Participation in Offences
Principles of liability and offences similar to those in domestic criminal law apply to international criminal law. Concepts like aiding, abetting, duress, and self-defence mirror those applicable under domestic law. However, there are specialised offences in international law without parallels in domestic jurisdictions.
The concept of a joint criminal enterprise exists in many, though not all, international crimes. Tribunals have adopted liability based on customary law regarding joint criminal enterprise. This involves several individuals participating in a common plan or purpose that constitutes or involves the commission of a crime prohibited by statute, wherein the accused participates in the common design involving preparation or perpetration of one of the specified crimes.
The requisite mental element involves an intention to commit the crime or an intent to participate in and further the criminal activity or criminal purpose of a group and to contribute to the joint criminal enterprise or, in any event, the commission of a crime by the group. Responsibility for a crime other than one agreed upon in the common plan arises if, under the circumstances, it was foreseeable that such a crime would be perpetrated by one of the members of the group, and the accused willingly took that risk.
Multiple parties may be perpetrators. There must be an explicit or implicit agreement or common plan between the co-perpetrators and a coordinated essential contribution by the person concerned that was essential to the commission of the objective elements of the crime. This can be made through control of a hierarchy structured organisation in which subordinates can be relied on to carry out the orders.
It is necessary that the accused has the requisite mental element and realises that the common plan will result in the crime and that they are aware of the circumstances that allow them to jointly control the plan.
Command responsibility is the responsibility of those with control over subordinates for offences that they commit and the commanders have failed to prevent. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the court committed by forces under his or her effective command and control or effective authority as a result of his or her failure to exercise control properly over those forces where the military commander or person either
· knew or owing to the circumstances, should have known that the forces were committing or about to commit such crimes and the
· commander or person failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation or prosecution.
In relation to superior or subordinate relationships not described above, a superior shall be criminally responsible for crimes within the court’s jurisdiction committed by subordinates under his effective authority or control as a result of his failure to exercise control properly over subordinates where
· the superior either knew or consciously disregarded information, which clearly indicated that the subordinates were committing or about to commit such crimes,
· the crimes concerned activities that were within the effective responsibility and control of the commander and
· the superior failed to take necessary and reasonable measures within his power to prevent or repress their commission or submit the matter to the competent authorities for investigation and prosecution.
Effective control means a material ability to prevent or punish criminal conduct together with a formal or informal hierarchy.
The ICC statute distinguishes between military and civilian superiors. The mental element applicable to civilian superiors is that they knew or consciously disregarded information that clearly indicated that international crimes have occurred or are going to occur. In the case of military commanders, recklessness or negligent failures to obtain information may be sufficient to provide the requisite mental element.
Superiors must ensure that subordinates are adequately trained in international humanitarian law, ensure arrangements are in place to ensure action is carried out in accordance with international law or the law, issue orders aiming at bringing relative practices into accordance with the rules of war, take disciplinary measures which may include submission to investigation and prosecution. The superior may be charged if his omissions increased the risk of the crimes being committed.
Defences exist to international crimes. The Nuremberg statute specifically removed obedience to superior orders as a defence. The International Criminal Court statute allows a defence in narrow circumstances.
The fact that a crime has been committed within the jurisdiction of the ICC by a person pursuant to an order of a government or superior whether military or civilian shall not relieve the person of criminal liability unless the person was
· under a legal obligation to obey the order of the superior,
· he did not know it was unlawful and
· the order was not manifestly unlawful.
Orders to commit genocide and crimes against humanity are manifestly unlawful.
Post-World War II
Famously, tribunals were established after the Second World War to prosecute high-ranking Nazis by the victorious allies. Each appointed a lead and alternate judge to the panel. The tribunal had jurisdiction over crimes of aggression (crimes against humanity and war crimes).It was permitted to make declarations of criminality against organizations. It prosecuted the SS high command, leadership called the Nazi Party, Gestapo, and 24 individuals who were representatives of the Nazi party, the Army, Navy, and civilian supporters.
The Tokyo IMT Statute gave the tribunal jurisdiction over crimes against peace, humanity, and war crimes involving Japan. 28 military and civilian leaders were prosecuted.
The prosecutions were criticised, given that the crimes against peace had no prior existence. Several judges in the Tokyo cases issued dissenting judgments. One, the most famous dissenting judge gave his critique of the Western powers arguing that the record of colonial rule and the use of the atomic bomb to end the war rendered the trials hypocritical.
There were no further international proceedings until after the end of the Cold War. The UN responding to atrocities in the former Yugoslavia created the ICTY jurisdiction over grave breaches of the Geneva Convention’s war crimes as defined crimes against humanity and genocide committed in the former Yugoslavia. The tribunal was deemed to have primacy over national courts.
The tribunal was largely seen as successful in giving a level of accountability where there would otherwise be impunity for a range of persons, ranging from soldiers to leaders. A similar tribunal was established in respect of the genocide in Rwanda in 1994 covering crimes genocide crimes against humanity, certain war crimes.
International Criminal Court
The International Criminal Court was established in 2002. Over 110 States have ratified the statute. Some major powers such as US, China, Russia, and America are not parties
The International Criminal Court exercises jurisdiction over genocide, crimes against humanity, and certain war crimes. It has a dormant jurisdiction over the crime of aggression but is not permitted to exercise it until a further amendment is made to the statue defining the crime.
The ICC has jurisdiction over crimes committed by nationals of State parties or on their territories. The Security Council may confer jurisdiction by the referral of particular situations to it. Its jurisdiction commenced in 2002. Where a State is not party at that date, the ICC may only exercise jurisdiction if it makes a specific declaration that it may do so.
An investigation may be initiated in a number of ways. A State may refer a situation. This has happened in a number of cases, references by Uganda, Democratic Republic of the Congo, and Central African Republic. This has led to criticisms that states may seek to have their own rebels prosecuted.
The prosecutor may, with the consent of the pre-trial chamber, initiate an investigation of its own motion. The Security Council has the power to refer a situation anywhere in the World. Each of the latter two jurisdictions has been exercised.
The Security Council has the power to require the prosecutor to defer investigation and prosecution for a period that can be renewed indefinitely.
The ICC’s jurisdiction is complimentary to domestic jurisdiction. It may only exercise jurisdiction where it decides that a competent national court is unwilling or unable genuinely to prosecute it. A State will not be deemed unwilling if
· the proceedings were or are being undertaken or the national decision was made for the purpose of shielding a person concerned from criminal responsibility for crimes within the jurisdiction of the court;
· there has been an unjustified delay in proceedings which in circumstances is inconsistent with an intent to bring the person concerned to justice;
· proceedings were not or are not being conducted independently or impartially or they are being conducted in a manner in the circumstances which is inconsistent with an intent to bring the person to justice.
In order to determine inability in a particular case, the court shall consider whether it is due to the total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or necessary evidence and testimony or otherwise unable to carry out the proceedings.
The court still remains controversial for some States who have refused to accept the statute. It is alleged that the ICC by purporting to exercise jurisdiction over nationals of non-States whether or not they commit international crimes in the territory of State parties violates international law. It is argued States may not delegate their power to prosecute their territorial jurisdiction over non-nationals to international organisations. It is argued that the court concentrates on less powerful States. It is argued that some states in Africa have made self-serving references.
There are a number of other miscellaneous international tribunals established on an ad hoc basis arising from genocide and war crimes including special tribunal for Lebanon, the Iraqi High Tribunal, and the extraordinary Chambers in the Courts of Cambodia. However, the jurisdiction is based on domestic law and has international support in the form of international staffing.