INDIVIDUAL CRIMINAL RESPONSIBILITY

1. INDIVIDUAL CRIMINAL RESPONSIBILITY 2013/2014

2. Art. 7(1) Statute ICTY • A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

3. What is meantby “commission”? • Perpetration v. accompliceliability? • Whatdoes it mean ‘to commit a crime’? • Physicalperpetrationby one’s own hands? • Participationwithanimoauctoris? • Controlovertheact? • Co-perpetration? Indirectperpetration? • Commissionbyomission? Commandresponsibility? • JointCriminal Enterprise?

4. JointCriminal Enterprise • ICTY: No “positive” lawsource • Notcodifiedin ICTY Statute • Leadingcase = Tadić (App. Ch. 1999) • TeleologicalInterpretationof Statute – It intends to extendcriminalliabilitytoallthose ‘responsible for violationsofinternationalhumanitarianlaw’” • “[The Statute] doesnotexcludethosemodesofparticipatinginthecommissionofcrimeswhichoccurwhereseveralpersonshaving a commonpurposeembark on criminalactivity….” • Nowcodified: ICC Statute, art. 25(d) ?

5. JCE: OBJECTIVE ELEMENTS • Same for all formsof JCE • PluralityofPersons • Existenceof a Common Plan, Design or Purpose • ParticipationoftheAccusedinthe JCE byany “formofassistancein, or contribution to, theexecutionofthecommonpurpose”

6. JCE I • Theparticipantsparticipateinthecommondesign or purposewith a COMMON INTENTION • JCE I liability for Murder • D must voluntarilyparticipatein one aspectofthecommondesign (murder), e.g.,byinflictingnon-fatalviolence on the V or facilitatingtheactsofco-perpetrators • D must intendtheresult (deathofvictim)

7. JCE II • The “Systemic” Form [ConcentrationCampCases] • PLANinvolvingill-treatmentandcrimesagainstprisoners • D must beaware (KNOWLEDGE) ofthesystem • D in some wayactivelyparticipatedinthesystembyencouraging, aidingandabetting or participatingintherealizationofthecommoncriminaldesign (PARTICIPATION)

8. JCE III • “Extended” JCE Liabilityrequires: • Commoncriminalpurpose or plan (PLAN) • Defendantintended to Participateincommonpurpose (PARTICIPATION) • CRIME GOING BEYOND PLAN • Defendantliable for Co-perpetrator’s Crimeif: • RISK FORESEEABLE • RISK WILLINGLY TAKEN

9. JCE III • CommonPurpose is to ethnicallycleanse a villagewhereinthecourseofdoingsovillagers are killed. Evenifmurder is notanexpressedpartofthe plan, liability is imputed to D if: • D intended to particpateinthecommonpurpose • Riskofdeathwas a predicableconsequenceoftheexecutionofthe plan • D wasreckless or indifferent to risk

10. JCE III • Criticisms • StrictLiability • Co-perpetrationmayoverstatefault • OverlapswithAidingandAbettingand Superior Responsibility? • No clear authorityinpositivelaw

11. Complicity (aidingandabetting) • ICTY Statute, art. 7(1) • “… or otherwiseaidedandabettedintheplanning, preparationorexecutionof a crime” • M/R = KnowledgeThatActionsWillAssistthePerpretratorintheCommissionoftheCrime • TwoLevels • As to Accessory’s Act = Intentional • As to Principal’s Act = • KnowledgethatAccessory’s ActWillAssistthePerpetrator

12. Complicity • A/R = PracticalAssistance, Encouragement, or Moral Supportwhichhas a SubstantialEffecton thePerpetrationoftheCrime • LeadingCase = Furundžija (Tr. Ch. ICTY 1998) • Examples • Lookouts • DisposingofBodies • Interpreter • Presence at scene bypersonwith Status to give Moral Support or Encouragement • Superior withauthority to “control, prevent or modify” principal’s act Specificdirection (PerišićApp. Ch. 2013)

13. Direct Superior Responsibility • OrderingSubordinates to CommitOffenses • M/R of Superior (Blaškić, ICTY, App. Ch. 2004) • “clear intentionthatmassacrewouldbecommitted” OR • “awarenessofthesubstantiallikelihoodthat a crimewillbecommittedintheexecutionoftheorder”

14. Art. 25(3) Rome Statute • In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: • (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; • (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; • (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

15. Art. 25(3) Rome Statute • (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: • (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or • (ii) Be made in the knowledge of the intention of the group to commit the crime;

16. Art. 30. RS –Mental element • 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. • 2. For the purposes of this article, a person has intent where:             (a)     In relation to conduct, that person means to engage in the conduct;          (b)     In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events

17. Art. 30. RS –Mental element • 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.