International Criminal Law Seminar 9 – Individual Criminal Responsibility and
Defences
Chapter 15 – General Principles of Liability
Principles of liability are not watertight compartments and so there is overlap.
When this occurs, ICTY suggests that trial chamber has discretion to choose most
appropriate responsibility.
Perpetration/Commission
ICTY – ‘physical perpetration of a crime by offender himself, or the culpable
omission of an act that was mandated by a rule of criminal law
ICTR – Seromba – ‘direct and physical perpetration’ need not mean physical killing
[for genocide], other acts which constitute direct participation in AR enough
Article 25(3)(a) ICC Statute – a person who ‘commits such a crime whether as an
individual, jointly… or through another person, regardless of whether that other
person is criminally responsible’. 3 forms of perpetration:
- Physically carrying out all elements of offence
- Has control over the offence by tasks assigned to him
- Has control over will of those who carry out elements of offence
Customary international law accepts that omissions can about to perpetration
where they reflect a duty to act, but article criminalising omissions dropped by
ICC statute. View is however not categorically excluded by drafters
Joint Criminal Enterprise
ICTY – Tadic – JCE – purpose of ICTY statute to cover all those responsible for
international crimes. Article 7(1) ‘does not exclude those modes of participating in
the commission of crimes which occur where several persons having a common
purpose embark on criminal activity that is then carried out either jointly [or by 1
person on behalf of the group]’
Actus reus JCE – A plurality of persons, the existence of a common plan which
amounts to or involves the commission of an offence, participation of the accused
in the common design involving the perpetration of the offence
Mens rea JCE – First type of JCE – an intention to commit the crime that occurs.
Second type of JCE – where knowledge of the system of ill-treatment suffices.
Third type of JCE – where the foreseeability of a crime is said to be the test
Nature of JCE – Mulutinovic – controversially decided JCE a form of committing
an offence. Especially questionable in relation to Type III JCE.
- ICC statute – Article 25(3)(d) provides liability for someone who contributes to
the commission or attempted commission of such a crime by a group acting
with a common purpose. Such contribution shall be intentional and shall either
(i) be made with aim of furthering activity where such activity involves
commission of a crime within jurisdiction of the court; or (ii) be made in the
knowledge of the intention of the group to commit the crime
Co-perpetration
ICC – Lubanga – ‘where the sum of the coordinated individual contributions of
[multiple people] result in the realisation of all the objective elements of a crime,
any person making a contribution can be held vicariously responsible for the
contributions of all the others and, as a result, can be considered as a principal to
the whole crime’.
Defences
Chapter 15 – General Principles of Liability
Principles of liability are not watertight compartments and so there is overlap.
When this occurs, ICTY suggests that trial chamber has discretion to choose most
appropriate responsibility.
Perpetration/Commission
ICTY – ‘physical perpetration of a crime by offender himself, or the culpable
omission of an act that was mandated by a rule of criminal law
ICTR – Seromba – ‘direct and physical perpetration’ need not mean physical killing
[for genocide], other acts which constitute direct participation in AR enough
Article 25(3)(a) ICC Statute – a person who ‘commits such a crime whether as an
individual, jointly… or through another person, regardless of whether that other
person is criminally responsible’. 3 forms of perpetration:
- Physically carrying out all elements of offence
- Has control over the offence by tasks assigned to him
- Has control over will of those who carry out elements of offence
Customary international law accepts that omissions can about to perpetration
where they reflect a duty to act, but article criminalising omissions dropped by
ICC statute. View is however not categorically excluded by drafters
Joint Criminal Enterprise
ICTY – Tadic – JCE – purpose of ICTY statute to cover all those responsible for
international crimes. Article 7(1) ‘does not exclude those modes of participating in
the commission of crimes which occur where several persons having a common
purpose embark on criminal activity that is then carried out either jointly [or by 1
person on behalf of the group]’
Actus reus JCE – A plurality of persons, the existence of a common plan which
amounts to or involves the commission of an offence, participation of the accused
in the common design involving the perpetration of the offence
Mens rea JCE – First type of JCE – an intention to commit the crime that occurs.
Second type of JCE – where knowledge of the system of ill-treatment suffices.
Third type of JCE – where the foreseeability of a crime is said to be the test
Nature of JCE – Mulutinovic – controversially decided JCE a form of committing
an offence. Especially questionable in relation to Type III JCE.
- ICC statute – Article 25(3)(d) provides liability for someone who contributes to
the commission or attempted commission of such a crime by a group acting
with a common purpose. Such contribution shall be intentional and shall either
(i) be made with aim of furthering activity where such activity involves
commission of a crime within jurisdiction of the court; or (ii) be made in the
knowledge of the intention of the group to commit the crime
Co-perpetration
ICC – Lubanga – ‘where the sum of the coordinated individual contributions of
[multiple people] result in the realisation of all the objective elements of a crime,
any person making a contribution can be held vicariously responsible for the
contributions of all the others and, as a result, can be considered as a principal to
the whole crime’.
