Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

The Paradigm of the War on Crime: Legitimating Inhuman Treatment?

Since 11 September 2001, a new paradigm has developed in criminallaw. Parallel to the idea of the ‘war on terror’,a paradigm based around ‘war on crime’ has emerged.Inevitably, however, a paradigm of war leads to abandoning scientificapproaches based on a legal-moral vision (crime, guilt and punishment)in favour of a merely pragmatic vision, which associates nationalsecurity with social defence. Based on an unclear concept ofdangerousness, presumed by simple membership in a group labelled‘enemy’, the goal is to neutralize, or even eliminate,the criminal/deviant. When combined with a denial of internationalprotections, deconstructing national criminal law thus runsthe risk of pushing a black hole through the rule of law. Manyhave criticized such a paradigm; however, the author pointsout that the paradigm of the war on crime (and more generallythe war on terror), provided that it respects internationallaw, can be useful, because it shows the need to overcome thebinary opposition between war and peace, as well as betweenwar crimes and ordinary crimes. Nonetheless, it must be clearthat this paradigm can only be one of transition. To overcomethe war–peace dichotomy in a global community and to reconstructthe relationship between terrorism and torture, neither a ‘warcrimes’ nor a ‘war on crime’ paradigm is trulysufficient. Only through the amplification of a paradigm of‘crime against humanity’ (itself unstable and evolvingbut free from the war metaphor) can we reconstruct humanityas a value and make it the cornerstone of any legal system.     

The Requirement of an 'Express Agreement' for Joint Criminal Enterprise Liability: A Critique of Brdanin

The mode of liability known as joint criminal enterprise (JCE)has emerged in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) as a means of assigning criminalliability to individuals for activities carried out by a collective.As a result, the doctrine must be carefully defined so as notto allow it to extend a defendant's liability beyond the appropriatelimits of individual criminal responsibility. In this regard,a recent ICTY Trial Chamber decision in Branin held that, wherea defendant is not alleged to have participated in the physicalperpetration of the crimes charged but to have contributed insome other way to the commission of the crimes by a group, theprosecution must demonstrate that the defendant entered intoan express agreement with the physical perpetrators to committhe crimes charged. The author argues that this ‘expressagreement requirement’ is both conceptually unsound andpractically unhelpful. Conceptually, it would be inconsistentwith core principles of JCE liability to require an expressagreement between a defendant and the physical perpetratorsof crimes, at least in circumstances in which it is allegedthat there existed a structure of two or more overlapping JCEs.Moreover, because this structure allows the accused and thephysical perpetrators to be operating in two separate JCEs,they need not even share a common criminal purpose. On a practicallevel, arguably in a ‘system-criminality’ contextsuch as the one that developed in the former Yugoslavia duringthe time period in question, the organizers of criminal activityare unlikely to enter into express criminal agreements withthose who physically carry out crimes, because existing organizedhierarchies provide much more efficient mechanisms by whichleaders are able to ensure the realization of their criminalplans.     

Assisting an Accused to Represent Himself: Appointment of Amici Curiae as the Most Appropriate Option

Given the proportion and complexity of international criminalproceedings, allowing an accused to represent himself beforean international criminal court might render his defence ineffective,even if the accused is a lawyer himself. If international criminalcourts are not willing to have the accused bear the consequencesof his choice of self-representation, the measure of appointingexperienced Defence Counsel as amici curiae to make legal contributionsto add to the Judges’ informed decisions seems to entailfewer undesirable ethical consequences for counsel than beingadded as ‘standby counsel’ or ‘court assignedcounsel’. Through occupying a neutral position and notbeing required to represent the accused, the amici's input maybalance the flow of defence and prosecution arguments and thuscontribute to the fairness of international criminal trials.The measure of appointing standby counsel or court assignedcounsel to an accused who wishes to represent himself appearsless appropriate, especially from a legal professional perspective.     

An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon

This article examines one of the most serious flaws of the Statuteof the Special Tribunal for Lebanon (‘STL’): whileit provides that Lebanese domestic law is the sole source ofcrimes over which the STL will have jurisdiction, it at thesame time applies to these domestic crimes uniquely internationalforms of criminal responsibility, namely joint criminal enterpriseand command responsibility. By doing so, the Statute is in violationof the nullum crime sine lege principle, since it would allowfor the conviction of persons who could not be held responsibleunder Lebanese law. The purpose of this article is to highlightsome ways out of this problem.     

Is Terrorism a Crime or an Aggravating Factor in Sentencing?

Common law systems, in criminal cases, distinguish between theguilt/innocence proceedings and the sentencing stage. This isnot the case in civil law systems where criminal trial consistsof a single phase, combining the inquiry into guilt with sentencing.Under common law practice many facts relevant for sentencingare considered irrelevant at the stage of finding guilt forthe commission of the crime. Aggravating elements, therefore,address a fundamental distinction of substantive criminal lawbetween guilt and dangerousness: guilt is a determination ofresponsibility for a prior wrongdoing; dangerousness is a speculativefuture determination. The intensification of terrorist activityin the past few years has made terrorism one of today's mostpressing problems. But is terrorism a crime or an aggravatingfactor in sentencing? In this article, the author challengesconventional wisdom regarding the meaning of ‘terroristcrimes’, by providing a conceptual understanding of ‘terrorism’,as well as articulating a theory of guilt. Terrorists seldomexpress ‘guilt’. The word ‘terrorism’describes, instead, an overriding motivation, a way of acting,rather than the objective circumstances of acting. Terrorismis nothing but common crimes although committed with an overridingmotivation of imposing extreme fear on the nation as such. Theauthor presents the conceptual grounds of the phenomenon ofterrorism as it has evolved through history, before enquiringinto the meaning of ‘terrorist crimes’: the overridingmotivation associated with the concept of terrorism constitutesthe degree of cognate dangerousness of terrorist crimes.     

Investigating and Prosecuting Large-scale Corruption: The Italian Experience

The author, who has been one of the leading prosecutors investigatingorganized crime (and in particular corruption crimes) in northernItaly, discusses the Italian experience concerning the use ofsuspects cooperating with prosecutors, the relevance for thefight against organized crimes of such criminal notions as ‘criminalassociation’, as well as the various investigating strategiesmore suited to combating organized crime. He concludes thatin Italy the cooperation of suspects based on the offer of lightpenalties or other quid pro quo measures has never been theonly means of collecting evidence, as prosecution must alsoavail itself of other evidence.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

Remarks on the General Part of International Criminal Law

After decades of little reflection on the General Part of InternationalCriminal Law (‘ICL’), the practice of the Ad HocTribunals and Part III of the ICC Statute both offer a uniqueopportunity and create a necessity to give more thought to therules of attribution for international crimes. Indeed, the aimof further research must be to develop a more refined systemof attribution. This is especially important in ICL, since itis primarily concerned with high level perpetrators who rarelycommit the crimes themselves but use mid- or low-level perpetratorsto execute their criminal plans. While ICL ‘in action’is recognized today as primarily criminal law, the rules ofattribution are still underdeveloped. Some rules developed bythe case law even violate, when applied in their extreme form,fundamental principles of criminal law. Identifying and applyingthese principles, specifically the principles of legality andculpability, will be the first step in constructing a more legitimatesystem of attribution.     

Who is Afraid of Punishing Aggressors?: On the Double-Track Approach to International Criminal Justice

Since 1947, no alleged crime of aggression has ever been prosecuted,in spite of the many instances in which states have committedacts of aggression with the Security Council sometimes deemingan act to be such. A dual system of international criminal justicehas taken shape slowly. Crimes consisting of serious violationsof jus in bello, that is, war crimes, usually considered lessegregious than the crime of aggression, have been severely prosecutedand punished, in particular by the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, the ‘supreme internationalcrime’ — aggressive war — mostly committedby political and military authorities of major powers, has beenignored and its perpetrators still occupy the summit of internationalpower undisturbed.     

Finding a Proper Role for Command Responsibility

This article examines the role that command responsibility currentlyplays in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) and the International CriminalTribunal for Rwanda (ICTR). The ad hoc tribunals rely in principleon a broad concept of command responsibility – which canbe applied to all superiors, including political and civilianones. However, in practice, accused persons have only rarelybeen successfully charged under this form of liability. Indeed,recent case law has gradually adopted a rigorous approach withrespect to the legal requirements of command responsibility.This has made it more difficult to establish criminal liabilityof superiors who have not directly participated in the commissionof international offences. The ad hoc tribunals have expressedan explicit preference for forms of ‘direct’ liabilitywhere the accused can be convicted both under ‘direct’and command responsibility. While the ICTY and ICTR have progressivelyinterpreted other international legal concepts to deal effectivelywith collective crimes committed by leaders of organized groups,they seem to have confined command responsibility to internationalcrimes perpetrated in typical military-like contexts.     

The Crime of Aggression before the House of Lords: Chronicle of a Death Foretold

In the days preceding the invasion of Iraq by the Coalitionforces, groups of individuals committed acts of civil disobediencein British military bases to hinder what they thought were unlawfulpreparations for an aggressive war. In R v. Jones et al., theHouse of Lords examined the question of whether individualscan rely upon the alleged prevention of crimes against peaceto justify otherwise unlawful actions under English law. TheLords ruled that the crime of aggression is a crime under customaryinternational law, yet not under English law. This followedfrom the principle that customary crimes cannot be incorporatedinto the English legal system without statutory enactment. Asa result, the appellants could not invoke the ‘Nurembergdefence’ to elude responsibility incurred under domesticlegislation.     

The Problem with Entrapment

In R v Looseley; Attorney General’s Reference (No. 3 of2000) the House of Lords articulated a legal framework to govern‘entrapment’ in criminal cases. Their Lordshipsregarded the need for judicial intervention to assist entrappeddefendants as uncontroversial. This article argues that thedoctrine they set out, in fact, necessitates substantial, andlargely unarticulated, departures from principles the courtsordinarily stress as fundamental to the criminal law. In particular,entrapment doctrine determines liability for criminal acts byreference to the kind of environment inhabited by their perpetrators,a perspective the law ordinarily attempts to exclude. This articlesuggests that the anomalous treatment of entrapment can be understoodas a device to prevent the police from relocating the temptationto commit crime to environments in which they are not ordinarilyconfronted and to ensure that those from backgrounds in whichserious criminality is not usually a plausible option will escapepunishment if tempted to commit crime by the police.     

Joint Criminal Enterprise and Command Responsibility

The joint criminal enterprise doctrine appears more and moreas the ‘magic weapon’ in the prosecution of internationalcrimes. Yet, the doctrine not only gives rise to conceptualconfusion and conflicts with some fundamental principles of(international) criminal law but also invades the traditionalambit of command responsibility liability. This becomes obviousif both doctrines are applied simultaneously in cases againstaccused with some kind of superior position. After a short introductionon both doctrines, as interpreted in modern case law, the articlegives some examples of their simultaneous application and triesto develop distinguishing criteria in light of the case lawand a ‘dogmatic’ analysis of both the doctrines.A reference to the theory of ‘Organisationsherrschaft’shows that there is yet another option to impute internationalcrimes to top perpetrators.     

Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?

The nature of command responsibility is still open to debatein international criminal law: is a superior to be held criminallyresponsible for the crimes committed by his subordinates ‘asan accomplice’, for having participated in the commissionof the crime by omission, or as a perpetrator of a separateoffence of dereliction of duty? This article surveys the post-WW2case law and the first international instruments on this point,and then analyses the jurisprudence of the International CriminalTribunal for the former Yugoslavia (ICTY). The judges appearto have recently adopted a new approach to Article 7(3) ICTYSt.in that the superior is held responsible ‘for failureto prevent or punish with regard to the crimes of the subordinate’and no longer ‘for the crimes of his subordinates’.It is a responsibility ‘sui generis’ indeed, wherethe crime of the subordinate plays a central role in the attributionof responsibility to the superior. It is, therefore, necessaryto carefully consider the relationship between the superior'sfailure to act and the subordinate's crime, both with regardto objective and subjective elements. The same question finallyarises in relation to Article 28 of the Rome Statute, the literalinterpretation of which implies that a superior shall be punishedfor the same crime committed by his subordinates. In order toavoid the risk of holding a person guilty of an offence committedby others in violation of the principle of personal and culpablecriminal responsibility, it is crucial to consider separatelythe different cases of command responsibility, which are basedon distinct objective and subjective requirements.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

A Critical Appraisal of 'Triple Divorce' in Islamic Law

The issue of the ‘triple divorce’ is regarded ashighly sensitive among the Muslims, not only in India but elsewhere.The Holy Qur’an is very cautious in matters of divorce.Three talaqs have to be spaced over a period of 3 months togive husband and wife time for reconciliation through the interventionof relatives and friends. Moreover, talaq can be pronouncedonly when the wife is in a state of tuhur, ie purity after menstruation.Yet, despite clear Qur’anic injunctions to the contrary,immediate triple divorce is permitted, destroying marital lifein one breath. The practice of immediate triple divorce is widespreadamong Sunni Muslims and has legal validity. Even then the juristscall it a talaq-e-Bidat (innovative form of divorce). The disputehas been highlighted by reports of some Muslims instantly divorcingtheir wives by mail, over the telephone, and even through mobilephone text messages. This article explains the different theoriesof divorce prevailing in the contemporary Muslim world and whatchecks and restraints have been imposed by Islam over the exerciseof husband's power of talaq. The article critically appraisesthe ‘innovative triple divorce’ by examining whetherit is sanctioned by the Holy Quran or the sunnah and if thereis a consensus of opinion (ijma) on the effectiveness of tripledivorce.