CRIMINAL RESPONSIBILITY OF CIVILIAN LEADERS
THE LAW GOVERNING THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
CHRISSA LOUCAS* & 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 showtrials”.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 on1st 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 crimescommitted 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 deployedagainst 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 7Individual 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 presentStatute, 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 orindifferent 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 theKurt 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 theStatute.
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 thesuperior 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 orpunishing 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 ofExperts.
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 byothers”.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 TrialChamber held:
It follows that a government official will only be held liable under the doctrine of command responsibility if he was part of a superior subordinate 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 nabout 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 deliberatelyrefraining 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 civilian 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 ICCis 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
* Chrissa Loucas - Barrister and Public Defender, Sydney, Australia.
** Thomas Derrington - Associate Attorney, Houston, USA.
1 Geoffrey Robertson QC, Foreword in International Criminal Practice, John R.W.D. Jones and Steven Powles, 3rd Edition (2003), pp xix – xx.
2 See Article 6 and 8 of the ICTY Statute adopted by the Security Council in its Resolution 827 of 27 May 1993, see www.un.org/icty.
3 For the list of acts constituting genocide see Article 4(2) of the ICTY Statute.
4 Prosecutor v. Dusko Tadic, Case No. IT-95-1-A, Judgment, 15 July 1999 (Tadic Appeals Judgment); See also Prosecutor v. Milan Milutinovic, Nikola Sainovic and Dragoljub Ojdanic, Case No. IT-99-37- AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction-Joint Criminal Enterprise, 21 May 2003 (Ojdanic Decision).
5 Tadic Appeals Judgment, pars 185-192.
6 Tadic Appeals Judgment, par 190.
7 Tadic Appeals Judgment, par 204.
8 Tadic Appeals Judgment, pars 207-209.
9 Tadic Appeals Judgment, par 210.
10 Tadic Appeals Judgment, par 204.
11 Tadic Appeals Judgment, par 210 citing Kurt Goebell et al. (Also called the Borkum Island case).
12 Tadic Appeal Judgment, par 227.
13 Tadic Appeal Judgment, par 220.
14See Prosecutor v. Krnojelac, Case No.: IT-97-25-A, Judgement, 17 September 2003 (Krnojelac Appeal Judgment), pars 136-145.
15 Prosecutor v.Delalic et al. Case No. IT-96-21-T, Judgment, 16 November 1998, par 346, applied and affirmed on, Prosecutor v. Delalic et al. Case No. IT-96-21-A, 20 February 2001 (Celebici Appeal Judgment), pars 192-198, 225-226, 238-239, 256, 266-267.
16 Prosecutor v. Stakic, Case No. IT-97-24-T, Judgment, 31 July 2003 (Stakic Trial Judgment), par 463.
17 Stakic Trial Judgment, par 464.
18 Celebici Appeal Judgment, pars 252 and 302-303.
19 Celebici Appeal Judgment, pars 192-194.
20 Celebici Appeal Judgment, pars 196-197.
21 Kordic and Cerkez Trial Judgment, par 428.
22 Kordic and Cerkez Trial Judgment, par 424.
23 Kordic and Cerkez Trial Judgment, par 421.
24 Kordic and Cerkez Trial Judgment, par 421 citing USA v. Von Weizsaecher, 14 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No.10 (1952), p. 693.
25 Celebici Appeal Judgment, pars 263 and 266.
26 See Prosecutor v. Bagilishema, Case No.: ICTR-95-1A-A, Judgment, 3 July 2002, Reasons issued on 13 December 2002 (Bagilishema Appeal Judgement), par 50 and jurisprudence cited therein.
27 Bagilishema Appeal Judgment, par 52.
28 Celebici Appeal Judgment, par 196.
29 Prosecutor v. Kordic and Cerkez, Case No.: IT-95-14/2-T, Judgment, 26 February 2001, (Kordic and Cerkez Trial Judgment) par 415.
30 Celebici Appeal Judgment, par 266.
31 Celebici Appeal Judgment, pars 223 and 241.
32 Celebici Trial Judgement, para. 386, citing Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), (UN Document S/1994/674), par 58.
33 Stakic Trial Judgment, par 460.
34 Celebici Appeal Judgment, par 241.
35 Celebici Appeal Judgment, par 226.
36 Celebici Trial Judgment pars 302, 394-395.
37 Celebici Appeal Judgment, par 226.
38 Celebici Appeal Judgment, par 226.
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