Tension between Individual Culpability andnCollective Nature of International Crimes

Individual criminal responsibility for international crimes is usually located in the context of collective criminality – a 「two-tier scheme」 where crimes are likely to be planned by superiors (or 「intellectual perpetrators」) and subsequently executed by subordinates (or 「physical perpetrators」). Various international criminal courts and tribunals lay great importance on prosecuting leaders who are perceived to be those most responsible for international crimes. Because only by prosecuting leaders can the collective nature of international crimes be fully captured. But addressing the collective context is only half of the picture of international criminal responsibility. There is also an emphasis on the principle of personal culpability, a maximum of both international criminal law and domestic criminal law which proposes that 「nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated.」 As is noted by some scholars, a tension in international criminal law exists between focusing on personal culpability and capturing the collective nature of international crimes. This essay will demonstrate that such a tension gives rise to the uncertainties about modes of criminal responsibility recognized by various international courts and tribunals and will illustrate this point by analyzing some modes of responsibilities (joint criminal enterprise, indirect perpetration, co-perpetration and superior responsibility) that are relevant to dealing with the responsibilities of high-level perpetrators.

Joint Criminal Enterprise

International Criminal Court and ad hoc tribunals (eg ICTY, ICTR and SCSL) have different attitude towards the notion of joint criminal enterprise (JCE). JCE is a form of commission (or principal responsibility) based on common purpose and is recognized by ICTY, ICTR and SCSL to be implicitly embodied in their respective statutes. Although it was initially envisaged in Tadi? case to be applicable only to a small group of perpetrators, the scope of JCE was broadened in Br?anin case which found that physical perpetrators do not have to be members of the common purpose. The Br?anin judgment allowed JCE to be applied at leadership level as long as it can be found that at least one member of the JCE can be linked to physical perpetrators who are not necessarily members of the JCE. The prosecution of some top leaders (eg. Slobodan Milosevic, Radoslav Br?anin ) on the basis of JCE captures the collective and systemic nature of international criminality. However, some developments (especially the extended form) also loosen the links between superiors and subordinates and therefore risk violating the principle of personal culpability. JCE III allows to convict the accused for crimes falling outside of the common purpose, even though they have no intent to commit the crimes and made no contribution to them. The mens rea for JCE III is even controversial. For example, the Appeal Chamber in Br?anin case draws a distinction between the mens rea required for physical commission of genocide and that required for criminal responsibility for genocide based on JCE III. For the latter, the dolus specialis of genocide is not required. It suffices when the accused has dolus eventualis towards the acts constitutive of genocide which committed in the execution of the common plan.

Co-perpetration, Indirect-perpetration and their combined form

As far as personal culpability is concerned, the 「control over the crime approach」 applied by the ICC represents a significant improvement compared to the JCE applied in ad hoc tribunals, but there still remains some uncertainties with regards to application of this approach in the ICC. Different from the low threshold of JCE which only requires the principal to make significant contribution to the common purpose, co-perpetration and indirect-perpetration resorted by ICC are based on 「joint control over the crime」: the principal』s contribution to the commission of the crime must be essential. In other words, these individuals must 「have the power to frustrate the commission of the crime by not performing their tasks」. As for mens rea, indirect perpetration and co-perpetration in ICC cannot arise merely on the basis of dolus eventualis (which is permissible under the notion of JCE III). This high standard is respectful of the principle of personal culpability.

However, the tension between focusing on personal culpability and capturing the collective nature of crimes also exist in ICC cases which bring about uncertainties with regards to application of indirect perpetration and co-perpetration. In Katanga and Chui decision, the Pre-Trial Chamber combines indirect perpetration and co-perpetration in order to capture the whole picture of crimes committed by two organizations (the FRPI and FNI) respectively under the control of Katanga and Chui during a joint attack against Bogoro village. Under this doctrine, leaders (such as Katanga and Ngudjolo) become responsible not just for acts committed by individuals under their control but also for those under their collaborator』s control. This attempt to capture the collective nature of crimes again raises uncertainties with regards of ICRs applied in the ICC. It is criticized by Judge Van den Wyngaert that this combined mode of liability is not included in Article 25(3) of the ICC Statute. Moreover, although ICC rejects to read JCE doctrine into Article 25(3)(d) of ICC Statute (because JCE III is too controversial), indirect co-perpetration, as applied by the ICC, may be very much similar to JCE III as both cover responsibility for 「risk taking behavior」 -- a person may be found guilty for crimes committed by physical perpetrators under the authority of his collaborators if he reasonably foresee the crimes. This causes uncertainties as dolus eventualis is not explicitly included in Article 30 of Rome Statute which states that the requisite mens rea for ICC crimes must be knowledge and intent.

Superior Responsibility

The tension between collective international crimes and personal culpability is also particularly problematic with regards to superior responsibility and it gives rise to uncertainties about the scope of superior responsibility. Superiors can be held criminally responsible if they fail to prevent or repress the international crimes committed by their subordinates. This doctrine was firstly applied in Yamashita case and has become a rule of customary international law and is reflected in the statutes of various international courts and tribunals. But there remain many uncertainties regarding to its scope. For example, the effect of superior responsibility, as developed by the jurisprudence of ICTY, is ambivalent. On the one hand, it narrows down the scope of responsibility to the de facto superiors who either knew or should have known the commission of crimes, as opposed to some Post World War II cases which requires a mens rea that is close to strict liability and attaches great importance to the de jure position of the accused. On the other hand, it takes a broad interpretation of 「commission of a crime by subordinates」 which includes all modes of liability and even include fail to prevent or punish; it also takes a broad interpretation of 「subordinates」 which include 「those who are not directly subordinate to the superior」.

Besides the uncertainties about scope, the nature of command responsibility is also controversial which demonstrates the dilemma between collective international crimes and personal culpability. It is disputed in some cases and by some scholars as to whether the superior is responsible for the same crimes committed by his subordinates (the 「mode of liability approach」) or for 「a separate crime of dereliction of duty」 (「the dereliction of duty approach」). The mode of liability approach captures the systemic nature of international crimes committed by subordinates while it may be incompatible with the principle of personal culpability. With regards to the duty to punish form of the doctrine of superior responsibility, the superior is held responsible for the crimes committed by his subordinates in the past, to which he has in no way contributed. Under the mode of liability approach, the superior is made responsible for the same crimes committed by his subordinates in the past. The nexus between superior』s inaction and the crimes committed subordinates to too tenuous to comply with the principle personal culpability. On the contrary, applying the dereliction of duty approach may reinforce the principle of personal culpability, but it can hardly capture the whole picture of the international crimes committed by subordinates.

To conclude, through the above analysis on JCE, indirect perpetration, co-perpetration and command responsibility, the essay demonstrates that there remain many uncertainties with regards to modes of responsibility in various international criminal courts and tribunals. For the purpose of capturing the collective nature of international crimes, prosecuting leaders become a focus of international courts and tribunals. Different modes of liabilities are developed in order to convict those leaders while responsible, did not physically perpetrated the crimes. But convicting leaders who have tenuous nexus with the crimes committed by subordinates often infringe on the principle of personal culpability. Such a tension between capturing the collective nature of international crimes and focusing on personal culpability plays a role in causing the uncertainties about international criminal responsibilities.