Individual Criminal Responsibility

1. Individual Criminal Responsibility Thomas Wayde Pittman Senior Legal Officer ICTY Appeals Chamber

2. ICTY Statute (1993) • Article 7: Individual criminal responsibility • Text of Article 7 + • Jurisprudence interpreting Article 7 = • Current state of the law

3. ICTY Statute (1993) Article 7(1) 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 [war crimes, genocide, crimes against humanity], shall be individually responsible for the crime.

4. ICTY Statute (1993) • Article 7(3) • The fact that any of the acts referred to in articles 2 to 5 of the present Statute [war crimes, genocide, crimes against humanity] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

5. Four forms of criminal responsibility in ICTY: • Participation by commission of crime (i.e., physical perpetration) (Article 7(1)) • Other forms of participationnot in a joint criminal enterprise (planning, instigating, ordering, aiding and abetting) (Article 7(1)) • Participation in a joint criminal enterprise (implied under Article 7(1)) • Superior responsibility (Article 7(3))

6. Committing • Direct perpetration or culpable omission. • “‘Committing’ covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law.” • Involves direct personal or physical participation. Alternatively, can involve a culpable omission. • There can be several perpetrators of the same crime. • Mental state (mens rea) • Awareness of substantial likelihood that criminal act or omission would occur as consequence of conduct.

7. Planning • Designing commission of a crime at preparatory and execution phases. • “[P]lanning implies that ‘one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.’” • An accused may be held responsible for planning alone, but an individual who commits the crime cannot also be held responsible for planning it. • Circumstantial evidence may prove plan. • Mental state (mens rea) • Person planning crime must intend that crime be committed, or • the awareness of the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned

8. Instigating • Prompting another to commit an offense. • Requires a clear contribution to the conduct of the other person, but it is unnecessary to show that the crime would not have occurred without the accused’s involvement. • Positive acts and omissions may constitute instigating, as well as express and implied conduct. • Mental state (mens rea) • Intent to provoke or induce commission of a crime, or • awareness of substantial likelihood that criminal act or omission would occur as consequence of conduct.

9. Ordering • Person in a position of authority using that position to instruct another to commit a crime. • The order may be explicit or implicit. It need not be in writing or given directly to person who performs the offense. • No formal superior-subordinate relationship required. • It is irrelevant whether the illegality of the order was apparent on its face. • Mental state (mens rea) • Requires intent that the crime be committed or awareness of the substantial likelihood that a crime will be committed in execution of that order • The intent is that of the superior, not the subordinate.

10. Aiding and Abetting • Render substantial contribution to commission of a crime. (Aiding = giving assistance; Abetting = facilitating through sympathy). • Can be before, during or after crime is committed.Can be by omission. • Must have substantial effect on perpetration of the crime. Responsibility is for all that naturally results. • Specific direction must be explicitly established in cases where assistance is remote from the actions of the principal perpetrator. • Mental state (mens rea) • Requires intent to assist and knowledge that actions will assist. Need not share principal’s intent, but must be aware of essential elements of the crime, including principal’s mental state.

11. Aiding and Abetting • Specific direction is an element of the actus reus • The acts must be specifically directed to assist, encourage or lend moral support to the perpetration of a specific crime • In cases where an accused individual’s assistance is remote from the actions of principal perpetrators, specific direction must be explicitly established • Evidence regarding an individual’s state of mind may serve as circumstantial evidence that assistance he or she facilitated was specifically directed towards charged crimes

12. Joint Criminal Enterprise • Article 7(1) of the Statute implicitly includes liability within “commission” in circumstances where persons having a common purpose embark on activity that is then carried out by one or more members of the group.

13. Joint Criminal Enterprise • The notion encompasses three distinct categories of collective criminality. • JCE-1: “all co-defendants… possess the same criminal intention” • JCE-2: “the so-called ‘concentration camp’ cases” • JCE-3: liability for forseeable acts outside the common design

14. Joint Criminal Enterprise • These categories of JCE share three common objective elements (actus reus): • plurality of persons; • existence of a common purpose; and • participation of the Accused in the common purpose.

15. Joint Criminal Enterprise • Plurality of persons (JCE members) • May be the physical perpetrators of the crimes but need not be. • Individuals may be named but it may suffice to identify categories or groups of persons. • May be organised in a military, political or administrative structure but need not be.

16. Joint Criminal Enterprise • Existence of a common purpose • Sometimes referred to as “common plan” or “common design”. • Amounts to or involves the commission of a crime provided for in the Statute. • Does not need to be previously arranged or formulated - may materialise extemporaneously.

17. Joint Criminal Enterprise • Participation in the common purpose • Participants in a joint criminal enterprise need not • physically participate in any element of any crime. • be physically present when and where the crime is committed. • Participation • may take the form of assistance in, or contribution to, the execution of the common purpose. • does not necessarily involve the commission of a crime (eg/ murder, extermination, torture or rape). • The contribution to the common purpose does not need to be necessary or substantial but it should at least be a significant contribution to the crime.

18. Joint Criminal Enterprise • Where the physical perpetrator of crimes that either fall within the common purpose (JCE-1, JCE-2) or that are foreseeable (JCE-3) is not a JCE member, to hold JCE members responsible it must be shown that the crime can be imputed to one JCE member, and that this member – when using the physical perpetrator – acted in accordance with the common purpose.

19. Joint Criminal Enterprise • Mental state(mens rea) JCE – 1: “all co-defendants… possess the same criminal intention”. • Accused must have intended the criminal result, even if not personally effecting it. • “Prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime. Shared intent may be inferred from knowledge of plan and participation in its advancement”.

20. Joint Criminal Enterprise • Mental state(mens rea) JCE – 2: “the so-called ‘concentration camp’ cases” • “Knowledge of the nature of system” and “intent to further the common concerted design to ill-treat inmates”. “It is important to note that, in these cases, the requisite intent could also be inferred from the position of authority held by the camp personnel.” • But “normally requires a more substantial level of participation than simply following orders to perform some low level function in the criminal endeavor on a single occasion.”

21. Joint Criminal Enterprise • Mental state(mens rea) JCE – 3: foreseeable crimes outside the common purpose(slide 1 of 2) • Intent to take part in a joint criminal enterprise and to further, individually and jointly, the criminal purposes of the enterprise. • Requires a state of mind in which a person – although he did not intend to bring about a certain result – was aware that the actions of the group were most likely to lead to that result, but nevertheless willingly took that risk. • More than negligence is required (i.e., dolus eventualis or “advertent recklessness”).

22. Joint Criminal Enterprise • Mental state(mens rea) JCE – 3: foreseeable crimes outside the common purpose(slide 2 of 2) • “ If the crime charged went beyond the object of the joint criminal enterprise, the prosecution needs to establish only that the accused was aware that the further crime was a possible consequence in the execution of that enterprise and that, with that awareness, he participated in that enterprise.” • (Genocide): The Prosecution is required to establish that it was reasonably foreseeable to the accused that a genocidal act would be committed and that it would be committed with genocidal intent. The accused need not share the genocidal intent.

23. Aiding and Abetting and Joint Criminal Enterprise • Whether one is an aider and abettor or co-perpetrator of a joint criminal enterprise depends on level of participation and mental state. • Criminal act (actus reus): • “The level of participation necessary to render someone a participant in a joint criminal enterprise is less than the level of participation necessary to graduate an aider or abettor to a co-perpetrator of that enterprise.” • One may become a joint criminal enterprise co-perpetrator when “participation lasts for an extensive period or becomes more directly involved in maintaining the functioning of the enterprise” or when the accused’s participation “advances the goals” of the criminal enterprise.

24. Aiding and Abetting and Joint Criminal Enterprise • Mental state (mens rea): • “In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed). . . .” • An aider and abettor need only be aware of principal’s intent; a joint criminal enterprise participant must share that intent.

25. Superior Responsibility • Article 7(3) of the ICTY Statute. • a.k.a., “Command Responsibility”. • This form of responsibility is ultimately predicated upon the power of the superior tocontrol the acts of his subordinates. • It is not a form of strict liability.

26. Superior Responsibility • Three elements must be proven before a person may incur superior responsibility for the crimes committed by subordinates: • the existence of a superior-subordinate relationship between the accused and the perpetrator of the crime; • that the accused knew or had reason to know that the crime was about to be or had been committed, and • that the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator thereof.

27. 1) Existence of superior-subordinate relationship • Formal appointment not necessary to be commander or superior. Authority may be de jure or de facto. • Relationship to subordinate may be direct or indirect, and need not be immediate in the hierarchy. • Effective control over subordinates is required, and is defined as the ‘material ability’ to prevent or punish the crimes. ‘Actual ability’ is not necessary, e.g., if one can submit reports to the competent authorities to take action. • A civilian is a ‘superior’ if his position in the hierarchy imposes a duty to report crimes and makes it likely to trigger an investigation. Merely being an influential person is not sufficient.

28. 2) Mens rea: knew or had reason to know • ‘Knowledge’ means awareness that crimes have been committed or about to be committed. • Actual knowledge – proof may be direct or circumstantial,. More proof necessary the more physically distant superior was from commission of the crimes. Less proof necessary if military commander, since presumably part of organised structure with established reporting and monitoring systems, than for de facto commanders or civilian superiors. • Imputed knowledge (reason to know) – only if information was available to put superior on notice of crimes. Absence of knowledge not a defence where it results from negligence in duty. Superior must exercise due diligence. If superior has means to obtain knowledge but deliberately refrains from doing so, it may be presumed.

29. 3) Failure to take necessary and reasonable measures to prevent or punish • Duty arises when superior has reasonable grounds to suspect subordinate of crimes. • Superior not obliged to perform the impossible, but must use every means in his powers to prevent or punish. Degree of effective control will determine what is required of commander. • Punishing subordinates does not excuse failure of duty to prevent a knowing crime. • Duty to punish includes obligation to investigate, establish the facts and, if superior does not have the power to sanction himself, to report them to the competent authorities • No causation requirement. Prosecution need not prove that failure to prevent caused commission of the crime.

30. Relationship between Articles 7(1) and 7(3) • Can one be convicted under both Article 7(1) and 7(3) for the same count in the indictment? • NO. Where the legal requirements pertaining to both are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only. • Article 7(3) is “subsumed” by Article 7(1). • Can both forms of responsibility be considered on sentencing? • YES. Where both forms of responsibility are proved under one count, the Trial Chamber must take both into account in its sentence. • Should consider in terms of the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).