co-perpetratorship] into the jurisprudence of the Tribunal”, the Appeals Chamber stressed, “may generate uncertainty, if not confusion, in the determination of the law by parties to cases before the Tribunal as well as in the application of the law by Trial Chambers.” Most notably, some ICTY judges have welcomed and fully approved the JCE doctrine “as an effective tool for overcoming the problems of ascribing individual criminal responsibility for international crimes.” Others hold the opinion that the concept of ‘joint criminal enterprise’, since its foundation and integration into the jurisprudence of the ICTY by the Tadic Appeals Chamber, “has caused confusion and a waste of time” and has been considered as a doctrine “of no benefit to the work of the Tribunal or the development of international criminal law.” This note will examine, therefore, both modes of liability (‘joint criminal enterprise’ and ‘co-perpetratorship’) in light of the Stakic Appeals and Trial Judgments.

Extracurricular International Criminal Law

The revival of international criminal law in our times has provided one of the most studied disciplines in contemporary international law. The Statute for the International Criminal Tribunal for the former Yugoslavia (ICTY), for instance, provides (in Article 15) the judges of the tribunal with the power to devise rules of procedure and evidence for the conduct of the tribunal's work, whereas the Statute itself only lays down general principles. The importation of subpoena powers into the practice of international criminal law still requires some time to convince States in general to accept it as part of the law. The substantive part of the law seems to be an area where multiculturalism has only a modest impact, due to the fact that this part of the law has been formulated mainly by way of treaty. Keywords: ICTY; international criminal law; international law; multiculturalism; subpoena powers

The presented paper discusses the influence of international human rights law on international criminal law. It tries to give an answer to the question of whether rules protecting the accused in international criminal proceedings meet the human rights law standard provided by international declarations and covenants. Meaning, if the proceedings before the International Criminal Tribunal for Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and International Criminal Court (ICC) meet the standard provided by international human rights law, in particular the International Covenant on Civil and Political Rights. The paper proves that international human rights law has affected international criminal law tremendously. Moreover, it is argued that the protection of the accused in the law of the international courts and tribunals with regard to his rights has improved when compared to the international human rights law standard. In particular the Rome Statute of the ICC provides the accused with the most comprehensive protection. This is especially visible in the case of such rights as the presumption of innocence, right to an interpreter and right to remain silent. Nevertheless, some shortcomings in the law of the ad hoc tribunals and ICC can be observed, in particular when it comes to identifying the commencement of protection of the accused.

This article clarifies the factual basis for attributing causal responsibility in interpersonal causation scenarios in international criminal law. Such content is obliterated when explaining causal contributions in overdetermined and indeterministic harm scenarios. The resulting gap between individual agency and causal attribution is explained away by reference to values underlying legal liability (‘causal minimalism’). Probabilistic causal models can express causal influences in interpersonal causation scenarios, and explicate the objective basis of causal attribution. International Criminal Courts’ approaches to indirect and joint perpetration, as well as the notion of causal contribution in joint criminal enterprise are discussed in light of the existing approaches to testing causation in law, as well as with regard to Judea Pearl’s notion of causal sustenance. The article concludes that expressing causal contributions in language of probabilities can explain causal intuitions underlying legal liability better than supplanting factual basis of attributing responsibility with normative and policy justifications.

For the first time in legal history, an indictment was filed against an acting head of state, Slobodan Milošević, for crimes that Milošević allegedly committed while he was in office. Seeking to change the concept of ethnic cleansing from a rationalizing euphemism to an incriminating metaphor, the International Criminal Tribunal for the Former Yugoslavia (ICTY) set precedents and expanded the boundaries of international criminal and humanitarian law. This book provides a comprehensive view of how people from Bosnia and Herzegovina, Croatia, Kosovo, and Serbia view and evaluate the ICTY. The book asks crucial questions about international justice in a systematic and comprehensive manner, looking into the ICTY's legality and judicial independence, as well as specific issues of substantive and procedural justice and collective and individual responsibility. The book provides an in-depth analysis of perceptions about the ICTY, the subsequent work of its local courts, and decisions reached by the local courts. It also examines the relationship between the views of the ICTY and ethnicity, a particularly relevant notion because the war was fought largely along ethnic lines.

International criminal law does not attempt, as such, to attach criminal liability to environmental damage at present. Although the number of areas of international law concerned with environmental issues has grown significantly over the past three to four decades, such an accommodation has yet to be properly made within international criminal law. Indeed, there is still considerable debate as to whether criminal sanctions are an appropriate form of responsibility for environmental damage at all.Nonetheless, the objective of international criminal law is to provide a means of individual accountability for the most serious atrocities that occur on planet earth. There is no doubt that, whether as a result of naturally occurring phenomena or deliberately induced environmental effects, rapidly changing environmental conditions can cause catastrophic consequences for both human and natural life. As a result, it is certainly possible to discern situations where environmental conditions can or ought to give rise to individual criminal liability. However, given the nature of some environmental damage, international criminal law may not always provide an appropriate or adequate means to account for or remedy the harm caused.The first step in ascertaining the potential for international criminal law to prosecute individuals for environmental damage is a detailed examination of the current framework. This chapter will therefore begin by critically investigating the potential of existing international criminal law to give rise to liability for environmental damage. However, as will be seen, there is a distinct absence of environment-specific provisions in international criminal law at present. As such, there is considerable scope for the amendment of existing ‘core’ crimes, not to mention international criminal law as a whole, to include explicit proscriptions on environmental harm. Therefore, the second part of this chapter will examine possible ameliorations that could be made to existing crimes; the specific example of war crimes will be used to illustrate this point. However, there is always the possibility that international criminal law could expand its scope to accommodate environment-only damage. This chapter will therefore conclude with an appraisal of the proposals that call for the establishment of a separate and distinct category of environmental crimes - often called ‘ecocide’ or ‘geocide’ - within the structure of international criminal law.

This article examines the most recent shift in ongoing debates concerning the relationship between international criminal law and transitional justice, using the examples of international criminal prosecutions before the International Criminal Tribunal for the former Yugoslavia (ICTY) and transitional justice mechanisms in Bosnia and Herzegovina. It reframes the problematic relationship between the two fields by revisiting the important but underexplored concept of ‘the social’ that underpins these two very different models of international justice. The article draws on the work of Bruno Latour, who argues that we should study law by analysing how its practices construct ‘the social.’ Building on this approach, the article shows how international criminal law and transitional justice offer different ways of reassembling social relationships after conflict. While transitional justice seeks to reassemble a society in conflict through ‘justice’ processes, international criminal law seeks to make social ties through ‘law.’ The current shift in justice discourses reveals that what is ultimately at stake in these debates is the fundamental question of how international justice can reassemble ‘the social’ in more just forms after conflict.

The development of joint criminal enterprise at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has been controversial since the doctrine was first created in 1997. For the judgments rendered by the ICTY to be perceived as legitimate, the doctrines used to bring charges against defendants must also be perceived as legitimate. The purpose of my thesis is to study the application of joint criminal enterprise at the ICTY and examine how the doctrine has influenced the length of sentences given. I find that joint criminal enterprise may be influencing longer sentences and the three categories of joint criminal enterprise are being used differently on defendants of different power levels. By empirically analyzing the patterns developing at the ICTY, I can see how joint criminal enterprise is influencing sentencing and the fairness of trials.

In the 1990s, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were the first international criminal courts (ICCs) since the post-World War II Nuremberg and Tokyo tribunals. The decision-making approaches were applied to many issues of first impression in international criminal law. This chapter discusses four cases. The first case is the ICTR's decision on the definition of rape and whether rape is an act of genocide in Prosecutor v . Akayesu . The second case is the ICTY's decision on whether duress is a defense to the killing of innocent people in Prosecutor v. Erdemovic . The third is the SCSL's decision on the status of amnesty in an international criminal proceeding in Prosecutor v. Kallon and Kamara . The fourth is the ICC's interpretation of its statute and rules on the parameters of victim participation in the proceedings of Prosecutor v. Lubanga Dyilo . Keywords: decision-making approaches; international criminal court; International Criminal Justice; International Criminal Tribunal for Rwanda (ICTR); International Criminal Tribunal for the former Yugoslavia (ICTY)

This chapter introduces the concept of medical grave breaches and medical war crimes, examines its codification on an international level, and analyzes its application in practice by scrutinizing a handful of past prosecutions for medical war crimes committed during armed conflict. The aim of the examination is to discover how the concept of medical war crimes was developed and whether medical ethics were specified as required by the principle of specificity. This is the first step towards enabling future prosecutions for medical war crimes. The necessary criminalization of medical grave breaches can be on a national level to facilitate national prosecution, e.g. in the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) or for Rwanda (ICTR) or the International Criminal Court (ICC). Like many national systems, international criminal law recognizes two categories of circumstances excluding criminal liability: justifications and excuses.Keywords: armed conflict; ICTY; International Criminal Court (ICC); international criminal law; medical grave breaches; medical war crimes; Rwanda (ICTR)