The problem of risk in international criminal law.

• Published date: 22 December 2014
• Author: Summers, Mark A.
• Date: 22 December 2014

I. INTRODUCTION

Calibrating individual responsibility for group criminality is one of the most difficult challenges international criminal law faces. Beginning at Nuremberg and continuing with the ad hoc tribunals, courts have struggled with this issue. (1) International crimes are, by definition, large-scale operations involving hundreds, even thousands, of participants. (2) Because the mission of international criminal law is to punish "the most serious crimes of concern to the international community," (3) its targets are defendants who occupy civilian or military leadership positions while the crimes they are prosecuted for are committed by individuals loosely connected to the leaders on battlefields miles away. (4) The leaders, who set in motion a campaign of ethnic cleansing or genocide, are obviously more culpable than those who implement the plan. But should the leaders be held responsible for all the crimes committed by their subordinates, even if those crimes were not part of the original plan?

One solution could be enterprise liability; that is, defendants are liable because of their membership in the group and not for crimes committed by others in the group that are attributed to them. This solution was attempted at Nuremberg based on a United States proposal that the International Military Tribunal (IMT) would "try the criminality of the organizations themselves" and individual defendants would then be convicted based on their membership in those organizations. (5) The IMT partially rejected this solution by placing the burden on the prosecution to prove that a defendant voluntarily and knowingly participated in the group's criminal activities. (6) Since Nuremberg, no international criminal court has accepted group membership alone as a basis for individual criminal liability. (7)

While enterprise liability was not accepted in international criminal law, conspiracy, as a way of attributing liability for crimes committed by members of a criminal group, was.* Article 6 of the Nuremberg Charter (9) provided that defendants who participated in the common plan or conspiracy were responsible "for all acts performed by any persons in execution of such plan." This was the seed from which the International Criminal Tribunal for Yugoslavia's (ICTY) doctrine of joint criminal enterprise grew. (10)

In 1993, the U.N. Security Council created the ICTY to prosecute crimes that occurred during the war in Yugoslavia. (11) A year later, the Security Council established another ad hoc tribunal, the International Criminal Tribunal for Rwanda (ICTR), to prosecute the crimes that occurred during the genocide in Rwanda. (12) Although these tribunals had jurisdiction over crimes, which by their very nature are usually collective, (13) their governing statutes seemingly ignored this fact in the provisions dealing with individual criminal responsibility. Those provisions stipulated that "a person who planned, instigated, ordered, [or] committed" a crime was individually responsible without mentioning attribution of criminal liability for crimes committed by others who were members of a group to which the defendant belonged. (14) They contained no analog to Article 6 of the Nuremberg Charter or any other type of associational liability, except aiding and abetting another person in the planning, preparation, or execution of a crime. (15) But because aiders and abettors need only know that they are providing assistance to the principal perpetrator of the crime, they are viewed as having a "lower level of criminal culpability," (16) which would inadequately reflect the guilt of those in leadership positions. (17)

Not surprisingly, then, the ICTY faced the issue of how to attribute liability for crimes among the members of a group in its first case. (18) The Tadic court solved the problem by finding that a defendant, who was part of a joint criminal enterprise (JCE), was liable for crimes committed by other members of the group. (19) The Tadic Appeals Chamber discovered three forms of JCE liability--JCE I (basic/shared intent); JCE II (systemic/prison camp); and JCE III (extended/other foreseeable crimes) (20)--which it said were grounded in customary international law. (21)

Because it makes members of a JCE III liable for crimes that are outside the criminal purpose of the enterprise so long as those crimes are "foreseeable," (22) the Tadic Court's conclusion that the extended form of liability (JCE III) is customary law has been vigorously challenged by scholars. (23) Also, it has been argued that there is no basis for JCE III liability in the statutes of the international criminal tribunals. (24) Despite these criticisms and many others, (25) JCE I and II, as well as JCE III, have been "adopted without modification by most subsequent cases." (26)

The Rome Statute of the International Criminal Court (ICC), (27) unlike the ICTY and ICTR statutes, has two provisions dealing with group criminality. Article 25(3)(a) provides that a person who "[cjommits ... a crime [within the jurisdiction of the Court] whether as an individual, [or] jointly with another or through another person ... is criminally responsible." (28), Article 25(d) makes a person criminally liable who "[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose." (29) Joint liability in Article 25(3)(a) reflects the concept of co-perpetration, (30) while Article 25(d) resembles a form of aiding and abetting collective criminality. (31)

Like JCE I, Article 25(a) makes a co-perpetrator liable for crimes that are expressly part of a plan formulated by a group of which he was a member even though he did not perform every act necessary to complete the crimes. (32) Since the Rome Statute was elaborated, however, it has been the subject of intense scholarly debate whether Article 25(a)(3) attributes liability for so-called "deviant" crimes, i.e., those that are not part of the plan but are nonetheless foreseeable consequences of it. (33)

The search for an answer to the question whether the Rome Statute includes a form of such liability depends upon another of its provisions, Article 30, which states that "[u]nless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge." (34) In the first case decided by an ICC Trial Chamber, Prosecutor v. Lubanga, (35) the court explicitly rejected the earlier holding of a Pre-Trial Chamber (36) when it decided that liability based on some form of recklessness or dolus eventualis (JCE III) (37) was "deliberately excluded" from Article 30. (38)

Despite the Lubanga Trial Chamber's rejection of recklessness and its civil law cousin, dolus eventualis, as mental states which could support a conviction for a violation of international criminal law, some theory of liability for conduct where the mental state of the perpetrator is less than intentional or knowing is essential if the ICC is to carry out its mandate to "put an end to impunity for the perpetrators of these crimes." (39) Moreover, since risk-taking is an essential feature of recklessness, (40) the Lubanga Trial Chamber opened the door to such an approach when it held that the implementation of the co-perpetrators' common plan must "[embody] a sufficient risk that, if events follow the ordinary course, a crime will be committed." (41)

There is, however, a lack of clarity in international criminal law regarding the standard that should be applied in attributing liability for risky conduct. (42) An approach that is too lax can result in overly expansive liability that exceeds culpability. (43) An approach that is too restrictive can produce impunity for conduct that is worthy of punishment. (44) This Article will explore the causes of this lack of clarity beginning with the Tadic case and the post-Tadic decisions of the ICTY. Then it will analyze the nascent case law of the ICC to see how the Court has dealt with this problem so far. Finally, this Article will suggest a solution, based on the Model Penal Code approach to recklessness, which strikes the proper balance between over attribution and under punishment.

II. TADIC AND CRIMINAL LIABILITY BASED ON RECKLESSNESS

In Tadic, the Appeals Chamber of the ICTY faced a dilemma. Tadic had been acquitted by the Trial Chamber of the most serious crimes with which he was charged, the murders of five individuals from the village of Jaskici. (45) His participation in those crimes did not amount to direct perpetration, (46) nor was he liable under the theory of superior responsibility. (47) Without another theory of individual responsibility, (48) the Trial Chamber's decision would have to stand. Consequently, the Appeals Chamber searched for and found what it deemed to be a theory of customary international law (49) that justified Tadic's conviction. The theory was "common purpose" liability, (50) which the Tadic court said "encompasses three distinct categories of collective criminality," (51) which have come to be known as Joint Criminal Enterprise (JCE) I, II and III. (52)

While this Article focuses principally on JCE III, a brief description of all three forms is appropriate.

A. JCE I

The most basic, and least controversial, form of JCE liability is the common enterprise/shared common intention category (JCE I). (53) The Tadic Appeals Chamber described JCE I as,

 ... all co-defendants, acting pursuant to a common design possess
                 the same criminal intention; for instance, the formulation of a
                 plan among the co-perpetrators to kill, where, in effecting this
                 common design (and even if each co-perpetrator carries out a
                 different role with it), they nevertheless all possess the intent
                 to kill.... (54)
                

Unfortunately, this form of JCE could not...