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CRIMINAL RESPONSIBILITY OF CIVILIAN LEADERS
THE LAW GOVERNING THE INTERNATIONAL CRIMINAL TRIBUNAL FOR
THE FORMER YUGOSLAVIA
CHRISSA LOUKAS* & THOMAS DERRINGTON**
Introduction
The History of International Criminal Tribunals is short.
In essence, the Tribunals in Nuremberg and Tokyo after World War II are the starting
point. Interestingly, the decision to hold the Nuremberg trials was a "close call" as
the concept was opposed by Sir Winston Churchill. Geoffrey Robertson has
commented that Churchill and the British War Cabinet:
“wanted simply to assassinate the Nazi leadership rather than let them
use the dock as a soapbox: Nuremberg only happened because of
Truman’s touching faith in due process and Stalin’s liking for show
trials”.1
Then, almost half a century later, in 1993, the Security Council, acting under Chapter
VII of the United Nations ("UN") Charter, established the International Criminal
Tribunal for the Former Yugoslavia ("ICTY") and a year later, in 1994, the UN
Security Council established the International Criminal Tribunal Rwanda ("ICTR").
Both Tribunals have the same Appeals Chamber.
Subsequently, in Rome in 1998, 120 States agreed on the Rome Statute of the
International Criminal Court ("ICC"). Known as the Rome Statute, by April 2002 it
had been ratified by sixty States by April 2002 and its jurisdiction came into effect on
1st July 2002.
This paper seeks to examine the international criminal law that has developed from
the ICTY in relation to the criminal responsibility of civilian leaders through the
concepts of command responsibility and Joint Criminal Enterprise ("JCE").
Brief overview of the jurisdiction of the ICTY
The Statute of the ICTY ("the ICTY Statute") establishes the jurisdiction of the
Tribunal over natural persons to the territory of the former Yugoslavia and for crimes
committed after 1 January 1991.2
The crimes under its jurisdiction are set out in Articles 2 – 5 of the ICTY Statute, and
cover:
• grave breaches of the Geneva Conventions of 1949 (Article 2),
• violations of laws or customs of war (Article 3),
• genocide (Article 4); and,
• crimes against humanity (article 5).
Grave breaches of the Geneva Conventions include unlawful treatment of civilians
and certain categories of combatants during international armed conflict.
Violations of laws or customs of war cover unlawful methods of warfare deployed
against the enemy or civilians.
Crimes against humanity are inhumane acts of a serious nature committed as part of
a widespread or systematic attack against a civilian population.
Genocide is defined as an act3 committed with intent to destroy, in whole or in part, a
national, ethnical racial or religious group, as such.
Individual criminal responsibility in general
Article 7 of the ICTY Statute provides for the individual criminal responsibility as
follows:
Article 7
Individual criminal responsibility
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, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head
of State or Government or as a responsible Government
official, shall not relieve such person of criminal responsibility
nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to 5 of the
present Statute 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.
Although Article 7 of the ICTY Statute includes several forms of conduct that entail
criminal responsibility, this paper will focus on joint criminal enterprise and command
responsibility as these are less obvious categories of criminal responsibility.
Joint Criminal Enterprise (JCE)
Article 7(1) of the ICTY Statute does not explicitly mention the concept of Joint
Criminal Enterprise, but the jurisprudence of the ICTY has now established that it is
included under that Article.4
The appropriate place to start the inquiry into what constitutes “joint criminal
enterprise” is the Appeals Chamber judgment in the Tadic case, which was the first
case before the ICTY.5 The Appeals Chamber held that
“whoever contributes to the commission of crimes by the group of
persons or some members of the group, in execution of a common
criminal purpose may be held to be criminally liable, subject to certain
conditions...”.6
The Appeals Chamber of the Court went on to outline three distinct categories of joint
criminal enterprise.
The first category involves a group of co-defendants who are acting pursuant to a
common design and possess the same criminal intent. In this category, the accused
must:
(i) voluntarily participate in one aspect of the common design; and,
(ii) must intend the end result.
The second category has been commonly referred to as the “concentration camp”
cases. This has been applied to situations where offences have been committed by
members of military or administrative units, including those running such
"concentration camps".
This category is really a variation of the first in that it also requires the same mens
rea (or knowledge and intention), namely:
(i) knowledge of the nature of the system, and,
(ii) the intent to further the common concerted design to ill-treat inmates.
The third category involves “a common design to pursue one course of conduct
where one of the perpetrators commits an act which, while outside the common
design, was nevertheless a natural and foreseeable consequence of the effecting of
that common purpose”.7
Since at the time of the Tadic Judgment there was no Tribunal law regarding the third
category, the court found support in two early cases, Essen Lynching (a case before
a British military court concerning the death of British soldiers as a result of the
conduct of German soldiers during World War II8), and Borkum Island (a case before
a United States ("U.S.") military court concerning the actions of German soldiers and
civilians who were involved in the deaths of a downed U.S. bomber’s crew9). The
Appeals Chamber went on to list examples of when this category would apply:
An example of this would be common, shared intention on the part of a group to
forcibly remove members of one ethnicity from their town, village or region (to effect
“ethnic cleansing”) with the consequence that, in the course of doing so, one or more
of the victims is shot and killed. While murder may not have been explicitly
acknowledged to be part of the common design, it was nevertheless foreseeable that
the forcible removal of civilians at gunpoint might well result in the deaths of one or
more of those civilians.
Criminal responsibility may be imputed to all participants within the common
enterprise, where the risk of death occurring was both a predictable consequence of
the execution of the common design and the accused was either reckless or
indifferent to that risk.
Another example is that of a common plan to forcibly evict civilians belonging to a
particular ethnic group by burning their houses; if some of the participants in the plan,
in carrying out this plan, kill civilians by setting their houses on fire, all the other
participants in the plan are criminally responsible for the killing if these deaths were
predictable.10
This category has been referred to as “cogs in the wheel of common design, all
equally important, each cog doing the part assigned to it”.11
Actus Reus
All three categories of joint enterprise require the same actus reus:
(i) A plurality of persons. They need not be organized in a military, political or
administrative structure, as is clearly shown by the Essen Lynching and the
Kurt Goebell cases.
(ii) The existence of a common plan, design or purpose which amounts to or
involves the commission of a crime provided for in the Statute. There is no
necessity for this plan, design or purpose to have been previously arranged or
formulated. The common plan or purpose may materialize extemporaneously
and be inferred from the fact that a plurality of persons acts in unison to put
into effect a joint criminal enterprise.
(iii) Participation of the accused in the common design involving the perpetration
of one of the crimes provided for in the statute. This participation need not
involve commission of a specific crime under one of those provisions (for
example, murder, extermination, torture, rape, etc.) but may take the form of
assistance in, or contribution to, the execution of the common plan or
purpose.12
Mens Rea
The factor distinguishing the third category from the first two is the mens rea element,
which requires:
(i) the intention to take part in a joint criminal enterprise and to further–
individually and jointly–the criminal purposes of that enterprise; and,
(ii) the foreseeability of the possible commission by other members of the group
of offences that do not constitute the object of the common criminal purpose.
The Appeals Chamber elaborated on the second element saying “In order for
responsibility for the deaths to be imputable to the others, however, everyone
in the group must have been able to predict the end result.
It should be noted that more than negligence is required. What is required is
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”.13
Because the third category does not require that the accused physically participate in
the criminal activity, it is commonly referred to as “extended” joint criminal enterprise
in that it further “extends” the scope of persons who may be subjected to criminal
sanctions. As a result, the Appeals Chambers has refused to rely on an extended
form of joint criminal enterprise in the absence of an amendment to the Indictment
expressly pleading it.14
Superior or Command Responsibility
As articulated by the Trial Chamber in Dario Kordic & Mario Cerkez, “Article 7 is
clearly intended to assign individual criminal responsibility at different levels, both
subordinate and superior, for the commission of crimes listed in Articles 2 to 5 of the
Statute.
Article 7 gives effect to a general principle of criminal law that an individual is
responsible for his acts and omissions. It provides that an individual may be held
criminally responsible for the direct commission of a crime, whether as an individual
or jointly, or through his omissions for the crimes of his subordinates when under an
obligation to act. Article 7(3) of the Statute sets forth the principle governing the
responsibility of superiors commonly referred to as “command responsibility.”
The Celebici, the Trial Chamber ruled that to hold a superior responsible for the acts
of his subordinates, the Trial Chamber must establish beyond reasonable doubt:
i. the existence of a superior-subordinate relationship between the
superior and the perpetrator of the crime; and
ii. that the superior knew or had reason to know that the criminal
act was about to or had been committed; and
iii. the superior’s obligation to take the necessary and reasonable
measures to prevent the criminal act or to punish the perpetrator
thereof.15
Additionally, it is important to note that “conviction under both Article 7(1) and Article
7(3) for the same criminal conduct is generally not possible”.16 This seems logical
because as pointed out by the Stakic Trial Chamber, “it would be illogical to hold a
commander criminally responsible for planning, instigating, or ordering the
commission of crimes and, at the same time, reproach him for not preventing or
punishing them”.17
Effective Control
The existence of a superior-subordinate relationship is most obviously characterized
by a formal hierarchical relationship between the superior and the subordinate and
such a relationship may also arise out of an informal and indirect relationship.18 Such
a relationship may exist by virtue of the superior’s de facto authority over this
subordinate or by virtue of his de jure position of superiority.19
A civilian superior, could be regarded as being in such a position of superiority by
reason of his/her position in the military or state structure.20
Initially one should look at the formal procedures for appointment to civilian and
military offices. However, this alone is not sufficient and “it must be shown that the
powers are “real” for criminal responsibility to be attached to them.” Kordic para. 422.
That court also noted that in some instances (particularly the armed conflict in Bosnia
and Herzegovina), it is often the case that the de facto powers co-exist with the de
jure powers and may in fact supercede the latter.
It is therefore important to make an inquiry into the extent of the actual power held by
the accused at the time of the alleged crimes. This inquiry is made using the same
indicia for determining the mens rea and listed by the United Nations Commission of
Experts.
These are all methods by which the prosecution may seek to prove their case but as
the Kordic court noted, “In the case of...civilian leaders holding de facto positions of
authority, the standard of proof will be higher”.21
Additionally,
“While in the case of military commanders, the evidence of external
observers such as international monitoring or humanitarian personnel
may be relied upon, in the case of civilian leaders evidence of
perceived authority may not be sufficient, as it may be indicative of
mere powers of influence in the absence of a subordinate structure".22
The Trial Chamber in Kordic and Cerkez also considered that:
“direct signing of release orders would demonstrate authority to
release. An accused’s signature on such a document, however, may
not necessarily be indicative of actual authority to release as it may be
purely formal or merely aimed at implementing a decision made by
others”.23
Similarly, the Trial Chamber in Kordic and Cerkez commented that
“in the Ministries case, the court found that the mere appearance of an
official’s name on a distribution list attached to an official document
could simply provide evidence that it was intended that he be provided
with the relevant information, and not that those whose names appear
on such distribution lists have responsibility for, or power and right of
decision with respect to the subject matter of such document”.24
Although the Tribunal has made the distinction between de jure and de facto control,
the above cases seem to indicate that really the test for de facto control is decisive
and merely having de jure control will not suffice.
Effective control must of course be distinguished from lower forms of influence that
individuals, who are perhaps charismatic and respected or otherwise persuasive
enough, for instance, may be able to exercise over other individuals without their
relationship being one of superior to subordinates pursuant to Article 7(3).25
In order to be liable under the doctrine of command responsibility the accused must
be shown to have exercised “effective control” over those who are said to have
committed the crimes,26 that is, that he had “the material ability to prevent offences or
punish the principal offenders”.27
The Celebici Appeals Chamber also noted that: “command” as referring to “powers
that attach to a military superior”, and control as having “wider meaning”, which also
includes the reference to the “powers wielded by civilian leaders”, the Appeals
Chamber held that the rule that civilian leaders may incur responsibility in relation to
acts committed by their subordinates or other persons under their effective control is
not controversial.28
However, the fact remains that the superior must be in a position to exercise the
necessary “effective control” element. Accordingly, the Kordic and Cerkez Trial
Chamber held:
It follows that a government official will only be held liable under the
doctrine of command responsibility if he was part of a superiorsubordinate
relationship, even if that relationship is an indirect one.
Even though arguably effective control may be achieved through
substantial influence, a demonstration of such powers of influence will
not be sufficient in the absence of a showing that he had effective
control over subordinates, in the sense of possessing the material
ability to prevent subordinate offences or punish subordinate offenders
after the commission of the crimes. For instance, a government
official who knows that civilians are used to perform forced labor or as
human shields will be held liable only if it is demonstrated that he has
effective control over the persons who are subjecting the civilians to
such treatment. A showing that the official merely was generally an
influential person will not be sufficient.
In contrast, a government official specifically in charge of the
treatment of prisoners used for forces labor or as human shields, as
well as a military commander in command of formation which are
holding the prisoners, may be held liable on the basis of superior
responsibility because of the existence of the chain of command.29
Likewise, in the Celebici case, the ICTY Appeals Chamber held that: “Substantial
influence over subordinates that does not meet the threshold of ‘effective control’ is
not sufficient under customary law to serve as a means of exercising command
responsibility”.30
Mens Rea Element
In order to establish that the superior knew or had reason to know that his
subordinate was about to commit or had committed a crime, a certain level of mens
rea (knowledge) must be established. It must be proved that:
(i) the superior had actual knowledge, established through either direct or
circumstantial evidence, that his subordinates were committing or
about to commit crimes within the jurisdiction of the Tribunal, or that
(ii) he had in his possession information which would at least put him on
notice of the risk of such offenses, such information alerting him to the
need for additional investigation to determine whether such crimes
had been or were about to be committed by his subordinates”.31
This may be proven using the indicia listed by the Commission of Experts Report and
includes: the number, type, and scope of illegal acts; the time during which they
occurred; the number and type of troops involved; the logistics involved, if any; the
geographical location of similar illegal acts; the officers and staff involved and the
location of the commander at that time.32
In Stakic, the court noted that “considering geographical and temporal
circumstances, this means that the more physically distant the superior was from the
commission of the crimes, the more additional indicia are necessary to prove that he
knew of them”.33 Although the Trial Chamber in Blaskic held that no such specific
information was required to show that a superior “had reason to know,” the Appeals
Chamber in Delalic confirmed that some specific information was in fact required.34
Additionally, the superior cannot escape liability by turning his head or deliberately
refraining from investigating possible violations.
An area that is still unclear in Tribunal jurisprudence, is to what extent the superior is
responsible for the actions of his subordinates when he was not aware of the actions
but perhaps should have been. For example, under the second requirement listed
above (having information in his possession putting him on notice), it may be
possible to rebut the inference of constructive knowledge by putting on evidence
showing actual lack of knowledge.
At the ICC, a higher standard of mens rea is required for the criminal responsibility of
civilan leaders rather than military leaders. Article 28 of the Rome Statute provides
that a civilian leader is responsible if he “consciously disregarded information which
clearly indicated” that crimes were about to or had already been committed. The ICC
is still awaiting its first case.
Necessary and reasonable measures
The third element which must be established is that the superior failed to take “the
necessary and reasonable measures to prevent or punish the crimes of his
subordinates”.35 What is “necessary and reasonable” will depend on the
circumstances of each case, in particular the extent of the civilian leader’s material
ability to do anything (be it prevention or punishment) about those crimes.36
The measures required of the superior are limited in any case to those which are
“feasible in all the circumstances and are ‘within his power’”.37 “A superior is not
obliged to perform the impossible. However, the superior has a duty to exercise the
powers he has within the confines of those limitations.”38
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