Individual Criminal Responsibility

Individual Criminal Individual Criminal ResponsibilityResponsibility

Thomas Wayde PittmanThomas Wayde PittmanSenior Legal OfficerSenior Legal Officer

ICTY Appeals ChamberICTY Appeals Chamber

ICTY Statute (1993) ICTY Statute (1993)

Article 7: Individual criminal responsibility

Text of Article 7Text of Article 7++

Jurisprudence interpreting Jurisprudence interpreting Article 7Article 7==

Current state of the lawCurrent state of the law

ICTY Statute (1993) ICTY Statute (1993) Article 7(1)Article 7(1)

A person who A person who planned, instigated, planned, instigated, ordered, committed or otherwise ordered, committed or otherwise aided and abettedaided and abetted in the planning, in the planning, preparation or execution of a crime preparation or execution of a crime referred to in articles 2 to 5 of the present referred to in articles 2 to 5 of the present Statute [war crimes, genocide, crimes Statute [war crimes, genocide, crimes against humanity], shall be individually against humanity], shall be individually responsible for the crime.responsible for the crime.

ICTY Statute (1993)ICTY Statute (1993) Article 7(3)Article 7(3)

The fact that any of the acts referred to in The fact that any of the acts referred to in articles 2 to 5 of the present Statute [war articles 2 to 5 of the present Statute [war crimes, genocide, crimes against humanity] crimes, genocide, crimes against humanity] was committed by a subordinate does not was committed by a subordinate does not relieve his relieve his superiorsuperior of criminal of criminal responsibilityresponsibility if he if he knew or had reason knew or had reason to knowto know that the subordinate was about to that the subordinate was about to commit such acts or had done so and the commit such acts or had done so and the superior superior failed tofailed to take the necessary and take the necessary and reasonable measures to reasonable measures to preventprevent such acts such acts oror to to punishpunish the perpetrators thereof. the perpetrators thereof.

FourFour forms of criminal forms of criminal responsibility in ICTY:responsibility in ICTY:

1.1. Participation by commissionParticipation by commission of crime (i.e., of crime (i.e., physical perpetration) (Article 7(1))physical perpetration) (Article 7(1))

2.2. Other forms of participationOther forms of participation not in a joint not in a joint criminal enterprisecriminal enterprise (planning, instigating, (planning, instigating, ordering, aiding and abetting) (Article 7(1))ordering, aiding and abetting) (Article 7(1))

3.3. Participation in a joint criminal enterpriseParticipation in a joint criminal enterprise (implied under Article 7(1))(implied under Article 7(1))

4.4. Superior responsibilitySuperior responsibility (Article 7(3)) (Article 7(3))

CommittingCommitting

Direct perpetration or culpable Direct perpetration or culpable omission.omission.

“‘“‘Committing’ covers physically perpetrating a Committing’ covers physically perpetrating a crime or engendering a culpable omission in crime or engendering a culpable omission in violation of criminal law.”violation of criminal law.”

Involves direct personal or physical participation. Involves direct personal or physical participation. Alternatively, can involve a culpable omission.Alternatively, can involve a culpable omission.

There can be several perpetrators of the same There can be several perpetrators of the same crime. crime.

Mental state (Mental state (mens reamens rea)) Awareness of substantial likelihood that criminal Awareness of substantial likelihood that criminal

act or omission would occur as consequence of act or omission would occur as consequence of conduct.conduct.

PlanningPlanning Designing commission of a crime at Designing commission of a crime at

preparatory and execution phases.preparatory and execution phases. ““[P]lanning implies that ‘one or several persons [P]lanning implies that ‘one or several persons

contemplate designing the commission of a crime at contemplate designing the commission of a crime at both the preparatory and execution phases.’” both the preparatory and execution phases.’”

An accused may be held responsible for planning An accused may be held responsible for planning alone, but an individual who commits the crime alone, but an individual who commits the crime cannot also be held responsible for planning it. cannot also be held responsible for planning it.

Circumstantial evidence may prove plan.Circumstantial evidence may prove plan. Mental state (Mental state (mens reamens rea))

Person planning crime must intend that crime be Person planning crime must intend that crime be committed, or committed, or

the awareness of the substantial likelihood that a the awareness of the substantial likelihood that a crime will be committed in the execution of the acts or crime will be committed in the execution of the acts or omissions plannedomissions planned

InstigatingInstigating

Prompting another to commit an Prompting another to commit an offense.offense.

Requires a clear contribution to the conduct of Requires a clear contribution to the conduct of the other person, but it is unnecessary to show the other person, but it is unnecessary to show that the crime would not have occurred without that the crime would not have occurred without the accused’s involvement.the accused’s involvement.

Positive acts and omissions may constitute Positive acts and omissions may constitute instigating, as well as express and implied instigating, as well as express and implied conduct.conduct.

Mental state (Mental state (mens reamens rea)) Intent to provoke or induce commission of a Intent to provoke or induce commission of a

crime, or crime, or awareness of substantial likelihood that criminal awareness of substantial likelihood that criminal

act or omission would occur as consequence of act or omission would occur as consequence of conduct. conduct.

OrderingOrdering Person in a position of authority Person in a position of authority

using that position to using that position to instructinstruct another to commit a crime.another to commit a crime.

The order may be explicit or implicit. It need The order may be explicit or implicit. It need not be in writing or given directly to person not be in writing or given directly to person who performs the offense. who performs the offense.

No formal superior-subordinate relationship No formal superior-subordinate relationship required.required.

It is irrelevant whether the illegality of the It is irrelevant whether the illegality of the order was apparent on its face. order was apparent on its face.

Mental state (Mental state (mens reamens rea)) Requires intent that the crime be committed Requires intent that the crime be committed

or awareness of the substantial likelihood or awareness of the substantial likelihood that a crime will be committed in execution that a crime will be committed in execution of that orderof that order

The intent is that of the The intent is that of the superiorsuperior, not the , not the subordinate. subordinate.

Aiding and AbettingAiding and Abetting Render substantial contribution to Render substantial contribution to

commission of a crimecommission of a crime. (Aiding = giving . (Aiding = giving assistance; Abetting = facilitating through assistance; Abetting = facilitating through sympathy).sympathy).

Can be before, during or after crime is Can be before, during or after crime is committed.committed. Can be by omission. Can be by omission.

Must have substantial effect on perpetration of Must have substantial effect on perpetration of the crime. Responsibility is for all that naturally the crime. Responsibility is for all that naturally results. results.

Specific direction must be explicitly established Specific direction must be explicitly established in cases where assistance is remote from the in cases where assistance is remote from the actions of the principal perpetrator.actions of the principal perpetrator.

Mental state (Mental state (mens reamens rea)) Requires intent to assist and knowledge that Requires intent to assist and knowledge that

actions will assist. Need not share principal’s actions will assist. Need not share principal’s intent, but must be aware of essential elements intent, but must be aware of essential elements of the crime, including principal’s mental state.of the crime, including principal’s mental state.

Aiding and AbettingAiding 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

Joint Criminal EnterpriseJoint Criminal Enterprise

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

Joint Criminal EnterpriseJoint Criminal Enterprise The notion encompasses The notion encompasses three three

distinct categoriesdistinct categories of of collective collective criminalitycriminality..

JCE-1: “all co-defendants… possess the JCE-1: “all co-defendants… possess the same criminal intention”same criminal intention”

JCE-2: “the so-called ‘concentration camp’ JCE-2: “the so-called ‘concentration camp’ cases”cases”

JCE-3: liability for forseeable acts outside JCE-3: liability for forseeable acts outside the common designthe common design


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.


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.


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.


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.


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.


Mental stateMental state ((mens reamens rea) ) JCE – 1: “JCE – 1: “all co-all co-defendants… possess the same criminal defendants… possess the same criminal intentionintention”.”. Accused must have intended the criminal Accused must have intended the criminal

result, even if not personally effecting it. result, even if not personally effecting it. ““Prosecution must establish that the accused Prosecution must establish that the accused

shared with the person who personally shared with the person who personally perpetrated the crime the state of mind perpetrated the crime the state of mind required for that crime. Shared intent may be required for that crime. Shared intent may be inferred from knowledge of plan and inferred from knowledge of plan and participation in its advancement”. participation in its advancement”.


Mental stateMental state ((mens reamens rea) ) JCE – 2: “JCE – 2: “the so-called the so-called ‘concentration camp’ cases‘concentration camp’ cases”” ““Knowledge of the nature of system” and Knowledge of the nature of system” and

“intent to further the common concerted “intent to further the common concerted design to ill-treat inmates”. “It is important to design to ill-treat inmates”. “It is important to note that, in these cases, the requisite intent note that, in these cases, the requisite intent could also be could also be inferredinferred from the position of from the position of authority held by the camp personnel.”authority held by the camp personnel.”

But “normally requires a But “normally requires a more substantial level more substantial level of participation than simply following ordersof participation than simply following orders to to perform some low level function in the criminal perform some low level function in the criminal endeavor on a single occasion.”endeavor on a single occasion.”


Mental stateMental state ((mens reamens rea) ) JCE – 3: JCE – 3: foreseeable foreseeable crimes outside the common purposecrimes outside the common purpose ((slide 1 of 2slide 1 of 2)) Intent to take part in a joint criminal enterprise Intent to take part in a joint criminal enterprise

and to further, individually and jointly, the and to further, individually and jointly, the criminal purposes of the enterprise.criminal purposes of the enterprise.

Requires a state of mind in which a person – Requires a state of mind in which a person – although he did not intend to bring about a although he did not intend to bring about a certain result – was aware that the actions of certain result – was aware that the actions of the group were most likely to lead to that the group were most likely to lead to that result, but nevertheless willingly took that risk. result, but nevertheless willingly took that risk.

More than negligence is required (i.e., More than negligence is required (i.e., dolus dolus eventualis or eventualis or “advertent recklessness”).“advertent recklessness”).

Joint Criminal EnterpriseJoint Criminal Enterprise Mental stateMental state ((mens reamens rea) ) JCE – 3: JCE – 3: foreseeable foreseeable

crimes outside the common purposecrimes outside the common purpose ((slide 2 of 2slide 2 of 2)) “ “ If the crime charged went beyond the object If the crime charged went beyond the object

of the joint criminal enterprise, the prosecution of the joint criminal enterprise, the prosecution needs to establish only that the accused was needs to establish only that the accused was aware that the further crime was a aware that the further crime was a possiblepossible consequence in the execution of that consequence in the execution of that enterprise and that, with that awareness, he enterprise and that, with that awareness, he participated in that enterprise.”participated in that enterprise.”

(Genocide): The Prosecution is required to (Genocide): The Prosecution is required to establish that it was reasonably foreseeable to establish that it was reasonably foreseeable to the accused that a genocidal act would be the accused that a genocidal act would be committed and that it would be committed committed and that it would be committed with genocidal intent. The accused need not with genocidal intent. The accused need not share the genocidal intent.share the genocidal intent.

Aiding and Abetting and Joint Aiding and Abetting and Joint Criminal EnterpriseCriminal Enterprise

Whether one is an aider and abettor or co-Whether one is an aider and abettor or co-perpetrator of a joint criminal enterprise perpetrator of a joint criminal enterprise depends depends on level of participation and mental stateon level of participation and mental state. . Criminal actCriminal act ( (actus reusactus reus):): ““The level of participation necessary to render The level of participation necessary to render

someone a participant in a joint criminal someone a participant in a joint criminal enterprise is less than the level of participation enterprise is less than the level of participation necessary to graduate an aider or abettor to a necessary to graduate an aider or abettor to a co-perpetrator of that enterprise.” co-perpetrator of that enterprise.”

One may become a joint criminal enterprise co-One may become a joint criminal enterprise co-perpetrator when “participation lasts for an perpetrator when “participation lasts for an extensive period or becomes more directly extensive period or becomes more directly involved in maintaining the functioning of the involved in maintaining the functioning of the enterprise” or when the accused’s participation enterprise” or when the accused’s participation “advances the goals” of the criminal enterprise.“advances the goals” of the criminal enterprise.

Aiding and Abetting and Joint Aiding and Abetting and Joint Criminal EnterpriseCriminal Enterprise

Mental stateMental state ( (mens reamens rea):): ““In the case of aiding and abetting, the requisite In the case of aiding and abetting, the requisite

mental element is knowledge that the acts mental element is knowledge that the acts performed by the aider and abettor assist the performed by the aider and abettor assist the commission of a specific crime by the principal. commission of a specific crime by the principal. By contrast, in the case of common purpose or By contrast, in the case of common purpose or design design more is requiredmore is required ( (i.e., i.e., either intent to either intent to perpetrate the crime or intent to pursue the perpetrate the crime or intent to pursue the common criminal design plus foresight that common criminal design plus foresight that those crimes outside the criminal common those crimes outside the criminal common purpose were likely to be committed). . . .” purpose were likely to be committed). . . .”

An aider and abettor need only be aware of An aider and abettor need only be aware of principal’s intent; a joint criminal enterprise principal’s intent; a joint criminal enterprise participant must share that intent.participant must share that intent.

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 to control the acts of his subordinates.

It is not a form of strict liability.

Superior ResponsibilitySuperior Responsibility Three elements must be provenThree elements must be proven before a before a

person may incur superior responsibility for person may incur superior responsibility for the crimes committed by subordinates:the crimes committed by subordinates:

1.1. the existence of a the existence of a superior-subordinate superior-subordinate relationshiprelationship between the accused and the between the accused and the perpetrator of the crime; perpetrator of the crime;

2.2. that the accused that the accused knew or had reason to knew or had reason to knowknow that the crime was about to be or that the crime was about to be or had been committed, and had been committed, and

3.3. that the accused failed to take the that the accused failed to take the necessary and reasonable measures to necessary and reasonable measures to preventprevent the crime the crime or punishor punish the the perpetrator thereof.perpetrator thereof.

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.

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.

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.

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 Can both forms of responsibility be be

considered on sentencing?considered on sentencing? YESYES. Where both forms of responsibility are . Where both forms of responsibility are

proved under one count, the Trial Chamber proved under one count, the Trial Chamber must take both into account in its sentence. must take both into account in its sentence.

Should consider in terms of the accused’s Should consider in terms of the accused’s seniority or position of authority aggravating seniority or position of authority aggravating his direct responsibility under Article 7(1).his direct responsibility under Article 7(1).

Individual Criminal Responsibility

Documents

Transcript of Individual Criminal Responsibility