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.     

Liberal Values in International Criminal Law: A Critique of Erdemovic

Using the Erdemovi decision as its starting point, the articleexamines the philosophical foundations of international criminallaw. It asserts that international criminal law, properly understood,represents a liberal legal system, emphasizing the rights ofthe accused over the interests of the prosecution or the goalsof international peace and security. Using the work of RonaldDworkin, it argues that international jurists should apply principlesthat invoke a respect for human rights and individual autonomyover ‘policy’. Thus, it argues that the reasoningof the Appeals Chamber of the International Criminal Tribunalfor the former Yugoslavia was flawed when it determined thatduress did not constitute a complete defence in Erdemovi.     

Duress, International Criminal Law and Literature

This paper uses parallels between Sophocles’ Theban Playsand the House of Lords decision in Dudley and Stephens, to questionthe decision in the Erdemovi case before the International CriminalTribunal for the former Yugoslavia. One should distinguish betweencausal, moral and criminal responsibility. If a man who commitsa crime, not by the action of his free will, is to be foundguilty, we are essentially equating causal responsibility withcriminal guilt. This logic clearly does not correspond withthat of the rest of international criminal law. The storiesof Erdemovi, Oedipus, Dudley and Stephens are tragedies. Eachof the victims/perpetrators felt an overwhelming sense of remorse.Whether they should be considered morally guilty of murder isa matter of individual conscience. The International CriminalTribunal for the Former Yugoslavia majority erred in using anabsolute moral position in Erdemovi. The majority's moral condemnationof the killing of innocents was confused with the question ofwhether Erdemovi should have been criminally punished. The contentof the majority opinion is largely of an irreproachably moralisticnature, though shrouded and mystified by the discussion of precedent.More generally, the decision to try Erdemovi at the InternationalCriminal Tribunal for the Former Yugoslavia was itself self-defeating.Erdemovi should never have stood trial at The Hague. The internationalcommunity should not aid in self-flagellation. While his actionscannot be approved of, they should not be punished internationally.He could have been helped, supported and reintegrated with fargreater benefit to all.         ‘Heroesare hard to find in an atmosphere of total terror.’¹     

Compromising the Authority of International Criminal Justice: How Vojislav Seselj Runs His Trial

eelj's conduct continues to cause major problems to the InternationalCriminal Tribunal for the former Yugoslavia. The approach ofboth the Trial Chamber and the Appeals Chamber to the accused'shunger strike is a matter of serious concern. Especially theAppeals Chamber's decision leaves one with the impression thateelj is running his own trial. This note offers a critical analysisof the Trial Chamber's and Appeals Chamber's responses to theaccused's hunger strike and their damaging implications.     

Legal Professionalism and International Criminal Proceedings

In criminal practice before international tribunals, the boundariesbetween lack of professionalism (serious misconduct) by prosecutionand taking an erroneous position on the law (procedural error)are particularly blurred, if only because the backgrounds andexpectations of all persons involved in the proceedings areprofoundly different and the playing field is still insufficientlydefined. This is illustrated by the Furundija case brought beforean International Criminal Tribunal for the former Yugoslavia(ICTY) Trial Chamber in 1998. In that case the Chamber heldthat the prosecution, by failing to disclose a document to thedefence, had both engaged in serious misconduct and made a seriousprocedural error. Instead, the Lord Advocate and the Crown Agentof Scotland, later consulted by the ICTY Prosecutor, concludedthat there had only been an error of judgment. National caselaw, for instance that of Canadian courts, makes it clear thata good faith decision not to disclose a document, made in theexercise of professional judgment on a difficult and novel issue,may constitute an error of judgment, but certainly does notamount to misconduct.     

Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise

This article dissects the Tadi court's argument for findingthe doctrine of joint criminal enterprise in the ICTY Statute.The key arguments are identified and each are found to be eitherproblematic or insufficient to deduce the doctrine from thestatute: the object and purpose of the statute to punish majorwar criminals, the inherently collective nature of war crimesand genocide and the conviction of war criminals for joint enterprisesin World War II cases. The author criticizes this over-relianceon international case law and the insufficient attention tothe language of criminal statutes when interpreting conspiracydoctrines. The result of these mistakes is a doctrine of jointcriminal enterprise that fails to offer a sufficiently nuancedtreatment of intentionality, foreseeability and culpability.Specifically, the doctrine in its current form suffers fromthree conceptual deficiencies: (1) the mistaken attributionof criminal liability for contributors who do not intend tofurther the criminal purpose of the enterprise, (2) the impositionof criminal liability for the foreseeable acts of one's co-conspiratorsand (3) the mistaken claim that all members of a joint enterpriseare equally culpable for the actions of its members. The authorconcludes by briefly suggesting amendments to the Rome Statuteto rectify these deficiencies.     

Some Considerations on Faces of Justice by a 'Non-Specialist'

The author examines the well-known book by Mirjan Damaka aswell as other more recent books and writings of the distinguishedauthor against the specific background of the Italian experiencein reforming its system of criminal procedure with a view tocommenting upon sensitive issues in current international criminalproceedings. Three key factors in assessing the ‘real’nature of a procedural system are examined: (i) the role ofjudges in the proceedings; (ii) the rules on evidence and (iii)the duty to render reasoned decisions. Subsequently, the authortackles the issue of self-representation in international criminaljustice, in light of Damaka's categories (conflict-solving v.policy-implementing) and of the difficulties in transposingthem to the international level. Finally, the author warns thatthe analysis of international criminal justice should not beconfined in over-rigid models. The overriding concern must beto harmonize the ‘fair trial’ model with sensitivityto certain objectives of justice that cannot be possible objectsof compromise (as they may be where judicial authority operatespurely as arbiter of a dispute).     

On the Crimes Subject to Prosecution in Military Commissions

The Military Commissions Act 2006 seems to have a much broaderapplication than the 2003 Military Commission Instruction Number2, or MCI2. None of the 28 specific crimes listed in 950v(b)of the 2006 Act mentions a nexus with armed conflict. This Actraises a number of questions. In particular three issues arerelevant: (i) Congress intended to act under its constitutionalpower ‘to define offenses against the law of nations.’In so far as some of these offences are not violations of thelaw of nations, they fall outside the field of legislative competence;(ii) the Military Commissions are given excessive discretionin the field of sentencing. There are no terms of imprisonmentprovided. In many cases the death penalty is allowed. Otherwisethe Commissions may impose any sentence they wish. This degreeof discretion arguably violates the Eighth Amendment against‘cruel and unusual punishment’; (iii) there mightbe a violation of the principle of equal protection: is it constitutionalto impose a special regime on suspects simply because they are‘aliens’?     

The Problem of Self-Representation at International Criminal Tribunals: Striking a Balance between Fairness and Effectiveness

The principle that the right to self-representation is not absolute,as established by international criminal tribunals, raises difficultquestions of application that are still being worked out inthe jurisprudence. There has been a recent shift in focus, fromestablishing the modalities for the exercise of the right inthe early stages of the Miloevi trial to establishing the circumstancesin which the right may be qualified. This article examines recentdevelopments and considers where the threshold for revokingor qualifying the right to self-representation lies, how thevarious modes of court imposed representation may be synthesizedand what the standard is for counsel who is representing anuncooperative accused.     

The Reality of Conducting a War Crimes Trial

Since proceedings at the international criminal tribunals areessentially adversarial in nature they inevitably are party-led,rather than judge-led. The inherent challenges of conductinga large-scale war crimes trial are further exacerbated whenthe accused chooses to represent himself. However, the authorbelieves the bench has the opportunity, by robust applicationof a number of rules already available, to exert considerableinfluence over the course of events at all stages of proceedings,thereby ensuring fair and expeditious war crimes trials. Thereal benefits of the judicial process are to be found in thesuccessful prosecution of the guilty and exoneration of theinnocent: in view of the massive size of cases before the tribunals,that is only achievable by judicial control and focus on thereal issues in dispute, even if this implies that the tribunalscan no longer satisfy some of the original expectations withwhich they were set up. The author identifies a number of practicalissues, to which judges at tribunals should always be alert,and illustrates some by reference to events during the trialof Slobodan Miloevi, as well as current proceedings before theICTY.     

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.     

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.     

IP: It's also about trust and French chefs

There is a principle in the law known as ‘admission againstinterest’. Here is my own admission. While we are delightedto bring together this collection of quality articles aboutthe multifaceted world of IP licensing and technology transfer,something is missing: we need to broaden our coverage aboutthe diverse ways that IP rights are licensed and transferred. To judge from the professional literature, licensing and technologytransfer primarily address the exploitation of patents, copyright,and trade marks. Each of these rights is based upon disclosureand     

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.     

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.     

Fatal Errors: The Trial and Appeal Judgments in the Dujail Case

This commentary reviews the written judgments of both the FirstTrial Chamber and the Appeals Chamber of the Iraqi High Tribunal(IHT) in the Dujail case. The article considers the key substantiveand procedural findings by the Trial Chamber and Appeals Chamberand evaluates the decisions’ consistency with internationalcriminal law. It concludes that the decisions made serious errorsin their application of international criminal law principlesgoverning the knowledge and intent of the defendants, and alsoin respect of findings of fact concerning the knowledge andintent of the defendants. These errors appear closely connectedto the failure of the investigative judge and prosecution topresent evidence which was essential to establish knowledgeand intent in the manner required by international criminallaw. The article concludes that many aspects of the convictionswere unsustainable as a matter of fact and law. It ends by reflectingon some of the factors which contributed to the failure of theIHT to produce a credible verdict.     

Philip Grubb

Dr Philip Grubb, the distinguished patent specialist and authorfound time to answer questions put to him by JIPLP. How did you first become interested in IP? In 1971, I was working as a research scientist at the CorporateResearch Laboratory of ICI in Runcorn, looking for alternativesto a lifetime career in research. A job in the small patentdepartment there was advertised internally. I considered thisbut thought ‘patentssounds difficult, you have to study     

The US 'safe harbour' for research--some loose ends tightened

In a unanimous decision the US Supreme Court has held that theFederal Circuit Court construed the ‘safe harbour’exemption in 35 USC 271(e)(1) too narrowly in holding that Merck'sresearch activities did not qualify for protection.     

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.