“Actus non facit reum, nisi mens sit rea”
An investigation into the treatment of mens rea in the quest to hold individuals
accountable for Genocide
Andrew M. Jung
Faculty Mentor: Kimi King, Department of Political Science
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Guidelines and tips
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community
Ask the community for help and clear up your study doubts
University Rankings
Discover the best universities in your country according to Docsity users
Free resources
Our save-the-student-ebooks!
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
“Actus non facit reum, nisi mens sit rea”. An investigation into the treatment of mens rea in the quest to hold individuals accountable for Genocide.
Typology: Study notes
2021/2022
1 / 21
This page cannot be seen from the preview
Don't miss anything!
Related documents
Partial preview of the text
Download “Actus non facit reum, nisi mens sit rea” and more Study notes Law in PDF only on Docsity!
“Actus non facit reum, nisi mens sit rea”
An investigation into the treatment of mens rea in the quest to hold individuals
accountable for Genocide
Andrew M. Jung
Faculty Mentor: Kimi King, Department of Political Science
Soghoman Tehlirian, who was a survivor of the murder of approximately one million Armenians in Turkey, and Tehlirian’s acquit^ “In Lwov University, where I enrolled for the study of law, I discussed… with my professor[s] [the assassination of Talat on March 15, 1921 bytal by a German court]. They invoked the argument about sovereignty of states. “but sovereignty of states, “ I answered, “implies coindependent foreign and internal policy, building of schools, construction of roads, in brief, all types of activity directed towards the welfare ofnducting an people. Sovereignty,” I argued, “cannot be conceived of as the right to kill millions of innocent people.” - Raphael Lemkin^1 I – Introduction There exist a certain set of crimes that are so evil, when mentioned, the world sits up and takes notice. The most compelling of these kinds of crimes is what the International Criminal Tribunal for Rwanda has called “the crime of crimes.”^2 International conventions refer to it as “an odious scourge.”^3 Scholars have named it “the ultimate crime, the pinnacle of evil.”^4 The common label for this egregious act is “genocide.”^5 It has amassed many more descriptors in its long history, but what it is, in essence, is “a form of one-sided mass killing”^6 that is “a denial of the right to existence of entire human groups.”^7 It is a crime that “shocks the conscience of mankind, results in great losses to humanity, and is contrary to moral law.”^8 Regardless of the terminology used, it is clear that genocide is an especially grave act and one of utmost heinousness. Throughout its history, the human race has shown a seeming propensity towards such grave acts of violence in times of conflict. Wars have been a fixture of society since “society” as we know it has emerged, and genocide has a habit of accompanying war like an abhorrent shadow. Many historical conflicts are now widely considered to have included at least some form of genocide. From the sacking of Carthage by the Romans in 14 B.C.E.,^9 to the slaughter of Hereros in Africa by the Germans in 1904 and of Turkish Armenians by the “Young Turks” in the collapsing Ottoman empire in 1915,^10 to “special wholesale massacres” perpetrated by the armies of Genghis Khan, Tamerlane, and Hitler,^11 genocide has a lengthy history. Similarly, the concept of holding individuals criminally responsible for “egregious conduct toward their fellow human beings”^12 has a long history, dating back at least to the 6th^ century B.C.E.^13 This concept has only
(^1) From the manuscript autobiography of Raphael Lemkin, as reprinted in Frank Chalk, “Redefining Genocide.” Genocide: Conceptual and Historical Dimensions, ed. George J. Andreopoulos. 47-63. University of Pennsylvania Press (1994) at 47 (^2) See Prosecutor v. Kambanda, Case no ICTR-97-23-S, Judgment and Sentence, para. 16 (Sept. 4, 1998) at http://www.ictr.org/ENGLISH/cases/Kambanda/judgement/kambanda.htmlthe ICTR As a note of reference, this Tribunal will hereinafter be referred to as (^3) See the Preamble of the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (1951) [hereinafter Genocide Convention], adopted by General Assembly Res. 260(III)(A), U.N. GAOR, 3d Sess., pt.1, at 174, U.N. Doc. A/810 (1948) (^4) Symposium, The Genocide Convention After Fifty Years: Contemporary Strategies for Combating a Crime Against Humanity, 92 American Society of International Law. Proc. 1, 1 (1998) (^5) David L. Nersessian, The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals, 37 Texas International Law Journal 233 (^6) See Chalk, supra note 1 at 52. This phrase is included in his “Research Definition of Genocide” (^7) Johan D. van der Vyver, Prosecution and Punishment of the Crime of Genocide, 23 Fordham International Law Journal 286-287 (December, 1999). These words were proclaimed by the General Assembly of the United Nations in 1946. (^8) van der Vyver Id. (^9) See Frank Chalk and Krut Jonassohn, The History and Sociology of Genocidal Killings, in Genocide: A Critical Bibliographic Review. Israel W. Charny ed., (1988). At 39, 42 (^10) See Barbara Harff, Genocide and Human Rights: International Legal and Political Issues (1984) at 3 (^11) See Raphael Lemkin, Axis Rule in Occupied Europe (1944), at 80. See also Nersessian, supra note 5 at 246. Nersessian mentions common examples of historical genocides and also cites Chalk and Jonasohn, supra note 9, Harff, supra note 10, and Lemkin for discussions of commonlycited historical examples of genocide. (^12) Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities In International Law, Oxford University Press (2001), at 1
These jurisprudential conflicts are often compounded by doctrinal controversies in tribunal statutes^26 and ambiguities in the customary international law.^27 This paper focuses on these doctrinal controversies and examines how genocide is and has been addressed by modern tribunals, with special emphasis on the subjective mens rea (mental element) required for genocide. I contend that these doctrinal controversies and statutory ambiguities leave the door open for prosecutorial strategies that fatally undermine tribunal fairness and sound jurisprudence. Since there are nebulous terms in genocide statutes and since statutes do not fully elaborate, many ways of interpretation are theoretically possible. This can cause discrepancies when genocide is applied in practice, especially in relation to the proof required to show genocidal mens rea. I also contend that as charges of genocide are presented more frequently at trial, its scope is being enlarged – especially as it relates to superior liability and joint criminal enterprise. The primary research method for this paper is an examination of legal research and ad hoc tribunal judgments along with interviews of tribunal personnel. II – Genocide as a Crime Under International Law By the turn of the twentieth century, the international community was beginning to solidify a growing feeling of moral duty - nations began to come together and recognize the need to protect all of the world’s citizens from the “abuses of states.”^28 The results of this moral alliance included the Hague Convention of 1899 and 1907, the latter of which specified that “the inhabitants and the belligerents remain under the protection and the rule of the principles of the laws of nations, as they result from the usages established among civilized people, from the laws of humanity, and the dictates of public conscience.”^29 This was a key step in the formulation of international laws that continued throughout the 20th century, but was not the first. Countries such as France, Great Britain, and the United States had long held to a belief of a right to intervene on behalf of persecuted minorities, and had done so in Eastern Europe, Russia, Turkey, and Latin America.^30 As the time of “the War to end all Wars” approached, protecting innocents in times of conflict was a time- honored and respected tradition. It was not until after WWII that Polish scholar Raphael Lemkin, published his magnum opus de juris —a study of Nazi policies and atrocities during World War II called Axis Rule in Occupied Europe. As scholars note, it “extended the notion that international law contains unarticulated laws of humanity”^31 and argued for the acceptance of a previously unnamed crime within the penumbra of international criminal law. His neologism for this crime was “genocide” – meant
(^26) See generally Danner and Martinez, supra note 17 for an examination of some of the most pressing examples of conflicting statutory interpretation along with Chile Eboe- Justice, Volume 3, No. 1 (March 2005), 56-81Osuji, ‘Complicity in Genocide’ versus ‘Aiding and Abetting Genocide,” Journal of International Criminal (^2728) See Nersessian, supra note 5, at 276 at 589Matthew Lippman, “Genocide” From^ International Criminal Law, Second Edition, Volume I: Crimes. Ed. M. Cherif Bassiouni. (1999) 589- (^29) Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 3 Martens Nouveau Recuei 461, 36 Stat. 2277. Reprinted in Lippman supra. (^30) See Lippman, supra note 28 at 589 (^31) See Lippman, supra note 28 at 590
to combine the ancient Greek word genos (race) and the Latin-based suffix cide (killing) – and it was used to describe “the destruction of a nation or of an ethnic group.”^32 As Matthew Lippman relates, “Lemkin noted that international jurisprudence had increasingly recognized the importance of preserving national groups. These collectivities contributed to the cultural and intellectual enrichment of global society, but often lacked the power and resources to defend or perpetuate themselves.”^33 Thus, the crux of Lemkin’s genocide was the protection of the collectivity in which cultures exist together. Notably, Lemkin also expressed the notion that the establishment of a concrete and comprehensive international agreement prohibiting genocide in wartime and in peace would “highlight the international community’s condemnation of this awful atrocity.”^34 Thus, in December of 1946, the UN adopted Resolution 96(I) to formally recognize genocide as “crime under international law,”^35 but this resolution still fell short of clarifying the crime’s legal underpinnings. By this time, it was clear that genocide was a grave transnational offense, but no one seemed to agree as to what specifically it entailed. Eventually, after an internal legal investigation and much international debate, the UN unanimously adopted Resolution 260(A)(III) – the International Convention on the Prevention and Punishment of the Crime of Genocide.^36 While a step in the right direction, problems quickly arose. International resolutions such as this are often drastically influenced by political tensions between nations and the political agendas of UN actors. It is widely discussed by scholars that “[t]he drafting of the Genocide Convention was profoundly influenced by the Holocaust and the Cold War. Tension existed between the desire to condemn the atrocities committed by Nazi Germany and the aspiration to prevent future acts of genocide. The United States and the Soviet Union also opposed language which each anticipated might be used to criticize or condemn their conduct.”^37 While the Genocide Convention gave the international community the criminal statute that it needed to solidify genocide as a crime in its own right, it was not a perfect legal document by any means. In fact, many of its terms and phrases still remain nebulous and open to diverse interpretations. In defining genocide, Article II of the Genocide Convention states: Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religiousgroup, as such: (a) (b) killing members of the group;causing serious bodily or mental harm to members of the group; (c) (d) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.^38
(^3233) See Lemkin, supra note 11 at 79 34 Id at 590Id (^3536) G.A. Res. 96(I), U.N. GAOR, U.N. Doc. A/64 Add. 1, at 189 (1946). See also Lippman, supra at 594 and n. 42. 78 U.N.T.S. 277. Also see the Lippman and Nersessian articles and the Ratner and Abrams book all cited supra for thorough examinations at the3 U.N. Gaor, 179th^ plen. Mtg., at 851 (1948). See also Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, evolution of the Genocide Convention and its wording. (^37) See Lippman, supra note 28, at 596 (^38) See Genocide Convention, supra note 20, Article II
international crimes like persecution within crimes against humanity.^49 Unless the required intent is present, “no act, regardless of how atrocious it might be, can constitute genocide.”^50 The short mens rea clause, while it is genocide’s distinguishing characteristic, has caused much trouble for jurists, tribunal actors, and scholars. Laying out the fundamental conflict of the concept of mens rea as applied to international law statutes, Greenawalt notes “with its use of the word ‘intent,’ the Genocide Convention appeals to a central concept of criminal culpability. The problem is that the historical understanding of criminal intent has eluded uniform understanding.”^51 According to legal scholars and traditions, mens rea can take one of three forms: 1.) dolus directus perpetrator desires the death of a victim and foresees that a certain act will bring about the death of the victim; (direct intent), where the consequences of an action were both foreseen and desired by the perpetrator. Here, a 2.) dforeseen by the perpetrator as a certain result, although the perpetrator did not specifically desire these secondary consequences, he olus indirectus (indirect intent), where secondary consequences in addition to those desired by a perpetrator of an act were still committed the act with knowledge of them; and 3.) dolus eventualis , where a perpetrator foresees consequences other than those directly desired as a possibility, and not necessarily a certainty, but nevertheless proceeds with a criminal act.^52 Understandably, various national legal systems have different views on these intent standards. As noted genocide scholar William Schabas explains, “The ‘special’ or ‘specific intent’ in common law systems. Of course, the same might equally be said of the concept of ‘specific dolus specialis concept is particular to a few civil law systems and cannot sweepingly be equated with the notions of intent,’ a notion used in the common law almost exclusively within the context of the defense of voluntary intoxication.”^53 In common law legal systems, the exact mental requirement and mens rea standard may vary from crime to crime, but generally the more serious crimes require a more strict intent requirement, while less serious crimes may require a “less culpable state of mind”^54 – simple negligence for manslaughter charges or no mental requirement for automobile speeding tickets, for example. Civil law has different interpretations of intent. Under French law, the meaning of “intent” has cause some confusion since French courts have applied both strict concepts like dolus directus , as well as a more loosely defined concept of dol general , which is understood to mean “the conscious and voluntary action to violate the law.” German law defines some crimes in terms of a deliberate desire to achieve predetermined consequences, but deals with criminal intent as a whole in terms of an acceptance of or willingness to realize possible criminal consequences. Furthermore, in
(^49) The crime of persecution, while it does require acts directed at a group because of group membership, it does not require the accused to intend to “destroy [the group] in whole or in part.” See also Jelesic Judgement, para. 68 at www.icty.org for a brief comparison bepersecution. tween genocide and (^5051) See Ratner and Abrams, supra note 12 at 36 (December, 1999) at 2266Alexander K.A. Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99 Columbia Law Review (^52) For thorough discussion of one view of intent, see van der Vyver, supra note 7 at 306-308. Here, the author explains how he would divide intent into three distinct subcategories, namely dolus directus, dolus indirectus, and dolus eventualis, and also explains how dolus eventualis isdifferent from criminal negligence (where in such a case, a perpetrator does not foresee or understand consequences of his actions in a case where a reasonable person would be able to). See also Nersessian, supra note 5, at 263-264 (^53) William A, Schabas, The Jelisic Case and the Mens Rea of the Crime of Genocide, 14 Leiden Journal of Intl Law 129 (2001) (^54) See Jones, supra note 44 at 470 - 471
Yugoslavian law, there is only a single, broad intent standard where criminal liability is solely extended to those who perform acts knowing that they could have criminal consequences.^55 Thus, the meaning of “intent” can be ambiguous, and genocide statutes were authored by an international assemblage of representatives from countries with different penal codes, legal systems, and philosophies. The United Nations in particular is a mix of countries with different legal systems whose practices and interpretations may even contradict each other – common law systems often disagree with continental (civil) law systems about legal reasoning, trial procedures, and precedent. In addition, the UN is a political, not a legal, organization at the mercy of “political forces, pressure groups and blocs, in an arena where delegates pursue the divisive interests of the states they represent.”^56 Therefore, clear definitions and consensus on any legal matter are difficult, and questions persist about what form(s) of intent should be required in definition of genocide. The preferred interpretation among jurists and legal scholars dictates that genocide is a crime of specific or special intent, where a perpetrator targets victims especially on the basis of their group membership and has a distinct desire to cause the destruction of the group itself.^57 The trial chambers of the ICTY and ICTR seem to prefer this type of a definition since the terms dolus specialis and “special intent” have been used in judgments to describe the mens rea of genocide.^58 This is not surprising since that definition most closely corresponds with the sentiments expressed by Raphael Lemkin in his creation of the first genocide definition. The idea of dolus specialis however, is still fairly ambiguous. Some scholars have said it should be equated directly with dolus directus because both concepts require a perpetrator to have the will to bring about genocidal consequences and a specific desire to do so.^59 This would seem logical since the idea of “specific” intent connotes the idea of the direct discriminatory desire of dolus directus and “special” intent connotes the idea that the intent standard is one that is more narrowly focused. In spite of this, another line of reasoning exists about the components of genocidal intent that takes into account the ICC’s attempts at elaborating on the concept. In ICC statutes, “intent” is defined as a “person means to cause [the] consequence or is aware that it will occur in the ordinary course of events.”^60 This would seem to imply that genocidal intent includes both dolus directus and dolus indirectus (through the use of the phrase “is
(^55) See Greenawalt, supra note 51 at 2266-2270 for a discussion of how various national systems define, or attempt to define, criminal intent. Here these systems are contrasted with the M context of genocide statutes. PC of the United States and the question is raised as to whether “intent” has a special meaning within the (^5657) Nersessian, supra note 5 at 236 genocide is a crime of specific or special intent, involving a perpetrator who specifically targets victims on the basis of their group identity with aSee Greenawalt, supra note 51 at 2264. Here the author states “As regards the question of intent, the prevailing interpretation assumes that deliberate desire to inflict destruction upon (^58) In Prosecutor v. Kambanda, the ICTR Trial chamber stated that “The Crime of genocide is unique because of its element of dolu the group itself.” s specialis (special intent).” Similarly, in the closing paragraph of the judgment of Prosecutor v. Jelisic,been proved beyond all reasonable doubt that the accused was motivated by the dolus specialis of the crime of genocide.” the ICTY Trial chamber concluded that “it has not (^5960) See van der Vyver, supra note 7, at 308 Id
importation of the crime of genocide into situations where it does not belong. Alarmingly, recent developments of certain criminal doctrines may be undermining, and even contradicting, this notion. It seems that the door is opening ever wider for the acceptance of a knowledge-based interpretation, or – even further – a standard that may effectively invalidate the mens rea requirement entirely. IV – Genocidal Mens Rea In Practice: Inferring Intent and The Rise of JCE and Command Responsibility One of the main tenets of criminal law is the notion of individual criminal responsibility. The German Criminal Code states, “The guilt of the perpetrator is the basis for determining punishment.”^69 The French Criminal Code states, “One may be held criminally responsible only for his own actions.”^70 The ICTY Appeals Chamber in Tadic stated, “[responsible for acts or transactions in which he has not personally engaged or in some other way participated (T]he foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally nulla poena sine culpa international criminal law the principle is laid down,). In national legal systems this principle is laid down in Constitutions, in laws, or in judicial decisions. In inter alia, in Article 7(1) of the Statute of the International Tribunal.”^71 Truly, the law is “no stranger to the idea of holding individuals responsible for egregious conduct toward their fellow human beings. Domestic criminal law…evolved precisely to regulate this behavior.”^72 This all relates to an important notion: individual accountability for crimes is a vital foundation of legal systems of every kind, and it is an effective vehicle for protecting greater humanity from the evils of a few. It is necessary to ascribe fault for the purposes of retribution and the deterrence of future crimes, but also for laying a foundation for sound jurisprudence. This culpability principle also serves to regulate competent trials from degrading into a show of guilt by association. Ascribing fault in that way has been deemed wholly unacceptable by both national^73 and international courts.^74 Culpability by association undermines fundamental legal fairness and sound jurisprudence, and, if unchecked, can degenerate legality to a point where the innocent are deemed guilty for wrongs in which they had no part. It is better to exonerate the guilty if doing so means preventing convictions of the innocent – the concepts of prosecutorial burden of proof and “innocent until proven guilty” are testaments to this. Correspondingly, true criminal trials are based heavily on a notion of preserving the rights of the defendant. The aforementioned culpability principle, along with the commonly held beliefs in nullum crimen sine lege (“no crime without law”) principles, prohibition against ex post facto punishment, and habeas corpus requirements are all examples of the defendant-centered nature of criminal law. Complementary to these tenets is another principle that is referred to as the (^6970) See Danner and Martinez, supra note 17, at 83 and n 71 Id at 83 and n21Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, ICTY Appeals Chamber (July 15, 1999), at para. 186 (^7273) See Ratner and Abrams, supra note 12, at 3 also Danner and Martinez, supra note 17 at 85The U.S. Supreme Court has called guilt by association a “thoroughly discredited doctrine” in^ Uphaus v. Wyman , 360 U.S. 72, 79 (1959). See (^74) The International Military Tribunal at Nuremberg stated that “criminal guilt is personal, and that mass punishments should be avoided.” In Judgment, in Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945(1947) at 256. See also Danner and Martinez supra. – 1 October 1946,
“rule of lenity.” This is the “widespread requirement that ambiguous criminal statutes be construed in accordance with the interpretation most favorable to the accused.”^75 This, in particular, is a vital concept for international tribunals because of the inherent ambiguity and lack of developed jurisprudence of international law. It is an important way of settling legal disputes that are not solved by statutes. In fact, one of the ICTY Trial Chambers has called the rule of lenity a “solid pillar on which the principle of legality stands,” and added that “no criminalisation process can be accomplished and recognized” without it being upheld.^76 It has also been said that fostering “peace and reconciliation through the attribution of responsibility to individual defendants depends greatly on the perceived legitimacy of the trial. To the extent that the trial is viewed as illegitimate scapegoating, it may inhibit rather than promote reconciliation.”^77 Recent developments from the ad hoc tribunals may, in fact, be toeing the line that separates a just court from illegitimacy. Ad hoc tribunal cases have seen increased importance placed on the doctrines of Joint Criminal Enterprise and Command Responsibility to attribute fault to those who may not have been responsible in the direct commission of crimes. And, while these may be useful modes of convicting those who otherwise would slip through the grasp of just prosecution, the extent to which they are used inappropriately may affect tribunal legitimacy, as well as taint the Tribunals’ jurisprudential legacy by undermining and compromising established principles of fairness and sound moral reasoning. The Statute of the ICTY includes two separate modes of criminal responsibility in Article 7.^78 Under Article 7(1), an individual may incur criminal culpability via the doctrine of individual criminal responsibility, which is liability based on direct commission of crimes. Here, if a defendant “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime… [he] shall be individually responsible for the crime.”^79 An accused may also stand trial at the ICTY for violations of international law based on his responsibility as a superior, as delineated in Article 7(3). This mode may be included in addition to or instead of individual criminal responsibility and involves an obligation of superiors with de facto or de jure authority in any hierarchical structure - military or civilian - to either prevent or punish subordinates for violating international laws.^80 Article 7(3) of the ICTY statute states, “the fact that any of the acts referred to in Articles 2 to 5^81 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
(^7576) Danner and Martinez, supra note 17, at 84 Chamber, at para. 402See Danner and Martinez supra at 84-85 and also reference Prosecutor v. Delalic, Case No. IT-96-21-T, Judgment (Nov. 16, 1998), ICTY Trial (^7778) Danner and Martinez, supra note 17, at 97 79 The ICTR includes identical text in Article 6 of its StatuteStatute of the International Criminal Tribunal for the Former Yugoslavia, Article 7(1). This statute is available at www.icty.org (^80) See Kirsten M. F. Keith, The Mens Rea of Superior Responsibility as Developed by ICTY Jurisprudence. 14 Leiden Journal of International Law (2001) at 617-618 (^81) These articles list all of the acts criminalized by the statute, and thus punishable by the Tribunal
genocide statute hinges on the principle that any perpetrator of the crime needs to hold the required mens rea himself, individually, and cannot be guilty if the appropriate mens rea has not been attributed to him. Wrongly importing this intent from a subordinate who perpetrates genocide onto a superior who simply “knew or had reason to know” about the crime is a fundamental misappropriation of the concepts of genocide and mens rea. Just because a subordinate possessed the requisite intent of genocide does not in any way implicitly mean that a superior shares it. To think otherwise contradicts the individual culpability principle and drags any judicial decision with such reasoning into a quagmire of confused correlations and flawed inferences. As wrong it would seem, some ad hoc Tribunal chambers have done this - and bungled yet other concepts relating to genocidal mens rea. Command Responsibility has been coupled with genocide since the very beginning. In fact, the first international criminal trial ever to involve a conviction of genocide – the Akayesu trial of the ICTR – relied on principles of Command Responsibility for its genocide decision. The ICTR’s track record on subsequent command responsibility for genocide cases “indicate a profound judicial malaise with the entire concept.”^88 Alexander Zahar, a former Associate Legal Officer for the ICTR agrees^89 and illustrates one particular example of this “malaise” that originated in Akayesu. The Trial Chamber stated in paragraph 489 of its Judgment, “it is necessary to recall that criminal intent is the moral element required for any crime and that, where the objective isascertain the individual criminal responsibility of a person accused of crimes falling within the jurisdiction of the to Chamber… it is certainly proper to ensure that there has been malicious intent, or at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.” 90
In response, Zahar states, “The Chamber concluded that this criminal intent is necessary also for command responsibility. But this is misleading. Command responsibility is not itself a crime. It is a form of individual criminal liability, a mode of participation in a crime that does not involve commission, presence, or even support for the crime. The crime is committed by subordinates; thealleged superior becomes associated with it (and responsible for it) if the elements [of the charged crimes] are fulfilled, including the knowledge element (but not, as asserted above, “malicious intent or its equivalent).”^91 Thus, Zahar echoes that the mens rea requirement for the doctrine of Command Responsibility stops at “knowledge.” Any sort of direct intent is not a part of Command Responsibility provisions. Otherwise, there would be a misappropriation of modes of liability, for if an accused did posses “malicious intent,” he would therefore have acted purposefully and actively, and thus be responsible under ICTY Article 7(1) or the ICTR’s corresponding Article 6(1). Matters are further confounded if an accused acted, in the words of the Akayesu chamber, with “negligence… so serious as to be tantamount to acquiescence.” Most likely in that situation, a perpetrator would be acting with a mens rea that corresponds to mere “negligence” or possibly “knowledge” – neither of which could reasonably satisfy the mens rea
(^8889) William Schabas, Genocide in International Law: the Crimes of Crimes, (Cambridge University Press, 2000) at 309. on 596See generally Alexander Zahar Command Responsibility of Civilian Superiors for Genocide, 14 Leiden J. of Int’l Law (2001), with emphasis (^9091) Prosecutor v. Akeyesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998), ICTR Trial Chamber, para. 489 See Zahar, supra note 89, at 596
requirement for genocide. Alternatively, if the accused acted with negligence that was a manifestation of malicious intent to derelict his duty – and thus on purpose – he would have acted with a purposeful intent, and thus could be responsible for genocide, but not as a superior under article 7(3)/6(3).^92 In that case he would have acted actively and purposefully to assist in the commission of genocide, and thus could incur individual liability under Article 7(1)/6(1) for genocide under one of its subheadings, most likely “aiding and abetting” genocide or “complicity” in genocide. The ICTR further confuses matters by charging accused for genocide both under Article 6(1) and Article 6(3).^93 ICTY indictments commonly engage in this practice as well.^94 This approach is problematic in genocide cases that place extreme importance on intent standards because, as noted earlier, direct liability and command responsibility liability involve different mens rea elements. If an accused is indicted for a count of a genocide that happened on or about a specific date and in a specific location, he was either directly involved in the commission of said crime or was indirectly involved. Both situations would be mutually exclusive of the other. Any one person can’t have been directly and indirectly involved with the same single instance of genocide just as any one person can’t hold more than one mental state at the same time in regards to the same act. If a situation arises where a person is directly involved in some aspect that contributed to genocide and indirectly involved with another aspect that contributed to the same count of genocide, two separate acts have been committed that have different mens rea components that will satisfy different modes of liability. It is jurisprudentially unsound to convict a single person of committing a crime and being an accessory to the same crime at the same time, for it is a textbook example of what American courts call “double jeopardy.” And while it is possible for a theoretical war criminal to hold different mental states regarding multiple crimes, and to be liable for different crimes under either mode of liability, indictments are not specific enough to enumerate whether this is the case. Instead their lack of specificity skips pertinent details and leaves logical conflicts for Chambers to sort out in trial. Not only is this approach flawed, but also “arguably unfair to the defendant.”^95 As defense attorney Peter Morrissey lamented in an interview,^96 indictments are not very clear to the defense team. Often times a defense team could work on a case from a certain angle, only to be surprised when that angle turns out to be irrelevant when judges interpret the indictments and prosecutorial cases. He stated, “If you disprove something in the indictment, what good is it?
(^92) Whenever this notation is used, the first number (in this case 7(3) corresponds to the ICTY statute, and the second number corresponds to the identical section of the ICTR statute. (^93) For examples of this, see ICTR indictments in the Kayishema & Ruzindana case and the Musema case. Kayishema was in fact convicted of counts of genocide under both Articles 6(1) and 6(3)examples. at the same time , as was Musema. These are meant to be illustrative, not exhaustive, (^94) For an example of charging counts of genocide under both Articles 7(1) and 7(3), see the indictment in the Karadzic & Mladic case and the indictments of Biljana Plavsic and Momcilo Krajisnic at www.icty.org. These are illustrative, not exhaustive, examples. (^95) See Zahar, supra note 89, at 598 (^96) This interview took place during early June 2005 at the ICTY in The Hague, Netherlands. Mr. Morrissey is lead defense counsel in the Halilovic case.
commit wrongdoings, JCE allows for all perpetrators who were a part of this “common criminal plan” to be held responsible for the actions of others participating in the plan whether or not all the wrongdoings were desired by all involved. As ICTY Associate Legal Officer Tilman Blumenstock summarizes, to apply JCE, “There must be a plurality of persons, with responsibility arising if one of them takes action in furtherancedesign, plan, or purpose, be it through direct or indirect assistance. The understanding or agreement between the members of a common of a ‘joint criminal enterprise’ need not be express, and… the accused does not necessarily need to have intended the concrete criminal result… [it may suffice] that he or she was simply aware that a certain result was a possible consequence of the execution of the enterprise.”^103 As such, JCE can take the form of one of three categories: 1.) JCE Category One: same criminal intention. An example would be where a group develops a plan to forcibly remove a number of people from an area, All of the participants in the joint criminal enterprise, acting in furtherance of a common plan, possessed the and although each member of the group may carry out a different role, each has the same intent to remove that segment of apopulation from an area. 2.) JCE Category Two pursuant to a common plan, where the accused held a position of authority within the command structure; although, he did not: All of the participants in the joint criminal enterprise were members of military or administrative groups acting physically commit any of the crimes charged, he actively participated in enforcing the common plan by aiding and abetting the otherparticipants in the joint criminal enterprise who did commit them. A telling example would be that of a concentration camp where 3.) prisoners are subjected to inhumane treatment pursuant to the joint criminal enterprise. JCE Category Three: All of the participants were parties to a common plan to pursue one course of action, where one of the persons carrying out the agreed plan also commits a crime which, while outside of the scope of the common plan, was nevertheless a naturaland foreseeable consequence of executing the common plan. An example would be where a group develops a plan to forcibly remove a number of people from an area, and with the result that, in the course of said action one or some of those being removed is killed.^104 A prevailing concept with JCE, therefore, is culpability based on a general group-oriented intent. A group of people agrees to the same plan and acts collectively to further it. Not every person involved has to participate in every aspect of the common plan, or even know about every part of the plan as it is being carried out.^105 In regards to JCE’s application to genocide cases, which tend to involve hundreds of people, both perpetrators and victims, this is facially useful because it would be near impossible for a prosecutor to be able to prove that any accused had specific knowledge of every person operating within any sort of criminal organization involved in genocide. In fact, it is even questionable whether that kind of knowledge could ever be possible. When dealing with a conflict that involved thousands of people and hundreds of criminal acts over hundreds of square miles – often times with criminal acts happening on different sides of a country or even in different countries all together, as was the case with the Yugoslav conflict of the 1990’s, it would be extremely implausible that anyone would be able to have detailed knowledge of all of the possible criminal actions of those operating around him. Just as commanders cannot be expected to have explicit information regarding the actions of all members of the chain of command under them, members of JCE’s are subject to the same lenience regarding co-actors.
(^103) Tilman Blumenstock, The Judgment of the ICTY in the Brdjanin Case, Leiden Journal of International Law, vol. 18, No. 1 (March 2005) at
- (^104) Eboe-Osuji, supra note 26, at 64-65 and n. 32. See also Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, Prosecutor v. Milutinovic, Sainovic and Ojdanic, Case No. IT-99-37-A, Appeals Chamber, 21 May 2003, as well as Prosecutor v.Brdjanin, Case No. IT-99-36, Trial Chamber Judgment 1 September 2004. (^105) See Daryl A. Mundis and Fergal Gaynor, Current Developments at the Ad Hoc International Criminal Tribunals, Journal of International Criminal Justice, Volume 3, No. 1 (March 20005) at 277-279. This idea that intricate knowledge of every aspect is not necessary for a memberof a JCE has been put forth most prominently by the Brdjanin Trial Chamber of the ICTY. See specifically the Trial Chamber Judgment of that case (IT-99-36-T) at para. 264
Ideally, at least in JCE categories I and II, all members of a JCE will share the same criminal intent. Therefore, if the shared and agreed upon intent of the JCE is genocidal, all members of the JCE will rightly have the required mens rea for the crime of genocide and can be convicted for that crime. For those types of circumstances, prosecutors could appropriately file a charge of aiding and abetting genocide, planning genocide, or conspiracy to commit genocide. But that begs an important question: since those three charges, and arguably others that could involve a JCE, can still be put forth without alleging a JCE, what is the point of such a doctrine? JCE is not mentioned anywhere in any tribunal statute, and has therefore basically arisen due to judicial fiat and used in trials by prosecutors. There is an inherent flaw with this, too: judicial fiat is a purely common-law concept – continental law countries pay no attention to legal precedents, and the ad hoc tribunals are composed of common law and continental law judges and lawyers. Tribunal actors from continental law countries may be reluctant to use such an ill-defined, un-tested principle. Additionally, in the common law- continental law debate, who is to say which side is “better” or “right” about the use of precedent? It very well may be that a continental law approach is more appropriate for international criminal trials than a common law approach due to the increased ease of fostering truth-telling and victim reconciliation, which would mean that a heavy reliance on a notion derived purely from fiat may be inappropriate. Furthermore, the issue remains that the use of a doctrine by a prosecutor for some sort of crime does not inherently make that such use correct. As shown supra in the case of command responsibility, not all prosecutorial tactics are well-reasoned, well-supported, or even logically sound. In fact, I argue that JCE is one instance where a doctrine has been misapplied to the crime of genocide. JCE involves three distinct categories, and in each doctrine fails when applied to genocide. The first failure is evident in a JCE category I case where all participants had the same intent. From the outset, this scenario is suspect since it may very well be impossible to ever find a situation where all of the members of an alleged JCE shared exactly the same intent, let alone prove it in trial. However, I will continue in a hypothetical to illustrate that even in the most genocide-friendly scenario, JCE is problematic. If it were determined that such a JCE perpetrated genocide, all the members, who share the same intent, would rightfully hold a genocidal intent, and any member of this type of JCE would pass the mens rea requirement of genocide. However, JCE is premised on the fact that not all members of the collective need to act in furtherance of the plan in the same way. It may very well be that even though there was a JCE, only a portion of the members actually committed any genocidal acts. The remaining portion would merely have held the intent to do so and lacked the required actus reus. Some of this partition may have aided and abetted, planned, or conspired to commit genocide, but as far as strict individual liability is concerned, they did not actually commit genocide. As such, they could not be rightly brought up under individual commission of genocide due to their specific participation in a JCE alone.
on charges without meeting any of the requirements of the crime. Persons who did not commit genocide, nor ever intended to, could suddenly find themselves charged with the crime simply because they were in a low-level criminal organization and happened to have ties to a maverick genocidal perpetrator. This would be guilt by association – the scourge of any legal system – realized in the application of possibly the most serious crime punishable by any law. JCE is fundamentally premised on culpability arising not from committing a crime, but on a relationship with someone who did commit a crime unrelated to anyone else’s intent or crimes. JCE’s are nebulous criminal associations that can take the form of a civilian group, a military group (JCE II), or even a governmental organization (as is the case with the highest Serbian leaders now on trial at the ICTY). Applying the JCE doctrine to genocide no only allows for the removal of an actus reus , but also the requisite mens rea , and in doing so completely undermines all that the crime stands for and was designed by Raphael Lemkin to combat. JCE can allow for individuals to be guilty of the “crime of crimes” simply by being in the wrong place at the wrong time and having an awareness of one wrong person. If taken logically through to the extremes of its reach, JCE category III can have an alarmingly broad scope. If, for example, one genocidal perpetrator existed in a military construct, and that military was corrupt enough to be considered a criminal enterprise because it perhaps killed a few civilians and stole some property in an occupied town, there is nothing to stop the entire military regime of now being culpable through JCE of the one lone genocidal perpetrator’s actions. This can also happen if a genocidal perpetrator existed in a government – suddenly one lone actor’s genocide holds an entire government prosecutable for the crime regardless of each government member’s actions or intentions. This is all the more troubling considering it is not very far fetched - prosecutors have considered the Serbian government a JCE in a myriad of cases.^106 What happens when an American soldier goes AWOL in Iraq and commits murder in an attempt to eradicate all Muslim fundamentalists? This soldier could be liable for genocide, but the doctrine of JCE would hold that the members of the soldier’s unit, his commanders, all the US military leadership, and the President of the United States would be liable for genocide as well. The surprising facet of the genocide and JCE conflict is that in none of the interviews I conducted with ICTY judges, prosecutors, legal aides and clerks, and defense attorneys had any insight as to how JCE and genocide could be reconciled. Top ranking members of the office of the prosecutor even expressed open frustration and confusion with the doctrine. One prominent ICTY prosecutor even remarked that he was “not sure anyone around here [at the ICTY] completely understands it.”^107 Even the ICTY judiciary was conflicted about the proper use of JCE in trials. One judge
(^106) See the indictments against Slobodan Milosevic, Momcilo Krajisnic, or Radovan Karadzic at www.icty.org for examples of the characterization of a governmental group as a JCE (^107) Interview with a top member of the office of the prosecutor, who spoke so candidly on the condition that he would remain anonymous. The interview took place in early June of 2005 at the ICTY in The Hague, Netherlands.
stated about JCE in interview that “if there was any area that the Tribunal has confused the law, that may be it.”^108 Another related that some judges “have great difficulties with JCE… so some judges try to avoid using [it]” and elaborated, “Some have very serious reservations with the third instance of JCE.”^109 Perhaps the most forthright about JCE of any tribunal actor that I encountered was the defense team of the Limaj case. Calling JCE “essentially an invention of the tribunals in international law that is dangerously close to ‘liability for membership,’” one member of the team explained that the problem was not in the legal “theory, but in practice.”^110 The defense team bemoaned the fact that they essentially “[saw] mens rea diluting”^111 from intent to negligence or recklessness to knowledge to no knowledge or participation whatsoever. One member declared, “Now every piece in the machine is a genocidaire.”^112 The defense team was increasingly critical because they viewed genocide as being “devalued” and “just a name” but related that “genocide still means something to the press, but here it has been made into just another crime.”^113 The crime of genocide, in the eyes of those who deal with it daily, has become something that still garners international attention, but has fallen victim to questionable tactics and a generous helping of what defense attorney Richard Harvey called “making it up as you go along.”^114 V - Conclusion Genocide is a crime that is premised on an individual’s desire to destroy an entire group. It was coined in the aftermath of WWII to describe the actions of the Nazis by a victim of the crime who knew all too well the effects of being singled for destruction based on his ethnic identity. It hinges on two vital components, the actus reus and the mens rea – both of whom must be satisfied for a criminal to be guilty of the crime of genocide. As recent international tribunal jurisprudence is showing, however, the crime genocide is running the risk of being devalued due to misapplication, misuse, and abuse of the Command Responsibility and Joint Criminal Enterprise culpability association doctrines. Both of these doctrines make it very easy for a prosecution to circumvent the actus reus requirement and undermine the notion that an individual is not guilty by thoughts alone. Particularly troubling though is the application of JCE to genocide cases. JCE does have its uses in criminal trials, and as ICTY judge Ian Bonomy related, it is applicable
(^108) Interview with an ICTY judge, who spoke so candidly on the condition that he would remain anonymous. The interview took place in early June of 2005 at the ICTY in The Hague, Netherlands. (^109) Interview with a different ICTY judge than the note supra, who also spoke so candidly on the condition that he would remain anonymous. The interview took place in late May of 2005 at the ICTY in The Hague, Netherlands. (^110) The quotes from the Limaj team came from an interview I had with them in early June of 2005 at the ICTY in the Hague, Netherlands. The team included Michael Mansfield, Gregor Guy-Smith, Richard Harvey, Michael Topolski, and Steven Powles. The interview also includedGuénaël Mettraux, who was serving as counsel for Sefer Halilovic. (^111112) Id. 113 Id.Id. (^114) Id.