Facts Matter: A Study into the Casuistry of Substantive International Criminal Law : A Study into the Casuistry of Substantive International Criminal Law 9789462742468, 9789462900349

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Facts Matter

FACTS MATTER: A STUDY INTO THE CASUISTRY OF SUBSTANTIVE INTERNATIONAL CRIMINAL LAW

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A R J O L E I N

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U P I D O

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ISBN 978-94-6290-034-9 ISBN 978-94-6274-246-8 (E-book) © 2015 Marjolein Cupido | Eleven International Publishing Cover image: Composition No. IV by Piet Mondriaan. Courtesy of Collectie Gemeentemuseum Den Haag. This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

What the law is cannot (…) be decided by a quick look at statutes, treaties or codes (although their importance is thereby not diminished), but can only be ascertained through the performance of rule-application to a controversy and the appraisal of the reasons offered in defense of a decision. (F.V. Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1991) 18)

TABLE

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CONTENTS

Abbreviations

xi

Table of Cases

xiii

I 1.1 1.2 1.2.1 1.2.2 1.3 1.3.1 1.3.2 1.4 1.4.1 1.4.2 1.5 1.6 1.6.1 1.6.2 1.7 1.7.1 1.7.2 1.8 II 2.1 2.2 2.3 2.3.1 2.3.2 2.3.3

Prologue: A Plea for a Casuistic Approach to International Criminal Law Introduction Legal Benchmark: Principle of Legality General Conception and Function Scholarly Appraisal Legal Theory on Judicial Reasoning From Legalism to Dialogue Legal Reasoning and the Open Texture of Rules How to Manage the Open Texture of Legal Rules? Casuistry: Basic Starting-Points and Methodology Analogical Reasoning from Factors: Basic Starting-Points and Methodology Lessons from Domestic Law: A Comparative Look at Judicial Reasoning Casuistry in International Criminal Law An Unfortunate Blind Spot Filling in the Blanks: Objectives of Current Study Limitations Deliberate Delineations Inherent Limitations Outline

22 25 27 27 28 30 30 31 32

The Policy underlying Crimes against Humanity: Practical Reflections on a Theoretical Debate Introduction A Fundamental Disagreement The ICTY and the Policy Factor General Considerations Factual Application of the Systematic Attack-Requirement Factual Application of the Policy Factor

35 37 38 41 41 44 46

vii

1 3 7 7 10 12 12 15 18 18

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CONTENTS

2.4 2.4.1 2.4.2 2.4.3 2.4.4 2.5 2.5.1 2.5.2 2.5.3 2.5.4 2.6

The ICC and the Policy Element General Considerations Reservations Factual Application of the Policy Element Evaluation Judicial Reasoning The Open Texture of Legal Rules The Character and Position of Factual Circumstances Precedents in Factor-Based Reasoning Implications for the Policy Requirement and Debate Conclusions

48 48 51 52 54 57 57 59 61 63 64

III

Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration Introduction The Debate on JCE and Joint Perpetration Subjective versus Objective Rationale Characterising the Common Plan JCE and the Common Plan-Element Towards an Objective Common Plan? The Common Plan-Element in Practice Nature of Crimes and Context Relations between Participants Attitude and Informed Contribution of JCE Members Summary Joint Perpetration and the Common Plan-Element Common Plan: A Contested Concept The Common Plan-Element in Practice Preparatory Measures Relations between Joint Perpetrators Attitude and Informed Contributions of Joint Perpetrators Summary Implications of the Case Law Analysis The Subjective-Objective Dichotomy in Practice The ‘Meeting of Minds’ in Practice Reconsidering the Nature of JCE and Joint Perpetration Autonomous Criminal Responsibility Normative Interpretation of Co-Perpetration

65 67 69 69 72 74 74 77 78 79 83 84 85 85 87 88 88 90 91 92 92 93 94 94 95

3.1 3.2 3.2.1 3.2.2 3.3 3.3.1 3.3.2 3.3.2.1 3.3.2.2 3.3.2.3 3.3.3 3.4 3.4.1 3.4.2 3.4.2.1 3.4.2.2 3.4.2.3 3.4.3 3.5 3.5.1 3.5.2 3.6 3.6.1 3.6.2

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CONTENTS

3.6.3 3.6.4 3.7

Participation in a Criminal Organisation Evaluation Conclusions

96 99 101

IV 4.1 4.2 4.3 4.3.1 4.3.2 4.3.3 4.3.3.1 4.3.3.2 4.3.3.3 4.3.4 4.4 4.4.1 4.4.2 4.4.2.1 4.4.2.2 4.4.3 4.5 4.5.1 4.5.2 4.5.3 4.6

The Contextual Embedding of Genocide: A Casuistic Analysis of the Interplay between Law and Facts Introduction Goal-Oriented versus Structure-Based Model The ad hoc Tribunals and the Contextual Embedding of Genocide General Interpretation Genocidal Intent Applied Interpreting Practice Distinguishing Genocide from Other Forms of Mass Violence Placing the Indicted Crimes in Context Linking the Accused to the Collective Act Interim Conclusion The ICC and the Contextual Embedding of Genocide General Interpretation Genocide Applied Genocidal Intent Contextual Element Interim Conclusion Genocide: A Casuistic Concept Sliding Scale of Contextual Embedding Casuistry and Factors Valuing the Casuistry of Genocide Conclusions

103 105 107 109 109 111 115 115 119 120 122 123 123 124 124 127 128 129 129 130 134 137

V 5.1 5.2 5.2.1 5.2.2 5.2.3 5.3 5.3.1 5.3.2 5.3.3

Epilogue: Developing a Casuistic Framework of Judicial Reasoning Introduction Judicial Reasoning in International Criminal Law Basic Starting-Points and Assumptions A Sketch of Judicial Reasoning in International Criminal Law Evaluating International Criminal Law Practice Domestic Lessons in Reasoning from Precedent A Comparative Look at Precedents Precedents: Rule versus Reason Reasoning from Precedent in AI&L

139 141 142 142 145 149 154 154 156 160

ix

TABLE 5.4 5.4.1 5.4.2 5.5 5.6

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CONTENTS Lessons Learnt: A New Approach to Judicial Reasoning in International Criminal Law The Reason-Model in International Criminal Law Is Implementing the Reason-Model Practically Feasible? Lessons Learnt: A New Approach to Studying International Criminal Law Conclusions

Bibliography

164 164 168 170 173 175

x

ABBREVIATIONS AI&L ARK Art(s). ECHR ed(s). FRY ICC ICJ ICTR ICTY ILC IMT JCE JNA MUP n(n). NGO p(p). para(s). PTC RSK RTLM SCSL TO UPC/FPLC VCLT VJ VRS

Artificial Intelligence and Law Autonomous Region of Krajina Article(s) European Court of Human Rights editor(s) Federal Republic of Yugoslavia International Criminal Court International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Commission International Military Tribunal Joint Criminal Enterprise Yugoslav People’s Army Special Police note(s) Non-Governmental Organization page(s) paragraph(s) Pre-Trial Chamber Republic of Serbian Krajina Radio Télévision Libre des Mille Collines Special Court for Sierra Leone Territorial Defense Union of Congolese Patriots/Patriotic Forces for the Liberation of Congo Vienna Convention on the Law of Treaties Yugoslav Army Army of the Republika Srpška

xi

TABLE

OF

CASES

INTERNATIONAL CRIMINAL TRIBUNAL

FOR THE FORMER

YUGOSLAVIA

Aleksovski Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/1-A, Appeals Chamber, 24 March 2000 (Aleksovski Appeals Chamber judgment) Blagojević and Jokić Prosecutor v. Blagojević and Jokić, Judgment, Case No. IT-02-60-T, Trial Chamber I, 27 January 2005 (Blagojević and Jokić Trial Chamber judgment) Prosecutor v. Blagojević and Jokić, Judgment, Case No. IT-02-60-A, Appeals Chamber, 9 May 2007 (Blagojević and Jokić Appeals Chamber judgment) Blaškić Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-T, Trial Chamber I, 3 March 2000 (Blaškić Trial Chamber judgment) Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-A, Appeals Chamber, 29 July 2004 (Blaškić Appeals Chamber judgment) Brđanin Prosecutor v. Brđanin, Judgment, Case No. IT-99-36-T, Trial Chamber II, 1 September 2004 (Brđanin Trial Chamber judgment) Prosecutor v. Brđanin, Decision on interlocutory appeal, Case No. IT-99-36-R77, Appeals Chamber, 19 March 2004 Prosecutor v. Brđanin, Judgment, Case No. IT-99-36-A, Appeals Judgment, 3 April 2007 (Brđanin Appeals Chamber judgment) Prosecutor v. Brđanin, Separate opinion of Judge Meron, Case No. IT-99-36-A, Appeals Chamber, 3 April 2007 (Separate opinion Judge Meron) Đorđević Prosecutor v. Đorđević, Judgment, Case No. IT-05-87/1-T, Trial Chamber II, 23 February 2011 (Đorđević Trial Chamber judgment) Furundžija Prosecutor v. Furundžija, Judgment, Case No. IT-96-17/1-A, Appeals Chamber, 21 July 2000 (Furundžija Appeals Chamber judgment)

xiii

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CASES

Gotovina et al. Prosecutor v. Gotovina et al., Judgment, Case No. IT-06-90-T, Trial Chamber I, 15 April 2011 (Gotovina et al. Trial Chamber judgment) Hadžihasanović Prosecutor v. Hadžihasanović, Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility, Case No. IT-01-47-AR72, Appeals Chamber, 16 July 2003 Haradinaj et al. Prosecutor v. Haradinaj et al., Judgment, Case No. IT-04-84-T, Trial Chamber I, 3 April 2008 (Haradinaj et al. Trial Chamber judgment) Jelisić Prosecutor v. Jelisić, Judgment, Case No. IT-95-10-T, Trial Chamber I, 14 December 1999 (Jelisić Trial Chamber judgment) Prosecutor v. Jelisić, Judgment, Case No. IT-95-10-A, Appeals Chamber, 5 July 2001 (Jelisić Appeals Chamber judgment) Karadžić Prosecutor v. Karadžić, Third amended indictment, Case No. IT-95-5/18-PT, 27 February 2009 Prosecutor v. Karadžić, Judgment, Case No. IT-95-5/18-T, Trial Chamber III, 28 June 2012 (Karadžić Trial Chamber Rule 98bis judgment) Prosecutor v. Karadžić, Judgment, Case No. IT-95-5/18-AR98bis.1, Appeals Chamber, 11 July 2013 (Karadžić Appeals Chamber Rule 98bis judgment) Kordić and Čerkez Prosecutor v. Kordić and Čerkez, Judgment, Case No. IT-95-14/2-T, Trial Chamber III, 26 February 2001 (Kordić and Čerkez Trial Chamber judgment) Prosecutor v. Kordić and Čerkez, Judgment, Case No. IT-95-14/2-A, Appeals Chamber, 17 December 2004 (Kordić and Čerkez Appeals Chamber judgment) Krajišnik Prosecutor v. Krajišnik, Judgment, Case No. IT-00-39-T, Trial Chamber I, 27 September 2006 (Krajišnik Trial Chamber judgment) Prosecutor v. Krajišnik, Judgment, Case No. IT-00-39-A, Appeals Chamber, 17 March 2009 (Krajišnik Appeals Chamber judgment)

xiv

TABLE

OF

CASES

Krnojelac Prosecutor v. Krnojelac, Judgment, Case No. IT-97-25-A, Appeals Chamber, 17 September 2003 (Krnojelac Appeals Chamber judgment) Krstić Prosecutor v. Krstić, Judgment, Case No. IT-98-33-T, Trial Chamber I, 2 August 2001 (Krstić Trial Chamber judgment) Prosecutor v. Krstić, Judgment, Case No. IT-98-33-A, Appeals Chamber, 19 April 2004 (Krstić Appeals Chamber judgment) Kunarac et al. Prosecutor v. Kunarac et al., Judgment, Case No. IT-96-23 and IT-96-23/1-A, Appeals Chamber, 12 June 2002 (Kunarac et al. Appeals Chamber judgment) Kupreškić et al. Prosecutor v. Kupreškić et al., Judgment, Case No. IT-95-16-T, Trial Chamber II, 14 January 2000 (Kupreškić et al. Trial Chamber judgment) Kvočka et al. Prosecutor v. Kvočka et al., Judgment, Case No. IT-98-30/1-A, Appeals Chamber, 28 February 2005 (Kvočka et al. Appeals Chamber judgment) Limaj et al. Prosecutor v. Limaj et al., Judgment, Case No. IT-03-66-T, Trial Chamber II, 30 November 2005 (Limaj et al. Trial Chamber judgment) Martić Prosecutor v. Martić, Judgment, Case No. IT-95-11-T, Trial Chamber I, 12 June 2007 (Martić Trial Chamber judgment) Prosecutor v. Martić, Judgment, Case No. IT-95-11-A, Appeals Chamber, 8 October 2008 (Martić Appeals Chamber judgment) Milošević Prosecutor v. Milošević, Decision on motion for judgment of acquittal, Case No. IT-02-54-T, Trial Chamber I, 16 June 2004 (Milošević Rule 98bis decision)

xv

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CASES

Milutinović et al. Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s motion challenging jurisdiction – Joint Criminal Enterprise, Case No. IT-99-37-AR72, Appeals Chamber, 21 May 2003 Mrkšić et al. Prosecutor v. Mrkšić et al., Judgment, Case No. IT-95-13/1-T, Trial Chamber II, 27 September 2007 (Mrkšić et al. Trial Chamber judgment) Mucić et al. Prosecutor v. Mucić et al., Judgment, Case No. IT-96-21-A, Appeals Chamber, 20 February 2001 (Mucić et al. Appeals Chamber judgment) Nikolić Prosecutor v. Nikolić, Review of the indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-94-2-R61, Trial Chamber, 20 October 1995 (Nikolić Rule 61 decision) Popović et al. Prosecutor v. Popović et al., Judgment, Case No. IT-05-88-T, Trial Chamber II, 10 June 2010 (Popović et al. Trial Chamber judgment) Stakić Prosecutor v. Stakić, Judgment, Case No. IT-97-24-T, Trial Chamber II, 31 July 2003 (Stakić Trial Chamber judgment) Prosceutor v. Stakić, Judgment, Case No. IT-97-24-A, Appeals Chamber, 22 March 2006 (Stakić Appeals Chamber judgment) Stanišić and Simatović Stanišić and Simatović, Judgment, Case No. IT-03-69-T, Trial Chamber I, 30 May 2013 (Stanišić and Simatović Trial Chamber judgment) Tadić Prosecutor v. Tadić, Judgment, Case No. IT-94-1-T, Trial Chamber II, 7 May 1997 (Tadić Trial Chamber judgment) Prosecutor v. Tadić, Judgment, Case No. IT-94-1-A, Appeals Chamber, 15 July 1999 (Tadić Appeals Chamber judgment)

xvi

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CASES

Tolimir Prosecutor v. Tolimir, Judgment, Case No. IT-05-88/2-T, Trial Chamber II, 12 December 2012 (Tolimir Trial Chamber judgment) Vasiljević Prosecutor v. Vasiljević, Judgment, Case No. IT-98-32-A, Appeals Chamber, 25 February 2004 (Vasiljević Appeals Chamber judgment)

INTERNATIONAL CRIMINAL TRIBUNAL

FOR

RWANDA

Akayesu Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, Trial Chamber I, 2 September 1998 (Akayesu Trial Chamber judgment) Bagilishema Prosecutor v. Bagilishema, Judgment, Case No. ICTR-95-1A-T, Trial Chamber I, 7 June 2001 (Bagilishema Trial Chamber judgment) Bagosora et al. Prosecutor v. Bagosora et al., Judgment, Case No. ICTR-98-41-T, Trial Chamber I, 18 December 2008 (Bagosora et al. Trial Chamber judgment) Bizimungu et al. Prosecutor v. Bizimungu et al., Judgment, Case No. ICTR-00-56-T, Trial Chamber II, 17 May 2011 (Bizimungu et al. Trial Chamber judgment) Gacumbitsi Prosecutor v. Gacumbitsi, Judgment, Case No. ICTR-2001-64-T, Trial Chamber III, 17 June 2004 (Gacumbitsi Trial Chamber judgment) Prosecutor v. Gacumbitsi, Judgment, Case No. ICTR-2001-64-A, Appeals Chamber, 7 July 2006 (Gacumbitsi Appeals Chamber judgment) Kajelijeli Prosecutor v. Kajelijeli, Judgment, Case No. ICTR-98-44A-T, Trial Chamber II, 1 December 2003 (Kajelijeli Trial Chamber judgment)

xvii

TABLE

OF

CASES

Karemera et al. Prosecutor v. Karemera et al., Decision on Prosecutor’s interlocutory appeal of decision on judicial notice, Case No. ICTR-98-44-AR73(C), Appeals Chamber, 16 June 2006 (Karemera et al. judicial notice decision) Prosecutor v. Karemera et al., Judgment, Case No. ICTR-98-44-T, Trial Chamber III, 2 February 2012 (Karemera et al. Trial Chamber judgment) Kayishema and Ruzindana Prosecutor v. Kayishema and Ruzindana, Judgment, Case No. ICTR-95-1-T, Trial Chamber II, 21 May 1999 (Kayishema and Ruzindana Trial Chamber judgment) Prosecutor v. Kayishema and Ruzindana, Judgment, Case No. ICTR-95-1-A, Appeals Chamber, 1 June 2001 (Kayishema and Ruzindana Appeals Chamber judgment) Musema Prosecutor v. Musema, Judgment, Case No. ICTR-96-13-A, Trial Chamber I, 27 January 2000 (Musema Trial Chamber judgment) Nahimana et al. Prosecutor v. Nahimana et al., Judgment, Case No. ICTR-96-11-T, Trial Chamber I, 3 December 2003 (Nahimana et al. Trial Chamber judgment) Prosecutor v. Nahimana et al., Judgment, Case No. ICTR-99-52-A, Appeals Chamber, 28 November 2007 (Nahimana et al. Appeals Chamber judgment) Niyitegeka Prosecutor v. Niyitegeka, Judgment, Case No. ICTR-96-14-T, Trial Chamber I, 16 May 2003 (Niyitegeka Trial Chamber judgment) Rutaganda Prosecutor v. Rutaganda, Judgment, Case No. ICTR-96-3-T, Trial Chamber I, 6 December 1999 (Rutaganda Trial Chamber judgment) Prosecutor v. Rutaganda, Judgment, Case No. ICTR-96-3-A, Appeals Chamber, 26 May 2003 (Rutaganda Appeals Chamber judgment) Semanza Prosecutor v. Semanza, Judgment, Case No. ICTR-97-20-T, Trial Chamber I, 15 May 2003 (Semanza Trial Chamber judgment) Prosecutor v. Semanza, Decision, Case No. ICTR-97-20-A, Appeals Chamber, 31 May 2000

xviii

TABLE

OF

CASES

Prosecutor v. Semanza, Separate opinion Judge Mohammed Shahabuddeen, Case No. ICTR-97-20-A, Appeals Chamber, 31 May 2000 (Separate opinion Judge Shahabuddeen) Prosecutor v. Semanza, Judgment, Case No. ICTR-97-20-A, Appeals Chamber, 20 May 2005 (Semanza Appeals Chamber judgment) Seromba Prosecutor v. Seromba, Judgment, Case No. ICTR-2001-66-T, Trial Chamber I, 13 December 2006 (Seromba Trial Chamber judgment) Prosecutor v. Seromba, Judgment, Case No. ICTR-2001-66-A, Appeals Chamber, 12 March 2008 (Seromba Appeals Chamber judgment) Simba Prosecutor v. Simba, Judgment, Case No. ICTR-01-76-T, Trial Chamber I, 13 December 2005 (Simba Trial Chamber judgment) Prosecutor v. Simba, Judgment, Case No. ICTR-01-76-A, Appeals Chamber, 27 November 2007 (Simba Appeals Chamber judgment)

INTERNATIONAL CRIMINAL COURT Al-Bashir Prosecutor v. Al-Bashir, Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir, Case No. ICC-02/05-01/09, Pre-Trial Chamber I, 4 March 2009 (Al-Bashir first warrant of arrest decision) Prosecutor v. Al-Bashir, Separate and partly dissenting opinion Judge Anita Ušacka, Case No. ICC-02/05-01/09, Pre-Trial Chamber I, 4 March 2009 (Separate and partly dissenting opinion Judge Ušacka) Prosecutor v. Al-Bashir, Prosecution’s application for leave to appeal the “Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmed AlBashir”, Case No. ICC-02/05-01/09, Office of the Prosecutor, 13 March 2009 Prosecutor v. Al-Bashir, Prosecution response to observations of Amicus Curiae in respect of the Prosecution’s appeal against the “Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir”, Case No. ICC-02/05-01/ 09, Office of the Prosecutor, 6 July 2009 Prosecutor v. Al-Bashir, Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir”, Case No. ICC-02/05-01/09-OA, Appeals Chamber, 3 February 2010 Prosecutor v. Al-Bashir, Second decision on the Prosecution’s application for a warrant of arrest, Case No. ICC-02/05-01/09-94, Pre-Trial Chamber I, 12 July 2010 (Al-Bashir second warrant of arrest decision) xix

TABLE

OF

CASES

Banda and Jerbo Prosecutor v. Banda and Jerbo, Corrigendum of the “Decision on the confirmation of charges”, Case No. ICC-02/05-03/09-121-Corr-Red, Pre-Trial Chamber I, 7 March 2011 (Banda and Jerbo confirmation of charges decision) Bemba Gombo Prosecutor v. Bemba Gombo, Decision on the Prosecutor’s application for a warrant of arrest against Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Pre-Trial Chamber I, 10 June 2008 (Bemba warrant of arrest decision) Prosecutor v. Bemba Gombo, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, Pre-Trial Chamber II, 15 June 2009 (Bemba confirmation of charges decision) Harun and Kushayb Prosecutor v. Harun and Kushayb, Decision on the Prosecution’s application under Article 58(7) of the Statute, Case No. ICC-02/05-01/07, Pre-Trial Chamber I, 27 April 2007 (Harun and Kushayb decision on the application of Article 58(7)) Katanga and Ngudjolo Chui Prosecutor v. Katanga and Ngudjolo Chui, Decision on the confirmation of charges, Case No. ICC-01/04-01/07, Pre-Trial Chamber I, 30 September 2008 (Katanga and Chui confirmation of charges decision) Prosecutor v. Katanga, Judgment, Case No. ICC 01/04-01/07-3436, Trial Chamber II, 8 March 2014 (Katanga Trial Chamber judgment) Prosecutor v. Ngudjolo Chui, Concurring opinion of Judge Christine van den Wyngaert, Case No. ICC-01/04-02/12, 18 December 2012 (Concurring opinion Judge van den Wyngaert) Lubanga Prosecutor v. Lubanga, Decision on the confirmation of charges, Case No. ICC-01/ 04-01/06-803, Pre-Trial Chamber I, 29 January 2007 (Lubanga confirmation of charges decision) Prosecutor v. Lubanga, Judgment, Case No. ICC 01/04-01/06-2842, Trial Chamber I, 14 March 2012 (Lubanga Trial Chamber judgment) Prosecutor v. Lubanga, Separate opinion of Judge Adrian Fulford, Case No. ICC-01/ 04-01/06-2842, 14 March 2012 (Separate opinion Judge Fulford)

xx

TABLE

OF

CASES

Muthaura et al. Prosecutor v. Muthaura et al., Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, Case No. ICC-01/09-02/11-382-Red, PreTrial Chamber II, 23 January 2012 (Muthaura et al. confirmation of charges decision) Ruto et al. Prosecutor v. Ruto et al., Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, Case No. ICC-01/09-01/11-373, Pre-Trial Chamber II, 23 January 2012 (Ruto et al. confirmation of charges decision) Situation in the Republic of Kenya Situation in the Republic of Kenya, Decision pursuant to Article 15 of the Rome Statute on the authorization of an investigation into the situation in the Republic of Kenya, Case No. ICC-01/09, Pre-Trial Chamber II, 31 March 2010 (Kenya authorization decision) Situation in the Republic of Kenya, Dissenting opinion Judge Hans Peter Kaul, Case No. ICC-01/09, Pre-Trial Chamber II, 31 March 2010 (Dissenting opinion Judge Kaul)

SPECIAL COURT

FOR

SIERRA LEONE

Prosecutor v. Fofana and Kondewa, Dissenting opinion Judge Robertson, Case No. SCSL-04-14-AR72(E), Trial Chamber, 31 May 2004 EUROPEAN COURT

OF

HUMAN RIGHTS

Scoppola v. Italy, Judgment, Appl. No. 10249/03, 17 September 2009 Cantoni v. France, Judgment, Appl. No. 17862/9122, 11 November 1996

DECISIONS

OF

NATIONAL COURTS

Mel Mermelstein v. The Institute for Historical Review, Superior Court of the State of California for the County of Los Angeles, Case No. C 356 542, 5 August 1985 Dutch Supreme Court, 29 October 1934, NJ 1934, 1673 m.nt. T. Dutch Supreme Court, 17 November 1981, NJ 1983, 84 m.nt. ThWvV Dutch Supreme Court, 15 April 1986, NJ 1986, 740 Dutch Supreme Court, 19 October 1994, NJ 1994, 50 m.nt. ThWvV Dutch Supreme Court, 22 December 2009, NJ 2010, 193 m.nt. PMe Dutch Supreme Court, 18 March 2008, NJ 2008, 209

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CASES

INTERNATIONAL TREATIES, CONVENTIONS

AND

STATUTES

Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 Statute for the International Criminal Tribunal for the former Yugoslavia, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc. S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc. S/RES/1877 (7 July 2009) Statute for the International Criminal Tribunal for Rwanda, SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc. S/RES/955 (8 November 1994) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st sess (ICC-ASP/1/3 and Corr.1) (3–10 September 2002)

OTHER

DOCUMENTS

Second Report on the Draft Code of Offences Against the Peace and Security of Mankind, 2 Yearbook of International Law Commission, UN Doc. A/CN.4/SerA/1984 Summary Records of the 1960’s Meeting, 1 Yearbook of International Law Commission 104, UN Doc. A/CN.4/SerA/1986 Report of the International Law Commission on the work of its forty-eighth session, UN Doc. A/51/10 (6 May-26 July 1996) Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur to the United Nations SecretaryGeneral, SC Res 1564, UN Doc. S/2005/60 (18 September 2004)

ONLINE

RESOURCES

Genocide in Darfur, United Human Rights Council, available online at www.unitedhumanrights.org/genocide/genocide-in-sudan.html Save Darfur, available online at www.savedarfur.org/

xxii

I

Prologue: A Plea for a Casuistic Approach to International Criminal Law

I 1.1

PROLOGUE

INTRODUCTION

In Rules, Norms and Decisions, Kratochwil asserts that justice cannot be identified with the existence of a body of rules. Instead, ‘[d]oing justice involves, above all, the exercise of practical judgments in which abstract norms and concrete circumstances are fitted together’.1 Courts should therefore constantly go back and forth between general rules of law and case-specific facts and use this interplay to develop an honest legal system.2 This study takes Kratochwil’s assertion as a starting-point for analysing the development of substantive international criminal law by international criminal courts. The foundations of international criminal law lie in Nuremberg with the International Military Tribunal (IMT), which was set up to try the major war criminals of World War II. Upon the subsequent establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively) and the permanent International Criminal Court (ICC) in the 1990’s, international criminal law reached a more mature stage. It developed from a rudimentary notion of accountability for mass violence into a complex field of law generating individual criminal responsibility for war crimes, crimes against humanity, genocide and the crime of aggression. International criminal courts have played an important role in this development. Their decisions on the questions and issues raised in individual cases have gradually transformed the incomplete ‘shopping list of crimes’ into a practical legal system.3 International criminal law can therefore not be studied without paying attention to case law.

1 2 3

F.V. Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1991) 241. Kratochwil (n. 1 above) 240. M. Swart, Judges and Lawmaking at the International Criminal Tribunals for the former Yugoslavia and Rwanda, 13 December 2006, PhD Thesis, available online at 1, 56, 83. See also A. Zahar and G. Sluiter, International Criminal Law: A Critical Introduction (Oxford: Oxford University Press, 2008) 80; W.A. Schabas, ‘Interpreting the Statutes of the ad hoc Tribunals’ in L.C. Vohrah et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003) 886; A. Cassese, ‘The ICTY: A Living and Vital Reality’, 2 Journal of International Criminal Justice (2004) 585, 591-593; A.M. Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’, 59 Vanderbilt Law Review (2006) 1, 3-5, 21-22, 41; R. Jennings and A. Watts, Oppenheim’s International Law, Volume I: Peace (Oxford: Oxford University Press, 1996) 41; S. Darcy and J. Powderly, ‘Introduction’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) 1, 2; M. Shahabuddeen, ‘Judicial Creativity and Joint Criminal Enterprise’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) 184, 187; G. Mettraux, The Law on Command Responsibility (Oxford: Oxford University Press, 2009) 3-4; R. Haveman, ‘The Context of the Law’ in R. Haveman et al. (eds.), Supranational Criminal Law: A System Sui Generis (Antwerp: Intersentia, 2003) 9, 9; E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012) 14; D. Terris et al., The International Judge: An Introduction to the Men and Women who Decide the World’s Cases (Oxford: Oxford University Press, 2007) xix-xx.

3

FACTS MATTER The judicial development of international criminal law is characterised by a high degree of creativity. In the absence of a comprehensive codification, international criminal courts have set out to discover and create the law on a case-by-case basis.4 In this respect, they have been willing to loosely use and progressively expand existing definitions of international crimes and modes of liability.5 For example, the case law on Joint Criminal Enterprise (JCE), war crimes in non-international armed conflicts and rape as a type of genocide shows a judicial readiness to look beyond (the text of) the established legal framework. In this way, the courts have been able to advance and modernise underdeveloped and out-dated concepts of law. It seems that the need and scope for radical judicial innovations diminish with the maturation of international criminal law. Due to the important pioneering work of the IMT and the ad hoc Tribunals, the ICC faces less fundamental obscurities and deficiencies when it evaluates new situations of fact. Furthermore – unlike the ad hoc Tribunals – the ICC does not only apply rudimentary concepts of customary international law, but primarily relies on a comprehensive framework of statutory rules. The detailed definitions of international crimes and forms of criminal liability in the ICC’s Rome Statute and Elements of Crimes limit the Court’s discretion to innovate.6 Also the stipulation of a strict hierarchy of legal sources and the explicit incorporation of the principle of legality in the Rome Statute, signify an ambition to put the ICC on a ‘tight leash’.7 Having said that, early ICC case law suggests that individual cases continue to bring forward previously unforeseen situations. The Court has regularly responded to these situations in creative ways that are difficult to trace back to the text of statutory rules. Thus, the ICC has proceeded to gradually clarify and develop the nature and scope of criminal responsibility for international crimes. In this sense, judicial creativity remains an inherent part of substantive international criminal law.8

4 5 6 7

8

Zahar and Sluiter (n. 3 above) 80. B. van Schaack, ‘Crimen sine Lege: Judicial Lawmaking at the Intersection of Law and Morals’, 97 Georgetown Law Journal (2008) 119, 123-124; Schabas (n. 3 above); Terris et al. (n. 3 above) 104. J. Wessel, ‘Judicial Policy-Making at the International Criminal Court’, 44 Columbia Journal of Transnational law (2006) 377, 400-401, 409, 414; Mettraux (n. 3 above) 12; Van Sliedregt (n. 3 above) 14-15. This development has been met with criticism. See e.g. D. Hunt, ‘The International Criminal Court: High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’, 2 Journal of International Criminal Justice (2004) 56, 59, 61; R. Cryer, ‘Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources’, 12 New Criminal Law Review (2009) 390, 391-392; A. Pellet, ‘Applicable Law’ in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 1051, 1056-1062, 1083-1084. Terris et al. are critical towards such continuous judicial creativity. They argue that what ‘may be necessary and productive in the early years could become a dangerous habit as judicial institutions reach their maturity. Depending, as they do, on the cooperation and goodwill of individual states, international judges cannot, in the long run, afford to be seen as unpredictable and unrestrained’. Terris et al. (n. 3 above) 225.

4

I

PROLOGUE

How should we appraise this creative practice? To what extent and under which conditions are international criminal courts authorised to adapt the law to new facts or changed circumstances? To answer these questions, we have to reflect upon the principle of nullum crimen sine lege – or the principle of legality – which protects accused from an arbitrary use of power by binding courts to existing law. In the specific context of substantive international criminal law, legality is often interpreted in procedural terms. This means that the progressive development of the law by courts is not prohibited per se, but is subjected to (requirements on) judicial reasoning. One of the most challenging aspects of judicial reasoning is (the substantiation of) the classification of individual cases under the law. Legal theory and domestic practice provide useful insights into the course of this process of classification. In particular, they assume that it can be described in terms of casuistry. Casuistry takes as a starting-point that the law is inextricably linked to its practical function. This implies that the meaning of the law is not determined by abstract rules alone, but develops in interplay with the questions and issues raised in individual cases. The facts of these cases thus become an essential construct for the law’s gradual clarification and advancement. Casuistry therefore employs a methodology of case-based reasoning, which particularly seeks to warrant that courts make the interplay between facts and law transparent and apply the law in a structured manner. In this way, the methodology of casuistry helps to clarify the meaning of the law and controls its caseby-case development. This study assesses the value of casuistry for substantive international criminal law. In particular, it proceeds to answer the following questions: How can casuistic analyses contribute to the clarification of substantive international criminal law? And how can the casuistic method of reasoning help to structure and restrain judicial argumentation in such a way that the values underlying the principle of legality are respected? This prologue explains the assumptions underlying the study and clarifies its theoretical underpinnings. Section 2 starts with an exploration of the benchmark of judicial creativity: the principle of legality. It assesses the role of legality in (international criminal) law and determines the influence of legality on the position of judges. The results of this assessment are relied upon throughout this study as a standard for scrutinising the judicial development of substantive international criminal law. Related to the different views on legality, are different theories of legal reasoning. Instead of giving a comprehensive and detailed overview of all these theories, section 3 describes how traditional legalist views on judicial reasoning have been replaced with an approach that recognises the open texture of rules and the autonomous position of

5

FACTS MATTER courts. The thoughts and trends that are presented in this respect are largely inspired by (the role of judges in) domestic law and can therefore not be readily applied to the international context.9 Having said that, it will be shown that domestic insights on legalism and reasoning from open-textured rules are particularly useful for understanding and appraising (research on) the development of substantive international criminal law by international criminal courts. Section 4 explores the theory and methodology of casuistry. It shows how casuistry structures judicial reasoning and balances the need for legal development against the requirements of legality. It seems that the abstract thoughts on casuistic reasoning are difficult to implement in practice. They should therefore be complemented with a practical reasoning model that offers concrete guidelines for analysing and structuring the law’s judicial development. To this end, we can rely on insights from Artificial Intelligence and Law (AI&L) on logical reasoning and formal argumentation.10 Legal professionals have often been suspicious towards such analyses, since they believe that ‘[t]he life of the law is not logic (…)’.11 This study recognises that judicial reasoning cannot be fully captured in mathematical schemes of formal logic. It therefore neither compares judicial decisions to the mechanical outcomes of computer-models, nor interprets international criminal law according to logical strictures. Instead, the study uses AI&L research to translate the abstract thoughts underlying casuistry into a plain and articulate model of judicial argumentation.12 In this way, AI&L helps to give casuistry ‘hand and feet’. Moving from theory to practice, section 5 evaluates the basic features of casuistry in domestic affairs. This evaluation can assist in determining the added value of casuistry for substantive international criminal law and can help us to understand and scrutinise the judicial development of criminal responsibility for international crimes. After all, the legal skills and knowledge of international criminal lawyers are shaped by their domestic experience. A (re)appraisal of casuistry in domestic law therefore likely affects its role at the international level.

9 Van Sliedregt (n. 3 above) 13-14; Terris et al. (n. 3 above) 103-104, 114-115. 10 B. Roth, Case-Based Reasoning in the Law: A Formal Theory of Reasoning by Case Comparison, 26 November 2003, PhD Thesis, 1. 11 O.W. Holmes, The Common Law (Mineola: Dover Publications, 1991) 1. See also W. Friedmann, ‘Legal Philosophy and Judicial Lawmaking’, 61 Columbia Law Review (1961) 821, 823-825; M. Taruffo, ‘Judicial Decisions and Artificial Intelligence’, 6 Artificial Intelligence and Law (1998) 311, 316-317; A. von der Lieth Gardner, An Artificial Intelligence Approach to the Law (Cambridge: A Bradford Book, 1987) 1; V. Walker, ‘Discovering the Logic of Legal Reasoning’, 35 Hofstra Law Review (2007) 1687, 1692. 12 G. Sartor and L. Branting, ‘Introduction: Judicial Applications of Artificial Intelligence’, 6 Artificial Intelligence and Law (1998) 105, 107; H. Prakken and G. Sartor, ‘Modelling Reasoning with Precedents in a Formal Dialogue Game’, 6 Artificial Intelligence and Law (1998) 231, 232, 236; Von der Lieth Gardner (n. 11 above) 2, 191; Taruffo (n. 11 above) 321-322.

6

I

PROLOGUE

Against the background of legal theory and domestic practice, section 6 sets out the expected role and merits of casuistry in relation to substantive international criminal law. In particular, it assumes that casuistic analyses can give new insights into the meaning of international crimes and modes of liability and can put subtle restrictions on judicial creativity. In this way, casuistic analyses advance the legality of (judicial reasoning on) substantive international criminal law. The prologue concludes with a few words on the limitations of this study (section 7) and an outline of the following research (section 8).

1.2 1.2.1

LEGAL BENCHMARK: PRINCIPLE

OF

LEGALITY

General Conception and Function

The principle of legality prohibits the ex post facto criminalisation of conduct and the retroactive application of criminal law.13 A conviction can only be based on norms that already existed when the accused committed the act with which he is charged. In this way, the principle of legality restricts the authority of courts: ‘the judiciary is obliged in principle to refrain from penalising conduct not made criminal by the legislator through the wording of the law in question, and is thus confined to interpreting and applying, but not making the law’.14 The principle of legality also requires that legal norms are sufficiently foreseeable and accessible – either through published legislation or otherwise – so that accused can acquaint themselves with the state of the law and the consequences of its infringement. In addition, courts are compelled to interpret the law strictly and to resolve legal ambiguities in favour of the accused. Together, these legality 13 B. Broomhall, ‘Article 22: Nullum Crimen sine Lege’ in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. Observer’s Notes, Article by Article (München: C.H. Beck oHG, 2008) 713, 714; M.C. Bassiouni, ‘Principle of Legality in International and Comparative Criminal Law’ in M.C. Bassiouni, International Criminal Law, Volume I: Sources, Subjects and Content (Leiden: Martinus Nijhoff Publishers, 2008) 73; M. Shahabuddeen, ‘Does the Principle of Legality Stand in the Way of Progressive Development of Law?’, 2 Journal of International Criminal Justice (2004) 1007, 1008; Van Schaack (n. 5 above) 121; Haveman (n. 3 above) 44. The content and application of the principle of legality in national criminal justice systems varies. In particular the common law and civil law systems seem to have implemented the principle in different ways. See, e.g. M. Boot, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp: Intersentia, 2002) 81-126; R. Haveman, ‘The Principle of Legality’ in R. Haveman et al. (eds.), Supranational Criminal Law: A System Sui Generis (Antwerp: Intersentia, 2003) 39, 40-50; E. Bleichrodt, ‘Freedom from Retrospective Effect of Penal Legislation’ in P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (Antwerp: Intersentia, 2006) 651, 653-655, 658; Bassiouni (n. 13 above) 76-85, 97-98. 14 Broomhall (n. 13 above) 716. Legality is thus linked to the doctrine of separation of powers. On this issue see, K.S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2010) 24-26; Boot (n. 13 above) 18-19, 387, 611-612.

7

FACTS MATTER requirements protect accused from an arbitrary use of power,15 which ultimately strengthens the rule of law and the legitimacy of the criminal justice system.16 In international criminal law, it has regularly been argued that (the extensive judicial interpretations of) the innovative statutory definitions of international crimes and modes of liability violate the prohibition of ex post facto criminalisation, because they create new law retroactively.17 The IMT and the ad hoc Tribunals have largely rejected these challenges, considering that the specific features of international criminal law (such as the absence of an international legislator) justify a lenient approach towards the principle of legality. The accused should only have been ‘able to appreciate that the conduct is criminal in the sense generally understood, without reference to the specific provision’.18 By thus stripping the principle of legality of any formal requirements, the courts have arguably enabled its ‘deformalization’19 and have turned legality into a substantive principle of justice that can be balanced against the need for punishment.20 As a result, the principle of legality has not imposed any substantial restraints on the judicial clarification and refinement of substantive international criminal law. In fact, it has left room for the IMT and the ad hoc Tribunals to develop the law progressively.21

15 P.P. Soares, ‘Tangling Human Rights and International Criminal Law: The Practice of International Tribunals and the Call for Rationalized Legal Pluralism’, 23 Criminal Law Forum (2012) 161, 164; M. Catenacci, ‘Nullum Crimen sine Lege’ in F. Lattanzi (ed.), The International Criminal Court: Comments on the Draft Statute (Napoli: Editoriale Scientifica, 1998) 159, 159-161; S. Lamb, ‘Nullum Crimen, Nulla Poena sine Lege in International Criminal Law’ in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 733, 734; Bassiouni (n. 13 above) 74; Boot (n. 13 above) 18, 366, 611; Haveman (n. 13 above) 51; Shahabuddeen (n. 13 above) 1008; Gallant (n. 14 above) 20-23. 16 K. Rozemond, De Methode van het Materiële Strafrecht (Nijmegen: Ars Aequi, 2011) 22; Broomhall (n. 13 above) 716; Bassiouni (n. 13 above) 74; Shahabuddeen (n. 13 above) 1008; Gallant (n. 14 above) 14-17, 23-24. Luban rejects the connection between the principle of legality and the rule of law insofar as it concerns international criminal law. D. Luban, ‘The Legacies of Nuremberg’, 54 Social Research (1987) 779, 803. 17 Haveman (n. 3 above) 12; Van Schaack (n. 5 above) 125, 133; Boot (n. 13 above) 189-196, 264, 272, 283-284, 285; Broomhall (n. 13 above) 721; Gallant (n. 14 above) 67-155; Lamb (n. 15 above) 735-736. 18 Prosecutor v. Hadžihasanović, Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility, Case No. IT-01-47-AR72, Appeals Chamber, 16 July 2003, para. 34. According to Nillson, this implies that ‘[a] defendant must, at the time he committed the act, have been able to understand that what he did was criminal’. J. Nilsson, ‘The Principle Nullum Crimen sine Lege’ in O. Olusanya (ed.), Rethinking International Criminal Law: The Substantive Part (Groningen: Europa Law Publishing, 2007) 35, 64. See also Shahabuddeen (n. 13 above) 1010; Gallant (n. 14 above) 321. 19 K. Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part (Oxford: Oxford University Press, 2013) 75. 20 Boot (n. 13 above) 612; Ambos (n. 19 above) 75. 21 E.g. Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/1-A, Appeals Chamber, 24 March 2000, para. 127; Prosecutor v. Mucić et al., Judgment. Case No. IT-96-21-A, Appeals Chamber, 20 February 2001, para. 173. By so reasoning, the international criminal courts largely confirm to the case law of the European Court of Human Rights (ECHR). This Court has found that ‘the gradual clarification of the rules of criminal liability through judicial interpretation from case to case’ does not violate the principle of legality, ‘provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen’. Scoppola v. Italy, Judgment, Appl. No. 10249/03, 17 September 2009, para 102. See also Cantoni v. France,

8

I

PROLOGUE

At first sight, the ICC cannot adopt a similarly lenient approach towards the principle of legality. Article 22 of the Rome Statute – which incorporates the first codification of legality in international criminal law – explicitly prohibits the law’s retroactive application and analogous extension. Moreover, the provision stipulates that the Court should interpret its Statute strictly. According to Boot, the role of the ICC thus ‘resembles the views of Montesquieu, requiring judges to solely act as “les bouches de la loi”’.22 Early ICC case law, however, signifies a different practice in which the Court refuses to be put on the ‘tight leash’ of the principle of legality.23 The ICC has been willing to go beyond the text of the Rome Statute and has adopted progressive interpretations where considered necessary. The Court’s innovative notion of criminal responsibility based on the concept of ‘control over the crime’ (through a hierarchical organisation) is illustrative in this respect.24 This creative practice is controversial, even within the confines of the ICC. In dissenting and concurring opinions, Judges Van den Wyngaert and Fulford have openly distanced themselves from the Court’s broad interpretations. Instead, they have pleaded for a stricter, grammatical reading of the Rome Statute that conforms to its ‘ordinary meaning’ or ‘plain text’.25

22

23

24 25

Judgment, Appl. No. 17862/91, 11 November 1996, para. 35. The leeway that judges have to develop the law without making it unforeseeable ‘depends to a considerable degree on the content of the law concerned, the field it is designed to cover and the number and status of those to whom it is addressed. (…)’. Bleichrodt (n. 13 above) 655. Also the fact that judicial development advances the values that the statute seeks to protect seems relevant for determining the scope for such development under the ECHR. Bleichrodt (n. 13 above) 655. Boot (n. 13 above) 395 (emphasis added). More nuanced, but also arguing that Article 22 lays down a less tolerant concept of legality than general international law are Cryer (n. 7 above) 403; Broomhall (n. 13 above) 717-718; Ambos (n. 19 above) 75-76. For a critical approach towards this development, see J.D. Ohlin and G.P. Fletcher, ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’, 3 Journal of International Criminal Justice (2005) 539, 541-542; K. Ambos, ‘International Criminal Law at the Cross-Roads: From ad hoc Imposition to a Universal Treaty-Based System’ in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press, 2010) 161, 174-176. For a critical evaluation of the (negative) effects of the restrictions that the drafters have put on the ICC see, e.g. Van Sliedregt (n. 3 above) 14; Pellet (n. 7 above) 1056-1059; Hunt (n. 7 above) 61; Cryer (n. 7 above) 39. Prosecutor v. Katanga and Ngudjolo Chui, Decision on the confirmation of charges, Case No. ICC-01/0401/07, Pre-Trial Chamber I, 30 September 2008, paras. 500-518. E.g. Prosecutor v. Lubanga, Separate opinion of Judge Adrian Fulford, Case No. ICC-01/04-01/06-2842, 14 March 2012, paras. 13-18; Prosecutor v. Ngudjolo Chui, Concurring opinion of Judge Christine van den Wyngaert, Case No. ICC-01/04-02/12, 18 December 2012, paras. 6, 11-21, 39, 44, 57, 64, 68-69, 70.

9

FACTS MATTER 1.2.2

Scholarly Appraisal

Legal scholarship considers it inappropriate to ‘unreflectively transplant’ domestic legality requirements to the international level.26 Instead, it finds that (protests based upon) the principle of legality should be assessed in light of the specific features of international criminal law and the particular difficulties of adjudicating international crimes.27 Van Sliedregt accordingly reminds us that international criminal law is still infused with ‘power-politics’ and that the consensual nature of this field likely generates unworkable statutory provisions. Therefore, ‘judicial lawmaking is essential and compensates for a flawed process of lawmaking’.28 Other scholars complement this line of reasoning by arguing that international crimes are malum in se – i.e. evil in themselves29 – and generally prohibited under domestic law.30 Hence, it is difficult to argue convincingly that an accused could not have foreseen the illegality of international crimes and the criminality of his actions. It rather seems that the ‘unforeseeability-argument’ can only be raised persuasively in relation to specifically ambiguous crimes and forms of participation.31 Think, for example, of war crimes that are subject to military necessity or accused who only provided remote and neutral assistance to a crime. Notwithstanding the distinctive characteristics of international criminal law, legal scholarship stresses that the ‘creativity in adapting principles is bounded’.32 The

26 D. Robinson, ‘International Criminal Law as Justice’, 11 Journal of International Criminal Justice (2013) 699, 703. Also see D. Robinson, ‘International Criminal Courts and Tribunals: A Cosmopolitan Liberal Account of International Criminal Law’, 26 Leiden Journal of International Law (2013) 127. 27 M. Swart, ‘Legality as an Inhibitor: The Special Place of Nullum Crimen sine Lege in the Jurisprudence of the International Criminal Tribunals’, South Africa Yearbook of International Law (2005) 33, 33; Swart (n. 3 above) 177-181; Van Sliedregt (n. 3 above) 13-14; Van Schaack (n. 5 above) 135-138; Broomhall (n. 13 above) 717; Bassiouni (n. 13 above) 87-88; Boot (n. 13 above) 250, 306-307, 369. Interestingly, Judge Robertson in his dissenting opinion to the Norman et al. case before the SCSL has argued that the special characteristics of international criminal law, such as the absence of a legislator and the seriousness of the crimes, prompt a strict interpretation of the principle of legality. See Prosecutor v. Fofana and Kondewa, Dissenting opinion Judge Robertson, Case No. SCSL-04-14-AR72(E), Trial Chamber, 31 May 2004, para. 12. 28 Van Sliedregt (n. 3 above) 14. 29 Van Schaack (n. 5 above) 155-158; Gallant (n. 14 above) 41-42; Nillson (n. 18 above) 64. For a more nuanced view, see Boot (n. 13 above) 306, 386. 30 Boot (n. 13 above) 269-271; Gallant (n. 14 above) 320-324; Nillson (n. 18 above) 64. 31 S. Darcy, ‘The Reinvention of War Crimes by the International Criminal Tribunals’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) 106, 126; R. Cryer, ‘The ad hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) 159, 183; G. Boas, ‘Omission Liability at the International Criminal Tribunals – a Case for Reform’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) 204, 224; Schabas (n. 3 above) 887; Van Schaack (n. 5 above) 156-158; Hunt (n. 7 above) 59; Haveman (n. 13 above) 76; Ohlin and Fletcher (n. 23 above) 553-556. 32 Robinson, ‘International Criminal Law as Justice’ (n. 26 above) 703.

10

I

PROLOGUE

particularities of the international context may ‘entertain the possibility of modifying familiar articulations’ of the legality principle, but cannot ‘contemplate their complete abandonment’.33 From this perspective, scholars have taken a ‘procedural approach’ to legality. This approach allows a fair amount of creativity with respect to the outcomes of judicial decision-making, whilst it restrains the process through which these creative outcomes are implemented. In particular, it stipulates that the requirements of legal certainty and strict interpretation do not impede the progressive judicial interpretation of innovative statutory definitions per se. Instead, these requirements only warrant that the courts’ findings are based on precise reasoning and valid argumentation. Sources of law and methods of interpretation have to be used in a consistent and accurate way to avert unrestricted and uncertain decision-making.34 According to legal scholarship, international criminal courts regularly fail to meet the procedural standards of the legality principle. It has, for example, been argued that the ad hoc Tribunals tend to stretch the requirements for establishing customary law.35 Whereas the Tribunals claim to have recourse to both opinio juris and state practice,36 in practice their identification of either element remains rather haphazard: decisions cited did not provide any direct evidence for the proposed rule, key decisions were invoked or ignored in a sometimes arbitrary fashion, and treaties were invoked without indicating how these were relevant in the process of identifying a customary norm.37 This allows for the proclamation of ‘nascent and previously unexpressed customary law’,38 which creates uncertainties that cause tension with the foreseeability requirement

33 Robinson, ‘International Criminal Law as Justice’ (n. 26 above) 703. Similarly, Haveman (n. 13 above) 55, 76-77; Nillson (n. 18 above) 62-63; Ohlin and Fletcher (n. 23 above) 541, 551-552. 34 Swart delinks the principle of legality from the use of sources. Swart (n. 3 above) 246. 35 L. van den Herik, ‘Using Custom to Reconceptualize Crimes against Humanity’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) 80, 100-105; A. Nollkaemper, ‘The Legitimacy of International Law in the Case Law of the International Criminal Tribunal for the former Yugoslavia’ in T. Vandamme and J.H. Reestman (eds.), Ambiguity in the Rule of Law: The Interface between National and International Legal Systems (Groningen: Europa Law Publishing, 2001) 13, 15-18; J. Powderly, ‘Judicial Interpretation at the ad hoc Tribunals: Method from Chaos?’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) 17, 26-32. Boot and Ambos have drawn a similar link between the strict understanding of customary international law and the principle of legality. Boot (n. 13 above) 305; Ambos (n. 23 above) 162-163. 36 Powderly (n. 35 above) 28. 37 Van den Herik (n. 35 above) 105. See also Danner (n. 3 above) 47; Van Schaack (n. 5 above) 165; Wessel (n. 6 above) 392; Boas (n. 31 above) 204-205, 207; Nollkaemper (n. 35 above) 15-17. 38 Lamb (n. 15 above) 745.

11

FACTS MATTER of the legality principle.39 Also the ICC’s interpretation of the Rome Statute has been met with criticism. Scholars have, for example, argued that the Court’s use of interpretative techniques stemming from human rights law can provoke (excessively) broad interpretations of criminal law concepts.40 After all, human rights lawyers do not think in terms of legality,41 but traditionally engage in teleological reasoning that regards the maximisation of victim protection as the law’s exclusive purpose.42 The legality requirement of strict statutory construction is thereby easily lost out of sight.

1.3 1.3.1

LEGAL THEORY

ON

JUDICIAL REASONING

From Legalism to Dialogue

The procedural approach to legality prompts a further assessment of the process of judicial reasoning and of the restrictions that this process imposes on courts. Insights from legal theory are particularly useful in this respect. Legal theory takes as a startingpoint that courts operate on the basis of argumentative legitimacy, which means that they have to articulate rational reasons for their decisions to the parties, the higher courts and the general public.43 Such reason-giving is especially important when courts exercise a central role in the clarification and development of the law, like in international criminal law.44 It is therefore opportune that the statutes of the ad hoc Tribunals and

39 On this issue, see also I. Bantekas, ‘Reflections on Some Sources and Methods of International Criminal and Humanitarian Law’, 6 International Criminal Law Review (2006) 121, 121; Y. Kirakosyan, ‘Finding Custom: The ICJ and the International Criminal Courts and Tribunals Compared’ in L. van den Herik and C. Stahn (eds.), The Diversification and Fragmentation of International Criminal Law (Leiden: Martinus Nijhoff Publishers, 2012) 149, 150, 156; Van Sliedregt (n. 3 above) 14; Wessel (n. 6 above) 392; Powderly (n. 35 above) 26-32. 40 D. Robinson, ‘The Identity Crisis of International Criminal Law’, 4 Leiden Journal of International Law (2008) 925, 934. 41 Haveman (n. 3 above) 32. 42 Robinson (n. 40 above) 934. See also Haveman (n. 3 above) 31-33; Soares (n. 15 above) 168-173; Wessel (n. 6 above) 440-447. 43 L.M. Soriano, ‘The Use of Precedents as Arguments of Authority, Arguments ab Exemplo and Arguments of Reason in Civil Law Systems’, 11 Ratio Juris (1998) 90, 91-92, 101; C.E. Smith, Regels van Rechtsvinding (Den Haag: Boom Juridische Uitgevers, 2007) 57, 140; C.E. Smith, Feit en Rechtsnorm. Een Methodologisch Onderzoek naar de Betekenis van de Feiten voor de Rechtsvinding en Legitimatie van het Rechtsoordeel, 10 September 1998, PhD Thesis, 25; Kratochwil (n. 1 above) 43, 212; Cassese (n. 3 above) 589; Taruffo (n. 11 above) 314-316. For a nuanced view on the connection between the audience to which the judge directs his judgment and the style of the judgment, see J. Bell, ‘Book Review: Comparing Precedent’, 82 Cornell Law Review (1996-1997) 1243, 1251-1252, 1261. 44 P.P.T. Bovend’Eert, ‘Wetgever, Rechter en Rechtsvorming’, 4 Rechtsgeleerd Magazijn Themis (2009) 145, 152; J.C.A. de Poorter and H.J.Th.M. van Roosmalen, Motivering bij Rechtsvorming. Over de Motivering van Uitspraken met een Rechtsvormend Element door de Afdeling Bestuursrechtspraak van de Raad van State (Den Haag: Raad van State, 2009) 16, 22.

12

I

PROLOGUE

the ICC explicitly stipulate that the courts should give a fully reasoned opinion for their findings.45 Legal theory regularly assumes that judicial argumentation is guided or controlled by rules.46 The reliance on rules allegedly warrants that decisions are objectively rational and conform to the rule of law.47 The rules of substantive international criminal law have been increasingly captured in statutory provisions.48 These provisions specify the legal elements – i.e. the necessary and sufficient conditions – of international crimes and modes of liability. Courts have the task to determine the applicability of these elements in individual cases. Hereto, they connect general legal rules to the particular facts of the case before them. Legal theories present different views on the course of this process. Traditional legalist theories take the democratic ideal and the requirements of legal equality and certainty as a starting-point. From this perspective, they assume a strict division of labour between the legislator and the judiciary.49 Whereas the legislator has the task to design clear rules that criminalise specific behaviour, the judiciary applies these rules deductively:50 ‘[i]t is the function of a judge not to make the law but to declare the law, according to the golden mete-wand of the law and not the crooked cord of discretion’.51 In this way, the judicial authority to clarify and develop the law is confined. The decisions of courts (conclusions) should logically follow from the application of a legal rule (major) to the facts of individual cases (minor).52 Judicial interpretation is thereby permitted, but has to be closely linked to the text of the rule at issue (strict construction). When a gap in the law cannot be filled through interpretation, courts are not allowed to proceed autonomously, but should bring the issue to the legislator’s

45 Statute for the International Criminal Tribunal for Rwanda, SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc. S/RES/955 (8 November 1994) (ICTR Statute), Article 22; Statute for the International Criminal Tribunal for the former Yugoslavia, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc. S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc. S/RES/1877 (7 July 2009) (ICTY Statute), Article 23; Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (ICC Statute), Article 74. 46 Von der Lieth Gardner (n. 11 above) 3; Smith 2007 (n. 43 above) 12-13. 47 Walker (n. 11 above) 1687. 48 This does not change the fact that many rules of international criminal law still have a basis in customary international law. 49 This strict separation between the legislator and the judiciary can be traced back to the trias politica, one of the basic principles of modern democratic societies. 50 M.J. Borgers, ‘De Communicatieve Strafrechter’ in Controverses rondom Legaliteit en Legitimatie, Handelingen Nederlandse Juristen-Vereniging 2011-1 (Deventer: Kluwer, 2011) 103, 106; J. Uzman et al. ‘The Dutch Supreme Court: A Reluctant Positive Legislator?’ in A.R. Brewer-Carias (ed.), Constitutional Courts as Positive Legislators (Cambridge: Cambridge University Press, 2011) 645, 662; G. Sartor, Legal Reasoning: A Cognitive Approach to the Law (Dordrecht: Springer, 2005) 10-11; Shahabuddeen (n. 13 above) 185; Smith 2007 (n. 43 above) 24-28. 51 E. Coke, The Second Part of the Institutes of the Laws of England (London: E.&R. Brooke, 1797) 51. 52 Prakken and Sartor (n. 12 above) 238. See also Kratochwil (n. 1 above) 212, 220; Soriano (n. 43 above) 95.

13

FACTS MATTER attention. Thus, the legislator acquires the primary responsibility for determining, updating and advancing the law.53 In recent years, legal theory has increasingly moved away from the classic legalist perception. In particular, it has postulated that the role of courts cannot be captured in terms of a strict division of labour between the legislator and the judiciary.54 This has resulted in a redefinition of the courts’ function in more sophisticated terms. The legislator and the judiciary are now often portrayed as ‘partners in the business of law’ who are engaged in a continuous dialogue with each other.55 It must be emphasised that this does not imply that the judiciary can exercise a quasi-legislative function.56 The dialogue model does not permit courts to make new laws without a basis in the existing legal system, to design general norms, or to interfere in political issues that allow for different solutions.57 Yet, it ascribes the judiciary a certain formative function.58 Courts are not perceived as mere bouches de la loi, but may also shape the law on a case-by-case basis. The dialogue model accordingly authorises courts to add new elements to the law that is already in place and to adjust legal concepts in response to societal changes.59 In this way, judicial decisions become an essential source for understanding and explaining the meaning of the law.60 53 R. van Gestel, ‘Naar een Beter Huwelijk tussen Rechter en Wetgever of toch maar Liever Living Apart Together’, 89 Nederlands Juristenblad (2014) 20, 20, 23; J. de Poorter, ‘Wetgever en Rechter’, 89 Nederlands Juristenblad (2014) 6, 6; Borgers (n. 50 above) 106, 115. 54 G. Lamond, ‘Precedent and Analogy in Legal Reasoning’, available online at ; K. Rozemond, ‘De Rechtsvindingsleemte in het Strafrecht’, 169 Rechtsgeleerd Magazijn Themis (2008) 1, 1-4; W.D.H. Asser, ‘Rechtsvorming door de Hoge Raad: Enkele Inleidende Opmerkingen’ in W.M.T. Keukens and M.C.A. van den Nieuwenhuijzen (eds.), Raad en Daad (Nijmegen: Ars Aequi, 2008) 9, 12; Taruffo (n. 11 above) 322-323; Borgers (n. 50 above) 106, 116, 158-165, 171-172. 55 De Poorter (n. 53 above) 7; Borgers (n. 50 above) 158-165. 56 Smith does ascribe the judiciary a quasi-legislative function insofar as it concerns the interpretation and use of rules referring to open concepts, such as ‘reasonableness’ and ‘norms of social order’. Smith 2007 (n. 43 above) 35. This study does not concern such open concepts, but relates to the open texture of concepts that are in themselves clear, e.g. perpetration, intent, killing. 57 R. Jennings, ‘The Judiciary, International and National, and the Development of International Law’, 45 International and Comparative Law (1996) 1, 3; B.N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1971) 140-141; Shahabudeen (n. 3 above) 187; Smith 2007 (n. 43 above) 47, 129; Bovend’Eert (n. 44 above) 151; Uzman et al. (n. 50 above) 670. 58 G.J. Wiarda, Drie Typen van Rechtsvinding (Deventer: Kluwer, 1999) 30-34; Smith 2007 (n. 43 above) 35, 37; Smith 1998 (n. 43 above) 2-4; Uzman et al. (n. 50 above) 677. 59 J. Uzman, Constitutionele Remedies bij Schending van Grondrechten. Over Effectieve Rechtsbescherming, Rechterlijk Abstineren en de Dialoog tussen Rechter en Wetgever, 5 December 2013, PhD Thesis, 151-154; A. Hammerstein, ‘Rechtsvorming door de Rechter is Onvermijdelijk’, 10 Ars Aequi (2009) 672, 672-673; Bovend’Eert (n. 44 above) 150-151; Poorter (n. 53 above) 6; Borgers (n. 50 above) 116, 120. 60 D.N. MacCormick and R.S. Summers, ‘Introduction’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 1, 11-12; M. Taruffo, ‘Institutional Factors Influencing Precedents’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 437, 459; Soriano (n. 43 above) 92, 94-95.

14

I 1.3.2

PROLOGUE

Legal Reasoning and the Open Texture of Rules

The development of the dialogue model and the allocation of a formative function to courts are linked to thoughts about the nature of legal rules. Legal theory recognises that rules are context-independent – i.e. applicable to an infinite number of future situations. Since it is impossible to preconceive all (combinations of) circumstances that these situations will present,61 rules are normally put in relatively abstract and indeterminate terms that refer to classes of actions and persons (such as ‘armed conflict’, ‘superior’ or ‘inhumane acts’).62 In this way, rules acquire an ‘open texture’,63 which makes it difficult to define beforehand which cases fall within the scope of the law.64 This neither implies

61 Van Willigenburg nuances this argument by acknowledging that even when legislator are unable to foresee all possible combinations of circumstances at a certain time, this does not negate their ability to gradually adjust norms in the course of time in light of specific fact-situations. K. van Willigenburg, ‘Casuïstiek en Scherpe Normen in het Materiële Strafrecht’, 27 Delikt en Delinkwent (2011) 365, 379-380. Other reasons for the abstractness and indeterminacy of the law are the need to adjust the law to societal and technical developments and the wish to prevent that overly detailed statutory regulations make the law undesirably complex. K. Rozemond, Strafvorderlijke Rechtsvinding (Deventer: Gouda Quint, 1998) 30-32; Borgers (n. 50 above) 109; Rozemond (n. 16 above) 22-23. 62 Kratochwil (n. 1 above) 72; Smith 2007 (n. 43 above) 87. Schauer distinguishes two types of indeterminacy. On the one hand, there are vague regulations that furnish virtually no conclusive answer (e.g. other inhuman actions). On the other hand, there are statutes that are precise for most applications and only become imprecise in the context of a particular case. In this case, Schauer speaks of the ‘vague edges of normally precise statutes’. F. Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, Mass.: Harvard University Press, 2009) 162-163. On the inherent vagueness of the law see also H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994) 128-129; J. Klabbers, ‘The Meaning of Rules’, 20 International Relations (2006) 295, 297; L. Branting, ‘Building Explanations from Rules and Structured Cases’, 34 International Journal of Man-Machine Studies (1991) 797, 798; Smith 2007 (n. 43 above) 21, 41, 87-88; Borgers (n. 50 above) 109; Rozemond (n. 16 above) 15. Although, of course, there are regulations that provide for strict orders and prohibitions, for example in the field of traffic or environmental law. 63 Hart (n. 62 above) 128. See also J. Brennan, The Open Texture of Moral Concepts (Michigan: Macmillan, 1977); H. van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’, 8 International Criminal Law Review (2008) 229, 263-264; E. van Sliedregt, ‘System Criminality at the ICTY’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 183, 199-200; M. Cupido, ‘The Policy underlying Crimes against Humanity: Practical Reflections on a Theoretical Debate’, 22 Criminal Law Forum (2011) 275, 301 and chapter 2 of this study; Klabbers (n. 62 above) 298. Van Willigenburg nuances the inherent connection between abstract norms and vague norms. While acknowledging that abstract norms have a stronger tendency for vagueness, he argues that they are not completely identical. K. van Willigenburg, Casuïstiek en Precedentwerking in het Materiële Strafrecht, PhD manuscript, on file with author, 131-133. On the open texture of the law from the perspective of AI&L, see e.g. Von der Lieth Gardner (n. 11 above) 2. 64 Kratochwil (n. 1 above) 18, 241; Rozemond (n. 16 above) 15; Smith 2007 (n. 43 above) 16, 37; Rozemond (n. 61 above) 30; Hart (n. 62 above) 126-128; Branting (n. 62 above) 798. According to Hart, the inconclusive and open character of the law should be considered as a positive feature: ‘we should not cherish, even as an ideal, the conception of a rule so detailed that the questions whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives. Hart (n. 62 above) 126.

15

FACTS MATTER that legal rules are inconsequent, nor that the deductive application of rules plays no role in judicial reasoning.65 In particular in so-called ‘easy cases’ that fall within a rule’s ‘core of settled meaning’, there is generally little doubt whether the requisite legal elements are met.66 The task of judges is then confined to a relatively mechanical process of reasoning by subsumption:67 ‘the decision follows from a legal rule, a description of the facts of the case and some other premises which are easy to prove’.68 Consider, for example, the rules governing the commission of international crimes, which have long been premised on the paradigm of the ‘hands-on’ perpetrator.69 Based on these rules, courts have been able to classify persons who have physically committed a crime – i.e. those who have ‘pulled the trigger’ – as criminal perpetrators by means of a deductive process. Having said that, we should be mindful that – even if the words of a rule are clear in themselves – there will always be a penumbra of hard cases in which the rule’s applicability is not clear-cut.70 Think, for example, of cases concerning senior politicians who have played a strategic role in the implementation of a policy to commit widespread crimes. Because these leadership figures do not comply with the image of the paradigmatic ‘hands-on’ perpetrator, their criminal responsibility cannot be established deductively. The process of reasoning by subsumption falls short here.71 It is therefore necessary to nuance the central position of rules as all decisive standards and to refine the absolute deductive nature of judicial reasoning. In particular, it should be acknowledged that rules cannot always settle discussions about the meaning and scope of the law, but often form the ‘mere’ starting-point of a further judicial argumentation process.72 The primary challenge of this process is the classification of individual cases under the law. The process of classification has even been characterised as one of ‘the most puzzling and interesting problems in legal reasoning’ or as the most ‘tricky’ phase

65 J.R. Murray, ‘The Role of Analogy in Legal Reasoning’, 29 UCLA Law Review (1981-1982) 833, 850; Kratochwil (n. 1 above) 12, 41, 209-211, 214, 227; Soriano (n. 43 above) 95; Smith 2007 (n. 43 above) 79; Smith 1998 (n. 43 above) 28, 37-38, 95-96, 203. 66 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, 71 Harvard Law Review (1958) 593, 607; Hart (n. 62 above) 129; Rozemond (n. 16 above) 16, 23. 67 Rozemond (n. 61 above) 39; Hart (n. 62 above) 126-127. On the different conceptions of ‘clear’ (settled) and ‘hard’ (marginal) cases, see Smith 2007 (n. 43 above) 32, 75-77, 87; Smith 1998 (n. 43 above) 71-72, 124-130. 68 A. Peczenik, On Law and Reason (New York: Springer, 2009) 14. 69 This changed with the coming into force of the Rome Statute of the ICC that explicitly incorporates a concept of indirect perpetration. See Article 25(3)(1) ICC Statute. 70 Borgers (n. 50 above) 127-128. 71 Kratochwil (n. 1 above) 227; Rozemond (n. 16 above) 16, 23; Smith 2007 (n. 43 above) 18-19, 31, 87; Rozemond (n. 61 above) 39; Hart (n. 66 above) 606-615. 72 K. Rozemond, ‘De Casuïstische Grenzen van het Materiële Strafrecht’, 37 Delikt en Delinkwent (2007) 465, 479-481; Kratochwil (n. 1 above) 227; Soriano (n. 43 above) 95; Klabbers (n. 62 above) 300.

16

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PROLOGUE

in judicial argumentation.73 The challenges that courts face in this respect stem from the interplay between law and facts: a ‘technically’ perfect case is of itself equally unreliable in regard to the interpretation or classification of the facts. For rarely indeed do the raw facts (…) fit cleanly into any legal pattern (…). No matter what the state of law may be, if the essential pattern of the facts is not seen by the court as fitting cleanly under the rule you contend for, your case is still in jeopardy (…).74 It follows from this account that the classification of cases under legal rules requires that courts close the gap between law and facts by exercising a certain degree of discretion.75 Whereas this process can be appraised positively insofar as it enables courts to achieve a reasonable solution in each case, it also brings about the risk that judges freely tweak the law to fit the facts and apply legal rules arbitrarily as if they are lui-même la règle.76 To limit this risk and to prevent that judicial decisions are based on the personal preferences of judges, legal theory relies on so-called ‘secondary rules of adjudication’.77 These rules circumscribe judicial creativity by formulating formal standards of argumentation that specify what good legal reasoning is.78 In particular, secondary rules instruct courts to justify their decisions with reference to accepted principles of criminal justice and to connect their decisions to the text, history and purpose of legal rules.79 Thus, it is warranted that [h]owever extensive the scope of law-creating judicial interpretation may be, it is always limited, although not totally determined, by existing legal materials. The undeniable freedom of judicial decision is one within the law.80

73 Kratochwil (n. 1 above) 247. See also Smith 2007 (n. 43 above) 81. 74 K.N. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little, Brown & Co., 1960) 237. See also Smith (n. 43 above) 81. 75 A. Peczenik, ‘Jumps in Logic and Law. What Can One Expect from Logical Models of Legal Argumentation’, 4 Artificial Intelligence and Law (1996) 297, 300; Rozemond (n. 16 above) 15. 76 Smith 1998 (n. 43 above) 4-6; Smith 2007 (n. 43 above) 138. 77 Hart (n. 62 above) 97. See also Kratochwil (n. 1 above) 9, Smith 2007 (n. 43 above) 131, 136, 143; Smith 1998 (n. 43 above) 78-80, 85-87, 143. 78 Kratochwil (n. 1 above) 241. 79 Kratochwil (n. 1 above) 238, 241, 243; Friedmann (n. 11 above) 829, 839-843; Smith 2007 (n. 43 above) 43, 45, 135-136, 140; Smith 1998 (n. 43 above) 68-69, 87-97; Borgers (n. 50 above) 103, 116-117, 129-130; Murray (n. 65 above) 861. 80 H. Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1993) 103. See also Bell (n. 43 above) 1260; Hart (n. 62 above) 126-127, 145.

17

FACTS MATTER In this way, judicial reasoning becomes a rhetorical exercise that is neither completely constrained (determinate), nor completely uncontrolled (indeterminate), but receptive to bounded creativity.81 Whereas the absence of a deductive paradigm allows courts to gradually clarify and develop the law on a case-by-case basis, this leeway is confined and structured by the totality of legal principles, rules and precedents.

1.4 1.4.1

HOW

TO

MANAGE

THE

OPEN TEXTURE

OF

LEGAL RULES?

Casuistry: Basic Starting-Points and Methodology

The recognition of the open texture of legal rules and the discretionary nature of judicial reasoning has resulted in a renewed interest in and appreciation for casuistry, a type of moral reasoning that has its roots in antiquity. The theory and methodology of casuistry are considered to aptly reflect the conception of the law as an open system that is shaped by judicial decisions in individual cases.82 Casuistry takes as a starting-point that the law should be assessed along the lines of practical wisdom.83 Issues of practical wisdom cannot be decided on the basis of initial axioms or universal principles,84 but are shaped by the specific context in which they arose. This becomes particularly clear when we look at clinical medicine, a quintessential practical wisdom.85 The central question in clinical medicine is always, ‘what medical condition is affecting this patient and how should this be treated?’. To answer this question, physicians do not only need to have general scientific knowledge of medicine, but should also possess a pattern of recognition. This pattern enables them to (i) establish a set of paradigmatic diseases, injuries or disabilities, (ii) evaluate the patients’ medical condition in light of this set, and (iii) place the patient’s condition in one of the recognised types.86 Casuistry establishes a similar interplay between legal theory and practice. It recognises that the law is largely laid down in general rules that quickly settle discussions

81 C.C. Arnold, ‘Introduction’ in C. Perelman, The Realm of Rhetoric (Notre Dame: University of Notre Dame Press, 1982) vii, xi; Von der Lieth Gardner (n. 11 above) 62, quoting J.T. Wisdom, Proceedings of the Aristotelian Society (1945); Kratochwil (n. 1 above) 12; Taruffo (n. 11 above) 322-323; Smith 2007 (n. 43 above) 105; Soriano (n. 43 above) 91; Murray (n. 65 above) 836-838, 850; Wiarda (n. 58 above) 19-33; Branting (n. 62 above) 802. 82 Taruffo (n. 11 above) 322-323; Van der Wilt (n. 63 above) 264. 83 A.R. Jonsen and S. Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988) 24-46. On this issue see also Kratochwil (n. 1 above) 214; Walker (n. 11 above) 1690. 84 Jonsen and Toulmin (n. 83 above) 34. 85 Jonsen and Toulmin (n. 83 above) 36-42. 86 Jonsen and Toulmin (n. 83 above) 40.

18

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PROLOGUE

about the accurate course of action in prototype cases.87 Marginal cases can, however, not be decided on the mere basis of abstract definitions and universal prescriptions. They require considerations that are ‘not written into the rules themselves’.88 Casuistry therefore finds that the meaning of the law can only be determined in light of legal practice, i.e. by looking at the ways in which courts apply legal rules in individual cases.89 By thus interpreting the law in interplay with its practical application,90 case-specific facts become an essential construct for the gradual building of legal rules.91 Casuistry accordingly evaluates the law through a circular motion – a Hin- und Herwandern des Blickes – between rules and facts.92 An important consequence of this approach is that the law transforms continuously. It is constantly rethought against the background of social, political and historical changes and is modified with each new case coming before the courts.93 [A]ny modification of the system (by the introduction of new concepts or by changing the old) brings about a modification of the concepts themselves; concepts are not like the individual stones in a pile which remain unchanged except in their external relations when the pile is disturbed – a change in the conceptual scheme always entails a modification of the existing concepts.94 In The Abuse of Casuistry, Jonsen and Toulmin explain how casuistry was historically valued for enabling the law’s gradual modernisation and its adjustment to the challenges of new fact situations.95 However, in the 17th century, casuistry came under attack. In Lettres Provinciales, Pascal most prominently asserted that casuistry does not impose any meaningful limitations on (judicial) reasoning and consequently leads to arbitrariness, inequality and uncertainty.96 As a result of Pascal’s attack, casuistry has become 87 In this sense, casuistry departs from critical studies assuming that ‘rules are empty vessels’ and ‘indeterminate notions’. It also disregards the finding of Klabbers that uncertainties at the fringes of a rule ‘signifies fundamental uncertainty even with respect to the core, for the line between core and penumbra can never be drawn with precision’. Klabbers (n. 62 above) 295, 297. 88 Jonsen and Toulmin (n. 83 above) 8. 89 Jonsen and Toulmin (n. 83 above) 26. See also Kratochwil (n. 1 above) 18; Von der Lieth Gardner (n. 11 above) 37; Smith 1998 (n. 43 above) 63. 90 H. van der Wilt, ‘Domestic Courts’ Contribution to the Development of International Criminal Law: Some Reflections’, 46 Israel Law Review (2013) 207, 228. 91 Jonsen and Toulmin (n. 83 above) 44; Smith 2007 (n. 43 above) 167; Smith 1998 (n. 43 above) 131, 148. 92 K. Engisch, Logische Studien zur Gesetzesanwendung (Heidelberg: Carl Winter, 1963) 14-15; Smith 2007 (n. 43 above) 82-86, 93; Smith 1998 (n. 43 above) 33, 131. 93 Rozemond (n. 72 above) 476; Van der Wilt (n. 63 above) 266-268. 94 Brennan (n. 63 above) 123. For a similar evaluation of common law practice, see G. Lamond, ‘Do Precedents Create Rules?’, 11 Legal Theory (2005) 1, 17; Von der Lieth Gardner (n. 11 above) 37. 95 Jonsen and Toulmin (n. 83 above) 13. 96 Jonsen and Toulmin (n. 83 above) 156-157, 231-249.

19

FACTS MATTER associated with unbounded and unstructured decision-making.97 The definition of casuistry in the Oxford Dictionary as ‘the use of clever but unsound reasoning’ illustrates the perseverance of this critical attitude.98 Jonsen and Toulmin recognise that casuistry is not risk-free. Judges may be tempted to abuse the context-dependent and flexible character of casuistic reasoning for deciding cases according to their own preferences. At the same time, Jonsen and Toulmin emphasise that casuistry can make a valuable contribution to the clarification and development of the law when it is applied in an honest way. Thus, instead of rejecting casuistry completely, a distinction must be drawn between good (discerned) and bad (lax) casuistry.99 This distinction relates to methodological soundness: whereas good casuistry conforms to the constraints of the casuistic methodology, bad casuistry neglects them. The methodology of casuistry has never been endorsed explicitly, yet some basic starting-points can be inferred from practice.100 Practice particularly demonstrates that casuistry entails a process of analogical reasoning from precedent.101 This process is based on the thought that decisions in individual cases should be connected to the existing legal framework and to the outcomes of previous experience.102 From this perspective, courts need to reapply the procedures that were used to resolve earlier problems in new cases.103 General principles and paradigm situations for which these principles were designed originally play an important role in this respect. The more the circumstances of a case resemble those of a paradigm, the stronger the reason to reapply the principle governing the paradigm in the present case. The outcome of a case thus depends on the similarities and differences between the present and the paradigm situation.104 Courts should therefore assess and explain whether these situations display sufficient resemblance in relevant respects.105 When they fail to do so (properly), casuistic reasoning gets on a slippery slope and can produce bad casuistry.106

97 Jonsen and Toulmin (n. 83 above) 238. 98 . According to Posner, casuistry entails ‘logic-chopping, the drawing of phony distinctions, the use of the forms of logic to defend irrational results, literal-mindedness, deceit by half-truths’. R.A. Posner, The Problematics of Moral and Legal Theory (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1999) 122. 99 Jonsen and Toulmin (n. 83 above) 15-16. 100 Jonsen and Toulmin (n. 83 above) 140, 251. 101 Note that I do not use the terms ‘analogies’ and ‘analogical reasoning’ to describe situations in which rules are extended by analogy to cases that were not originally covered by it, but to depict the qualification of specific fact-situations within the scope of existing law. 102 Jonsen and Toulmin (n. 83 above) 35. On this issue see also Van der Wilt (n. 63 above) 265. 103 Jonsen and Toulmin (n. 83 above) 35, 46. 104 Jonsen and Toulmin (n. 83 above) 35. For a similar characterisation of judicial decision-making, see Kratochwil (n. 1 above) 223; Hart (n. 62 above) 127. 105 Hart (n. 62 above) 127. 106 Rozemond (n. 72 above) 473.

20

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Casuistry implements the process of analogical reasoning by means of a taxonomy.107 The taxonomy first formulates a general rule, which stipulates the elements of, for example, a crime or mode of liability.108 Against this background, the taxonomy subsequently introduces paradigm cases that exemplify the most manifest breaches of the general rule.109 The taxonomy of genocide would, for example, incorporate the Holocaust against the European Jews during World War II as a paradigm case: everyone agrees that this situation qualifies as genocide. The general rule is, however, not limited to paradigm cases.110 The taxonomy therefore proceeds to incorporate situations that ‘move (..) away from the paradigm by introducing various combinations of circumstances and motives that made the offense in question less apparent’.111 This justifies the application of genocide to more marginal cases that differ from the Holocaust in scope, style and technique. As cases deviate from the paradigm to an increasing extent, their classification under the same legal principle becomes more ambiguous and arguable. The controversies surrounding the qualification of the crimes committed in Srebrenica and Darfur as genocide are illustrative in this respect.112 These crimes differ from the Holocaust paradigm to such an extent that their equivalent characterisation is doubtful. The taxonomy of casuistry does not offer a conclusive solution for these doubts. It only describes cases along the lines of probability (‘probable’, ‘thinly probable’, ‘hardly probable’).113 It follows from this account that the taxonomy of casuistry is not a strict and alldecisive mechanism, but a tool that guides courts through the complexities of cases. (Paradigmatic) precedents are essential in this regard, since they constitute the context of deliberation – i.e. the ‘inventory or alternatives’114 – in which courts explain their decisions.115 With the continous settlement of cases – each entailing a specific combination of factual circumstances that needs to be taken into account – the scope of judicial

107 108 109 110

111 112

113

114 115

Jonsen and Toulmin (n. 83 above) 251-252. Jonsen and Toulmin (n. 83 above) 251. Jonsen and Toulmin (n. 83 above) 252. Kratochwil in this respect notes that paradigms or types ‘are different from classical definitions since the instances subsumed under them do not need to have all the defining characteristics as the taxa and genera of definitions in classical logic’. Kratochwil (n. 1 above) 225. Jonsen and Toulmin (n. 83 above) 252. On this issue see, M. Cupido, ‘The Contextual Embedding of Genocide: A Casuistic Analysis of the Interplay between Law and Facts’, 15 Melbourne Journal of International Law (2014) 378, and chapter 4 of this study. Jonsen and Toulmin (n. 83 above) 254. Also Kratochwil recognises that legal conclusions should be phrased in terms of acceptability rather than ‘trueness’. Kratochwil (n. 1 above) 42. He further emphasises that ‘there is no way by which we could once and for all decide on the basis of which “resemblance” we are entitled to treat a case as “similar” or, vice versa, as dissimilar’. Kratochwil (n. 1 above) 225. Kratochwil (n. 1 above) 232; Jonsen and Toulmin (n. 83 above) 135; Borgers (n. 50 above) 133. Jonsen and Toulmin (n. 83 above) 14.

21

FACTS MATTER discretion becomes more and more confined.116 When applied carefully, the casuistic taxonomy thus warrants that judicial reasoning – although not strictly logical or deductive – is still rational and controlled.117 The taxonomy also allows for the development of a refined understanding of the law.118 After all, each time a general principle is applied to a new case, the relevant facts of this case, their mutual relations and relative weight are incorporated in the taxonomy.119 By consistently assessing the value of new facts and by re-evaluating precedent cases in light of these facts, courts clarify and finetune the factual underpinnings of substantive legal concepts on a case-by-case basis.120

1.4.2

Analogical Reasoning from Factors: Basic Starting-Points and Methodology

The theory and methodology of casuistry can be operationalised by using insights from AI&L.121 Like casuistry, AI&L assumes that judicial reasoning cannot be described in terms of reasoning from rules alone, but also incorporates forms of case-based reasoning.122 From this perspective, it translates the rather abstract thoughts on casuistry into a plain and practical framework of analogical reasoning from precedent. AI&L takes as a starting-point that judges assess and decide cases on the basis of factors. ‘Factors are an abstraction from facts in that a given factor may be held to be present in the case on the basis of several fact situations, and (…) strengthen the case for one or other of the parties to the dispute.’123 For example, the accused’s presence at the crime scene can be a factor that strengthens the prosecutor’s claim that the accused knew of the commission of crimes. The formulation of factors involves a complex process of

116 Lamond discusses this process in relation to the common law. Lamond (n. 94 above) 20. See also Kratochwil (n. 1 above) 243. 117 Jonsen and Toulmin (n. 83 above) 255-256; Kratochwil (n. 1 above) 211. 118 Jonsen and Toulmin (n. 83 above) 255. 119 Jonsen and Toulmin (n. 83 above) 142. 120 On the gradual reinterpretation and recharacterisation of precedents see also F. Schauer, ‘Precedents’, 39 Stanford Law Review (1987) 571, 574. 121 On the relevance of this research for substantive international criminal law, see also Cupido (n. 63 above); Cupido (n. 112 above). 122 Branting (n. 62 above) 798. See also C. Groendijk and A. Oskamp, ‘Case Recognition and Strategy Classification’, ICAIL Proceedings of the 4th International Conference on Artificial Intelligence and Law (New York: ACM Press, 1993) 125, 125, 127; G. Vossos et al., ‘An Example of Integrating Legal Case-Based Reasoning with Object-Oriented Rule-Based Systems: IKBALS II’, ICAIL Proceedings of the 3rd International Conference on Artificial Intelligence and Law (New York: ACM Press, 1991) 31, 31-32; Von der Lieth Gardner (n. 11 above) 45-46. 123 T. Bench-Capon and G. Sartor, ‘Theory-Based Explanation of Case Law Domains’, ICAIL Proceedings of the 8th International Conference on Artificial Intelligence and Law (New York: ACM Press, 2001) 12, 12. See also J.F. Horty et al., ‘A Factor-Based Definition of Precedential Restraint’, 20 Artificial Intelligence and Law (2012) 181, 183.

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interpretation.124 In particular, it is difficult to determine the exact terms and level of abstraction of factors in a rational way. For example, is the accused’s contribution to the planning of crimes a relevant factor for establishing his criminal participation, or should account be taken of the specific type and degree of preparatory involvement? In contrast to (the legal elements of) rules, factors do not stipulate the necessary and sufficient conditions of criminal responsibility. Instead, they provide open-ended illustrations of legally relevant patterns of facts that courts can rely upon to make and explain their decision. This implies, on the one hand, that factors do not automatically compel a specific outcome when they are established. The existence of a factor does not determine, but merely favours a decision and moves the decision-maker in that direction.125 On the other hand, not all factors have to be established in every case. Only prototype cases bring together all factors favouring a decision in optima forma.126 Sartor illustrates this as follows: [a]ssume (…) that the qualification of a worker as an employee would be favoured to the extent that the worker is dedicating a larger proportion of his working time to one work-giver; is following the directions of the work-giver; is working within the premises of the work-giver; or using the work-giver’s tools.127 According to these factors, ‘the prototypical employee is a person who is working full time for a single employer, under detailed directions, within the employer’s premises and using the employers’ tools’.128 This does, however, not mean that persons who differ from the prototype because they reflect a less optimal combination of factors (for example, persons who work only 50 percent of their time for a single employee without detailed directions) are automatically excluded from the status of employee.129 Whether this is so, depends on the holistic assessment of all applicable factors and the correlation between them.130 In this respect, the relative strength of the factors favouring and disfavouring a decision have to be weighed against each other. 124 J.F. Horty, ‘Rules and Reasons in the Theory of Precedent’, 17 Legal Theory (2011) 1, 5; Sartor (n. 50 above) 738; Branting (n. 62 above) 834-835; Horty et al. (n. 123 above) 186, 211. The difficulties surrounding the process of establishing the relevant factors resemble the difficulties of the common law to determine the level of generality of precedents. On this issue see, Lamond (n. 54 above); Schauer (n. 120 above) 595. 125 G. Sartor, ‘Reasoning with Factors’, 19 Argumentation (2005) 417, 417; Sartor (n. 50 above) 177. 126 Sartor (n. 50 above) 191-192. Sartor’s description of prototypes corresponds with Hart’s ‘standard case’ – i.e. a case in which no doubts are felt about its application. Hart (n. 66 above) 607-608. 127 G. Sartor, Factors and Dimensions in Legal Reasoning, available online at . See also Sartor (n. 50 above) 192-193. 128 Sartor (n. 127 above). 129 Sartor (n. 50 above) 193. 130 Sartor (n. 50 above) 180; Sartor (n. 125 above) 423. AI&L research recognises the holistic character of factors, but struggles to put this into a logical framework. See, e.g. C. Tata, ‘The Application of Judicial Intelligence and Rules to Systems Supporting Discretionary Judicial Decision-Making’, 6 Artificial Intelligence and Law (1998) 203, 214-218; Prakken and Sartor (n. 12 above) 271-272; Sartor (n. 50 above) 180.

23

FACTS MATTER Does this flexibility make factor-based reasoning completely unbounded? Are there no restrictions to the formulation of factors? And can factors be balanced in such ways that prototypes are applicable to an infinite number of situations? Clearly not. AI&L research stipulates at least two guiding principles that control the function of factors. First of all, the formulation of factors is constrained by so-called ‘teleological links’ between factors and legal objectives.131 This means that factors need to be connected to the objective of the rule for which they are used. They should originate from the desire to achieve the purpose of a rule and reflect the belief that acting and deciding under certain conditions promotes that purpose.132 Sartor accordingly adopts the following reasoning scheme: having goal G; and believing that doing A, under pre-condition C, promotes G is a reason for having the propensity to do action A under pre-condition C (viewing precondition C as a factor favouring action A).133 In relation to international criminal law, this reasoning scheme, for example, clarifies that having the purpose to limit the accused’s criminal responsibility to crimes of which he had knowledge; and believing that the accused’s presence at the crime scene promotes this objective; is a reason for considering the accused’s presence as a factor for establishing his criminal responsibility. By thus connecting facts to legal objectives, factor-based reasoning refines and simplifies the process of teleological reasoning.134 Furthermore, the application of prototypes to more ambiguous situations is confined by a process of analogical reasoning. AI&L takes as a starting-point that judicial decisions need to be consistent: whereas like cases should have a similar outcome, unlike cases have to be decided differently.135 To meet this standard, courts are prompted to draw analogies and compare the case before them to cases that have already been settled. In particular, courts should reapply prior judicial evaluations of factors in later cases that 131 T. Bench-Capon and G. Sartor, ‘Using Values and Theories to Resolve Disagreement in Law’ in J. Breuker et al. (eds.), Legal Knowledge and Information Systems: Jurix 2000 the Thirteenth Annual Conference (Amsterdam: IOS Press, 2000) 73, 74-75; G. Sartor, ‘Teleological Arguments and Theory-Based Dialectics’, 10 Artificial Intelligence and Law (2002) 95, 97-98; Sartor (n. 50 above) 188. On the selectivity of the observation of facts and the guidance of judicial observations of facts by the applicable rules of law, see Smith 2007 (n. 43 above) 83. 132 D.H. Berman and C.D. Hafner, ‘Representing Teleological Structures in Case-Based Legal Reasoning: The Missing Link’, ICAIL Proceedings of the 4th International Conference on Artificial Intelligence and Law (New York: ACM Press, 1993) 50, 55-56; T. Bench-Capon, ‘The Missing Link Revisited: The Role of Teleology in Representing Legal Argument’, 10 Artificial Intelligence and Law (2002) 79, 82; Sartor (n. 50 above) 739; Sartor (n. 125 above) 418. For a contrary view, see Roth (n. 10 above) 27. 133 Sartor (n. 50 above) 179. 134 Sartor (n. 50 above) 178, 180, 188-189. 135 Bench-Capon and Sartor (n. 131 above) 74; Sartor (n. 50 above) 738.

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are characterised by a similar factual context. Thus, the fact that precedent (X) had outcome (Y) in the presence of factors (Z), justifies that the combination of factors (Z) produces outcome (Y) in future cases as well.136 According to this reasoning scheme, the decisions from precedent cases can be reapplied in new cases as long as the similarities between the factors of these cases outweigh the differences.137 In this light, it can, for example, be argued that the judicial decision to hold a mid-level accused responsible as a co-perpetrator for his participation in mob violence allows later courts to reapply the concept of co-perpetration to similar incidents of small-scale criminality. Whether co-perpetration is also applicable to situations concerning the commission of more widespread crimes orchestrated by high-level accused is, however, less clear-cut. Arguably, the factors underlying these two situations differ to such an extent that they cannot be governed by the same legal principle.138

1.5

LESSONS FROM DOMESTIC LAW: A COMPARATIVE LOOK REASONING

AT

JUDICIAL

In domestic law, the practice and role of courts has regularly been described and valued in terms of casuistry. Posner, for example, asserts that casuistry ‘undergirds the common law system (…)’.139 Common law courts particularly seem to endorse the casuistic thought that law and facts interact, as can be seen from the detailed descriptions of facts in judgments and the extensive process of distinguishing. Distinguishing occurs when the facts of a case are differentiated from the factual context of precedents and are used to justify a defeat from these precedents.140 According to Lamond, this practice suggests that precedents are tailored to a specific factual context.141 Therefore, they do not per se bind later courts, but only have to be followed in cases that are characterised by a similar set of factual circumstances.142 When the facts of a case differ from those of precedents in relevant respects, courts can use these differences as a basis for distinguishing.143 This

136 Bench-Capon and Sartor (n. 131 above) 74; Sartor (n. 50 above) 738. 137 Differently, Roth (n. 10 above) 15, 18-20, 50-51. 138 This example is inspired by the discussion on JCE liability. On this issue, see Van Sliedregt (n. 63 above) 200. 139 Posner (n. 98 above) 122. 140 J. Horty, ‘Common Law Reasoning’, available online at , 3. 141 Lamond (n. 94 above) 15. See also Lamond (n. 54 above). Thus, Lamond goes against the traditional view that precedents generate rules that later courts should apply. On this issue see also Van Willigenburg (n. 63 above) 144-146. 142 Lamond (n. 94 above) 15, 18, 23. 143 See also Horty (n. 140 above) 7; Van Willigenburg (n. 63 above) 31, 146-147.

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FACTS MATTER nuanced way of analogical reasoning based on factual resemblance fits well with the methodology of casuistry. The casuistic character of civil law systems is less obvious.144 The civil law’s rigorous interpretation of the principle of legality has traditionally given rise to a legalist approach in which the judiciary is only allowed to apply existing law.145 Civil law courts accordingly present their judgments in a syllogistic, magisterial style, whereby conclusions follow necessarily from the application of general statutory rules.146 Analogical reasoning based on factual resemblance hardly plays a role in this respect. Having said that, research shows that civil law argumentation cannot be reduced completely to the deductive application of general rules. The civil law courts are not a mere bouche de la loi,147 but regularly take up a formative and authoritative role by formulating judicial criteria and rules of thumb.148 For example, the Dutch Supreme Court has interpreted the broad statutory provision on co-perpetration in terms of the ‘close and knowing cooperation’ between multiple participants.149 In addition, it has ascertained that such cooperation may materialise in the accused’s contribution to the planning of crimes.150 The accused’s mere presence at the crime scene and the failure to distance himself from the crimes do, however, not suffice.151 By reasoning in this way, the Supreme Court has filled the gap between the general terms of the statutory provision on co-perpetration and the specific contribution of individual accused to the commission of crimes. The Court has used the factual context of cases to give concrete meaning to the criminal code and to clarify the nature and scope of criminal responsibility for co-perpetration. The concept of

144 Z. Bankowski et al., ‘Rationales for Precedent’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 481, 482-484; Smith 1998 (n. 43 above) 18. For a nuanced view on the distinctiveness of common law and civil law reasoning from the perspective of AI&L, see Tata (n. 130 above) 223. 145 Soriano (n. 43 above) 93. 146 Bankowski et al. (n. 144 above) 482-483. 147 M.J. Borgers, ‘Legaliteit en Rechtsvinding in het Materiële Strafrecht’ in A.A. Franken et al. (eds.), Constante Waarden: Liber Amicorum Constantijn Kelk (Den Haag: Boom Juridische Uitgevers, 2008) 193, 197-199; Soriano (n. 43 above) 93; Borgers (n. 50 above) 118-121; MacCormick and Summers (n. 60 above) 11-12; Bankowski et al. (n. 144 above) 458. 148 D.N. MacCormick and R.S. Summers, ‘Further Reflections and Conclusions’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 531, 531-534; A.A. Franken, ‘Casuïstiek en Legaliteit in het Materiële Strafrecht’, 32 Delikt en Delinkwent (2006) 949, 949-951; Rozemond (n. 16 above) 16; Bell (n. 43 above) 1249-1250; Soriano (n. 43 above) 97-98, 101; Smith 2007 (n. 43 above) 118; Van Willigenburg (n. 63 above) 137-140, 166-170; Bankowski et al. (n. 144 above) 494. 149 In Dutch, the courts require a ‘nauwe en bewuste samenwerking’. See HR 29 October 1934, NJ 1934, 1673 m.nt. T. On the casuistic development of co-perpetration see Rozemond (n. 16 above) 154-164; Van Willigenburg (n. 63 above) 372-375. 150 HR 17 November 1981, NJ 1983, 84 m.nt. ThWvV; HR 15 April 1986, NJ 1986, 740. 151 HR 22 December 2009, NJ 2010, 193 m.nt. PMe; HR 18 March 2008, NJ 2008, 209; HR 19 October 1994, NJ 1994, 50 m.nt. ThWvV.

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co-perpetration can therefore not be assessed on the basis of the abstract law alone, but has to be evaluated in connection to its application in practice. In this way, the typical casuistic interplay between theory (rules) and practice (cases) also enters the civil law. Surely, this brief discussion on the role of casuistry in domestic law is somewhat undifferentiated and oversteps some important variations among the common and civil law systems. Nevertheless, it shows how casuistry can help to describe, explain and appraise a number of essential features of judicial reasoning. Furthermore, it demonstrates that casuistic analyses can give a more comprehensive account of the nature and scope of criminal responsibility.

1.6 1.6.1

CASUISTRY

IN

INTERNATIONAL CRIMINAL LAW

An Unfortunate Blind Spot

The previous sections have shown that the principle of legality does not hinder the judicial development of substantive international criminal law. Instead, the open nature of this field of law has enabled the ad hoc Tribunals to gradually build a relatively sophisticated concept of criminal responsibility for international crimes. Whereas the ICC relies on stricter and more detailed statutory rules, also in this context the need for the law’s progressive advancement has generated a creative judicial practice. An analysis of this practice based on the theory and methodology of casuistry is, however, still missing. Studies of judicial reasoning in international criminal law tend to focus on the ways in which courts have used sources of law and methods of interpretation to design a general legal framework consisting of rules, principles and judicial criteria.152 Only little attention has been paid to the application of this framework in individual cases. As a result, our conception of international crimes and modes of liability does not take account of the casuistic interplay between law and facts. Legal theory and domestic practice make clear that it is inopportune to maintain this blind spot for casuistry. In particular, they show that the open texture of general legal standards complicates deductive reasoning and gives courts a certain discretion to tailor the meaning and scope of the law to the specific circumstances of individual cases. This judicial influence is particularly prominent in fields of law that are characterised by an open and evolving legal framework, like international criminal law. Casuistry gives apt expression to these thoughts and practices. It recognises the discretionary powers of courts and acknowledges that they are regularly confronted with unprecedented 152 See also C. Burchard, ‘The International Criminal Legal Process: Towards a Realistic Model of International Criminal Law in Action’ in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press, 2010) 81, 81, 84-86.

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FACTS MATTER problems that require innovative solutions.153 Courts are therefore authorised to adapt and refine the meaning of original paradigms.154 At the same time, casuistry sees the need for confining the judicial authority to engage in creative law-making in light of legality requirements. It accordingly provides for a methodology of analogical reasoning that structures the judicial development of the law without imposing an onerous legal framework. By implementing this methodology in the study and practice of substantive international criminal law, the need for legal development can be balanced against the requirements of foreseeability, certainty and equality.

1.6.2

Filling in the Blanks: Objectives of Current Study

This study complements existing research on judicial reasoning by international criminal courts with insights from casuistry. By using the casuistic theory and methodology to analyse (judicial reasoning on) substantive international criminal law, the study seeks to advance our legal understanding on two different levels. On a conceptual level, casuistry is used to develop our conception of the nature and scope of international crimes and modes of liability. Of course, legal doctrine has already engaged in accurate analyses of substantive legal concepts. Yet, its focus on open-textured rules leaves an incomplete picture of the meaning of these concepts. A study based on casuistry that analyses the law’s application in individual cases and assesses the factors that judges use to determine criminal responsibility, can complement this picture. For example, it can clarify which circumstances define the finding of a common plan between the members of a JCE. Additional analyses of the courts’ weighing of relevant factors allow for a further refinement of our legal understanding. These analyses can, for example, make clear to what extent incidental calls for leniency towards individual victims negate the genocidal intent of accused who were otherwise closely involved in the commission of genocide. Based on such conceptual insights, we can try to determine the influence of the law in abstracto on the law in concreto. In particular, we can assess whether and how theoretical differences in the legal definitions of international crimes and modes of liability generate a varied legal practice. For example, has the ICC’s replacement of JCE with a concept of joint perpetration resulted in a different type of criminal responsibility for senior political and military leaders? To answer this question, the study analyses the factors that the ad hoc Tribunals and the ICC use to establish the criminal responsibility of individual accused. If these factors are essentially similar, there is reason to nuance the critique that international criminal courts engage in a course of Alleingang. 153 Jonsen and Toulmin (n. 83 above) 151, 181-227. 154 Jonsen and Toulmin (n. 83 above) 194.

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On a normative level, casuistry offers a framework for judicial argumentation that can advance the legality of (legal reasoning on) substantive international criminal law. This framework takes as a starting-point that courts have a certain amount of discretion to make reasonable decisions in individual cases. To prevent that such discretion leads to arbitrariness, casuistry stipulates methodological standards – i.e. secondary rules of adjudication – that structure and restrict the judicial authority to develop the law.155 Of course, these standards are not the only ones controlling the argumentative practice of international criminal courts. The Vienna Convention on the Law of Treaties (VCLT), for example, also has an important regulative function in this respect. Article 31 of the VCLT stipulates a number of canons of interpretation, which require that international courts interpret their statutes ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.156 In this way, the VCLT-canons govern the interpretation of legal rules in abstracto. They, for example, assist courts in determining whether the term ‘intent’ in the legal definition of genocide means that perpetrators must have acted with a specific purpose or whether a standard of dolus eventualis suffices. Having said that, we should be mindful that the VCLT does not control the application of abstract interpretations in concreto, i.e. it does not control the use of the law in individual cases. For example, the canons of interpretation do not help courts to determine if the evidence against a specific accused meets the dolus eventualis standard. The standards of casuistry fill this gap in the argumentation framework of international criminal courts. They particularly structure the process of classification, i.e. the process through which individual cases are classified within the scope of the law. Analyses of international case law based on the standards of casuistry accordingly constitute an essential supplement to the existing research on the VCLT-canons. This study therefore focuses on the normative role of casuistry and leaves the guiding function of the VCLT-canons in international criminal law out of consideration.157 AI&L research on case-based reasoning with factors incorporates the methodological standards from casuistry and translates them into a plain framework of argumentation. Without stipulating hard and fast rules that forecast the outcome of every 155 Smith 2007 (n. 43 above) 19. 156 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 157 The role of VCLT-canons in international criminal law has already been discussed by other scholars. They have, for example, questioned to what extent these canons of interpretation are applicable to international criminal law and are able to restrict international criminal courts. After all, the canons of interpretation (e.g. textual, purposive, structural interpretation) are themselves general rules, which require interpretation. Moreover, the VCLT does not provide for a clear hierarchy that regulates any contradictions between the different canons of interpretation. On these issues, see e.g. V. Nehrlich, ‘The Status of ICTY and ICTR Precedent in Proceedings before the ICC’ in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 305, 317-320.

29

FACTS MATTER case,158 this framework creates a ‘straitjacket’ for judicial discretion that frames the scope of courts’ creativity. In this way, it offers a useful basis for scrutinising and appraising the case law of international criminal courts. In particular, AI&L standards can be used to determine whether the ad hoc Tribunals and the ICC formulate and apply factors in a sufficiently restricted way. For example, is there an adequate teleological link between the factors that the courts use to establish genocide and the objectives underlying this crime? And is it justified to qualify the atrocities committed in Rwanda and Srebrenica as genocide in light of their factual analogy to the Holocaust prototype? The answers to these questions will give new insights into the opportunities and limitations of the law. On the one hand, these insights may nuance prevailing critiques on judicial argumentation. They can, for example, clarify that the influence of human rights law on (the interpretation of) international criminal law has not resulted in a legal practice that violates the principle of legality. On the other hand, analyses of factors may also strengthen previously voiced critiques by showing that the limits of casuistic reasoning have been neglected. It is then essential to enhance the quality of judicial argumentation and to bring about a more controlled practice. The methodological standards of casuistry and factor-based reasoning provide a useful starting-point in this respect.

1.7 1.7.1

LIMITATIONS Deliberate Delineations

In this study, casuistry is used to assess how international criminal courts apply the law to the facts of individual cases and to evaluate the arguments that they put forward in this respect. Restrictions are essential to pursue these tasks accurately, in particular considering the complexity and vast amount of factual evidence that is presented in international trials. The study is therefore limited to the substantive part of international criminal law, which covers four core crimes (war crimes, crimes against humanity, genocide and the crime of aggression) and a variety of modes of liability (such as joint perpetration, JCE and superior responsibility). It must be emphasised that this does not mean that procedural rules are insusceptible to the creative forces of international courts. In fact, the ad hoc Tribunals have even drafted their own Rules of Procedure and Evidence. Yet, the practice of judicial creativity seems to be more controversial in relation to substantive law where the principle of legality has more restraining value. Moreover, substantive international criminal law is less forum-specific than the rules of procedure. Despite differences of definition, international criminal courts exercise

158 Sartor (n. 50 above) 739.

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jurisdiction over the same core crimes and all seek to establish the criminal responsibility of individuals for these crimes. This allows for making valuable ‘cross-court comparisons’. The study draws such comparisons in relation to three substantive issues: (i) the policy to commit crimes against humanity, (ii) the contextual embedding of genocide and (iii) the common plan-element of JCE and joint perpetration liability. The choice for these issues is determined by the confusion and disagreement that they have generated. By analysing the law on the basis of casuistry, the study seeks to provide new insights that can help to resolve these controversies. The ad hoc Tribunals have the most extensive record as the adjudication of international crimes is concerned. Their case law therefore constitutes the primary basis for the casuistic analyses in this study. Insofar as possible, the Tribunals’ case law is compared with early judgments and decisions of the ICC. The ICC became operative in 2002 and rendered its first final judgment in 2013. Being a relatively young court without an clear legacy, it is as yet impossible to establish a definite line of reasoning on the basis of which conclusive statements on the position of the ICC can be made. This is particularly so considering that most of the Court’s current case law consists of pre-trial decisions, which are difficult to analyse casuistically, because they are rendered before the full examination of evidence and do not include an extensive factual substantiation. The analyses of ICC case law in this study are therefore mere preliminary and may need to be adjusted in response to future developments. The case law of other ad hoc courts (such as the Special Court for Sierra Leone) and mixed tribunals (such as the Extraordinary Chambers in the Courts of Cambodia) falls outside the scope of this study.

1.7.2

Inherent Limitations

This study is subject to two limitations that are inherent to casuistry. First, casuistic analyses focus on the justification of judicial decisions, i.e. they examine the reasons that courts give for their findings. (Empirical) research into decision-making by domestic courts shows that this process of justification does not always adequately express how courts actually reach their verdict (process of heuristics). Whereas judicial justifications are generally phrased in terms of legal rules stemming from recognised sources of law, the true reasons underlying a verdict may instead lie in the informed experience of judges and their educated conception of criminal justice.159 Assessments of the process of

159 W. van Rossum, ‘Vier Reflecties op Empirisch Onderzoek naar Rechterlijke Oordeelsvorming’, 38 Nederlands Juristenblad (2010) 2467, 2467, 2471; Taruffo (n. 11 above) 314. From a more theoretical perspective, see Smith 2007 (n. 43 above) 162; Bell (n. 43 above) 1270-1271; Murray (n. 65 above) 839-842.

31

FACTS MATTER justification can therefore only provide limited insights into the true judicial decisionmaking process. Having said that, we should be mindful that the processes of justification and heuristics are not completely independent.160 Since courts need to look for decisions that can be justified, justificatory norms and practices also influence the heuristic process. On this account, legal research into judicial reasoning has generally focused on the rational methods of justification, rather than the (possibly irrational) ways in which courts reach decisions.161 It even seems to be accepted that courts decide cases on the basis of an illogical ‘hunch’, as long as they can justify their findings with sound legal arguments. The process of justification thus serves as a validity test: decisions that do not meet the strictures of legal reasoning are rejected for being irrational.162 Following this notion, this study can legitimately focus on the judicial justification process. A second limitation of this study concerns its focus on factual analogies. Casuistry and AI&L assume that judicial decisions need to be consistent and accordingly seek to explain variations in case law in terms of the factual similarities and differences between cases. This is certainly a good starting-point for analysing and scrutinising (the legality of) judicial reasoning in international criminal law. However, it must be borne in mind that (in)consistent reasoning patterns may also result from procedural, contextual or structural circumstances, such as the legal background of judges (in common or civil law and in criminal law or humanitarian law), the political context in which courts function, the applicable sources of law (statutory or customary law) and the influence of the parties (defence and prosecution) on judicial argumentation.163 Since the theory and methodology of casuistry and AI&L do not account for such circumstances, this study leaves it to future research to determine their impact on judicial reasoning in international criminal law.

1.8

OUTLINE

How does this study proceed from here? Each of the following chapters analyses a specific concept of substantive law by using the methodology of casuistry. Based on 160 D.N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978) 270. See also M. IJzermans, ‘De Verhouding tussen Heuristiek en Legitimatie bij Rechtsvorming’ in E. Broers and B. van Klink (eds.), De Rechter als Rechtsvormer (Den Haag: Boom Juridische Uitgevers, 2001) 99, 101; Smith 2007 (n. 43 above) 159; Smith 1998 (n. 43 above) 1-2; Poorter and Van Roosmalen (n. 44 above) 15. 161 Van Willigenburg (n. 63 above) 90-92. 162 Similarly, Von der Lieth Gardner (n. 11 above) 18. 163 The importance of this influence has been noted by e.g. C. Hafner and D. Berman, ‘The Role of Context in Case-Based Legal Reasoning: Teleological, Temporal, and Procedural’, 10 Artificial Intelligence and Law (2002) 19, 19-64; Kratochwil (n. 1 above) 214; Haveman (n. 3 above) 22-37; Rozemond (n. 61 above) 19; Van der Wilt (n. 90 above) 225; Smith 2007 (n. 43 above) 19; Bell (n. 43 above) 1252, 1261, 1271; MacCormick and Summers (n. 60 above) 9; Burchard (n. 153 above) 92-109.

32

I

PROLOGUE

these analyses, the meaning of the studied concepts is further defined. Chapter II relates to the policy to commit crimes against humanity. The legal status of this notion is uncertain. Whereas some scholars argue that crimes against humanity – as a rule – have to be committed pursuant to a (state) policy, others maintain that the finding of a policy is a mere evidentially relevant circumstance from which the existence of a systematic attack can be inferred. Also the ad hoc Tribunals and the ICC are divided on this issue. While the ICTY disqualifies the policy as an autonomous requirement of crimes against humanity, Article 7(2) of the Rome Statute of the ICC explicitly incorporates a policy element. Chapter II evaluates the implications of these different judicial approaches by conducting casuistic case law analyses. It looks into legal practice and assesses how the ICTY and the ICC have dealt with the policy issue in individual cases. In this way, it shows that the practical effect of the courts’ different theoretical framework is limited, because the ICTY and the ICC apply and substantiate the policy in a comparable way. Chapter III entails a similar casuistic analysis of JCE and joint perpetration, two theories of liability that are essential for establishing the criminal responsibility of senior leaders for international crimes. So far, courts and scholars have regularly emphasised the distinctive rationales underlying these theories. Whereas the ICC’s concept of joint perpetration is thought to reflect an objective rationale that relates to the accused’s control over the crime (actus reus), the ad hoc Tribunals’ JCE concept is allegedly premised on a subjective rationale that concentrates on the accused’s shared intent to implement a common criminal purpose (mens rea). Chapter III scrutinises this distinction by assessing the application of JCE and joint perpetration in individual cases. This assessment shows that the ad hoc Tribunals and the ICC establish JCE and joint perpetration liability on the basis of similar factual circumstances, which makes the assumed distinction between these theories nominal rather than actual. Chapter IV relates to the crime of genocide. In this respect, it is still uncertain whether genocidal acts require some sort of contextual embedding: can a single perpetrator who acts with the intent to destroy a protected group commit genocide? Or, is it required that individual perpetrators participate in a collective campaign of (destructive) violence to qualify as génocidaires? Also at this point, the legal frameworks of the ad hoc Tribunals and the ICC differ. Under Tribunal case law, the existence of a collective violent action is not an autonomous element of genocide, but only evidences the accused’s genocidal intent. By contrast, the ICC’s Elements of Crimes require that the accused acted ‘in the context of a manifest pattern of similar conduct’, which marks the context of collective violence as a separate legal element. Chapter IV seeks to give new insights into this divergence by analysing genocide on the basis of casuistry. These analyses call for a nuanced appraisal. In particular, they show that (the type and level of)

33

FACTS MATTER genocide’s contextual embedding cannot be captured in a uniform legal standard, but depends on the factual circumstances of the situation under consideration. The case studies all display a certain disconnection between the law in abstracto and the law in concreto: whereas the legal frameworks of the ad hoc Tribunals and the ICC differ, their evaluation of individual cases is similar. This disconnection is explicable in light of the open texture of legal rules, which provides courts a certain leeway to adjust the law to case-specific circumstances. The resulting flexibility is not objectionable per se, but remains subject to a nuanced and thorough process of judicial argumentation. On this account, chapter V – the epilogue of this study – critically scrutinises the reasoning practice of the ad hoc Tribunals and the ICC on the basis of the methodological standards from casuistry and factor-based reasoning. The analysis shows that the judgments of the courts do not explain the interplay between law and facts in a sufficiently precise and consistent way. To address this concern, the epilogue develops a casuistic argumentation framework that is based on a reason-model of analogical reasoning. By implementing this model in the practice and study of substantive international criminal law, courts and scholars can develop a refined understanding of international crimes and modes of liability and warrant that the application of these concepts in individual cases meets the standards of the legality principle.

34

II

The Policy underlying Crimes against Humanity: Practical Reflections on a Theoretical Debate*

*

This chapter was published in 22 Criminal Law Forum (2010) 275. In preparing the chapter, minor (textual) changes have been made to the original text.

II 2.1

THE POLICY

UNDERLYING

CRIMES

AGAINST

HUMANITY

INTRODUCTION

Crimes against humanity are an elusive and uncertain category of international crimes. Even though international criminal courts have clarified the meaning and scope of crimes against humanity in case law, fundamental questions remain. One of the issues of continuous debate concerns the proper characterisation of the policy requirement, i.e. the requirement that crimes against humanity need to be committed pursuant to or in furtherance of a (state) policy. Whereas one group of scholars qualifies the existence of a policy as a necessary element of crimes against humanity that needs to be established before an act can be qualified as a crime against humanity, others question the added value and legal basis of the policy requirement. Rather, they consider the existence of a policy underlying the commission of crimes as a relevant factual circumstance that can be used to establish the chapeau elements of crimes against humanity, in particular the widespread or systematic attack-requirement. These opposing views are similarly reflected in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). On the one hand, the ICTY holds that the existence of a policy is not a requirement of crimes against humanity, but may be evidentially relevant for determining the systematic character of the attack against a civilian population. On the other hand, the Rome Statute of the ICC in Article 7(2) explicitly depicts the state or organisational policy as an autonomous element of crime. An analysis of ICTY and ICC case law, however, makes clear that these theoretical characterisations of the policy requirement do not completely control the requirement’s application in practice. Despite the courts’ different theoretical understanding of the policy requirement, the ICTY and the ICC substantiate the existence of a policy in a comparable way. Furthermore, the finding of a policy appears to have no greater relevance when it is observed as an element of crime in the context of the ICC than as an evidentially relevant circumstance in the ICTY’s jurisprudence. The ICTY and the ICC thus use and apply the policy in a similar way. The analogous construction of the policy requirement by the ICTY and the ICC detracts from the value of the current scholarly debate. In light of recent practice, the distinction between the policy as a legal element or as a ‘mere’ relevant factual circumstance, becomes an academic one. This chapter therefore argues that discussions about the added value of the policy requirement should not be limited to theoretical distinctions concerning the abstract characterisation of the law, but must always take account of how the law is used in practice. The chapter accordingly aims to induce a more practical discourse in which the meaning of the policy requirement is assessed in light of the requirement’s application in individual cases. The first part of the chapter (section 2) describes the current state of the scholarly debate on the policy requirement. The term ‘policy requirement’ has become a term of

37

FACTS MATTER art in literature on crimes against humanity. The use of the term ‘requirement’ in this context is, however, misleading. It implies that the existence of a policy is a necessary condition for crimes against humanity whereas this is, in fact, still the object of debate. I therefore generally reserve the terms ‘policy requirement’ and ‘policy element’ for situations in which the existence of a policy is considered a necessary and autonomous element of crime. By contrast, when the policy is seen as a ‘mere’ relevant fact, it is described by the terms ‘relevant circumstance’ or ‘factor’. Having said that, in the first part of the chapter the terminology that is used in the scholarly debate is adopted. In the second part of the chapter (sections 3 and 4), the case law of the ICTY and the ICC is discussed. Emphasis is thereby placed on the factual circumstances that are used to apply the policy factor/requirement in individual cases. Furthermore, a comparison is made between the way in which the ICTY and the ICC apply the policy factor/requirement in practice. In section 5, the practical application of the policy is contrasted with its theoretical characterisation. This section illustrates that the inclusion of the policy as an element of crime does not necessarily generate a different crimes against humanity concept than the recognition of the policy as a relevant factual circumstance. In the final part of the chapter (section 6), the divergence between the theoretical characterisation and practical application of the policy is explained in light of the factor-based character of legal reasoning in (international criminal) law.

2.2

A FUNDAMENTAL DISAGREEMENT

International scholars generally agree that isolated and randomly committed acts of violence should be excluded from the scope of crimes against humanity.1 A wave of spontaneous and unrelated crimes that is the product of mere individual action cannot qualify as crimes against humanity. Instead, crimes against humanity are criminal acts that are part of a larger context of organised violence. This limitation is essential for distinguishing crimes against humanity from ‘ordinary’ domestic criminality.2 1

2

M. McAuliffe deGuzman, ‘The Road from Rome: The Developing Law of Crimes against Humanity’, 22 Human Rights Quarterly (2000) 335, 375-376; G. Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the former Yugoslavia and for Rwanda’, 43 Harvard International Law Journal (2002) 237, 314-315; K. Ambos and S. Wirth, ‘The Current Law of Crimes against Humanity’, 13 Criminal Law Forum (2002) 1, 30; C. Hall, ‘Article 7: Crimes against Humanity’ in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article (München: C.H. Beck oHG, 2008) 168, 169; W.A. Schabas, ‘State Policy as an Element of International Crimes’, 98 Journal of Criminal Law & Criminology (2008) 953, 954; G. Werle, Principles of International Criminal Law (The Hague: T.M.C. Asser Press, 2009) 288. P. Hwang, ‘Defining Crimes against Humanity in the Rome Statute of the International Criminal Court’, 22 Fordham International Law Journal (1998), 457, 489; B. van Schaack, ‘The Definition of Crimes against Humanity: Resolving the Incoherence’, 37 Columbia Journal of Transnational Law (1999) 787, 787.

38

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HUMANITY

Under the Nuremberg Charter, these thoughts were reflected in and ascertained by the requirement of a ‘war nexus’.3 The nexus requirement restricted the jurisdiction of the International Military Tribunal (IMT) to crimes against humanity that were committed ‘before or during the war’ and ‘in execution or in connection with any crime within the jurisdiction of the Tribunal’, i.e. crimes against peace or war crimes.4 In the years following World War II, the validity of the war nexus was increasingly questioned. In 1984, one of the delegates to the International Law Commission (ILC) argued that while belligerency and criminality were closely linked in the World War II period, ‘in the modern age the concept of an international crime has acquired a greater degree of autonomy and covers all offences which seriously disturb the international public order’.5 The delegates accordingly agreed that the concept of crimes against humanity had become autonomous and was no longer linked to war crimes or crimes against peace.6 With the removal of the war nexus and the recognition of crimes against humanity as an autonomous international crime, there was need for a new way to exclude isolated, random and individually committed crimes from the crimes against humanity concept. The initiatives that were formulated in this respect primarily focused on the character of the attack in which crimes were committed.7 International scholars argued that crimes can only be qualified as crimes against humanity when they were part of a widespread or systematic attack that was instigated or tolerated by a policy or plan of the acting authority.8 Today, the widespread or systematic attack-requirement is generally recognised as an essential element of crimes against humanity.9 The legal status of the policy

3 4

5 6 7

8

9

Van Schaack (n. 2 above) 850; Ambos and Wirth (n. 1 above) 5. In this respect Robert Jackson considered that ‘[i]t has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business…The reason that this program of extermination of the Jews and destruction of the rights of minorities becomes an international concern is this: it was part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities. They were a part of the preparation for war or for the conduct of the war in so far as they occurred inside of Germany and that makes them our concern.’ Minutes of Conference Session of July 23, 1945. Quoted in Van Schaack (n. 2 above) 799. Second Report on the Draft Code of Offences against the Peace and Security of Mankind, 2 Yearbook of International Law Commission, UN Doc. A/CN.4/SerA/1984, 90. Summary Records of the 1960’s Meeting, 1 Yearbook of International Law Commission 104, UN Doc. A/CN.4/SerA/1986. Additionally, there were some proposals to find the distinguishing character of crimes against humanity in the mens rea of the accused by including the requirement of a discriminatory motive or the exclusion of personal motives. These proposals did, however, not have a long life. They were promptly rejected by the ICTY in the Tadić Appeals Judgment. M. Lippman, ‘Crimes against Humanity’, 17 Boston College Third World Law Journal (1997) 171, 264; Y. Dinstein, ‘Crimes against Humanity after Tadić’, 13 Leiden Journal of International Law (2000) 373, 379. See also Hwang (n. 2 above) 489-491; Van Schaack (n. 2 above) 787. W.A. Schabas, UN International Criminal Tribunals: The former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006) 191-192; G. Boas et al., International Criminal Law

39

FACTS MATTER requirement, conversely, continues to be surrounded by uncertainty and disagreement. Two different views on the legal status of the policy can be discerned. Both of these views recognise the relevance of the policy for distinguishing crimes against humanity from ‘ordinary’ crimes that fall within the domestic criminal jurisdiction. The disagreement between them only concerns the function and character of the policy requirement. The first view – expressed by amongst others, Schabas and Bassiouni – considers the policy requirement necessary, if not vital, for distinguishing crimes against humanity from common domestic crimes.10 Two arguments are presented for this position. First, it is argued that the policy requirement addresses concerns about the unqualified disjunctive test of the widespread or systematic attack-requirement.11 With the dissolution of the war nexus and its replacement with the widespread or systematic attack-requirement, the crimes against humanity concept allegedly became applicable to widespread, yet unrelated, crimes. The concept would thus encompass the criminal acts of serial killers, mafias and motorcycle gangs.12 The policy requirement is considered essential for excluding such acts from the scope of crimes against humanity. It ascertains a certain degree of organisation in cases of mere widespread attacks. Secondly, the policy requirement is found to warrant the involvement of a higher authority in the commission of crimes against humanity.13 By establishing ‘some kind of link with a State or a de facto power in a certain territory by means of the policy of this entity’, it is confirmed that ‘a town with an extraordinarily high level of criminality resulting in a great number of victims’ could not qualify as a crime-site for crimes against humanity.14 It follows from these arguments that some scholars consider the inclusion of an autonomous policy requirement in the chapeau of crimes against humanity essential for upholding the international nature of this crime.

10

11 12 13 14

Practitioner Library, Volume II: Elements of Crimes under International Law (New York: Cambridge University Press, 2009) 35. See also Hwang (n. 2 above) 490; Van Schaack (n. 2 above) 850; McAuliffe deGuzman (n. 1 above) 375; Mettraux (n. 1 above) 259; Hall (n. 1 above) 177. M.C. Bassiouni, Crimes against Humanity in International Criminal Law (The Hague: Kluwer Law International, 1999) 244-246; W.A. Schabas, ‘Prosecuting Dr. Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes’, 23 Leiden Journal of International Law (2010) 847, 853; Schabas (n. 1 above) 982. D. Robinson, ‘Defining Crimes against Humanity at the Rome Conference’, 93 American Journal of International Law (1999) 43, 47; Bassiouni (n. 10 above) 244-246; Schabas (n. 1 above) 960. Schabas (n. 1 above) 960. Hwang (n. 2 above) 49; Bassiouni (n. 10 above) 249-252; Ambos and Wirth (n. 1 above) 34. Ambos and Wirth (n. 1 above) 34. The authors hold that the ‘intensity’ of this link differs according to the character of the attack. ‘The policy in the case of a systematic attack would be to provide at least certain guidance regarding the prospective victims in order to coordinate the activities of single perpetrators. A systematic attack thus requires active conduct from the side of the entity behind the policy. (…) A widespread attack which is not at the same time systematic must be one that lacks any guidance or organization. The policy behind such an attack may be one of mere deliberate inaction (toleration).’

40

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HUMANITY

This view is strongly opposed by the second group of scholars. They find that the insertion of a policy requirement in the chapeau of crimes against humanity is unsubstantiated. Mettraux in this respect argues that ‘there is nothing in customary international law which mandates the imposition of an additional requirement that the acts be connected to a policy or plan’.15 The policy requirement thus lacks a legal basis. In addition, it is asserted that the policy requirement is redundant, because it ensures a level of organisation that is equally upheld by the civilian population- and the widespread or systematic attack-requirement.16 The alleged purpose of the policy requirement – the exclusion of random and isolated acts from the scope of crimes against humanity – is thus already served by other chapeau elements.17 The second group of scholars therefore finds that the existence of a policy is not an autonomous element of crime, but an evidentially relevant circumstance that courts may take into account when they assess whether the crimes have been committed in the context of a widespread or systematic attack against a civilian population. After years of discussion, the debate between the two groups of scholars appears to have arrived at an impasse. Both groups have ensconced themselves behind a host of legal sources that substantiate their respective points of view and are unwilling to leave their positions. Consensus about the proper characterisation of the policy requirement appears to be beyond reach. This impasse may be broken by supplementing the debate on the theoretical characterisation of the policy with a practical discourse in which the function, meaning and scope of the policy requirement are analysed and evaluated on the basis of its application in individual cases. This practical evaluation provides new insights into the value of including a policy requirement in the chapeau of crimes against humanity.

2.3 2.3.1

THE ICTY

AND THE

POLICY FACTOR

General Considerations

Article 5 of the ICTY Statute, criminalising crimes against humanity, does not explicitly incorporate a policy requirement. Nevertheless, the Tadić Trial Chamber considered that the wish to exclude isolated and random acts of individuals from the scope of crimes 15 Mettraux (n. 1 above) 281-282. 16 See Ambos and Wirth (n. 1 above) 21; Hall (n. 1 above) 179-180; Werle (n. 1 above) 300. 17 The Tadić Trial Chamber accordingly considered that ‘the term population does not mean that the entire population of a given state or territory must be victimised; the expression simply denoted that crimes against humanity must be crimes of collective nature and thus exclude single or isolated acts’. Prosecutor v. Tadić, Judgment, Case No. IT-94-1-T, Trial Chamber II, 7 May 1997 (Tadić Trial Chamber judgment), para. 644.

41

FACTS MATTER against humanity implies that ‘there must be some form of a governmental or organisational policy to commit these acts’.18 In subsequent jurisprudence, the Trial Chamber’s recognition of an implicit policy requirement was increasingly questioned and critically observed.19 This ultimately resulted in the explicit rejection of the policy requirement by the Kunarac Appeals Chamber. The Appeals Chamber held that neither the attack nor the acts of the accused needs to be supported by any form of ‘policy’ or ‘plan’. There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes. (…) [P]roof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus the existence of a plan or policy may be evidentially relevant, but it is not a legal element of the crime.20 Later ICTY judgments confirm that the policy constitutes a ‘mere’ evidentially relevant circumstance or relevant factor.21 Case law also clarifies that the policy should 18 Tadić Trial Chamber judgment, paras. 644 and 653. The ICTR similarly considered that the policy requirement is inherent in the ‘systematic attack requirement’ when it held that ‘[t]he concept of “systematic” may be defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy is formally adopted as the policy of a state. There must however be some kind of preconceived plan or policy.’ Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, Trial Chamber I, 2 September 1998 (Akayesu Trial Chamber judgment), para. 580. See also Prosecutor v. Kayishema and Ruzindana, Judgment, Case No. ICTR-95-1-T, Trial Chamber II, 21 May 1999 (Kayishema and Ruzindana Trial Chamber judgment), paras. 123-124. 19 See Prosecutor v. Kupreškić et al., Judgment, Case No. IT-95-16-T, Trial Chamber II, 14 January 2000 (Kupreškić et al. Trial Chamber judgment), paras. 551-555; Prosecutor v. Kordić and Čerkez, Judgment, Case No. IT-95-14/2-T, Trial Chamber III, 26 February 2001 (Kordić and Čerkez Trial Chamber judgment), para. 182; Prosecutor v. Jelisić, Judgment, Case No. IT-95-10-A, Appeals Chamber, 5 July 2001 (Jelisić Appeals Chamber judgment), para. 48. 20 Prosecutor v. Kunarac et al., Judgment, Case No. IT-96-23 and IT-96-23/1-A, Appeals Chamber, 12 June 2002 (Kunarac et al. Appeals Chamber judgment), para. 98. 21 See Prosecutor v. Krstić, Judgment, Case No. IT-98-33-A, Appeals Chamber, 19 April 2004 (Krstić Appeals Chamber judgment), para. 225; Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-A, Appeals Chamber, 29 July 2004 (Blaškić Appeals Chamber judgment), para. 100; Prosecutor v. Limaj et al., Judgment, Case No. IT-03-66-T, Trial Chamber II, 30 November 2005 (Limaj et al. Trial Chamber judgment), para. 184; Prosecutor v. Martić, Judgment, Case No. IT-95-11-T, Trial Chamber I, 12 June 2007 (Martić Trial

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entail the commission of a multiplicity of criminal acts against a civilian population.22 This does not imply that the policy needs to be formally adopted or declared either expressly or precisely.23 Instead, the policy may be inferred from the totality of factual circumstances. The Blaškić Trial Chamber in this respect considered that the existence of a policy may be deduced from inter alia: the general historical circumstances and the overall political background; the establishment and implementation of autonomous political structures; the general content of the political program; media propaganda; the establishment and implementation of autonomous military structures; the mobilisation of armed forces; the execution of temporally and geographically repeated and coordinated military offensives; the existence of links between the military hierarchy and the political structure and its program; the occurrence of alterations in the ethnic composition of populations; the imposition of discriminatory measures; and the scale of the violence perpetrated.24 Furthermore, the ICTY has consistently held that the established policy does not have to be drafted by a de jure state.25 Forces which – although not part of the legitimate government – exercise de facto control over, or are able to move freely within the defined territory may also be capable of implementing a policy that leads to the commission of crimes against humanity. They can therefore be held criminally responsible for such crimes too. Whether the policy is implemented by a de jure state or a de facto power, it

22 23

24

25

Chamber judgment), para. 49. This jurisprudential development may similarly be observed at the ICTR. Whereas the first judgments held that the policy requirement is inherent in the systematic attackrequirement, in the later jurisprudence, the ICTR adopted a more expansive interpretation of the term ‘systematic’. See Prosecutor v. Semanza, Judgment, Case No. ICTR-97-20-A, Appeals Chamber, 20 May 2005 (Semanza Appeals Chamber judgment), para. 269; Prosecutor v. Gacumbitsi, Judgment, Case No. ICTR-2001-64-A, Appeals Chamber, 7 July 2006 (Gacumbitsi Appeals Chamber judgment), para. 84; Prosecutor v. Nahimana et al., Judgment, Case No. ICTR-99-52-A, Appeals Chamber, 28 November 2007 (Nahimana et al. Appeals Chamber judgment), para. 922; Prosecutor v. Seromba, Judgment, Case No. ICTR-2001-66-A, Appeals Chamber, 12 March 2008 (Seromba Appeals Chamber judgment), para. 149. Tadić Trial Chamber judgment, para. 653. Tadić Trial Chamber judgment, para. 653; Kupreškić et al. Trial Chamber judgment, para. 552; Prosecutor v. Nikolić, Review of the indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-94-2-R61, Trial Chamber, 20 October 1995 (Nikolić Rule 61 decision), para. 26; Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-T, Trial Chamber I, 3 March 2000 (Blaškić Trial Chamber judgment), para. 204. Blaškić Trial Chamber judgment, para. 204. The reasoning of the Blaškić Trial Judgment concerning the policy underlying the crimes committed was addressed on appeal. The Appeals Chamber held that is was unclear whether the Trial Chamber deemed the existence of a plan to be a legal element of crime and affirmed previous jurisprudence that qualifies the policy as evidentially relevant in proving that the crime was committed against a civilian population and was widespread or systematic in character (paras. 100, 120). However, the Appeals Chamber did not reject the Trial Chamber’s reference to the enumerated factual circumstances. These circumstances will therefore be considered to be accepted as evidence of a plan or policy underlying the crimes committed. Tadić Trial Chamber judgment, para. 654; Kupreškić et al. Trial Chamber judgment, para. 552.

43

FACTS MATTER does not have to be conceived at the highest hierarchical level.26 The policy may be developed at any level of the state or organisation that exercises de facto power over the territory.

2.3.2

Factual Application of the Systematic Attack-Requirement

Since the ICTY does not qualify the policy as an autonomous element of crimes against humanity, policy-related issues are not individually evaluated. Instead, the policy factor is analysed in the context of the systematic attack-requirement. The ICTY uses three categories of factual circumstances to assess the systematic character of an attack: circumstances concerning the preparation for attack; circumstances concerning the characteristics of the attack; and contextual circumstances.27 In the context of the first category reference is made to, inter alia: preparatory meetings held between officials and citizens during which the possibility of an attack was discussed;28 pre-emptive warnings of an imminent attack given by officials to citizens from their ethnic group, which allow these citizens to leave the area before the attack;29 the training of military personnel;30 the increased presence or control of military troops;31 unusual troop movements;32 the purchase and distribution of arms;33 the installation of roadblocks and barricades;34 and the imposition of a curfew and discriminatory measures.35 The second category of factual circumstances is concerned with the characteristics of the attack itself. These characteristics firstly relate to the means and methods of attack. In this respect attention may be paid to the complexity and organised character of the attack;36 the coordination amongst and between the different troops involved in the 26 Nikolić Rule 61 decision, para. 26; Blaškić Trial Chamber judgment, para. 205. 27 Some of the circumstances may be classified under multiple (sub)categories. The categories thus to some extent overlap. However, this does not fundamentally devalue the categorisation as the factual circumstances get a different color in each of the three categories. 28 Blaškić Trial Chamber judgment, para. 389; Kordić and Čerkez Trial Chamber judgment, paras. 610-613, 630; Martić Trial Chamber judgment, para. 303. 29 See Blaškić Trial Chamber judgment, paras. 389, 573, 624; Kordić and Čerkez Trial Chamber judgment, para. 645; Prosecutor v. Kordić and Čerkez, Judgment, Case No. IT-95-14/2-A, Appeals Chamber, 17 December 2004 (Kordić and Čerkez Appeals Chamber judgment), para. 511. 30 See Martić Trial Chamber judgment, paras. 144-148. 31 See Blaškić Trial Chamber judgment, paras. 359, 390, 504; Prosecutor v. Mrkšić et al., Judgment, Case No. IT-95-13/1-T, Trial Chamber II, 27 September 2007 (Mrkšić et al. Trial Chamber judgment), para. 465. 32 See Blaškić Trial Chamber judgment, paras. 390, 504. 33 See Blaškić Trial Chamber judgment, para. 504. 34 See Blaškić Trial Chamber judgment, paras. 350, 361, 624; Mrkšić et al. Trial Chamber judgment, para. 470. 35 See Blaškić Trial Chamber judgment, paras. 359, 388, 411-412, 512; Martić Trial Chamber judgment, paras. 227, 349, 351. 36 See Blaškić Trial Chamber judgment, paras. 503, 506; Mrkšić et al. Trial Chamber judgment, paras. 43, 472.

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attack;37 and the type and amount of armaments that were used.38 Secondly, reference is made to the consequences of the attack.39 In particular evidence that shows the devastating and discriminatory consequences of the attack is considered relevant for establishing the organised and thus systematic character of the attack. The factual circumstances in the third category differ from the previously mentioned circumstances in the sense that they are not limited to one specific attack. Instead, they describe the overall context of violence. This context firstly relates to the political background against which the attack took place. In this respect, reference can be made to the issuance of a declaration of independence by one of the parties to the conflict;40 the concentration of political and military power within specific institutions and their increased control over daily life;41 the issuance of warnings from one ethnic group against another to leave the area;42 the issuance and expiration of ultimata that force certain ethnic groups to disarm and/or to be subject to the power of another group;43 the expression of nationalistic statements or calls for violence by politicians in the media or during meetings;44 and, finally, the imposition of discriminatory measures that can lead to changes in the ethnic composition of the area.45 The second element that determines the context of the attack is the overall scale of crimes committed. This scale is defined in terms of the total number of crimes and the consequences of the attack.46 The third contextual element concerns the relations between the various crimes and/or attacks committed. This element does not so much describe the character of the context in which the attack took place, but determines the scope of this context. By assessing the relations between the individual crimes and/or attacks, it seeks to establish a pattern of similar criminal conduct, which defines the larger context of violence in which the individual crimes were committed. The relations between crimes and/or attacks can be 37 See Blaškić Trial Chamber judgment, paras. 401, 624; Kordić and Čerkez Trial Chamber judgment, para. 637; Martić Trial Chamber judgment, para. 351. 38 See Kordić and Čerkez Trial Chamber judgment, para. 635; Mrkšić et al. Trial Chamber judgment, para. 470. 39 See Blaškić Trial Chamber judgment, paras. 411-412, 512; Kordić and Čerkez Trial Chamber judgment, paras. 635, 643; Martić Trial Chamber judgment, paras. 227, 349, 351; Mrkšić et al. Trial Chamber judgment, paras. 55-59, 465-469, 472. 40 See Blaškić Trial Chamber judgment, paras. 129, 136, 344; Kordić and Čerkez Trial Chamber judgment, para. 472; Martić Trial Chamber judgment, para. 473; Mrkšić et al. Trial Chamber judgment, paras. 20, 32. 41 See Blaškić Trial Chamber judgment, paras. 344, 359, 361, 364; Kordić and Čerkez Trial Chamber judgment, paras. 481-491, 496; Martić Trial Chamber judgment, paras. 131, 135, 137, 139, 149-158. 42 See Blaškić Trial Chamber judgment, paras. 389, 573, 624. 43 See Blaškić Trial Chamber judgment, paras. 353-355, 359, 361, 545; Kordić and Čerkez Trial Chamber judgment, paras. 499, 603, 649; Martić Trial Chamber judgment, paras. 164, 166. 44 See Blaškić Trial Chamber judgment, paras. 341, 387, 496, 538; Martić Trial Chamber judgment, para. 166; Mrkšić et al. Trial Chamber judgment, paras. 24-25. 45 See Blaškić Trial Chamber judgment, paras. 361, 365-366. 46 See Kordić and Čerkez Trial Chamber judgment, paras. 635, 750.

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FACTS MATTER assessed in terms of their temporal and geographical scope; the means and methods of attack; the troops that were involved; and the type and consequences of the crimes committed.47

2.3.3

Factual Application of the Policy Factor

How is the policy factor reflected in the ICTY’s evaluation of the systematic attackrequirement? This question can be answered by observing the judicial application of the systematic attack-requirement in light of the factual circumstances that the Blaškić Trial Chamber considered indicative of a policy to commit crimes. It seems that the ‘Blaškić policy circumstances’ are analogous to the contextual circumstances that the ICTY uses to establish the systematic attack-requirement. The policy factor thus appears to manifest itself in the ICTY’s use of contextual circumstances for assessing the systematic character of an attack. The case law illustrates that the contextual circumstances constitute an important element of the ICTY’s evaluation of the systematic attack-requirement. In particular, the contextual circumstances that establish a relation between the different crimes and/or attacks committed, are relevant. Following the assertion that ‘the improbability of the accidental occurrence of a pattern of similar criminal conduct, is a common expression of the systematic occurrence of acts of violence’,48 the ICTY regularly assesses the systematic character of the attack on the basis of a pattern of crimes.49 In Mrkšić et al., the Trial Chamber, for example, held that the systematic character of the attack was evidenced by ‘the JNA’s approach to the taking of each village or town and the damage done therein’.50 The fact that the troops followed similar lines of attack in each of the attacked villages and the finding that the attacks were executed in an indiscriminate

47 See Blaškić Trial Chamber judgment, paras. 573, 624; Kordić and Čerkez Trial Chamber judgment, paras. 520, 576, 642-643, 665, 667, 723, 750, 802; Martić Trial Chamber judgment, paras. 351, 427; Mrkšić et al. Trial Chamber judgment, para. 472; Kordić and Čerkez Appeals Chamber judgment, paras. 449, 667-668; Prosecutor v. Martić, Judgment, Case No. IT-95-11-A, Appeals Chamber, 8 October 2008 (Martić Appeals Chamber judgment), para. 318. 48 See Kunarac Appeals Chamber judgment, para 94; Blaškić Appeals Chamber judgment, para. 101; Kordić and Čerkez Appeals Chamber judgment, para. 94; Martić Trial Chamber judgment, para. 49. 49 See Blaškić Trial Chamber judgment, paras. 573, 624, 750; Kordić and Čerkez Appeals Chamber judgment, paras. 667-668; Martić Trial Chamber judgment, para. 349; Mrkšić et al. Trial Chamber judgment, paras. 19-37, 43, 472. Less explicit, but certainly not less relevant in this respect, is the ICTY’s evaluation of the crimes committed per region and its frequent description of the political and military context in which the crimes were committed. 50 Mrkšić et al. Trial Chamber judgment, para. 472.

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manner, were considered particularly relevant in this respect.51 By reasoning in this way, the Mrkšić et al. Trial Chamber established a factual relationship between the crimes and/or attacks committed. In Kordić and Čerkez, the Appeals Chamber adopted a different, more abstract approach. It qualified the attack as systematic because the crimes committed could be qualified in similar legal terms (e.g. murder and inhumane acts).52 The ICTY’s assessment of the relations between attacks and/or crimes is essential in light of the objective to exclude random acts of violence from the scope of crimes against humanity. Evidence of the preparation for attack and the organised and coordinated execution of an attack may well indicate that this attack was pre-meditated or purposely executed, but it does not exclude isolated incidents from the crimes against humanity concept. Instead, the exclusion of such incidents can only be warranted by establishing a relationship between the different crimes and/or attacks committed. In this way, the individual crimes and/or attacks are taken out of their isolation and linked to the larger context of violence. The contextual circumstances are essential for ascertaining this link. The ‘factual method’ that was employed by the Mrkšić et al. Trial Chamber should in this respect be preferred over the ‘abstract method’ of the Kordić and Čerkez Appeals Chamber. After all, the mere equivalence of legal qualifications does not establish an empirical relation between the various incidents. Consequently, it does not guarantee that random, individual crimes that are unrelated to the larger context of violence fall outside the scope of the crimes against humanity concept. Summarising, it can be concluded that the contextual circumstances play an essential role in the ICTY’s evaluation of the systematic attack-requirement. As these contextual circumstances are analogous to the ‘Blaškić policy circumstances’, the factual establishment of a policy has arguably become the principal indicator of a systematic attack. The critical attitude of the ICTY towards the policy as an element of crime has thus not prevented the Tribunal from placing the policy factor at the core of its evaluation of the systematic attack-requirement.

51 ‘The system of attack employed by the JNA typically evolved along the following lines; (a) tension, confusion and fear is built up by a military presence around a village and provocative behavior; (b) there is then artillery or mortar shelling for several days, mostly aimed at the Croatian parts of the village; in this stage churches are often hit and destroyed; (c) in nearly all cases JNA ultimata are issued to the people of a village demanding the collection and delivery to the JNA of all weapons; village delegations are formed but their consultations with JNA military authorities do not lead, with the exception of Ilok, to peaceful arrangements; with or without waiting for the results of the ultimata a military attack is carried out; and (d) at the same time, or shortly after the attack, Serb paramilitaries enter the village; what then follows varies from murder, killing, burning and looting to discrimination.’ Mrkšić et al. Trial Chamber judgment, para. 43. 52 Kordić and Čerkez Appeals Chamber judgment, paras. 667-668.

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FACTS MATTER 2.4 2.4.1

THE ICC

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POLICY ELEMENT

General Considerations

In contrast to the ICTY Statute, Article 7 of the Rome Statute of the ICC explicitly incorporates a policy element in the chapeau of crimes against humanity. The relevant part of the Article reads as follows (1) For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (…) (2) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack.53 During the drafting negotiations, the delegates agreed that crimes against humanity have to be committed within a larger context of organised violence. They, however, disagreed on the way in which this objective could be achieved. On the one hand, a number of delegations argued that the disjunctive widespread or systematic attack-test may lead to the qualification of a spontaneous wave of unrelated crimes as crimes against humanity.54 Since this is contrary to the objective of excluding randomly committed criminal conduct from the scope of crimes against humanity, these delegates found it necessary to establish a cumulative relation between the qualifiers of the attack (widespread and systematic attack). On the other hand, a second group of delegates argued that the widespread or systematic attack- and the civilian population-requirement sufficiently warrant that random and isolated acts fall outside the scope of crimes against humanity.55 A compromise between the two opposing groups was reached by supplementing the widespread or systematic attack-requirement with a policy element. By incorporating this element in the definition of the ‘attack directed against any civilian population’, the drafters made clear that this attack is characterised by a quantitative element (‘course of conduct involving the multiple commission of acts’) and a qualitative element (the policy element). Both these elements have to be established in the case of either a widespread or

53 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (ICC Statute), Article 7. 54 Robinson (n. 11 above) 47; McAuliffe deGuzman (n. 1 above) 372. 55 Robinson (n. 11 above) 47.

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a systematic attack. In this way, the policy element ascertains a certain level of organisation in the case of a mere widespread attack and makes sure that random acts committed pursuant to an individual plan cannot qualify as crimes against humanity.56 The exact meaning of the policy element remained largely undecided at the Rome Conference. The resulting uncertainties have generated considerable debate among legal scholars. Whereas some scholars maintain that a policy ‘is something akin to systematicity’,57 others hold that the policy element ‘is more flexible’ and does not require the high degree of organisation and orchestration that are characteristic of the systematic attack-requirement.58 The emerging jurisprudence of the ICC provides some further clarity on this point. In its decision on the confirmation of charges against Katanga and Ngudjolo Chui, Pre-Trial Chamber I held that the policy element [e]nsures that the attack, even if carried out over a large geographical area or directed against a large number of victims, must still be thoroughly organized and follow a regular pattern. It must also be conducted in furtherance of a common policy involving public and private resources. (…) An attack which is planned, directed or organized – as opposed to spontaneous or isolated acts of violence – will satisfy this criterion.59 This interpretation of the policy element seems to introduce a particularly high threshold. It has even been argued that Pre-Trial Chamber I interpreted the policy element as being synonymous to the systematic attack-requirement and thus effectively replaced the alternative widespread or systematic attack-requirement with a cumulative widespread and systematic attack-requirement.60 This argument is apparently confirmed by the PreTrial Chamber’s interpretation of the term ‘systematic’: [t]he term ‘systematic’ has been understood as either an organized plan in furtherance of a common policy, which follows a regular pattern and results in a continuous commission of acts or as ‘patterns of crimes’ such that the

56 M. Elewa Badar, ‘From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes against Humanity’, 5 San Diego International Law Journal (2004) 112, 116; Werle (n. 2 above) 300. 57 Boas et al. (n. 9 above) 106-107. 58 Robinson (n. 11 above) 48, 50-51; McAuliffe deGuzman (n. 1 above) 374; Badar (n. 56 above) 115. 59 Prosecutor v. Katanga and Ngudjolo Chui, Decision on the confirmation of charges, Case No. ICC-01/0401/07, Pre-Trial Chamber I, 30 September 2008 (Katanga and Chui confirmation of charges decision), para. 396. 60 M. Halling, ‘Push the Envelop – Watch It Bend: Removing the Policy Requirement and Extending Crimes against Humanity’, 23 Leiden Journal of International Law (2010) 827, 836-837.

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FACTS MATTER crimes constitute a ‘non-accidental repetition of similar criminal conduct on a regular basis’.61 Article 7(3) of the Elements of Crimes further expands upon the required form of the policy. It particularly stipulates that ‘the policy to commit such attack requires that the state or organization actively promote or encourage such an attack against a civilian population’. According to Pre-Trial Chamber I, this means that the attack should be planned, directed or organised,62 but it is not required that the policy is explicitly defined or formalised.63 The existence and content of the policy can be deduced from ‘the occurrence of a series of events’.64 In this respect, reference can be made to the factual circumstances that are listed in the Blaškić Trial Chamber judgment.65 Article 7(2) of the Rome Statute explicitly recognises both states and organisations as possible entities behind a policy to commit crimes against humanity. The meaning and scope of the term ‘organisation’ is uncertain and has been extensively debated.66 PreTrial Chamber II on this point decided that: 61 Katanga and Chui confirmation of charges decision, para 397. The (evidential) relationship between the systematic attack-requirement and the policy element may also be observed in Prosecutor v. Harun and Kushayb, Decision on the Prosecution’s application under Article 58(7) of the Statute, Case No. ICC-02/0501/07, Pre-Trial Chamber I, 27 April 2007 (Harun and Kushayb Decision on the application of Article 58(7)), para 62. The Pre-Trial Chamber considered that ‘systematic refers to the organized nature of the acts of violence and the improbability of their random occurrence. The Chamber is also of the view that the existence of a state or organizational policy is an element from which the systematic nature of an attack may be inferred’. 62 Katanga and Chui confirmation of charges decision, para. 396. 63 Katanga and Chui confirmation of charges decision, para. 396; Prosecutor v. Bemba Gombo, Decision on the Prosecutor’s application for a warrant of arrest against Jean-Pierre Bemba Gombo, Case No. ICC-01/ 05-01/08, Pre-Trial Chamber I, 10 June 2008 (Bemba warrant of arrest decision), para. 81. 64 Katanga and Chui confirmation of charges decision, para. 396; Situation in the Republic of Kenya, Decision pursuant to Article 15 of the Rome Statute on the authorization of an investigation into the situation in the Republic of Kenya, Case No. ICC-01/09, Pre-Trial Chamber II, 31 March 2010 (Kenya authorization decision), para. 84. 65 Kenya authorization decision, para. 87. The factual circumstances considered relevant by the Blaškić Trial Chamber are listed in section 2.3.1 of this chapter. This use of the ICTY’s jurisprudence to interpret the Rome Statute is criticised by Judge Kaul in his dissenting opinion to this decision. Judge Kaul holds that ‘[j] urisprudential references to the ad hoc tribunals and that of other hybrid tribunals, such as the Special Court for Sierra Leone (‘‘SCSL’’), are, in my opinion, to be treated with utmost caution (…) A cautious approach is even more warranted in the event that the basic texts of other courts and tribunals do not contain the same legal requirements in a provision as contained in the Court’s Statute. In this respect, it is worth noting that the pertinent provisions in the statutes of the ICTY and the ICTR do not contain expressis verbis a legal requirement equivalent to that of Article 7(2)(a) of the Rome Statute, namely the legal requirement of a ‘‘State or organisational policy’’.’ Situation in the Republic of Kenya, Dissenting opinion Judge Hans Peter Kaul, Case No. ICC-01/09, Pre-Trial Chamber II, 31 March 2010 (Dissenting opinion Judge Kaul), paras. 28 and 31, footnotes omitted. 66 See Schabas (n. 1 above) 953-982; Werle (n. 1 above) 301. See also W.A. Schabas, ‘Crimes against Humanity: The State Plan or Policy Element’ in L.N. Sadat and M.P. Scharf (eds.), The Theory and Practice of International Criminal Law: Essays in Honour of M. Cherif Bassiouni (The Hague: Martinus Nijhoff

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the formal nature of a group and the level of its organization should not be the defining criterion. Instead, as others have convincingly put forward, a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values. The majority of the Pre-Trial Chamber thus included purely private organizations that are capable of setting up and carrying out a policy to commit an attack in the crimes against humanity concept.67 This interpretation remains, however, highly controversial.68 It is hoped that future ICC judgments will offer some clarity on this point.

2.4.2

Reservations

Before engaging in an analysis of ICC case law, two reservations should be made at the outset. First, any analysis of ICC case law is somewhat limited by virtue of the fact that – as a relatively young court – the ICC has rendered only a small number of relevant decisions, which in and of themselves are not entirely consistent. It is therefore as yet impossible to speak of the ICC’s position or to identify a definitive line of reasoning. With regard to the policy element, we can, for example, discern two different understandings and two related ways of applying the law in Pre-Trial Chamber decisions. On the one hand, Pre-Trial Chamber I has brought the policy element under the heading and within the context of the systematic attack-requirement. It, for example, held that the attack against the civilian population of Bogoro village was part of a systematic attack because the violent acts ‘were not random acts of violence against the civilian population, but were committed pursuant to a common policy and an organised common plan’.69 By reasoning in this way, the Pre-Trial Chamber appears to consider the existence of a policy as an evidentially relevant circumstance for determining the

Publishers, 2008) 347; C. Kress, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 Kenya Decision’, 23 Leiden Journal of International Law (2010) 855. 67 Kenya authorization decision, para. 90. 68 In an extensive dissenting opinion Judge Kaul concluded that both textual and teleological arguments lead to a more restricted interpretation of the term ‘organisational’ that is limited to ‘state-like’ organisations. ‘[T]he juxtaposition of the notions “State” and “organization” in article 7(2)(a) of the Statute are an indication that even though the constitutive elements of statehood need not be established those “organizations” should partake of some characteristics of a State. Those characteristics eventually turn the private “organization” into an entity which may act like a State or has quasi-State abilities.’ (Dissenting opinion Judge Kaul, para. 51.) For an academic comment on the decision, see Kress (n. 66 above) 855-873. 69 Katanga and Chui confirmation of charges decision, para. 413. See also Bemba warrant of arrest decision, para. 33; Harun and Kushayb decision on the application of Article 58(7), paras. 62-67.

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FACTS MATTER systematic character of an attack. On the other hand, in the Decision on the authorization of an investigation into the situation of the Republic of Kenya (Kenya decision), Pre-Trial Chamber II assessed the policy element separately from the widespread or systematic-requirement.70 It thus characterised the policy element as an autonomous element of crime. In future decisions, the ICC will have to provide further certainty on the proper application and evaluation of the policy element. Until that time, it remains difficult to make conclusive statements about the ICC’s understanding of the character and function of the policy element. The second reservation that needs to be made, concerns the fact that scholarly analyses of ICC case law are affected by the inherently limited evaluation of facts in pre-trial decisions. As pre-trial decisions are rendered before the examination of facts underlying the charges against the accused, they cannot and do not include an extensive factual substantiation of the decision. The Pre-Trial Chamber decision that provides the best preliminary insights into the application of crimes against humanity in individual cases, is Pre-Trial Chamber II’s Kenya decision. This decision will therefore form the basis for a further assessment of the ICC’s use of the policy element. It should, however, be kept in mind that this assessment is merely preliminary and that its findings may need adjustment in response to future developments.

2.4.3

Factual Application of the Policy Element

In the Kenya decision, Pre-Trial Chamber II refers to a variety of factual circumstances to substantiate its finding that the crimes were committed pursuant to an organisational policy. These circumstances can be divided into the same three categories as were discerned in relation to the ICTY’s systematic attack-analysis, namely circumstances concerning: (i) the preparation for attack; (ii) the characteristics of the attack; and (iii) the political, military and social context in which the attack took place. In relation to the ‘preparation category’, the ICC refers to, inter alia: meetings between local leaders, businessmen and politicians during which the violence was coordinated and weapons and money were distributed;71 the training of recruits in camps;72 the enlistment of gangs to unleash violence on perceived rival communities;73 and the warnings that were given to people in anticipation of the violence.74 The second category of circumstances concerning the characteristics of the attack relates to: the

70 71 72 73 74

Kenya Kenya Kenya Kenya Kenya

authorization authorization authorization authorization authorization

decision, decision, decision, decision, decision,

paras. 115-128. paras. 118-119. para. 119. para. 127. para. 120.

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coordinated and organised manner of attack; the large size of the groups that carried out attacks from different directions; and the fact that the troops fought in shifts.75 Additionally, the Pre-Trial Chamber takes account of the materials and types of armament that were used in the course of the attack. The factual circumstances that fall within the third contextual category concern the execution of simultaneous attacks on different villages and the issuance of public statements by politicians that articulate the violent aim of the attack. The ICC’s use of the policy element in the Kenya decision gives rise to two observations. First, it appears that the ICC adopts a broader understanding of the policy requirement than the ICTY. Whereas in the ICTY’s jurisprudence the policy factor is reflected in the contextual circumstances, the ICC evaluates the policy element on the basis of the entire range of factual circumstances that the ICTY deems relevant for establishing the systematic character of an attack. Thus, the policy element and the systematic attack-requirement may in practice become analogous concepts. This finding on the analogous meaning of the policy element and the systematic attack-requirement is confirmed by the ICC’s practice to substantiate these elements interchangeably. The policy element and the systematic attack-requirement appear to operate as ‘communicating vessels’. When either of these elements is established on the basis of a factual evaluation, the other is ascertained without further substantiation. In the decision on the confirmation of charges against Katanga and Ngudjolo Chui, Pre-Trial Chamber I, for example, characterised the attack on Bogoro village as systematic by looking at the pattern of attacks. It particularly took account of the common characteristics of the attacks committed; the large scale of the attack; the large number of persons targeted; and the organised common plan underlying the acts of violence.76 The existence of a policy was subsequently accepted without explanation. By contrast, Pre-Trial Chamber II in the Kenya decision established the policy element on the basis of relatively extensive reasoning and factual evidence, while later simply stating that the crimes were committed in the context of a systematic attack. Secondly, it is also noteworthy that the contextual circumstances appear to play a limited role in the ICC’s factual substantiation of the policy element. In the Kenya decision, the Pre-Trial Chamber’s conclusion that crimes were committed pursuant to a policy was primarily based on the preparatory measures that were taken and the characteristics of the attack. So far, the inclusion of a policy element in the chapeau of

75 Kenya authorization decision, para. 121. 76 Katanga and Chui confirmation of charges decision, paras. 412-416.

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FACTS MATTER crimes against humanity has thus not led to a more central focus on the policy and a more extensive evaluation of contextual circumstances by the ICC.

2.4.4

Evaluation

The case law analysis shows that the inclusion of a policy element in the Rome Statute has not resulted in a more prominent role for the policy in the crimes against humanity concept. Despite their different theoretical understanding and characterisation of the policy, the ICTY and the ICC evaluate it in a comparable way. With this in mind, it can be argued that the theoretical difference between the policy as an element of crime or as an evidentially relevant circumstance is, in essence, merely academic. Some commentators may reject this argument and assert that the ICC’s current practice illustrates a deficiency in the application of the law, not in the law itself. The fact that the policy element has little added value to the systematic attack-requirement is not a consequence of inaccurate rule-making, but of improper rule-application. The policy element is explicitly included in the Rome Statute as an element of crimes against humanity, which means that the ICC has the obligation to give effect to the element as such. Indeed, it must be acknowledged that the designation of the policy as an autonomous requirement of crimes against humanity can have restrictive value. The fact that the policy element is explicitly included in the Rome Statute obliges the ICC to evaluate this element in every case that comes before it. The Court’s interchangeable substantiation of the policy element and the systematic attack-requirement should therefore be criticised. Even though this practice is understandable in view of the factual analogy between the policy element and the systematic attack-requirement (why would the Court engage in the same factual substantiation twice?), by observing these two elements of crime in an alternative way, the ICC denies them their character and position as autonomous and necessary conditions of crime that should be established and substantiated in each case.77 At the same time, it must be recognised that the meaning, scope and restrictive value of the policy cannot be determined by the mere inclusion of a statutory policy element. As elements of crime are put in relatively abstract and general terms, they can be customised to the factual situation to which they are applied. This is clearly illustrated by the ICTY’s evaluation of the crimes against humanity concept.78 Through its specific interpretation and application of the chapeau elements of crimes against humanity, the ICTY has ascertained both objectives of the policy element – i.e. the exclusion of

77 In this light see also, Dissenting opinion Judge Kaul, paras. 31-32. 78 For the ICTY, the elements of crime are not laid down in the Statute, but have been explicated in case law.

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random, large-scale crimes and the exclusion of crimes committed pursuant to individual plans or in furtherance of the policy of private organisations that do not exercise de facto authority – without recognising the policy as an autonomous requirement of crimes against humanity. Four characteristics of the ICTY’s jurisprudence are particularly noteworthy in this respect. First, the ICTY has applied the systematic attack-requirement in a way that takes account of the larger context of organised violence in which the crimes were committed. By placing emphasis on contextual circumstances, the Tribunal warrants that isolated incidents are excluded from the crimes against humanity concept. Second, the ICTY’s characterisation of an attack as systematic generally coincides with its qualification of this attack as widespread.79 There are thus hardly any cases of mere large scale violence in which the finding of a policy underlying the commission of crimes has real restrictive value. Third, in those cases in which the ICTY did merely qualify an attack as widespread, reference was still made to contextual circumstances that linked the crimes committed to each other. In this way, the ICTY still construed a situation of organised violence.80 Fourth, the link between the various individual crimes committed, can also be ascertained by the requirements that the attack was committed in the context of an armed conflict and was directed against a civilian population. Both these elements establish a connection between individual crimes and the larger context of violence, which ensures the organised character of crimes against humanity. Despite its rejection of the policy as a necessary element of crimes against humanity, the ICTY has thus shaped and applied the crimes against humanity concept in such a way that widespread, yet unrelated, crimes are excluded from the crimes against humanity concept. In addition, ICTY case law also ascertains the involvement of a high-level authority in the commission of crimes. The contextual circumstances to which the Tribunal refers mostly relate to the implication of a higher authority.81 In particular, they establish a link between the specific crimes and the political, military or institutional context in which these crimes were committed. Violence committed pursuant to individual plans thus falls outside the scope of crimes against humanity. The fact that the ICTY has ascertained the objectives of the policy element despite its rejection of the policy as an autonomous element of crimes against humanity is, of

79 Schabas (n. 9 above) 192; Boas et al. (n. 9 above) 107. 80 See Martić Trial Chamber judgment, para. 469. 81 The Blaškić Trial Chamber in this respect referred to amongst others the overall political background; the establishment and implementation of autonomous political structures; the general content of the political program; media propaganda; the establishment and implementation of autonomous military structures; the mobilisation of armed forces; the execution of temporally and geographically repeated and coordinated military offensives; and the existence of links between the military hierarchy and the political structure and its program (para. 204). See also Schabas (n. 9 above) 193.

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FACTS MATTER course, no guarantee that future courts will operate in a similar way and achieve a similar result. The specific, relatively unproblematic, application of the crimes against humanity concept by the ICTY is at least partly related to the character of the cases that are brought before this Tribunal. They concern crimes that were committed during an (inter)national armed conflict between multiple ethnic groups. Furthermore, the crimes were mostly executed in an organised way pursuant to a (state) policy. Because of this factual context, the Tribunal does not have to consider situations of widespread, yet unrelated, armed violence. It is therefore only logical that ICTY substantiates the systematic attack-requirement on the basis of contextual circumstances. The ICC may be presented with more varied and controversial situations than the ICTY, since the Rome Statute opens the jurisdiction of the Court to situations of large scale violence outside the context of an armed conflict. In the Kenya situation, the contextual circumstances were already far less evident. The Pre-Trial Chamber consequently focused on other factual circumstances evidencing the organised character of crimes. Could the recognition of the policy as an element of crime have an added value in these and similar cases of unorganised/loosely organised large-scale violence? The answer to this question depends on the ICC’s interpretation and application of the policy element and on its interpretation and application of other chapeau elements. These are still largely undetermined. With respect to the ICC’s interpretation of the policy element, it can, however, already be noted that the Court appears to have limited the added value of the policy element by adopting a relatively broad understanding of the organisational policy concept. The majority in the Kenya decision considered that this concept includes private organisations. In this way, the Pre-Trial Chamber diminished the restrictive effect of the policy element. The other chapeau elements already require some type of organisation, since it is difficult, if not impossible, for individuals or unorganised groups to execute a widespread or systematic attack against a civilian population. These chapeau elements do, however, not necessarily limit the crimes against humanity concept to crimes that involve a state or ‘state like’ organisation. If the majority of the ICC had interpreted the organisational policy concept in a more restricted manner, the policy element could have had a restraining effect on this point. The previous observations illustrate that the elements of crimes against humanity are interconnected.82 The abstract interpretation and practical application of a legal element does not merely determine the meaning, scope and function of this specific element, but additionally influence the value of and need for other elements of crime. The role of an autonomous policy element is accordingly related to the interpretation and application of 82 In this light see also L. van den Herik, ‘Using Custom to Reconceptualize Crimes against Humanity’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2010) 80, 102.

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the widespread or systematic attack-requirement and the civilian population-requirement. Furthermore, we should be mindful that the value of the policy is not exclusively determined by its abstract characterisation, but is additionally shaped by its application to the facts of individual cases. Despite their different theoretical characterisation of the policy, the ICTY and the ICC apply this factor/requirement in an essentially similar manner. This practical similarity of theoretically different concepts may be explained by the ‘open texture’ of legal rules and the factor-based character of legal reasoning.

2.5 2.5.1

JUDICIAL REASONING The Open Texture of Legal Rules

Judicial institutions operate on the basis of argumentative legitimacy,83 which means that they must justify their decisions on the basis of rational arguments. In law, there are explicit presumptions about the form and substance of these arguments. The most fundamental presumption with respect to judicial argumentation in (international criminal) law is that it is rule-based.84 For the most part, the rules of international criminal law are laid down in statutes and judicial decisions. These sources jointly explicate the elements of international crimes, i.e. the individually necessary and jointly sufficient conditions that give rise to criminal responsibility for international crimes. Article 7 of the Rome Statute, for example, determines that the listed individual criminal acts can be qualified as crimes against humanity when the accused knew that these acts were committed as part of a widespread or systematic attack directed against any civilian population, pursuant to or in furtherance of a state or organisational policy to commit such attack. The elements of crime are general in character. This means that they are contextindependent and can be applied to a variety of unknown future situations. The elements of crime are therefore necessarily and inevitably put in relatively abstract terms. As a

83 H.L. Packer, The Limits of Criminal Sanction (Stanford: Stanford University Press, 1968) 88; B. Bengoetxea, The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence (Oxford: Oxford University Press, 1993) 116-117; L.M. Soriano, ‘The Use of Precedents as Arguments of Authority, Arguments ab Exemplo, and Arguments of Reason in Civil Law Systems’, 11 Ratio Juris (1998) 90, 91-92; A. Cassese, ‘The ICTY: A Living and Vital Reality’, 2 Journal of International Criminal Justice (2004) 585, 589; W. Twining and D. Miers, How to Do Things with Rules (Cambridge: Cambridge University Press, 2010) 268-270. 84 F.R. Coudert, Certainty and Justice: Studies of the Conflict between Precedent and Progress in the Development of Law (New York: D. Appleton and Company, 1914) 1. See also G. Lamond, ‘Do Precedents Create Rules?’, 11 Legal Theory (2005) 1, 5-6; Twining and Miers (n. 83 above) 32.

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FACTS MATTER result, they are characterised by, what Hart calls, an ‘open texture’.85 In the context of concrete cases – when the facts of a case have to be observed in light of the general rules of law – questions may rise about the meaning and scope of the abstract elements of crime. Does the term ‘systematic’ in the elements of crimes against humanity, for example, imply a preconceived plan? Rather than settling the discussion on the meaning and scope of the law, the elements of crime thus stimulate an interpretative process.86 Judges interpret and explicate the elements of crime in response to the questions raised in individual cases. In particular, they rephrase the abstract terms of legal elements in more concrete definitions or criteria. In this way, they provide further guidance on the meaning of these elements. With respect to the widespread or systematic attackrequirement of crimes against humanity, the ICTY has, for example, clarified that the systematic character of the attack refers to ‘the organized nature of the violence and the improbability of their random occurrence’.87 This judicial criterion is authoritative for the Tribunal and has acquired a central position in the Tribunal’s reasoning about the meaning and scope of the law. Like the elements of crime, judicial criteria can, however, not be applied in a simple, deductive manner. Because the criteria are still formulated in general terms, their meaning and scope are not carved in stone, but allow leeway for diverse applications. Depending on the way in which the criteria are applied to the facts of a case, they may acquire either a broad or a restrictive meaning. It thus follows that even the combined analysis of the elements of crime and judicial criteria will not exclude doubts about the law’s applicability in individual cases. The ICTY and the ICC are clearly aware of this problem and have responded to the need for further practical guidance. This is most evident in the situations in which they have explicitly listed a non-exhaustive number of factual circumstances that they consider relevant in light of the elements of crime and judicial criteria. The Blaškić Trial Chamber has, for example, held that the existence of a plan underlying the indicted crimes may be surmised from inter alia the general historical circumstances; media propaganda; the mobilisation of armed forces; and the imposition of discriminatory

85 J.M. Brennan, The Open Texture of Moral Concepts (Michigan: Macmillan, 1977); H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994) 12. The open texture of rules of international criminal law has been previously signaled and illustrated by various scholars. See J. Klabbers, ‘The Meaning of Rules’, 20 International Relations (2006) 295, 298; H. van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’, 8 International Criminal Law Review (2008) 229, 263-264; E. van Sliedregt, ‘System Criminality at the ICTY’ in A. Nollkeamper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 183, 199-200. 86 Klabbers (n. 85 above) 300. 87 See Kunarac Appeals Chamber judgment, para 94; Blaškić Appeals Chamber judgment, para. 101; Kordić and Čerkez Appeals Chamber judgment, para. 94; Martić Trial Chamber judgment, para. 49.

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measures.88 In other cases, the influence of factual circumstances on the meaning and scope of the law is less explicit. With respect to several legal concepts, the ICTY has, for example, declared that the applicability of a legal requirement or element of crime may be inferred from the facts of the case.89 The relevant factual circumstances and their relative weight should then be derived from the Tribunal’s evaluation of individual cases.

2.5.2

The Character and Position of Factual Circumstances

The factual circumstances of a case – whether explicitly listed or implicit in the court’s reasoning – play an essential role in the judicial evaluation of an accused’s responsibility for international crimes. As was previously illustrated, the meaning and scope of legal concepts can only be properly understood in light of their application to a specific factual context.90 In contrast to the elements of crime and the judicial interpretations thereof, the relevant factual circumstances are not laid down as necessary and sufficient conditions of crime. Instead, they are listed as open-ended illustrations of relevant facts. It thus appears that the factual circumstances function as factors.91 Research on reasoning with factors shows that the mere existence of a factor does not determine the decision. This means, on the one hand, that not all relevant factors have to be established in every case. On the other hand, when they are established, factors do not automatically determine a specific outcome, but merely move the decision-maker in a certain direction. The establishment of an element of crime and the determination of individual criminal responsibility are ultimately based on the balancing and evaluation of all relevant factors and the relations between them. When applying this thought to the judicial assessment of the policy to commit crimes against humanity, it becomes clear that legally relevant circumstances – such as the mobilisation of armed forces and the imposition of discriminatory measures – should not be observed as necessary conditions for establishing a policy, but as factors favouring the finding of a policy. At the same time, the un-coordinated character and the small scale of the crimes do not exclude the existence of a policy, but do not favour its acceptance. The ultimate decision depends on the balancing of the first set of arguments, pleading for, and the second set of arguments, pleading against the existence of a policy. 88 Blaškić Trial Chamber judgment, para. 204. 89 The ICTY has, for example, held that the purpose of a Joint Criminal Enterprise does not need to be explicitly formulated, but may be inferred from the facts of the case. See Prosecutor v. Vasiljević, Judgment, Case No. IT-98-32-A, Appeals Chamber, 25 February 2004 (Vasiljević Appeals Chamber judgment), para. 100. 90 Similar observations have been made by Van der Wilt and Van Sliedregt. See Van der Wilt (n. 85 above) 265-268; Van Sliedregt (n. 85 above) 199-200. 91 G. Sartor, Legal Reasoning: A Cognitive Approach to the Law (Dordrecht: Springer, 2005) 177.

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FACTS MATTER Preliminary research into the process of factor-based reasoning illustrates that this type of reasoning is flexible, but not completely unbounded. Factor-based reasoning is not conducted in a vacuum, but helps to justify the leap from the general legal rules to the decisions in individual cases.92 It entails a particular process to determine whether the factual circumstances of the case at hand meet the legal standards that are laid down in the elements of crime and the judicial interpretations thereof. In this process, not every factual circumstance can be qualified as a factor. Factor-based reasoning takes as a starting-point that factual circumstances only become factors in light of the object of the legal provision for which they are used.93 Factors originate from the desire to achieve a certain goal and the belief that acting and deciding in a specific way promotes that goal. Sartor in this respect adopts the following reasoning scheme: having goal G; and believing that doing A, under pre-condition C, promotes G is a reason for having the propensity to do action A under pre-condition C (viewing precondition C as a factor favouring action A).94 Factor-based reasoning can thus be perceived as a technique that simplifies and operationalises the process of teleological reasoning,95 a prominent type of reasoning in international criminal law.96 The weighing and balancing of the established factors constitutes an essential part of the process of factor-based reasoning. After all, the outcome of this process is not determined by the mere existence of a factor, but by the relative strength of the factors favouring and disfavouring a certain outcome.97 The essential question in this respect is: when is a set of factors sufficient to qualify certain conduct as an international crime or to establish an accused’s criminal responsibility for this crime? Different judges may answer this question in different ways. The risk of

92 A similar argument appears to be made by Soriano. Soriano (n. 83 above) 97. 93 Sartor (n. 91 above) 178; G. Sartor, ‘Reasoning with Factors’, 19 Argumentation (2005) 417, 417-418. See also Van der Wilt (n. 85 above) 272. 94 Sartor (n. 91 above) 179. 95 Sartor (n. 91 above) 180. 96 A. Nollkaemper, ‘The Legitimacy of International Law in the Case Law of the International Criminal Tribunal for the former Yugoslavia’ in T.A.J.A. Vandamme and J. H. Reestman (eds.), Ambiguity in the Rule of Law: The Interface between National and International Legal Systems (Groningen: Europa Law Publishing, 2001) 13, 18; M. Swart, Judges and Lawmaking at the International Criminal Tribunals for the former Yugoslavia and Rwanda, 13 December 2006, PhD Thesis, available online at , 65; J. Powderly, ‘Judicial Interpretation at the ad hoc Tribunals: Method from Chaos?’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2010) 17, 40-41; D. Robinson, ‘The Two Liberalisms of International Criminal Law’ in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press, 2010) 115, 136-142. 97 Sartor (n. 91 above) 221.

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arbitrary and inconsistent law application can, however, be limited by means of analogous reasoning from precedent.

2.5.3

Precedents in Factor-Based Reasoning

The use of precedents in legal reasoning has mostly been studied in relation to the common law and its doctrine of stare decisis.98 However, judicial reasoning from precedents is not unique to the common law. In every legal system judges resort to precedents when they decide cases.99 The way in which precedents are used and the weight that is attached to precedents, however, differs. In international criminal law, precedents are not recognised as sources of law, nor is the doctrine of stare decisis strictly adhered to.100 This does not mean, though, that precedents are irrelevant in judicial decision-making.101 They are most explicitly referred to in the reiteration and confirmation of previously defined interpretative criteria and definitions. Precedents are then used to justify the applicability of these criteria and definitions without observing the factual analogy between the precedent and the present case.102 98 D.N. MacCormick and R.S. Summers, ‘Introduction’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 1, 11-12. 99 MacCormick and Summers (n. 99 above); M. Schahabuddeen, Precedent in the World Court (Cambridge: Cambridge University Press, 1996); M. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford: Oxford University Press, 2004). 100 Kupreškić et al. Trial Chamber judgment, para. 540; Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/ 1-A, Appeals Chamber, 24 March 2000 (Aleksovski Appeals Chamber judgment), paras. 107-114. In the latter case, the Appeals Chamber explicates that ‘a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been “wrongly decided, usually because the judge or judges were ill-informed about the applicable law”. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts’ (paras. 107-109) (footnotes omitted). The Appeals Chamber furthermore considered that ‘a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers (…). The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive’ (paras. 113-114). 101 C. Harris, ‘Precedent in the Practice of the ICTY’ in R. May et al. (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (The Hague: Kluwer Law International, 2001) 341, 344-356; A.M. Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’, 59 Vanderbilt Law Review (2006) 1, 49. 102 This use of precedents in the context of international criminal law appears to resemble the use of precedents in civil law systems. MacCormick and Summers in this respect observe that ‘precedents are commonly conceived as loci of relatively abstract rules or (perhaps even more) principles, and it is generally

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FACTS MATTER When judicial reasoning is observed as a process of weighing and balancing factors, precedents acquire an additional argumentative role. In this respect, precedents are used as past situations in which a set of factual circumstances was weighed and decided upon.103 Assuming that new cases should be decided in a similar way as precedent cases, it is argued that the fact that a precedent (X) had outcome (Y) in the presence of factors (Z), justifies that this combination of factors (Z) produces outcome (Y) in future cases as well.104 A previous decision made on the basis of a specific combination of factors should thus be applied analogically in future similar cases. Where differences between cases occur, judges should ask themselves whether these differences justify a defeat of the precedent in light of the purpose of the legal rule. When observing precedents in this way, it becomes essential that judges explicate the factors underlying their decision. In particular, they have to characterise the factual circumstances of the case before them in light of the relevant factors, judicial definitions and criteria and, ultimately, the elements of crime. Only on the basis of this explication, can judges in future cases evaluate the factual analogies between the precedent and the present case.105 It follows from the previous account that factor-based reasoning does not necessarily make the meaning and scope of legal concepts unclear, uncertain or unbounded. Factorbased reasoning rather balances the need for flexibility and substantive justice against the need for legal certainty and the rule of law. On the one hand, by observing the totality of relevant precedents in relation to each other, judges will be able to determine an ordering of factors (which factors and combinations of factors carry sufficient weight to qualify an attack as widespread or systematic?) and will have to decide new cases on the basis of the established ordering. One the other hand, because factors operate in a non-decisive way, factor-based reasoning is susceptible to the possibility that future cases present new factual circumstances that shed such a different light on the circumstances that the Tribunal previously considered sufficient for establishing an element of crime, that it

to the stated rule or principle of law espoused by the court as an interpretation of code or statute that normative force attaches for the subsequent court, even where code or statute does not closely govern. There is usually not, as in common law systems, a restriction of the binding element to a ruling on an issue of law considered in the special light of the material facts of the case. Thus what we call the model of particular analogy plays far less part here. (…) [P]recedents can be treated as applicable, and applied, without any explicit consideration of their aptness for application in the instant case in the light of its material facts (…)’. D.N. MacCormick and R.S. Summers, ‘Further General Reflections and Conclusions’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 531, 536-537 and 539. 103 Sartor (n. 91 above) 738; Lamond (n. 84 above) 15. 104 Soriano (n. 83 above) 99; Lamond (n. 84 above) 15; Sartor (n. 91 above) 738. 105 M.J. Borgers, ‘De Communicatieve Strafrechter’ in Controverses rondom Legaliteit en Legitimatie, Handelingen Nederlandse Juristen-Vereniging 2011-1 (Deventer: Kluwer, 2011) 103, 130-135.

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may not come to the same conclusion in these future cases.106 The law thus remains open for continuous development and improvement.

2.5.4

Implications for the Policy Requirement and Debate

When we observe the judicial decision-making process as a process of factor-based reasoning, it becomes clear how and why the inclusion of the policy as an element of crime in the Rome Statute has not resulted in a different understanding of the crimes against humanity concept by the ICC in comparison to the ICTY. The abstract definition of the policy element in the Rome Statute allows leeway for a variety of relevant factors that may be balanced in various ways, resulting in a more restrictive or a more liberal understanding of the element. By using this leeway to adapt the law to the facts of individual cases, the ICC can apply the policy element in a way that is very similar to the ICTY’s use of the policy factor in the context of the systematic attack-requirement. Furthermore, the theory of factor-based reasoning holds that factors are formulated in light of the object of a legal rule. Rules that pursue a similar object will thus be evaluated on the basis of similar factors. The ICTY and the ICC acknowledge that the policy element and systematic attack-requirement both seek to exclude isolated and randomly committed crimes from the crimes against humanity concept. According to the theory of factor-based reasoning, these requirements will thus have to be evaluated on the basis of similar factual circumstances. Consequently, the policy can acquire a similar meaning and scope, irrespective of its qualification as either an evidentially relevant circumstance or an element of crime. This does not mean that the inclusion of a policy element in the Rome Statute is unnecessary or useless and will never have an effect on legal doctrine. Nor should it automatically lead to the conclusion that the ICC has misapplied its Statute. The previous account merely demonstrates that the meaning, scope and function of the policy do not solely depend on its theoretical characterisation, but are additionally shaped by the application of this requirement/factor to specific factual situations. As a result of this application, theoretically different conceptions of the policy may acquire an analogous meaning. These observations do undermine the value of the theoretical distinction between the policy as an element of crime or as a relevant circumstance. They show that it is essential that discussions about the value of the policy element are not limited to the abstract characterisation of the law, but take additional account of the application of this element in practice.

106 K. van Willigenburg, ‘Casuïstiek en Scherpe Normen in het Materiële Strafrecht’, 41 Delikt en Delinkwent (2011) 365. Van Willigenburg derives from J. Dancy, Ethics without Principles (Oxford: Oxford University Press, 2004).

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FACTS MATTER To date, this has been insufficiently recognised in the academic debate on the policy underlying crimes against humanity. This debate has been primarily concerned with the theoretical characterisation of the policy as either an element of crime or a relevant factual circumstance, while little or no attention has been paid to the way in which this factor/ requirement is applied in individual cases. By focusing on the theoretical characterisation of the policy, legal scholars fail to take account of the fact that the law is shaped in the context of legal practice. They may consequently engage in a debate that is in essence merely theoretical. It is therefore advisable that the current debate is supplemented with a more practical discourse in which the jurisprudence of the ICTY and the ICC is analysed and evaluated on the basis of the application of the policy factor/requirement in individual cases. This discourse may demonstrate that an autonomous policy element is not necessarily better suited to exclude isolated, random and individually committed crimes from the scope of crimes against humanity than the policy factor. Whether this is so largely depends on the application of the policy element to the factual context of individual cases.

2.6

CONCLUSIONS

The analysis of ICTY and ICC case law shows that these courts apply the policy underlying crimes against humanity in a very similar manner. Their different characterisation of the policy as either an element of crimes against humanity or an evidentially relevant circumstance does not appear to fundamentally affect the policy’s function, meaning or scope in practice. This can be explained by the open-textured character of legal rules. The abstract terms in which the elements of international crimes are formulated in Statutes and case law provide leeway for various applications. By using this leeway in individual cases, courts can give theoretically different concepts an analogous function, meaning and scope. The value of legal concepts is thus not merely determined by their theoretical characterisation, but also by their practical application. In this light, the focus of the current academic debate on the theoretical characterisation of the policy is deficient. A comprehensive study of crimes against humanity requires additional analyses of the practical application of the policy element. This analysis may show that a further restriction of the law is unnecessary or that legal reforms did not have the expected effect in practice. This chapter is a first step in the direction of a more practical evaluation of crimes against humanity. Further research into the way in which abstract elements and requirements are applied to specific fact situations is, however, desirable. This research should particularly address the character of factor-based reasoning and the influence of such reasoning on judicial decisionmaking in international criminal law.

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Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration*

*

This chapter was published in E. van Sliedregt and S. Vasiliev (eds.), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014) 128. In preparing the chapter, minor (textual) changes have been made to the original text.

III 3.1

PLURALISM

IN

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LIABILITY

INTRODUCTION

From the start of their operation, the ad hoc Tribunals and the International Criminal Court (ICC) have been engaged in a ‘continuous quest’1 for theories of liability that can adequately address the systemic character of international crimes. Moreover, the courts have sought to express the central role played by senior political and military leaders in the commission of these crimes. To this end, the ad hoc Tribunals and the ICC have used the doctrines of joint criminal enterprise (JCE) and (indirect) joint perpetration, respectively. Both JCE and joint perpetration base criminal responsibility on the existence of a common plan between the accused and others leading to the commission of crimes. Yet, the ad hoc Tribunals and the ICC continue to emphasise the distinctive nature of these doctrines: ‘there is an unwillingness on either side to uncover similarities and overlap between co-perpetration and JCE, let alone apply each other’s case law with regard to these concepts’.2 The Tribunals and the ICC thus each pursue a course of Alleingang. The ICC explains and justifies its Alleingang most explicitly with reference to the different rationales underlying JCE and joint perpetration. Whereas joint perpetration is thought to reflect an objective rationale, JCE is perceived to be premised on a subjective one. The distinction between these rationales lies in their focus of attention. The objective rationale takes as a starting point the acts and conduct of the accused (actus reus). A person is criminally responsible when he or she makes an essential contribution to a crime and in that sense controls its commission.3 The subjective rationale, conversely, emphasises the accused’s mens rea and grounds criminal responsibility on the fact that the accused shared with others the intent to implement a common criminal purpose.4 The validity of the dichotomy between JCE and joint perpetration remains as yet uncertain. There is a division between scholars who affirm and welcome the ICC’s approach5 and those who critically question the Court’s distinctive

1 2 3 4 5

H. van der Wilt, ‘The Continuous Quest for Proper Modes of Liability’, 7 Journal of International Criminal Justice (2009) 307. E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012) 101. Prosecutor v. Lubanga, Decision on the confirmation of charges, Case No. ICC-01/04-01/06-803, Pre-Trial Chamber I, 29 January 2007 (Lubanga confirmation of charges decision), paras. 330, 338. Lubanga confirmation of charges decision, para. 329. See e.g. S. Wirth, ‘Committing Liability in International Criminal Law’ in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 329, 331-333; H. Olásolo, ‘Current Trends on Modes of Liability for Genocide, Crimes against Humanity and War Crimes’ in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press, 2010) 520, 526-528; S. Manacorda and C. Meloni, ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’, 9 Journal of International Criminal Justice (2011) 159, 161-163; C. Meloni, ‘Fragmentation of the Notion of

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FACTS MATTER course.6 I would like to add a new voice to this debate by having a look ‘beneath the surface’ of the courts’ allegedly different theories of liability. In particular, I seek to assess how the ad hoc Tribunals and the ICC have applied the law to the facts and use this assessment as a basis for determining whether there is a dichotomy between joint perpetration and JCE in practice. My argument develops as follows. Section 2 explores the current status of the legal debate on the (different) rationales underlying JCE and joint perpetration. In this respect, particular attention is paid to the meaning of the common plan-element, which is the most characteristic feature of these liability doctrines that forms the central basis of attribution. Sections 3 and 4 assess the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY)7 and the ICC, respectively. In particular, these sections set out to identify, categorise, and interpret the factual circumstances that are used to establish the common plan-element in individual cases. Based on this assessment, section 5 concludes that the ICC and ICTY both perceive the common plan as a collective element that is based on the participants’ cooperation in, and their informed contribution to, (criminal) organisations. Thus, the courts apply the common plan-element in an essentially similar manner. Considering that the common plan-element is the central basis of attribution for JCE and joint perpetration, this finding implies that the alleged objective–subjective dichotomy between JCE and joint perpetration is nominal rather than actual. The dichotomy should therefore not engross future debates on theories of liability in international criminal law. Rather than stressing the differences between JCE and joint perpetration, it is more fruitful to focus on the similarities between these doctrines. In this light, section 6 draws an analogy with domestic theories of criminal responsibility for (co-)perpetration and participation in a criminal organisation. This

6

7

Co-Perpetration in International Criminal Law?’ in L. van den Herik and C. Stahn (eds.), The Diversification and Fragmentation of International Criminal Law (Leiden: Martinus Nijhoff Publishers, 2012) 481, 501; F. Jessberger and J. Geneuss, ‘On the Application of a Theory of Indirect Perpetration in Al-Bashir’, 6 Journal of International Criminal Justice (2008) 853, 858; K. Ambos, ‘The Fujimori Judgment – A President’s Responsibility for Crimes against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, 9 Journal of International Criminal Justice (2011) 137, 158; G. Werle and B. Burghardt, ‘Foreword’, 9 Journal of International Criminal Justice (2011) 85, 88; G. Fletcher, ‘New Court, Old Dogmatik’, 9 Journal of International Criminal Justice (2011) 179, 190; Van der Wilt (n. 1 above) 308-310. E.g. J.D. Ohlin, ‘Joint Intentions to Commit International Crimes’, 11 Chicago Journal of International Law (2010-2011) 693, 745; V. Haan, Joint Criminal Enterprise: Die Entwicklung einer Mittäterschaftlichen Zurechnungsfigur im Völkerstrafrecht (Berlin: Duncker & Humblot, 2008) 109, 162-163, 199; T. Weigend, ‘Intent, Mistake of Law and Co-Perpetration in the Lubanga Decision on Confirmation of Charges’, 6 Journal of International Criminal Justice (2008) 471, 476-478; K. Ambos, ‘Amicus Curiae Brief in the Matter of the Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav “Duch” Dated 8 August 2008’, 20 Criminal Law Forum (2009) 353, 363-364; Van Sliedregt (n. 2 above) 101, 170-171. The practice of the ICTR falls outside the scope of this chapter because its case law on JCE is limited and adds little to the ICTY’s extensive jurisprudence.

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analogy can help to develop a better confined and intellectually more honest concept of criminal responsibility for international crimes.

3.2 3.2.1

THE DEBATE

ON

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JOINT PERPETRATION

Subjective versus Objective Rationale

International crimes are forms of system criminality.8 System criminality concerns the widespread commission of crimes by multiple cooperating (groups of) persons.9 It also presupposes the involvement of a senior military and/or political leader who masterminds the collective action from a distance. To ensure the criminal responsibility of these senior leaders (who did not commit any crimes physically), the ICTY uses the concept of JCE.10 This concept enables the imputation of ‘certain acts or results to persons for their participation in a collective (“joint”) criminal enterprise’.11 The criminal enterprise is defined by the participants’ common agreement or understanding to commit crimes.12 For example, the JCE charges against Radovan Karadžić are based on the allegation that

See e.g. A. Nollkaemper, ‘Introduction’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 1, 1-2; Van Sliedregt (n. 2 above) 20-22; Haan (n. 6 above) 35-42. 9 See e.g. K. Ambos, ‘Article 25: Individual Criminal Responsibility’ in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article (München: C.H. Beck oHG, 2008) 744, 748; A. Cassese, ‘The Proper Limits of Individual Criminal Responsibility under the Doctrine of Joint Criminal Enterprise’, 5 Journal of International Criminal Justice (2007) 109, 110; G. Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’, 5 Journal of International Criminal Justice (2007) 953, 953-954; Jessberger and Geneuss (n. 5 above) 855; Haan (n. 6 above) 35-42; Nollkaemper (n. 8 above) 1-2. 10 Since the Tadić Appeals Chamber judgment, the objective elements (actus reus) of this mode of liability have been formulated as follows: (i) a plurality of persons; (ii) a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (iii) the accused’s participation in the common criminal design. See Prosecutor v. Tadić, Judgment, Case No. IT-94-1-A, Appeals Chamber, 15 July 1999 (Tadić Appeals Chamber judgment), para. 227. The mens rea element of JCE differs according to the category of common design: ‘With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). With regard to the second category (…), personal knowledge of the system of ill-treatment is required (…), as well as the intent to further this common concerted system of ill-treatment. With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.’ Tadić Appeals Chamber judgment, para. 228. 11 Ambos (n. 6 above) 353, 360. 12 K. Ambos, Treatise on International Criminal Law, Volume 1: Foundations and General Part (Oxford: Oxford University Press, 2013) 160. 8

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FACTS MATTER he shared with inter alia Slobodan Milošević and Ratko Mladić the objective to forcibly and violently remove the non-Serb inhabitants from the Bosnian Serb-claimed territories of Bosnia-Herzegovina.13 In this way, JCE allegedly gives expression to a subjective notion of criminal responsibility.14 The essence of wrongdoing lies in the JCE members’ shared intent to implement a common criminal purpose,15 rather than in their objective contribution to this criminal purpose. The actus reus is merely secondary.16 The ICC has explicitly dissociated itself from the JCE concept and has adopted the concept of joint perpetration instead. According to the Court, joint perpetration is rooted in the principle of the division of essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the participants has overall control over the offence because they all depend on each other for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task.17 In this way, the ICC takes the accused’s ability to dominate the commission of crimes – i.e. to decide whether and how the crime will be committed – as a starting-point.18 It bases the criminal responsibility of joint perpetrators on their performance of essential

13 Prosecutor v. Karadžić, Third amended indictment, Case No. IT-95-5/18-PT, 27 February 2009, paras. 6-13. 14 Lubanga confirmation of charges decision, paras. 329, 335, 338. 15 B. Goy, ‘Individual Criminal Responsibility before the International Criminal Court: A Comparison with the ad hoc Tribunals’, 12 International Criminal Law Review (2012) 1, 29. 16 See also C. Damgaard, Individual Criminal Responsibility for Core International Crimes (Berlin: Springer, 2008) 207-208; K. Gustafson, ‘The Requirement of an Express Agreement for Joint Criminal Enterprise Liability: A Critique of Brđanin’, 5 Journal of International Criminal Justice (2007) 134, 138; H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (Oxford: Hart Publishing, 2009) 5; Olásolo (n. 5 above) 527-528; Cassese (n. 9 above) 116. 17 Lubanga confirmation decision, para. 342. The legal elements of this mode of liability are formulated as follows: (i) a common plan or agreement between two or more persons that, once implemented, will result in the commission of a crime in the ordinary course of events; (ii) the essential contribution of each joint perpetrator to the common plan; (iii) the accused’s fulfilment of the subjective elements of the crime; (iv) the joint perpetrators’ (mutual) awareness and acceptance that the implementation of their common plan will result in the commission of the crime; and (v) the accused’s awareness that he provided an essential contribution to the common plan. See Prosecutor v. Lubanga, Judgment, Case No. ICC 01/04-01/06-2842, Trial Chamber I, 14 March 2012 (Lubanga Trial Chamber judgment), paras. 980-1018. 18 E.g. Prosecutor v. Katanga and Ngudjolo Chui, Decision on the confirmation of charges, Case No. ICC-01/ 04-01/07, Pre-Trial Chamber I, 30 September 2008 (Katanga and Chui confirmation of charges decision), para. 485; Prosecutor v. Banda and Jerbo, Corrigendum of the ‘Decision on the confirmation of charges’, Case No. ICC-02/05-03/09-121-Corr-Red, Pre-Trial Chamber I, 7 March 2011 (Banda and Jerbo confirmation of charges decision), para. 126; Lubanga Trial Chamber judgment, paras. 920, 922; Lubanga confirmation of charges decision, para. 330.

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tasks, rather than on their agreement to a common criminal plan.19 This is found to reflect an objective ‘control over the crime’ approach.20 The distinction between the subjective JCE concept and the objective joint perpetration concept has been subject to different assessments. Some scholars endorse the ICC’s finding that JCE and joint perpetration are premised on different rationales and welcome the Court’s rejection of the subjective rationale underlying JCE.21 For example, according to Chouliaras, the subjective rationale ‘permits both prosecutors and judges to use JCE as an open-ended category, vesting their intuition with a legal veil’.22 As a consequence, JCE obscures the link between the accused and the crimes for which he stands trial: it ‘remain[s] rather elusive as to how the suspect has exactly contributed to the crimes’.23 The objective rationale underlying joint perpetration allegedly remedies this defect by defining the participants’ contributions to a criminal endeavour more precisely.24 By contrast, other scholars consider the distinction between JCE and joint perpetration as contrived.25 While acknowledging that JCE and joint perpetration place different

19 Goy (n. 15 above) 41. 20 E.g. Lubanga confirmation of charges decision, paras. 330, 331, 340; Katanga and Chui confirmation of charges decision, paras. 480-486; Banda and Jerbo confirmation of charges decision, para. 126; Prosecutor v. Bemba Gombo, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, Pre-Trial Chamber II, 15 June 2009 (Bemba confirmation of charges decision), para. 296; Prosecutor v. Muthaura et al., Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, Case No. ICC-01/ 09-02/11-382-Red, Pre-Trial Chamber II, 23 January 2012 (Muthaura et al. confirmation of charges decision), para. 296; Prosecutor v. Ruto et al., Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, Case No. ICC-01/09-01/11-373, Pre-Trial Chamber II, 23 January 2012 (Ruto et al. confirmation of charges decision), para. 291. 21 E.g. Van der Wilt (n. 1 above) 308-310; Wirth (n. 5 above) 331-333; Olásolo (n. 5 above) 526-528; Manacorda and Meloni (n. 6 above) 161-163; Meloni (n. 5 above) 487, 492, 501; Jessberger and Geneuss (n. 5 above) 858. 22 A. Chouliaras, ‘From “Conspiracy” to “Joint Criminal Enterprise”: In Search of the Organizational Parameter’ in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press, 2010) 545, 577. 23 Van der Wilt (n. 1 above) 308. See also E. van Sliedregt, ‘System Criminality at the ICTY’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 183, 183-184; H. van der Wilt, ‘Joint Criminal Enterprise and Functional Perpetration’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 158, 163-164, 166; V. Haan, ‘The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the former Yugoslavia’, 5 International Criminal Law Review (2005) 167, 195; G. Boas, ‘The Difficulty with Individual Criminal Responsibility in International Criminal Law’ in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press, 2010) 501, 511-515; Olásolo (n. 5 above) 528-529; Chouliaras (n. 22 above) 577. 24 Meloni (n. 5 above) 501. See also Van der Wilt (n. 1 above) 308. 25 E.g. Van Sliedregt (n. 2 above) 101, 170-171; Ohlin (n. 6 above) 745; Haan (n. 6 above) 109, 162-163, 199; Weigend (n. 6 above) 476-478. While Ambos seems to have adopted a similar understanding of the relation between JCE and joint perpetration, he still maintains that a characterisation of JCE and joint perpetration in terms of their subjective or objective rationales is possible and useful. Ambos (n. 12 above) 162-163.

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FACTS MATTER emphases, they argue that the legal elements and principles of attribution of these theories of liability largely overlap. Ohlin, for example, recalls that JCE and joint perpetration both require a common plan or agreement. In this light, he finds that joint perpetration, like JCE, encompasses a subjective notion of shared intentions.26 Haan adds that the ICTY’s assessment of the common plan-element takes account of the JCE members’ coordinated cooperation and thus incorporates objective elements into the JCE concept.27 These observations show that the scholars who reject or question the subjective–objective dichotomy between JCE and joint perpetration perceive the common plan as a unifying element that brings these theories of liability closer together. It introduces a subjective notion into the joint perpetration concept and includes features that objectify JCE. Considering this potentially unifying role, the next section analyses the nature of the common plan-element further.

3.2.2

Characterising the Common Plan

The common plan-element is often characterised as the ‘distinctive feature’ and ‘most fundamental component’ of JCE and joint perpetration.28 The nature of this element, however, remains uncertain.29 In particular, the way in which it links the participants to each other and to the crimes committed is rather ambiguous. Traditionally, the common plan is interpreted as an agreement, a common act of volition,30 or a ‘meeting of minds’.31 This interpretation makes the existence of a common plan subject to the

26 Ohlin (n. 6 above) 745. 27 Haan (n. 6 above) 162-163, 199. Similarly, Chouliaras (n. 22 above) 576. 28 E.g. K. Ambos, ‘Joint Criminal Enterprise and Command Responsibility’, 5 Journal of International Criminal Justice (2007) 159, 167; E. van Sliedregt, ‘JCE as a Pathway to Convicting Individuals for Genocide’, 5 Journal of International Criminal Justice (2007) 184, 201; A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese et al. (eds.), The Rome Statute for an International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 780, 792; Van Sliedregt (n. 2 above) 133, 136; Haan (n. 6 above) 238; Werle (n. 9 above) 958; Ambos (n. 9 above) 748; Ambos (n. 12 above) 149; Olásolo (n. 16 above) 169. See also Prosecutor v. Brđanin, Judgment, Case No. IT-99-36-A, Appeals Judgment, 3 April 2007 (Brđanin Appeals Chamber judgment), para. 418; Lubanga confirmation of charges decision, para. 362. 29 Ambos (n. 12) 151. 30 See e.g. K. Ambos, ‘Critical Issues in the Bemba Confirmation Decision’, 22 Leiden Journal of International Law (2009) 715, 721; Ambos (n. 5 above) 146; Werle (n. 9 above) 958; Olásolo (n. 16 above) 169, 275; Cassese (n. 9 above) 111; Haan (n. 23 above) 180; Eser (n. 28 above) 791, 793. 31 See e.g. Van Sliedregt (n. 2 above) 101; Weigend (n. 6 above) 481; Olásolo (n. 16 above) 275; Prosecutor v. Lubanga, Separate opinion Judge Adrian Fulford, Case No. ICC-01/04-01/06-2842, 14 March 2012 (Separate opinion Judge Fulford), para. 15; cf G. Jakobs, Strafrecht Allgemeiner Teil: Die Grundlagen und die Zurechnungslehre (Berlin: De Gruyter, 1991) 21, 43; N. Piacente, ‘Importance of the JCE Doctrine for the ICTY Prosecutorial Policy’, 2 Journal of International Criminal Justice (2004) 446, 449.

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shared intent of the participants.32 Thus, it qualifies the common plan-element as a subjective rather than an objective element of criminal responsibility.33 Moreover, this reading emphasises the interpersonal nature of the common plan-element: the existence of a common plan depends on the shared intention of the participants in addition to the individual intentions of the accused. In practice, the subjective and interpersonal nature of the common plan are not always clearly articulated. In fact, not much effort seems to be required to establish a common plan in individual cases. In relation to ICTY case law, Van Sliedregt, for example, observes that the Tadić Appeals Chamber judgment has ‘left the door open for a broad interpretation [of the common plan element, MC]’.34 In particular, it has allowed the Tribunal to infer the existence of a common plan from the unified actions of a plurality of persons.35 In this respect, ‘a Chamber will almost certainly not inquire into the intent of every single person alleged in the indictment to have been a member of the JCE’.36 The judicial practice to infer the common plan from circumstantial evidence is not considered objectionable per se, since direct evidence of the participants’ agreement is often lacking. However, the way in which the courts have used circumstantial evidence has been found problematic insofar as it detracts from the traditional subjective and interpersonal nature of the common plan-element. Haan, for example, objects to the ICTY’s extensive reference to objective circumstances: ‘Die abstrakte Auslegung von “gemeinschaftlich” (jointly) als vorwiegend subjektives Zurechnungselement steht jedoch im Kontrast zu den Kriterien, die in der Rechtsprechung des Jugoslawientribunals bei der Einzelfallprüfung herangezogen werden, ob ein solcher gemeinsamer Vorsatz auch vorgelegen hat.’37 Furthermore, Olásolo criticises the inference of a common plan from the contributions of the accused without taking note of the actions and intentions of other participants.38 He finds that this approach does not sufficiently ensure that there

32 Van Sliedregt (n. 2 above) 101, 138. See also C. Farhang, ‘Point of No Return: Joint Criminal Enterprise in Brđanin’, 23 Leiden Journal of International Law (2010) 137, 153. 33 E.g. Van der Wilt (n. 1 above) 310 n. 17; Van Sliedregt (n. 2 above) 101; Weigend (n. 6 above) 481. See also Prosecutor v. Ngudjolo Chui, Concurring opinion of Judge Christine van den Wyngaert, Case No. ICC-01/ 04-02/12, 18 December 2012 (Concurring opinion Judge van den Wyngaert), paras. 32-33. 34 Van Sliedregt (n. 2 above) 136. 35 Tadić Appeals Chamber judgment, para. 227. 36 G. Boas et al., International Criminal Law Practitioner Library, Volume I: Forms of Responsibility in International Criminal Law (New York: Cambridge University Press, 2007) 53. In fact, most Chambers never even identify the members of the JCE. See Chouliaras (n. 22 above) 576; Haan (n. 23 above) 196. 37 Haan (n. 6 above) 256: ‘The abstract interpretation of “jointly” as a primarily subjective element of attribution contrasts with the criteria the ICTY uses in its case-by-case assessment to determine whether a shared intent also existed’ (translation by the author). For a more positive evaluation of this issue, see e.g. Van der Wilt (n. 1 above) 310; Ohlin (n. 6 above) 701; Weigend (n. 6 above) 480-481. 38 Olásolo (n. 16 above) 289.

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FACTS MATTER was a common decision between the participants and that the participants jointly implemented the common plan.39 To take away some of the controversy surrounding the meaning of the common plan for JCE and joint perpetration and to further clarify the nature of this element, the following sections analyse the case law of the ICTY and the ICC.

3.3 3.3.1

JCE

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COMMON PLAN-ELEMENT

Towards an Objective Common Plan?

The ICTY qualifies the common plan as an objective element of JCE liability that pertains to the actus reus of the accused. The Tribunal interprets the common planelement as ‘an understanding or arrangement amounting to an agreement between the plurality of persons to commit one or more crimes’.40 The agreement does not have to be previously arranged or formulated.41 It can materialise extemporaneously and may be inferred from the way in which the crimes were committed.42 The fact that a plurality of persons acted in unison is particularly relevant in this respect. By reasoning in this way, the ICTY portrays the common plan-element as an interpersonal and subjective concept. It requires that the JCE members acted with a shared intention to commit the crimes

39 Olásolo (n. 16 above) 285-290. 40 E.g. Prosecutor v. Kvočka et al., Judgment, Case No. IT-98-30/1-A, Appeals Chamber, 28 February 2005 (Kvočka et al. Appeals Chamber judgment), para. 117; Prosecutor v. Krajišnik, Judgment, Case No. IT-0039-T, Trial Chamber I, 27 September 2006 (Krajišnik Trial Chamber judgment), para. 883; Prosecutor v. Vasiljević, Judgment, Case No. IT-98-32-A, Appeals Chamber, 25 February 2004 (Vasiljević Appeals Chamber judgment), para. 100; Tadić Appeals Chamber judgment, para. 227. This is somewhat different in relation to the systemic form of JCE II. In this form, the common plan is equated to a system of illtreatment. The participants of the JCE do not need to collectively share the purpose underlying this system of ill-treatment, but only need to have individual knowledge of its criminal purpose and intent to further this purpose. E.g. Prosecutor v. Krnojelac, Judgment, Case No. IT-97-25-A, Appeals Chamber, 17 September 2003 (Krnojelac Appeals Chamber judgment), para. 97; Kvočka et al. Appeals Chamber judgment, paras. 118, 209. 41 E.g. Prosecutor v. Furundžija, Judgment, Case No. IT-96-17/1-A, Appeals Chamber, 21 July 2000, para. 119; Prosecutor v. Gotovina et al., Judgment, Case No. IT-06-90-T, Trial Chamber I, 15 April 2011 (Gotovina et al. Trial Chamber judgment), para. 1953; Prosecutor v. Simba, Judgment, Case No. ICTR01-76-A, Appeals Chamber, 27 November 2007, para. 90; Prosecutor v. Martić, Judgment, Case No. IT-9511-T, Trial Chamber I, 12 June 2007 (Martić Trial Chamber judgment), para. 437; Tadić Appeals Chamber judgment, para. 227; Kvočka et al. Appeals Chamber judgment, para. 117. 42 See e.g. Prosecutor v. Đorđević, Judgment, Case No. IT-05-87/1-T, Trial Chamber II, 23 February 2011 (Đorđević Trial Chamber judgment), para. 1862; Prosecutor v. Martić, Judgment, Case No. IT-95-11-A, Appeals Chamber, 8 October 2008 (Martić Appeals Chamber judgment), para. 68; Tadić Appeals Chamber judgment, para. 227; Krnojelac Appeals Chamber judgment, para. 97; Vasiljević Appeals Chamber judgment, paras. 100, 109; Kvočka et al. Appeals Chamber judgment, paras. 96, 115-119; Martić Trial Chamber judgment, para. 438; Brđanin Appeals Chamber judgment, paras. 415, 418.

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encompassed by the common plan. However, recent case law concerning the criminal responsibility of senior political and military leaders puts pressure on this conception. In cases against senior accused, the common plan no longer relates to small-scale mob violence (as in cases against low-level perpetrators),43 but often encompasses national campaigns of ethnic cleansing, e.g. ‘the establishment of an ethnically Serb territory through the displacement of the Croat and other non-Serb population’.44 Since the low-level physical perpetrators of crimes generally do not share these broad common plans,45 they will often fall outside the scope of the JCE. This does, however, not necessarily absolve senior leaders from criminal responsibility under JCE. According to the Brđanin Appeals Chamber, JCE also applies when the indicted crimes have been committed by non-JCE members as long as these crimes ‘can be imputed to at least one member of the joint criminal enterprise, and that this member – when using the principal perpetrator – acted in accordance with the common plan’.46 This implies that the JCE concept covers situations in which a small group of senior leaders (JCE members) agrees upon a common plan and uses a number of low-level perpetrators (non-JCE members) to execute it. Suppose, for example, that senior leaders X and Y agree upon a common plan to ethnically cleanse country C. Following this plan, X orders foot soldier A to forcibly transfer part of the population from village V. Now that X has used A in accordance with the common plan he agreed upon with Y, A’s crimes can be attributed to both X and Y. This practice diminishes the importance of the common plan-element. After all, the link between the senior leader and the physical perpetrator no longer depends on their common plan to commit crimes, but is subject to the leader’s use of the physical perpetrator: X and Y are criminally responsible for the forcible transfer committed by A not because they had a common plan with A, but because X used A to commit this crime. At the same time, the ICTY’s interpretation of JCE potentially enables the 43 The Tadić Appeals Chamber describes mob violence as ‘situations of disorder where multiple offenders act out of a common purpose, where each of them commit offences against the victim, but where it is unknown or impossible to ascertain exactly which acts were carried out by which perpetrator, or when the causal link between each act and the eventual harm caused by the victims is similarly indeterminate’. Tadić Appeals Chamber judgment, para. 205. 44 Đorđević Trial Chamber judgment, para. 2007. Exceptions to this practice are the Popović et al. and Tolimir cases, in which the prosecution divided the case into a JCE to murder and a JCE to forcibly transfer the population. The common plan is thus inherently linked to the commission of crimes. 45 E.g. Brđanin Appeals Chamber judgment, paras. 410-411. See also Prosecutor v. Krajišnik, Judgment, Case No. IT-00-39-A, Appeals Chamber, 17 March 2009 (Krajišnik Appeals Chamber judgment), para. 156; Prosecutor v. Tolimir, Judgment, Case No. IT-05-88/2-T, Trial Chamber II, 12 December 2012 (Tolimir Trial Chamber judgment), para. 1040; Đorđević Trial Chamber judgment, paras. 2126-2127; Gotovina et al. Trial Chamber judgment, paras. 2314-2319. 46 Brđanin Appeals Chamber judgment, para. 430. The Brđanin Appeals Chamber thus essentially introduced a form of indirect perpetration that covers the vertical relation between a senior JCE member and a lowlevel operating from outside the JCE. On this judgment, see e.g. Farhang (n. 32 above).

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FACTS MATTER Tribunal to bolster the subjective and interpersonal nature of the common plan-element in relation to senior leaders. After all, it is more realistic to find a shared intent among senior leaders X and Y than to establish that they agreed with the structurally and geographically remote foot soldier A to implement a national campaign of ethnic cleansing.47 This bolstering effect has, however, not been realised in practice. Rather than observing the relations between senior leaders in terms of their subjective shared intent, the ICTY seems to emphasise their objective joint action. Of course, the JCE members’ joint action has always been evidentially relevant for establishing shared intent, but it currently appers to play a more independent role.48 The following finding of the Krajišnik Trial Chamber illustrates this observation: a common plan alone is not always sufficient to determine a group, as different and independent groups may happen to share identical objectives. Rather, it is the interaction or cooperation among persons – their joint action – in addition to their common objective that makes those persons a group. The persons in a criminal enterprise must be shown to act together, or in concert with each other in the implementation of a common objective if they are to share responsibility for the crimes committed through the JCE.49 The Trial Chamber further emphasised that [a] person not in the JCE may share the general objective of the group but not be linked with the operations of the group. Crimes committed by such a person are of course not attributable to the group. On the other hand, links forged in pursuit of a common objective transform individuals into members of a criminal enterprise. These persons rely on each other’s contributions, as well as on acts of persons who are not members of the JCE but who have been procured to commit crimes, to achieve criminal objectives on a scale which they could not have attained alone.50

47 Olásolo (n. 16 above) 228. 48 Similarly, T. Salomonsen, Joint Criminal Enterprise as a Way of Attributing International Crimes to Political Leaders, 3 May 2001, PhD Thesis, on file with author, 99; A. Zahar and G. Sluiter, International Criminal Law: A Critical Introduction (Oxford: Oxford University Press, 2007) 256; Haan (n. 6 above) 199. This practice has been criticised, by e.g. Chouliaras (n. 22 above) 565; Boas et al. (n. 36 above) 515. 49 Krajišnik Trial Chamber judgment, para. 884 (emphasis added). See also Prosecutor v. Haradinaj et al., Judgment, Case No. IT-04-84-T, Trial Chamber I, 3 April 2008 (Haradinaj et al. Trial Chamber judgment), para. 139; Tolimir Trial Chamber judgment, para. 889; Gotovina et al. Trial Chamber judgment, para. 1954. 50 Krajišnik Trial Chamber judgment, para. 1082.

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The Krajišnik Trial Chamber accordingly considered that the finding of a common plan between the JCE members depends, for example, on whether the perpetrators acted as members of, or were associated with, any organisations connected to the JCE; whether the crimes committed were consistent with the pattern of similar crimes committed by JCE members against similar categories of victims; whether the perpetrators’ acts were ratified implicitly or explicitly by members of the JCE; whether the perpetrators acted in cooperation or in conjunction with members of the JCE; whether any member of the JCE made a meaningful effort to punish the perpetrators; and whether the acts were performed in the context of a systematic attack.51 Note that these circumstances do not relate to the mutual cooperation between the JCE members, but make the finding of a common plan subject to the patterned and systemic commission of crimes and the JCE members’ position in, and contribution to, this context of violence.52 Thus, it is doubtful to what extent the circumstances can prove the JCE members’ joint action. Reasoning along similar lines as the Krajišnik Trial Chamber, the Krajišnik Appeals Chamber held that ‘a JCE can come to embrace expanded crimes, as long as the evidence shows that the JCE members agreed on this expansion of means’.53 This agreement does not require a ‘consensus or shared understanding amounting to a psychological causal nexus’ among the JCE members.54 It is already ascertained when the individual JCE members are informed of the crimes, do nothing to prevent their recurrence, and persist in the implementation of the common objective.55 This finding confirms that the ICTY has shifted away from its initial subjective and interpersonal interpretation of the common plan-element and has started to focus on the accused’s participation in, and his contribution to, the large-scale commission of crimes instead. The next section further explores this development in light of the ICTY’s application of the common plan-element.

3.3.2

The Common Plan-Element in Practice

The ICTY case law shows a correlation between the common plan- and the shared intent-element, because the Tribunal often evaluates these elements in combination with each other.56 It thereby refers to facts that largely coincide with the circumstances that were listed by the Krajišnik Trial Chamber in relation to the finding of a joint action 51 52 53 54 55 56

Krajišnik Trial Chamber judgment, para. 1081. Similarly, Salomonsen (n. 48 above) 101. Krajišnik Appeals Chamber judgment, para. 163. Krajišnik Trial Chamber judgment, para. 185. Krajišnik Trial Chamber judgment, para. 171. E.g. Prosecutor v. Popović et al., Judgment, Case No. IT-05-88-T, Trial Chamber II, 10 June 2010 (Popović et al. Trial Chamber judgment); Prosecutor v. Stakić, Judgment, Case No. IT-97-24-A, Appeals Chamber, 22 March 2006 (Stakić Appeals Chamber judgment); Đorđević Trial Chamber judgment; Krajišnik Trial

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FACTS MATTER between the JCE members. They concern (i) the nature of the crimes and the context in which they were committed; (ii) the relations between the participants; and (iii) the attitude and informed contribution of the JCE members to the common plan.57 3.3.2.1 Nature of Crimes and Context In relation to the nature of the crimes and the context in which they were committed, the ICTY inter alia refers to the fact that the crimes took place in a politically tense atmosphere, in a discriminatory setting, or in the context of a systematic attack against the population;58 that they were committed in a planned, organised, and systemic manner;59 that the crimes were discriminatory in nature;60 that the commission of crimes was widespread and effective;61 and that there was a pattern of crimes. To

57 58

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Chamber judgment; Tolimir Trial Chamber judgment; Martić Trial Chamber judgment; Haradinaj et al. Trial Chamber judgment; Gotovina et al. Trial Chamber judgment. Some of the circumstances may be placed under several categories. However, this does not devalue the categorisation, since the factual circumstances acquire a different role in each of the three categories. E.g. Prosecutor v. Stakić, Judgment, Case No. IT-97-24-T, Trial Chamber II, 31 July 2003 (Stakić Trial Chamber judgment), paras. 470-471, 474-475, 819; Đorđević Trial Chamber judgment, para. 2005; Krajišnik Trial Chamber judgment, paras. 894-924. Different categories of evidence concerning the planned and organised character of the crimes have been considered relevant. For example, see references to evidence relating to meetings, directives and communiqués (Đorđević Trial Chamber judgment, paras. 2112-2117; Popović et al. Trial Chamber judgment, paras. 1051-1052, 1060-1061, 1085, 1087; Gotovina et al. Trial Chamber judgment, paras. 1970-1996; Stakić Trial Chamber judgment, paras. 472, 629; Tolimir Trial Chamber judgment, paras. 1010-1012, 1025, 1030; Haradinaj et al. Trial Chamber judgment, paras. 629-636); the build up and use of the security, police and armed forces (Đorđević Trial Chamber judgment, paras. 2010-2026; Popović et al. Trial Chamber judgment, paras. 1057-1058; Stakić Trial Chamber judgment, paras. 474, 479; Krajišnik Trial Chamber judgment, paras. 931-934; Tolimir Trial Chamber judgment, para. 1026); the (dis)armament of the population (Đorđević Trial Chamber judgment, paras. 2010-2026; Stakić Trial Chamber judgment, para. 475; Krajišnik Trial Chamber judgment, paras. 928-929); the creation of an atmosphere of fear (Stakić Trial Chamber judgment, para. 476; Krajišnik Trial Chamber judgment, paras. 901, 923; Tolimir Trial Chamber judgment, paras. 116, 1020-1021, 1031, 1034, 1037); and the creation of circumstances of secrecy (Popović et al. Trial Chamber judgment, paras. 1057-1058; Tolimir Trial Chamber judgment, para. 1055). At least two types of evidence concerning discrimination have been deemed material. See references to evidence regarding the imposition of discriminatory measures by the leadership with regard to victims (e.g. Gotovina et al. Trial Chamber judgment, paras. 1997-2099, 2308; Popović et al. Trial Chamber judgment, para. 1052; Đorđević Trial Chamber judgment, paras. 2070-2080; Stakić Trial Chamber judgment, para. 475; Krajišnik Trial Chamber judgment, paras. 902, 1112; Tolimir Trial Chamber judgment, paras. 10131015, 1049-50, 1054) and the discriminatory character and effect of the crimes (e.g. Martić Trial Chamber judgment, para. 445; Gotovina et al. Trial Chamber judgment, para. 2308). For instance, see references to evidence of radical demographic changes (e.g. Đorđević Trial Chamber judgment, paras. 2003-2006, 2009; Stakić Trial Chamber judgment, para. 706; Krajišnik Trial Chamber judgment, para. 895) and the commission of a large numbers of crimes on a variety of locations within a short period of time (e.g. Popović et al. Trial Chamber judgment, paras. 1050, 1072; Gotovina et al. Trial Chamber judgment, paras. 2305, 2307; Stakić Trial Chamber judgment, para. 629; Krajišnik Trial Chamber judgment, paras. 1093, 1097; Đorđević Trial Chamber judgment, paras. 2034-2035; Tolimir Trial Chamber judgment, paras. 1038, 1069-1070; Martić Trial Chamber judgment, paras. 443-445).

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establish such a pattern, the Tribunal refers to the factual similarities between the crimes in terms of their temporal and geographical scope, their nature, the means and methods of attack, and the identity of the victims.62 Together, these circumstances evidence that the crimes were committed pursuant to a plan, rather than randomly. It is, however, questionable whether they also ascertain the criminal nature of this plan and illustrate the participants’ common intention to implement it: does the systematic and widespread commission of crimes, for example, necessarily imply that all participants agreed to a criminal purpose and cooperated with each other to implement this purpose? Moreover, the collection of relevant factual circumstances does not seem to provide a sufficient basis for identifying the persons who participated in the common plan. In this view, it is significant that the Trial Chamber in the Đorđević case found that the scale, nature, and structure of the forces involved in the commission of crimes demonstrate ‘the existence of a leadership reaching across the political, military and police arms of governments of the FRY and Serbia who were directing and coordinating the events on the ground’ and who in this manner implemented a common plan.63 The Trial Chamber’s inference is far-reaching and only appears to be legitimate in combination with additional evidence concerning, for example, the active commitment of the accused to the common plan. 3.3.2.2 Relations between Participants The second category of factual circumstances concerns the relations between the participants. In this respect, the ICTY focuses on the cooperation and coordination between the (members of) political and military institutions that were involved in the planning, execution, and cover-up of crimes.64 It particularly refers to facts that show a division of tasks and thus illustrate that (the members of) the implicated bodies each contributed to the common plan in their own way.65 Three main characteristics of this evaluation require further attention.

62 E.g. Popović et al. Trial Chamber judgment, paras. 1054, 1063-1065, 1072; Đorđević Trial Chamber judgment, paras. 2027-2035; Tolimir Trial Chamber judgment, paras. 1030, 1034, 1038, 1051-1052, 10571058; Haradinaj et al. Trial Chamber judgment, paras. 660, 667; Martić Trial Chamber judgment, para. 443. 63 Đorđević Trial Chamber judgment, para. 2130. Similarly, Krajišnik Appeals Chamber judgment, para. 248. 64 E.g. Đorđević Trial Chamber judgment, paras. 2027-2034, 2036-2051, 2103-2105; Popović et al. Trial Chamber judgment, paras. 1054, 1064-1066, 1068-1071; Stakić Trial Chamber judgment, paras. 469, 479; Krajišnik Trial Chamber judgment, paras. 904-907, 987-988, 1004-1005; Tolimir Trial Chamber judgment, paras. 1038, 1045, 1049, 1053, 1056, 1063, 1066; Martić Trial Chamber judgment, para. 443. 65 E.g. Popović et al. Trial Chamber judgment, para. 1070; Krajišnik Trial Chamber judgment, paras. 904-907; Đorđević Trial Chamber judgment, paras. 2036-2051.

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FACTS MATTER First, the ICTY’s analysis is not limited to the relations between senior leaders,66 but also takes account of the cooperation and coordination between physical perpetrators.67 The Martić Trial Chamber, for example, found that [w]idespread acts of violence and intimidation intensified against the nonSerb population and became pervasive throughout the RSK territory from 1992 to 1995. These acts were committed by members of the TO and the police of the RSK, and of the JNA, as well as members of the local Serb population, and created such a coercive atmosphere that the Croat and other non-Serb inhabitants of the RSK were left with no option but to flee.68 Whereas this practice complies with the traditional application of JCE to situations of mob violence, it seems inappropriate in cases against senior leaders. In these cases, the remoteness between the physical perpetrators, on the one hand, and the senior leaders, on the other, generally means that the former do not share the broadly formulated common plan endorsed by the latter.69 Thus, the physical perpetrators and the senior leaders are not part of the same JCE. Under these circumstances, evidence concerning the relations between the physical perpetrators is in itself irrelevant – or at least insufficient – to establish a common plan between the senior leaders. After all, the cooperation and coordination between non-JCE members does not necessarily prove that the persons who were part of the JCE acted with the shared intent to implement a common plan. Second, the ICTY does not only take account of the personal relationships between individual JCE members,70 but also refers to the cooperation and coordination between political and military institutions.71 Illustratively, the Popović et al. Trial Chamber observed that there is abundant evidence before the Trial Chamber to establish that this [operation] was a coordinated effort reaching from the VRS Commander and 66 E.g. Đorđević Trial Chamber judgment, para. 2051; Popović et al. Trial Chamber judgment, paras. 1051-1052, 1060-1061, 1068-1069. 67 E.g. Martić Trial Chamber judgment, paras. 443-444; Đorđević Trial Chamber judgment, paras. 2027-2031, 2034-2050, 2133; Popović et al. Trial Chamber judgment, paras. 1063-1066, 1075; Tolimir Trial Chamber judgment, paras. 1017-1018, 1024-1027, 1029, 1031, 1033-1039, 1047, 1054, 1063. 68 Martić Trial Chamber judgment, para. 444. 69 See section 3.3.1. 70 See e.g. Krajišnik Trial Chamber judgment, para. 919 (‘whereas the Accused was a managerial type of comparatively few words, whose key role was to maintain a functioning central authority and an illusion of good governance while a new ethnic reality was being forged on the ground, Karadžić was the ideologuevisionary who gave expression to problems, and legitimisation to solutions, which he had come to presume were on the mind of every Bosnian Serb’). Similarly, Gotovina et al. Trial Chamber judgment, paras. 2317-2319; Popović et al. Trial Chamber judgment, para. 1068. 71 E.g. Đorđević Trial Chamber judgment, paras. 2027-2029, 2036-2051, 2118; Popović et al. Trial Chamber judgment, paras. 1064, 1065, 1070; Krajišnik Trial Chamber judgment, paras. 1097, 1117.

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some members of the Main Staff through the Drina Corps, the MUP and down to the Zvornik and Bratunac Brigades and the Battalions thereof. While the evidence does not permit an exact determination as to who were participants and who were perpetrators, it is clear that individual units from across the VRS worked together in the implementation of the common purpose.72 The Đorđević Trial Chamber similarly focused on evidence of institutional cooperation. It even explicitly chose to refrain from making ‘more specific findings about the involvement in or knowledge of other specific senior political, MUP and VJ officials in the concealment of the bodies of Kosovo Albanians killed during the Indictment period, as they have not been specifically charged in this Indictment’.73 This finding implies that it is not essential to know who the other JCE members were and whether they acted in a coordinated way with the accused.74 The common plan-element can already be established on the basis of the cooperation between the accused and unidentified members of a political or military institution. Insofar as reference is thereby made to more specific types of cooperation between individuals, this does not so much serve to unravel the personal relations between the participants, but mainly helps to determine the position of the accused within the implicated institutions. As a result of this practice, the common plan-element has become detached from the JCE members’ shared intent. The Popović et al. Trial Chamber judgment is illustrative for this development. The Trial Chamber considered that [t]he only reasonable conclusion available on the evidence is that the killing operation was undertaken pursuant to a pre-conceived, coordinated plan to murder. This plan emanated from the highest echelons of the VRS Main Staff, including Mladic, the Commander of the VRS. The VRS Security Branch planned, organised and implemented the murder operation. The Drina Corps, MUP, Bratunac Brigade and Zvornik Brigade, along with other units detailed above, were also implicated in the murder operation. The Trial Chamber is therefore convinced beyond reasonable doubt that there was a plan involving a plurality of persons to murder the able-bodied Bosnian 72 Popović et al. Trial Chamber judgment, para. 1065. Similarly, Đorđević Trial Chamber judgment, para. 2128. 73 Đorđević Trial Chamber judgment, para. 2119. See also Popović et al. Trial Chamber judgment, para. 1065 (‘while the evidence does not permit an exact determination as to who were participants and who were perpetrators it is clear that the individual units of the VRS worked together in the implementation of a common purpose’). 74 Cf Olásolo (n. 16 above) 182.

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FACTS MATTER Muslim males from Srebrenica, and that these persons participated in the common purpose and shared the intent to murder.75 At the same time, the Trial Chamber held that there was simply no evidence to find that two of the accused – Borovčanin and Pandurević – shared the intent of the JCE members to commit the crimes falling within the scope of the common plan.76 The Chamber therefore acquitted them of the JCE charges and based their conviction on aiding and abetting and superior responsibility instead.77 Third, it is noteworthy that the ICTY evaluates whether the participants have worked together in the design, implementation, and execution of a common plan rather than in the commission of the specific crimes for which the accused stands trial.78 The Stakić Trial Chamber, for example, based its finding of a common plan on the participants’ cooperation in relation to the take-over of power;79 the anticipation of a coup d’état;80 a war;81 the creation of an atmosphere of fear;82 the strengthening and unifying of the military forces;83 and the general mobilisation and the surrender of illegal weapons.84 This approach seems appropriate insofar as it portrays the common plan as the central basis for the imputation of crimes.85 Furthermore, the Trial Chamber’s approach accurately responds to the practical difficulties of establishing the participants’ cooperation in relation to each of the hundreds, sometimes thousands, of crimes committed.86 At the same time, the Tribunal thus risks creating ‘a smokescreen that obscures the possible frail connection between the accused and the specific crimes for which they stand trial’.87 This risk is particularly high in cases against senior leaders in which the common plan is generally formulated at a meta-level, for example in terms of a national campaign of ethnic cleansing.88 Rather than being the sum of individual crimes, such meta-plans have

75 76 77 78

79 80 81 82 83 84 85 86 87 88

Popović et al. Trial Chamber judgment, para. 1072. Popović et al. Trial Chamber judgment, paras. 1495, 1541, 1966, 2007. Popović et al. Trial Chamber judgment, paras. 1501, 1563, 1576, 1991, 2012, 2066. See e.g. Martić Trial Chamber judgment, para. 443; Gotovina et al. Trial Chamber judgment, paras. 19712009, 2317-2319; Krajišnik Trial Chamber judgment, paras. 896-897, 903-909, 919, 924, 952, 954, 992, 1001-1002; Stakić Trial Chamber judgment, paras. 473, 475, 479, 481-482, 484, 487, 489. Stakić Trial Chamber judgment, para. 472. Stakić Trial Chamber judgment, para. 473. Stakić Trial Chamber judgment, para. 474. Stakić Trial Chamber judgment, para. 477. Stakić Trial Chamber judgment, para. 479. Stakić Trial Chamber judgment, para. 481. Haan (n. 23 above) 174; Salomonsen (n. 48 above) 48-49. A. O’Rourke, ‘Joint Criminal Enterprise and Brđanin: Misguided Overcorrection’, 47 Harvard International Law Journal (2006) 307, 310; Van Sliedregt (n. 2 above) 182. H. van der Wilt, ‘Joint Criminal Enterprise: Possibilities and Limitations’, 5 Journal of International Criminal Justice (2007) 91, 101. See section 3.3.1.

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an autonomous meaning.89 The ICTY’s focus on these plans may accordingly loosen the connection between the accused and the crimes for which he is allegedly responsible. For example, the fact that Stakić cooperated with others to take over power (which in itself is not a crime) does not necessarily mean that he agreed or contributed to the commission of murder. To (re-)establish a sufficient connection between the accused and the crimes for which he stands trial, it is important that the ICTY takes account of the participants’ cooperation with respect to particular (categories of) crimes. In this light, the distinction made by the Stanišić and Simatović Trial Chamber between the JCE members’ involvement in certain military operations and political activities, on the one hand, and the contribution of the accused to the commission of crimes, on the other, should be welcomed.90 3.3.2.3 Attitude and Informed Contribution of JCE Members The third category of relevant factual circumstances concerns the ways in which the individual JCE members contributed to the common plan. This includes both the JCE members’ active support of political and/or military operations (directly or indirectly involving or resulting in the commission of crimes) and their inaction or passivity towards the criminal consequences of these operations. For example, it is relevant whether the JCE members participated in the commission of crimes; made discriminatory, hateful, or violent speeches; denied and concealed crimes; failed to prevent or punish the perpetrators of crimes; and failed to investigate crimes.91 The ICTY assesses the JCE members’ active and passive attitudes and contributions in light of their knowledge of the violent context, in particular their knowledge of the commission of crimes.92 In establishing the JCE members’ knowledge, the Tribunal ascribes a prominent role to their position and participation in (political and military)

89 Similarly, Haan (n. 6 above) 109. In drawing a link between the common plan and the crimes committed, the ICTY has, for example, held that the commission of a certain type of crime is inherent in the execution of the common plan (Popović et al. Trial Chamber judgment, paras. 1086-1087; Krajišnik Trial Chamber judgment, para. 1097); that the crimes advanced the common plan (Đorđević Trial Chamber judgment, para. 2144; Gotovina et al. Trial Chamber judgment, paras. 2310-2311); or were at least consistent with the ultimate common purpose (Stakić Trial Chamber judgment, para. 475). 90 Prosecutor v. Stanišić and Simatović, Judgment, Case No. IT-03-69-T, Trial Chamber I, 30 May 2013 (Stanišić and Simatović Trial Chamber judgment), paras. 2310, 2315, 2326, 2330, 2332, 2341, 2345. 91 See e.g. Krajišnik Trial Chamber judgment, paras. 896-900, 1090, 1092, 1097, 1099, 1107-1111, 1115-1116, 1119; Krajišnik Appeals Chamber judgment, paras. 192-194; Đorđević Trial Chamber judgment, paras. 2020, 2024, 2026, 2083-2103, 2107; Gotovina et al. Trial Chamber judgment, paras. 2100-2103, 2204-2302, 2306; Tolimir Trial Chamber judgment, paras. 1023-1025; Haradinaj et al. Trial Chamber judgment, para. 667; Martić Trial Chamber judgment, paras. 329-336, 442-443, 445; Popović et al. Trial Chamber judgment, para. 1053. 92 E.g. Krajišnik Trial Chamber judgment, paras. 891-893; 940, 1024, 1062, 1097-1098, 1100-1114; Đorđević Trial Chamber judgment, para. 2024.

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FACTS MATTER institutions that contributed to the common plan. It may, for example, find that the institution in which the accused participated knowingly contributed to the common plan and attribute this informed institutional contribution to the accused.93 Similarly, the Tribunal may establish that a specific JCE member made an informed contribution to the common plan and attribute this informed contribution to other JCE members who participated in the same institution.94 Furthermore, the JCE members’ institutional position can entail a presumption of knowledge. This means that the ICTY can infer the JCE members’ knowledge from their position of authority by assuming that this position necessarily implies the disposition of certain information.95 In general, knowledge accordingly becomes easier to establish in relation to persons who held a high position in an institution that was deeply implicated in the design of the common plan than in cases against low-level perpetrators who participated in an institution that was merely marginally involved in the commission of crimes.96

3.3.3

Summary

As the foregoing discussion has shown, the ICTY establishes the common plan-element on the basis of facts that largely coincide with the circumstances listed by the Krajišnik Trial Chamber in relation to the ‘joint action’ criterion. They concern (i) the nature of crimes and the context in which they were committed; (ii) the relations between participants; and (iii) the attitude and informed contribution of JCE members to the common plan. In applying these circumstances, the Tribunal variously considers the participants’ institutional membership, participation, and support. This results in a loosening of the link between the accused and the crimes for which he stands trial.

93 Krajišnik Trial Chamber judgment, paras. 940, 1008, 1024, 1062, 1097-1098, 1103-1114. 94 E.g. Krajišnik Trial Chamber judgment, paras. 891-893; 1100-1114; Đorđević Trial Chamber judgment, para. 2024. 95 Krajišnik Trial Chamber judgment, paras. 891-892, 1099, 1115, 1117. 96 Illustratively, the Popović Trial Chamber in relation to Borovčanin considered that there was no direct evidence that the accused saw any beatings or killings of prisoners, that he received any reports to that effect, or that he ordered murders. In this light, the Chamber found the mere indirect evidence that Borovčanin’s subordinate knew of these beatings and killings and that the accused realised that the prisoners did not get sufficient food and water, insufficient to establish his knowledge of the plan to murder. Conversely, in relation to Beara, the TC did attach significant value to the knowledge of his subordinates. Popović et al. Trial Chamber judgment, paras. 1299, 1509-1513. The Popović TC’s divergent evaluations of the indirect evidence may be related to the accused’s different positions and the different manner in which they fulfilled these positions. As the Deputy Commander of the Special Police Brigade of the Republika Srpska, Borovčanin executed less authority than Beara, the Chief of the Administration of Security. Moreover, unlike Beara, Borovčanin did not have a close relation with Mladic, the man who ordered the killing operation, and his subordinates were less directly involved in the killings than Beara’s subordinates. Popović et al. Trial Chamber judgment, paras. 1202-1204, 1433.

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COMMON PLAN-ELEMENT

Common Plan: A Contested Concept

Before the ICC, the common plan is an objective element of joint perpetration that pertains to the accused’s actus reus.97 The common plan-element requires the finding of an agreement between two or more persons.98 This agreement does not need to be explicit. Whereas direct evidence of an agreement is ‘likely to assist’ in demonstrating the existence of a common plan,99 the common plan-element may also be inferred from circumstantial evidence concerning the joint perpetrators’ concerted action.100 In this way, the common plan-element excludes uncoordinated crimes from the scope of joint perpetration.101 The ICC’s interpretation of the common plan-element seems to underline the subjective and interpersonal nature of this element: the finding of a common plan depends on the shared understanding between the joint perpetrators. However, the ICC’s recent findings in relation to the element of (mutual) awareness and acceptance – the ‘subjective counterpart’ of the common plan-element – seem to put pressure on this reading. Initially, the ICC considered that the element of (mutual) awareness and acceptance requires that the joint perpetrators are mutually aware and mutually accept that the implementation of the common plan will result in the commission of crimes in the ordinary course of events.102 The Lubanga Pre-Trial Chamber even held that ‘it is precisely the co-perpetrators’ mutual awareness and acceptance (…) which justifies (a) that the contributions made by the others may be attributed to each of them, including the suspect, and (b) that they be held criminally responsible as principals to the whole crime’.103 By contrast, in more recent decisions, the Court deemed it sufficient to

97 Lubanga Trial Chamber judgment, para. 981; Katanga and Chui confirmation of charges decision, paras. 522-523; Ruto et al. confirmation of charges decision, paras. 292, 301; Muthaura et al. confirmation of charges decision, para. 297; Banda and Jerbo confirmation of charges decision, para. 129; Bemba confirmation of charges decision, para. 350. 98 Lubanga confirmation of charges decision, para. 343; Lubanga Trial Chamber judgment, para. 981; Katanga and Chui confirmation of charges decision, para. 522; Banda and Jerbo confirmation of charges decision, para. 129. 99 Lubanga Trial Chamber judgment, para. 988. 100 Lubanga Trial Chamber judgment, para. 188; Lubanga confirmation of charges decision, para. 345; Katanga and Chui confirmation of charges decision, para. 523; Banda and Jerbo confirmation of charges decision, para. 129; Muthaura et al. confirmation of charges decision, para. 399; Ruto et al. confirmation of charges decision, para. 301. 101 Lubanga confirmation of charges decision, para. 343; Katanga and Chui confirmation of charges decision, para. 522. 102 Lubanga confirmation of charges decision, paras. 361-362; Katanga and Chui confirmation of charges decision, para. 533; Muthaura et al. confirmation of charges decision, para. 410; Banda and Jerbo confirmation of charges decision, para. 159; Bemba confirmation of charges decision, para. 370. 103 Lubanga confirmation of charges decision, para. 362.

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FACTS MATTER establish that the accused was aware and accepted the criminal results of the common plan.104 For example, the Lubanga Trial Chamber concluded that the prosecution only needs to prove that the accused was aware that the implementation of the common plan would result in the commission of crimes in the ordinary course of events.105 Pursuant to this interpretation, the element of (mutual) awareness and acceptance no longer connects the joint perpetrators to each other. Thus, it cannot provide a sufficient basis for the attribution of the joint perpetrators’ contributions to each of them. In her concurring opinion to the Ngudjolo Chui trial judgment, Judge Van den Wyngaert voiced critique against the majority’s interpretation of the common plan. She argued that by turning the common plan into an objective element, the focus of attention has shifted away from how the conduct of the accused is related to the commission of a crime to what role he/she played in the execution of the common plan. (…) By focusing on the realisation of a common plan, the mens rea and actus reus requirements are now linked to the common plan instead of to the conduct of the actual physical perpetrators of the crime. (…) When this happens, we come dangerously close to treating the mode of criminal responsibility as a crime in itself, instead of as a legal instrument to connect the actions and omissions of an accused to the acts of one or more physical perpetrators.106 According to Judge Van den Wyngaert, the ICC’s objective understanding of the common plan-element is particularly problematic given the fact that the common plan does not have to be inherently criminal,107 i.e. the commission of crimes does not have to be the overarching goal of the joint perpetrators.108 It rather suffices to establish that the implementation of the common plan creates a risk that crimes will be committed if events follow their ordinary course.109 Judge Van den Wyngaert emphasises that the role of the accused in, and his knowledge of, such a legitimate common plan provide an insufficient basis for establishing criminal responsibility. She therefore pleads for a more subjective approach that establishes the criminal responsibility of joint perpetrators on

104 105 106 107

Lubanga Trial Chamber judgment, para. 1018; Ruto et al. confirmation of charges decision, para. 333. Lubanga Trial Chamber judgment, para. 1018. Concurring opinion Judge Van den Wyngaert, paras. 34-35. Concurring opinion Judge Van den Wyngaert, para. 35; Lubanga Trial Chamber judgment, para. 985. For a scholarly critique of this interpretation and its application in practice, see e.g. Weigend (n. 6 above) 485-487; Ambos (n. 12 above) 152. 108 Lubanga Trial Chamber judgment, para. 985. 109 Lubanga Trial Chamber judgment, para. 984.

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the basis of their shared intent. Pursuant to this approach, the common plan is not an independent objective element, but merely evidences the joint perpetrators’ shared intent to pursue a criminal purpose.110 According to Judge Van den Wyngaert, this allows for establishing a more precise connection between the accused and the crimes for which he stands trial. It follows from the above that the ICC’s conception of the common plan-element is still somewhat incoherent and contested. In particular, it remains uncertain whether the common plan should be perceived as an objective or a subjective element and whether it requires the joint perpetrators’ mutual awareness and acceptance. The next section aims to clarify some of these ambiguities by evaluating the ICC’s application of the common plan-element in practice.

3.4.2

The Common Plan-Element in Practice

Before analysing the ICC’s application of the common plan-element, two caveats must be made. First, the following analysis is based on a limited number of cases, which makes it difficult to establish a definitive line of reasoning on the basis of which conclusive statements on the position of the ICC can be made. Second, the ICC has so far delivered only one final judgment in which it applied the concept of joint perpetration: the Lubanga trial judgment. Observations on the application of joint perpetration are therefore largely based on Pre-Trial Chamber decisions. Because these decisions are rendered before a comprehensive examination of the facts underlying the charges against the accused, their factual substantiation remains scarce. This makes Pre-Trial Chamber decisions an imperfect source for understanding the ICC’s application of the joint perpetration concept. The following evaluation is therefore merely preliminary and may require adjustments in response to future developments. The ICC case law displays a strong correlation between the common plan- and the (mutual) awareness and acceptance-element: the latter element is regularly inferred from the former.111 The finding of a common plan is derived from factual circumstances concerning (i) preparations for the implementation of the common plan; (ii) the

110 Concurring opinion Judge Van den Wyngaert, para. 33. 111 See e.g. Muthaura et al. confirmation of charges decision, para. 418: ‘Mr. Muthaura and Mr. Kenyatta were part of the common plan to commit the crimes charged and satisfy the subjective elements of the crimes makes it unnecessary to address in further detail the requirement that the suspect be aware and accept that implementing the common plan will result in the fulfillment of the material elements of the crime’. See also Ruto et al. confirmation decision, para. 348. Even where the Court has autonomously evaluated the element of subjective (mutual) awareness and acceptance, this has not added any unique elements to the concept of joint perpetration. See e.g. Banda and Jerbo confirmation decision, para. 159; Katanga and Chui confirmation decision, paras. 564-572; Lubanga confirmation decision, para. 408, n 555.

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FACTS MATTER relations between joint perpetrators; and (iii) the attitude and informed contributions of joint perpetrators to the common plan. 3.4.2.1 Preparatory Measures The first category of factual circumstances relates to the adoption of preparatory measures for the implementation of the common plan. The Lubanga Trial Chamber in this respect considered that evidence concerning the period before the crimes were committed, will not only ‘assist in establishing a background and the context of events that fall within the timeframe of the charges’,112 but may also be directly relevant and admissible as evidence of the existence of a common plan. Following this consideration, the ICC regularly bases its finding of a common plan on evidence concerning the adoption of preparatory measures, such as the occurrence of meetings during which the joint perpetrators discussed the operation procedure and divided tasks;113 the creation of political and military organisations; and the issuance of declarations that indicate the views and aims of the joint perpetrators.114 Whereas these circumstances illustrate that the crimes were planned, they do not seem to indicate the ways in which the joint perpetrators cooperated with each another in relation to the (physical) commission of crimes. Furthermore, they do not prove that the joint perpetrators mutually agreed to these crimes. In fact, the ICC’s reference to preparatory measures appears to make the finding of a common plan subject to the organised design rather than the organised execution of this plan. 3.4.2.2 Relations between Joint Perpetrators The second category of circumstances addresses the relations between the joint perpetrators – i.e. their contacts, cooperation, and coordination. Four characteristics of the Court’s respective analyses are particularly noteworthy. First, the ICC limits its evaluation to the contacts and cooperation between the alleged joint perpetrators. Now that the Court mostly restricts the group of joint perpetrators to senior leaders, its analyses have so far not taken account of the contacts and cooperation with or between the physical perpetrators.115 Given the remote position 112 Lubanga Trial Chamber judgment, para. 1022. 113 E.g. Katanga and Chui confirmation of charges decision, para. 548; Banda and Jerbo confirmation of charges decision, paras. 130-132, 135; Ruto et al. confirmation of charges decision, paras. 302-303; Muthaura et al. confirmation of charges decision, paras. 301, 308, 312, 335-336, 342, 344, 360. 114 Lubanga Trial Chamber judgment, paras. 1112, 1128. 115 E.g. Prosecutor v. Al-Bashir, Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir, Case No. ICC-02/05-01/09, Pre-Trial Chamber I, 4 March 2009 (Al-Bashir first warrant of arrest decision), para. 42; Katanga and Chui confirmation of charges decision, paras. 548, 552; Lubanga Trial Chamber judgment, paras. 1043, 1045, 1131; Ruto et al. confirmation of charges decision, paras. 302-303; Muthaura et al. confirmation of charges decision, paras. 311, 314, 400. The Banda and

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and role of senior leaders in the commission of international crimes, the cooperation between these leaders mostly relates to their design of a common plan and the adoption of preparatory measures, rather than their concerted execution of the plan and the physical commission of crimes.116 The senior leaders’ position and participation in an organisation that was deeply implicated in the realisation of the common plan provide an important framework for assessment in this regard.117 Second, the ICC neither identifies each joint perpetrator nor consistently establishes the cooperation between them. The Lubanga Trial Chamber in this respect explicitly held that even when ‘the evidence fails to establish the exact nature of the relationship between the accused and the alleged co-perpetrators, and whether there was regular contact between any of them’, the overall involvement of the accused may still provide a sufficient basis for ascertaining that he was in contact with the alleged joint perpetrators.118 Against this background, the ICC regularly assesses the relations between joint perpetrators in terms of their institutional affiliation.119 The Ruto et al. Pre-Trial Chamber, for example, considered that ‘Mr. Ruto hosted a series of meetings (…) where other high-ranking members of the organization, including politicians, businessmen and former police and military officials, were present.’120 Of course, it is possible that this somewhat imprecise institutional approach results from the preliminary stage of the confirmation of charges proceedings. It will therefore be interesting to see how future decisions of the Court will give shape to the relation between the accused’s institutional membership and role, on the one hand, and the cooperation between the alleged joint perpetrators, on the other. Third, the ICC evaluates the relations between joint perpetrators in connection with the common plan, rather than in terms of the crimes they allegedly

116

117

118 119

120

Jerbo confirmation of charges decision forms an exception to this practice in holding that at least some troops shared with the commanders the common plan to attack the MGS Haskanita compound. The physical perpetrators are thus incorporated in the common plan. See Banda and Jerbo confirmation of charges decision, paras. 134-135. See e.g. Lubanga Trial Chamber judgment, paras. 1129-1130, 1132; Katanga and Chui confirmation of charges decision, para. 548; Banda and Jerbo confirmation of charges decision, paras. 130-131, 135; Ruto et al. confirmation of charges decision, paras. 302-303; Muthaura et al. confirmation of charges decision, paras 301-302, 309-311, 314, 333, 400. See e.g. Muthaura et al. confirmation of charges decision, paras. 301-302, 311, 314, 334, 341, 360-361, 368; Katanga and Chui confirmation of charges decision, paras. 548, 552; Lubanga Trial Chamber judgment, paras. 1043, 1054, 1069-1070, 1080-1081, 1109, 1110, 1112, 1116, 1128, 1130-1131, 1134; Lubanga confirmation of charges decision, paras. 369, 374-376, 378. Lubanga Trial Chamber judgment, para. 1044. E.g. Banda and Jerbo confirmation of charges decision, paras. 130-132, 135; Al-Bashir first warrant of arrest decision, paras. 42, 116; Ruto et al. confirmation of charges decision, paras. 302-303; Katanga and Chui confirmation of charges decision, paras. 548, 552; Lubanga confirmation of charges decision, para. 377. Ruto et al. confirmation of charges decision, para. 302 (emphasis added). Similarly, Banda and Jerbo confirmation of charges decision, paras. 130, 132, 135; Al-Bashir first warrant of arrest decision, paras. 42, 116.

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FACTS MATTER committed.121 The Katanga and Ngudjolo Pre-Trial Chamber, for example, determined that the two accused met several times to design an attack at Bogoro village (common plan),122 without ascertaining that they also specifically discussed or planned the commission of crimes or that they otherwise cooperated in the planning or execution of these crimes. The Chamber merely considered that the commission of pillage, rape, or sexual enslavement followed from the execution of the attack in the ordinary course of events.123 Fourth, the ICC refers to relations between the joint perpetrators that do not directly relate to the scope and content of the common plan or to the commission of crimes.124 For instance, the Lubanga Trial Chamber took account of the joint perpetrators’ contacts and cooperation during previous operations.125 In particular, it found that there was strong evidence to support the suggestion that during the period prior to the confirmation of the charges – specifically in the summer of 2000 – the accused and some of his principal alleged co-perpetrators (…) were jointly involved in organising the training of Hema youths in the context of the mutiny. Mr Lubanga, inter alia, visited the children, liaised with individuals in Uganda to prevent attacks against the mutineers and was involved in the reintegration of the children following their training.126 3.4.2.3 Attitude and Informed Contributions of Joint Perpetrators The third category of factual circumstances relates to the joint perpetrators’ support of the common plan – i.e. their attitude and informed contributions to that plan. So far, the ICC has in this respect only referred to the active contributions of joint perpetrators (e.g. orders to attack a village or to obtain weapons, as well as the recruitment, training, and use of child soldiers)127 and to their dissemination of hateful 121 E.g. Katanga and Chui confirmation of charges decision, para. 548; Al-Bashir first warrant of arrest decision, para. 42; Lubanga Trial Chamber judgment, para. 1134; Ruto et al. confirmation of charges decision, paras. 302-303; Banda and Jerbo confirmation of charges decision, paras. 130, 132, 135. 122 Katanga and Chui confirmation of charges decision, para. 548. 123 Katanga and Chui confirmation of charges decision, paras. 550-551. 124 See e.g. Lubanga Trial Chamber judgment, paras. 1067-1068, 1070, 1109-1110, 1130. 125 Lubanga Trial Chamber judgment, paras. 1043-1045. Similarly, Katanga and Chui confirmation of charges decision, paras. 548, 552. 126 Lubanga Trial Chamber judgment, para. 1045. 127 E.g. Lubanga confirmation of charges decision, paras. 405, 408 (and n 507); Lubanga Trial Chamber judgment, paras. 1057, 1112, 1129, 1131, 1133-1134; Katanga and Chui confirmation of charges decision, paras. 553, 564, 569; Ruto et al. confirmation of charges decision, paras. 303, 338, 343, 345; Muthaura et al. confirmation of charges decision, paras. 305, 334-335, 341, 363, 375-379, 384-396, 400; Banda and Jerbo confirmation of charges decision, paras. 154-155, 158-159.

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speeches.128 For example, the Ruto et al. Pre-Trial Chamber attached value to the fact that ‘Mr. Ruto and other members of the organisation said that they would “expel” or “evict” the Kikuyu, Kamba, and Kisii and took an oath “to kill [these, MC] tribes mercilessly”.’129 The joint perpetrators’ contributions do not have to be linked directly to the commission of crimes. They may relate more generally to the design, implementation, or execution of the common plan.130 The ICC seems to assess these contributions in light of the joint perpetrators’ membership of, and position in, institutions that were somehow involved in the common plan.131 The Lubanga Trial Chamber, for example, considered that ‘the accused as President of the UPC-RP endorsed a common plan to build an effective army to ensure the UPC/FPLC’s domination of Ituri, and he was actively involved in its implementation’.132

3.4.3

Summary

This section has shown that the ICC establishes the common plan-element on the basis of circumstances relating to (i) the preparations for the implementation of the common plan; (ii) the relations between joint perpetrators; and (iii) the attitude and informed contributions of joint perpetrators to the common plan. The Court analyses these circumstances in light of the joint perpetrators’ institutional membership, participation, and support. In that way, it loosens the link between the accused and the crimes with which he is charged. This raises the question of whether the accused’s involvement in a legitimate common plan provides a sufficient basis for his criminal responsibility. I agree

128 E.g. Lubanga confirmation of charges decision, para. 405; Lubanga Trial Chamber judgment, paras. 1054, 1075, 1122-1124, 1130; Muthaura et al. confirmation of charges decision, paras. 311, 334, 342, 413, 415; Ruto et al. confirmation of charges decision, paras. 339-340, 341-342. The joint perpetrators’ knowledge of the commission of crimes may be established by their presence at crime sites; their receipt of reports concerning the facts on the ground; communications between the accused and physical perpetrators; the scope of the crimes committed; and the wide acknowledgment of the commission of crimes. See e.g. Lubanga confirmation of charges decision, para. 405; Katanga and Chui confirmation of charges decision, para. 568. 129 Ruto et al. confirmation of charges decision, para. 339. 130 See e.g. Banda and Jerbo confirmation of charges decision, para. 154; Katanga and Chui confirmation of charges decision, para. 569; Lubanga confirmation of charges decision, para. 405. 131 Lubanga Trial Chamber judgment, paras. 1051, 1054, 1057, 1070, 1081, 1110-1111, 1130-1131, 1134; Banda and Jerbo confirmation of charges decision, para. 159; Muthaura et al. confirmation of charges decision, paras. 375, 377-378, 379, 383-384, 387, 392, 396, 400, 413, 415; Al-Bashir first warrant of arrest decision, para. 42; Katanga and Chui confirmation of charges decision, para. 568; Lubanga confirmation of charges decision, paras. 379, 408 (referring to n 507). 132 Lubanga Trial Chamber judgment, para. 1134.

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FACTS MATTER with Judge Van den Wyngaert that this question must be answered in the negative and that the ICC’s current practice should therefore be viewed critically.

3.5 3.5.1

IMPLICATIONS

OF THE

CASE LAW ANALYSIS

The Subjective-Objective Dichotomy in Practice

The previous sections have shown that the ICTY and the ICC assess the common planelement on the basis of broadly overlapping categories of factual circumstances relating to the political and military events preceding the commission of crimes, the relations between the participants, and the role of the accused within large-scale criminality. The ICTY and the ICC each describe and use these circumstances in a distinctive manner. For example – unlike the ICTY – the ICC focuses on the adoption of preparatory measures rather than on the widespread, organised, and patterned nature of crimes. Furthermore, the ICC limits its analysis to the (institutional) cooperation between senior leaders and to the joint perpetrators’ active contributions to the common plan, whereas the ICTY also takes account of the relations between the physical perpetrators and the JCE members’ passive contributions. Notwithstanding these factual differences, ICTY and ICC case law displays significant parallels at a more abstract and fundamental level. First, both courts consider the relations between the participants in light of their position and role in the implicated political and military institutions. Sometimes, they even evaluate the relations between JCE members and joint perpetrators in terms of the cooperation between these institutions. Second, the ICTY and the ICC assess the relations between the participants and the informed contributions they have made in connection to the common plan rather than the crimes committed. Third, the courts focus on the accused’s contribution to and his knowledge of the common plan and do not systematically assess the role and intentions of the other alleged JCE members or joint perpetrators. These parallels evidence that the ICTY and ICC largely base their finding of a common plan on (i) the cooperation between (the members of) political and military institutions and (ii) the contribution of the accused to (the objectives of) these institutions. In this way, they ascribe an essentially similar meaning to the common planelement. When observing this similarity in combination with the fact that the common plan is the most distinctive feature of JCE and joint perpetration that forms the basis for the attribution of criminal acts committed by other participants to the accused,133 it

133 See e.g. Van Sliedregt (n. 2 above) 170-171; Van Sliedregt (n. 28 above) 200; Olásolo (n. 16 above) 169; Ambos (n. 28 above) 167.

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becomes difficult to maintain that JCE and joint perpetration are based on different rationales. It seems that the dichotomy between the subjective notion underlying JCE and the objective approach of joint perpetration is nominal rather than actual and should therefore not engross future debates on theories of liability. Moreover, even though the joint perpetration concept has some distinctive features, it is doubtful whether these features provide for a more refined concept of criminal responsibility.134 Surely, the ICC’s focus on a small group of senior leaders enables the Court to attribute criminal responsibility on the basis of the close cooperation between these leaders. In theory, the Court thus seems to be in a better position than the ICTY (that also takes account of the involvement of distant physical perpetrators) to adopt a sophisticated concept of criminal responsibility that precisely defines the contributions and responsibilities of joint perpetrators.135 The ICC has, however, not realised this potential in practice. In fact, one of the most significant implications of the ICC’s application of the common plan-element is the loosening of the relation between the accused and the relevant crimes.

3.5.2

The ‘Meeting of Minds’ in Practice

As noted, the common plan is traditionally characterised as a ‘meeting of minds’. This interpretation emphasises the subjective and interpersonal nature of the common plan. The case law analyses, however, illustrate that the ICTY and the ICC adopt a different approach in practice. The courts largely base criminal responsibility on the participants’ cooperation within a (criminal) organisation. In particular, they focus on the objective cooperation between political and military institutions and the accused’s contribution to (the objectives of) these institutions. In this way, the courts obscure the link between the participants inter se and between the accused and the crimes for which he stands trial. It may even be argued that the ICTY and the ICC essentially move JCE and joint perpetration towards ‘theories of collective responsibility based on an institutional-participatory or systemic model of responsibility’.136 This development requires a reconsideration of the common plan-element and a re-assessment of criminal responsibility for JCE and joint perpetration. The next section seeks to develop this finding further by drawing an analogy with domestic doctrines of criminal responsibility. Without providing a complete or conclusive re-characterisation of JCE and joint perpetration, this analogy offers some important insights that may assist in better understanding these theories of liability. 134 See section 3.2.1. 135 On the conceptual distinction between the ICTY’s institutional approach and the ICC’s individual approach, see Ambos (n. 12 above) 161-162. 136 Ambos (n. 28 above) 167-168.

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FACTS MATTER 3.6 3.6.1

RECONSIDERING

THE

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JOINT PERPETRATION

Autonomous Criminal Responsibility

The ICTY and the ICC adopt a differentiated model of criminal responsibility.137 This model distinguishes between principals who commit a crime and accessories who participate in the crime of a principal by means of, for example, instigation or aiding and abetting. The responsibility of accessories is derivative from – i.e. depends on – the responsibility of the principal.138 This dependency is expressed in the principle of Akzessorietät or emprunt de la criminalité.139 The derivative nature of accessorial responsibility can cause problems in situations that involve complex relations between different actors, like cases of international and/or organised crimes.140 It may then prove difficult to uncover the relations between all participants and to clarify whether and how the accessory contributed to the crime of the principal. In particular, courts may have trouble linking the intellectual perpetrators – the persons who masterminded the crimes from a remote position – to the physical perpetrators. Domestic systems respond to these difficulties by circumventing or diluting the derivative nature of criminal responsibility through autonomous forms of liability. Two approaches are particularly common in this respect. First, some domestic systems adopt a so-called normative interpretation of (co-) perpetration that extends the category of principals beyond the physical perpetrators to encompass ‘the most responsible’ intellectual perpetrators.141 This extension allows for loosening the intellectual perpetrators’ criminal responsibility from the acts of the physical perpetrator. Although his responsibility is still triggered by the physical commission of a crime, it is primarily based on autonomous criteria of attribution (e.g. the intellectual perpetrators’ control over the crime). Second, domestic systems sometimes introduce liability for participation in a criminal organisation.142 The German kriminelle

137 Van Sliedregt (n. 2 above) 74. 138 M. van Toorenburg, Medeplegen, 20 October 1998, PhD Thesis, on file with author, 264; J. de Hullu, Materieel Strafrecht: Over Algemene Leerstukken van Strafrechtelijke Aansprakelijkheid naar Nederlands Recht (Deventer: Kluwer, 2009) 423, 444; Van Sliedregt (n. 2 above) 67-68; Ambos (n. 12 above) 147; Farhang (n. 32 above) 140. On the specific derivative character of JCE, see e.g. Farhang (n. 32 above) 146148, 159-161 and Prosecutor v. Brđanin, Separate opinion of Judge Meron, Case No. IT-99-36-A, Appeals Chamber, 3 April 2007 (Separate opinion Judge Meron), paras. 6-7. 139 Van Sliedregt (n. 2 above) 68; Ambos (n. 12 above) 147. 140 Van Sliedregt (n. 2 above) 21, 69; Ambos (n. 12 above) 85; De Hullu (n. 138 above) 155. 141 D. de Jong, ‘Vormen van Strafbare Deelneming’ in J. van der Neut (ed.), Daderschap en Deelneming (Deventer: Gouda Quint, 1999) 92; Van Sliedregt (n. 2 above) 70; De Hullu (n. 138 above) 155. 142 Criminal responsibility for participation in a criminal organisation has been incorporated in the penal codes of France, the Netherlands, Belgium, Germany, Austria, and Canada, among others. See Articles 4501-450-3 Criminal Code (France, Code pénal); Article 140 Criminal Code (the Netherlands, Wetboek van

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Vereinigung, the French association de malfaiteurs, and the Dutch criminele organisatie exemplify this practice.143 These concepts base the accused’s criminal responsibility on his participation in a collective criminal enterprise rather than on his contribution to specific crimes. The link between the accused and the crimes committed may accordingly remain somewhat vague and indirect. A similar development towards the creation of autonomous forms of liability can be witnessed at the international level, albeit more implicitly. On this account, Van Sliedregt has already re-characterised JCE and joint perpetration, noting that [i]ndirect co-perpetration and JCE liability are dependent upon the crimes physically committed by others. As such these modalities, like traditional modes of liability, have a derivative character. The liability of an indirect perpetrator and participant in a JCE draws on the crime committed by the physical perpetrator. Yet, they differ from traditional modalities in that the link with the physical perpetrator is attenuated. The crime(s) triggers liability but the link with the person who actually committed the crime is weak.144 The analysis in the previous sections affirms this finding. The link between the JCE members and joint perpetrators, on the one hand, and the physical perpetrators, on the other, has become rather loose. In this light, there is reason to further explore to what extent JCE and joint perpetration resemble the normative interpretations of (co-)perpetration in domestic law and whether these theories of liability show traits of liability for participation in a criminal organisation.145

3.6.2

Normative Interpretation of Co-Perpetration

Under a normative interpretation of criminal responsibility, the principal is the person who is ‘most responsible’ because he or she had decisive influence on the crime, without necessarily physically committing it.146 This approach ‘enables the extension of principal

143 144 145 146

Strafrecht); Article 322 et seq. Criminal Code (Belgium, Wetboek van Strafrecht); Article 129 Criminal Code (Germany, Strafgezetzbuch); Article 278 Criminal Code (Austria, Strafgezetzbuch); Articles 467.1, 467.11-467.13 Criminal Code (Canada). Van Sliedregt (n. 2 above) 69. Van Sliedregt (n. 2 above) 171. The Dutch concept of co-perpetration is the most autonomous form of participation. See, e.g. De Hullu (n. 138 above) 433; De Jong (n. 141 above) 87. Van Sliedregt (n. 2 above) 75, 78. Van Sliedregt (n. 2 above) 72.

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FACTS MATTER liability to those who masterminded crimes and thus qualify as intellectual perpetrators’.147 The normative approach depends on the formulation of specific criteria of attribution that help to determine who exactly is ‘most responsible’. In relation to JCE and joint perpetration, the common plan-element seems to qualify as such a criterion of attribution: it forms the basis for the attribution of criminal acts committed by other participants to the accused.148 The analysis of ICTY and ICC case law illustrates that the courts’ application of the common plan-element shows signs of what Hart defines as ‘role responsibility’.149 Role responsibility arises ‘whenever a person occupies a distinctive place or office in a social organization, i.e. when he holds authority and performs a role in an organizational structure’ that implies specific duties and responsibilities.150 The ICTY and the ICC accordingly assess the accused’s knowledge of, and contribution to, the common plan in light of his social status and position of responsibility.151 This does not mean that they allow for establishing liability on the mere basis of the accused’s position. The position and role of the accused influence, but do not control the judicial assessment of his criminal responsibility. The ‘role inspired’ interpretation of JCE and joint perpetration enables the ICTY and the ICC to focus on the accused’s participation in the common plan. This can lead to the loosening of the link between the criminal responsibility of the accused and the actions and intentions of the other participants (physical perpetrators and senior leaders). The fact that the ICTY mostly overlooks the interpersonal relations between the JCE members illustrates this development. Also, the ICC’s finding that the (mutual) awareness and acceptance element is satisfied when the accused is aware and accepts that the common plan will result in the commission of crimes, moves the Court’s evaluations away from the intentions of joint perpetrators other than the accused.152

3.6.3

Participation in a Criminal Organisation

Since the World War II trials, international criminal courts have developed an aversion to liability for membership of, and participation in, a criminal organisation. In particular

147 Van Sliedregt (n. 2 above). 148 E.g. Van Sliedregt (n. 2 above) 100, 136, 201; Ambos (n. 12 above) 149; Olásolo (n. 16 above) 169. 149 H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 2008) 212-214. See also R.S. Downie, ‘Responsibility and Social Roles’ in P. French (ed.), Individual and Collective Responsibility: The Massacre at My Lai (Cambridge, Mass.: Schenkman Publishing, 1972) 70. 150 A. Chouliaras, ‘Discourses on International Criminality’ in A. Smeulers (ed.), Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Antwerp: Intersentia, 2010) 88. 151 See sections 3.3.2 and 3.4.2. 152 See section 3.4.2.

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the ICTY has taken pains to differentiate JCE from membership liability.153 Indeed, the nature of membership liability differs from criminal responsibility under JCE and joint perpetration. Most importantly, whereas the former is a crime in itself, the latter are forms of participation in a crime, i.e. ways of committing a crime.154 Even so, JCE and joint perpetration also display important similarities with domestic concepts of participation in a criminal organisation.155 First, domestic concepts of participation in a criminal organisation ascribe a central position to the organisation. The term ‘organisation’ implies an enduring – nonincidental – and/or structured collaboration.156 The organisation also needs to have a criminal purpose, i.e. the purpose to commit crimes.157 In the international context, the role of organisations for establishing criminal responsibility is more implicit. The accused’s criminal responsibility under JCE and joint perpetration is ultimately construed in individualistic terms.158 Nevertheless, the ICTY’s and the ICC’s focus on senior

153 See e.g. Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s motion challenging jurisdiction – Joint Criminal Enterprise, Case No. IT-99-37-AR72, Appeals Chamber, 21 May 2003, paras. 25-26. 154 Keijzer and van Sliedregt add a nuance to this distinction. They argue that criminal responsibility for membership of a criminal organisation formally bases criminal responsibility on the accused’s participation in a criminal organisation rather than on his involvement in the crimes committed. In practice, however, the accused’s conviction is established in view of the specific crimes committed. See E. van Sliedregt and N. Keijzer, ‘Collectieve Aansprakelijkheid in het Strafrecht’ in M.S. Groenhuijsen and J. Simmelink (eds.), Glijdende Schalen: Liber Amicorum Jaap de Hullu (Nijmegen: Wolf Legal Publishers, 2003) 237. 155 See also B.F. Keulen, ‘Artikel 140 Sr. Vier Internationale Ontwikkelingen en een Begrafenis’ in B.F. Keulen et al. (eds.), Pet af: Liber Amicorum D.H. de Jong (Nijmegen: Wolf Legal Publishers, 2007) 229; H. van der Wilt, ‘Ontwikkeling van Nieuwe Deelnemingsvormen. Ben ik mijn Broeders Hoeder?’, 37 Delikt en Delinkwent (2007) 138, 142, 155; Van Sliedregt (n. 2 above) 65; Chouliaras (n. 22 above) 573-574. 156 N. Keijzer, Strafbaarheid van Voorbereidingshandelingen (Arnhem: Gouda Quint, 1983) 55, 57; A. Kesteloo, Deelneming aan een Criminele Organisatie. Een Onderzoek naar de Strafbaarstellingen in Artikel 140 Sr (Nijmegen: Wolf Legal Publishers, 2011) 34-36, 42-44, 148, 156; M. de Vries-Leemans, Art. 140 Wetboek van Strafrecht: Een Onderzoek naar de Strafbaarstelling van Deelneming aan Misdaadorganisaties (Arnhem: Gouda Quint, 1995) 31-36, 214-215, 252, 255; E. Garçon, Code Pénal Annoté: Nouvelle Édition Refondue et Mise à Jour par Marcel Rousselet, Maurice Patin, Marc Ancel (Paris: Recueil Sirey, 1959) 931932, Articles 265-268, paras. 9-17; H. Rudolphi and J. Wolter, SK-StGB Systematischer Kommentar zum Strafgesetzbuch (Köln: Heymann, 2009) 6-7, Article 229, paras. 5-6; Van der Wilt (n. 155 above) 153. Conversely, under the French concept of association de malfaiteur the criminal organisation is so broadly formulated that it effectively encompasses all agreements between two or more persons. Consequently, the criminal organisation becomes akin to a criminal conspiracy. R. Parizot, Responsibilité Pénale à l’Épreuve de la Criminalité Organisée: Le Cas Sympatomatique de l’Association de Malfaiteurs et du Blachiment en France et en Italie (Paris: LGDJ, 2010) 100-103. 157 Van der Wilt (n. 155 above) 153; Garçon (n. 156 above) 932, para. 18; Keijzer (n. 156 above) 55-58; Kesteloo (n. 156 above) 45-47; Rudolphi and Wolter (n. 156 above) 7-17, Article 229, paras. 7-13; De VriesLeemans (n. 156 above) 36-49, 215, 250, 252, 256. Some domestic systems limit criminal responsibility for participation in a criminal organisation to specific serious crimes. See e.g. Articles 324bis and 324ter Criminal Code (Belgium) and Article 467.1 Criminal Code (Canada). 158 C. Harding, Criminal Enterprise, Individuals, Organisations and Criminal Responsibility (Devon: Willan Publishing, 2007) 243-244; Chouliaras (n. 150 above) 93.

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FACTS MATTER leaders has led to ‘an inquiry into the criminal structures they represent’.159 The previous case law analysis in this respect illustrates that JCE members and joint perpetrators can be identified on the basis of their institutional affiliation; that the relations between participants are regularly considered at the level of political or military institutions or in light of the participants’ position within these institutions; that the participants’ contributions are connected to their institutional responsibilities; and that the participants’ knowledge is assessed in light of their position within the organisation.160 Hence, the route to individual responsibility lies through some significant participation in the activities of an organization. (…) [T]he existence of the organization and the performance of a certain role within the structure of an organization are paramount for purposes of allocating responsibility to the individual in question.161 Second, like domestic forms of participation in a criminal organisation, JCE and joint perpetration draw an indirect link between the accused and the crimes committed. It is generally not required that the accused was directly involved in the commission of crimes.162 Instead, it only needs to be established that he somehow participated in the design or implementation of a common plan. Now that this plan is often defined at a meta-level, the accused is primarily connected to an organisational policy involving or leading to systemic violence. The relation between the accused and the individual crimes for which he or she stands trial consequently remains rather vague.163 Third, JCE and joint perpetration allow for establishing the criminal responsibility of the accused in light of his personal contributions to an organisational policy. In practice, it is not required to determine the mens rea of all alleged participants, nor is it necessary to comprehensively address their individual tasks and contributions. As a consequence, JCE and joint perpetration depend on ‘an inquiry into a personal attribute of the defendant, at the time of events, not an inquiry into links among persons’.164 In this sense, they resemble domestic forms of participation in a criminal organisation. Because these domestic concepts require that the organisation as such – rather than its individual 159 K. Ambos, ‘Command Responsibility and Organisationsherrschaft: Ways of Attributing International Crimes to the “Most Responsible”’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 128-129. 160 See sections 3.3.2.2, 3.3.2.3, 3.4.2.2, 3.4.2.3. 161 Harding (n. 158 above) 243-244. 162 Garçon (n. 156 above) 930, para. 3; Keijzer (n. 156 above) 55, 57-58; Kesteloo (n. 156 above) 149-150, 156159; Rudolphi and Wolter (n. 156 above) 17-23, Article 229, paras. 14-18; Parizot (n. 156 above) 108; De Vries-Leemans (n. 156 above) 217-218, 256. 163 See also Van der Wilt (n. 155 above) 152-153; Kesteloo (n. 156 above) 58. 164 Zahar and Sluiter (n. 48 above) 244. Similarly, Van der Wilt (n. 87 above) 99-100.

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members – has a criminal purpose, they similarly obviate any extensive evaluation of the acts and intentions of the persons who participated in the indicted crimes.165

3.6.4

Evaluation

Considering that JCE and joint perpetration show significant similarities with domestic forms of autonomous criminal responsibility, they can be aptly interpreted as normative forms of co-perpetration that are influenced by the position of the accused and his participation in a (criminal) organisation. This interpretation makes it possible to use JCE and joint perpetration as devices that capture the systemic character of international crimes, thus responding to the demand for ‘a mixed system of individual-collective responsibility in which the criminal enterprise or organisation as a whole serves as the entity upon which the attribution of criminal responsibility is based’.166 Although practically useful, such a normative approach to JCE and joint perpetration also raises controversies. By evaluating the accused’s criminal responsibility in light of his position and participation in a criminal organisation, JCE and joint perpetration attenuate the relation between the accused and the crimes for which he stands trial.167 In other words, they do not explain precisely how the JCE members and joint perpetrators are connected to the indicted crimes.168 This may be acceptable with respect to domestic concepts of participation in a criminal organisation,169 since these concepts qualify as separate offences. However, JCE and joint perpetration are modes of liability that serve as tools for attributing criminal responsibility for genocide, crimes against humanity, and war crimes to persons who have not physically committed an act of violence.170 This imposes an obligation on the ICTY and the ICC to evaluate the actions, intentions, and role of the accused in relation to these international crimes.171 When such an evaluation is side-lined or even missing – as in some of the cases discussed in the previous sections – the label that is put on the accused (that of principal perpetrator of international crimes) no longer corresponds to his personal fault. In my view, there are two ways to solve this issue: (i) by reaffirming the relation between the accused and the crimes for which he stands trial, or (ii) by accepting that

165 Van der Wilt (n. 155 above) 154; Keijzer and Van Sliedregt (n. 154 above) 243; De Vries-Leemans (n. 156 above) 36, 215, 250-251, 253; Kesteloo (n. 156 above) 55-56, 147. 166 Ambos (n. 28 above) 157. Similarly, Haan (n. 6 above) 242-243; Ambos (n. 12 above) 177. 167 Similarly, Van der Wilt (n. 1 above) 172-175; Van der Wilt (n. 87 above) 101. 168 See Van Sliedregt (n. 2 above) 142, 165, 169. 169 But even in this respect, De Hullu warns that the link between the conduct of the accused and the realisation of the criminal purpose should not become too tenuous. De Hullu (n. 138 above) 425. 170 Similarly, Van der Wilt (n. 87 above) 101. 171 Haan (n. 6 above) 266-270; Van der Wilt (n. 155 above) 158; Van der Wilt (n. 87 above) 101.

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FACTS MATTER JCE and joint perpetration establish liability for participation in a (criminal) organisation, rather than for the crimes proper. The first proposal is certainly viable, as scholars such as Ohlin, Van Sliedregt, Weigend, and Haan have already shown.172 The previous case law analysis, however, suggests that it has not been followed up in practice. Also the second proposal is not likely to be accepted by the ICTY and the ICC, most obviously because the qualification of JCE and joint perpetration as forms of participation in a criminal organisation goes against the text of their Statutes, which characterise JCE and joint perpetration as ways of committing an international crime.173 Even so, such a qualification could have significant advantages, since it would enable the ICTY and the ICC to formulate the much-needed restrictions on JCE and joint perpetration.174 For example, the courts could require that the common plan has a criminal character or that the participants cooperate in a structured and non-accidental manner.175 Moreover, it is important to realise that the qualification of JCE and joint perpetration as forms of participation in a criminal organisation does not completely trivialise the underlying crimes. The maximum penalty for participation in a criminal organisation may, for example, depend on the finding whether a crime has actually been committed and, if so, what type of crime this was. In this way, the criminal responsibility of the accused remains linked to the crimes to which he contributed, albeit in a more global sense.176 Also the specific role of the accused in the organisation and his contribution to the crimes committed, can still be taken into account. For example, the maximum penalty for participation in a criminal organisation can be related to the different positions of leaders, executors, and aiders and abettors. In light of these considerations, it seems apt to recognise explicitly that JCE and joint perpetration at least resemble forms of participation in a criminal organisation. Rather than diluting responsibility for international crimes, this recognition may actually enable the ICTY and the ICC to interpret criminal responsibility in a more honest and transparent way. This will advance a stricter compliance with the principle of personal culpability.

172 J.D. Ohlin et al., ‘Assessing the Control-Theory’, 26 Leiden Journal of International Law (2013) 725, 731-734; Van Sliedregt (n. 2 above) 165, 169; Haan (n. 6 above) 244. 173 Statute for the International Criminal Tribunal for the former Yugoslavia, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc. S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc. S/RES/1877 (7 July 2009), Article 7; Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Article 25(3). 174 For a contrary view, see S. Eldar, ‘Exploring International Criminal Law’s Reluctance to Resort to Modalities of Group Responsibility: Five Challenges to International Prosecutions and their Impact on Broader Forms of Responsibility’, 11 Journal of International Criminal Justice (2013) 331. 175 Similarly, Van der Wilt (n. 155 above) 157-158. 176 Keijzer and Van Sliedregt (n. 154 above) 241; Keulen (n. 155 above) 242-244.

100

III 3.7

PLURALISM

IN

THEORIES

OF

LIABILITY

CONCLUSIONS

To establish the criminal responsibility of senior leaders for international crimes, the ICTY and the ICC resort to the concepts of JCE and joint perpetration. These two concepts have a similar basis of attribution: the common plan. The case law analysis conducted in this chapter demonstrates that the ICTY and the ICC apply the common plan-element in a similar way. They essentially interpret the common plan as a collective element that hinges on the participants’ cooperation in, and their informed contribution to, a (criminal) organisation. Thus, the courts’ practice nuances the interpersonal and subjective nature of the common plan and departs from the traditional interpretation of the common plan as a ‘meeting of minds’. Considering the ICTY’s and the ICC’s substantially similar interpretation of the common plan-element, it cannot be maintained that JCE and joint perpetration are based on different rationales. The assumed objective–subjective dichotomy between these theories of liability is nominal rather than actual and should therefore be banned from the debate on theories of liability. Instead, further attention should be paid to the analogy between JCE and joint perpetration, on the one hand, and domestic forms of autonomous criminal responsibility, on the other. It seems that – similar to domestic forms of normative co-perpetration and participation in a criminal organisation – JCE and joint perpetration emphasise the role responsibility of accused and focus on their position and participation in a (criminal) organisation. The explicit recognition of this kinship will enable the ICTY and the ICC to see these theories of liability for what they are and to apply them in a more confined and intellectually honest way.

101

IV

The Contextual Embedding of Genocide: A Casuistic Analysis of the Interplay between Law and Facts*

*

This chapter was published in 15 Melbourne Journal of International Law (2014) 378. In preparing the chapter, minor (textual) changes have been made to the original text.

IV 4.1

THE CONTEXTUAL EMBEDDING

OF

GENOCIDE

INTRODUCTION

The crime of genocide was first defined in Article 2 of the Genocide Convention as the commission of one of the listed acts with the intent to destroy, in whole or a part, a national, ethnic, racial or religious group, as such.1 This definition has been reproduced verbatim in the Statutes of the ad hoc Tribunals and the International Criminal Court (ICC).2 It has also been recognised as customary international law.3 The definition of genocide is characterised by the accused’s intent to destroy. It neither contains an explicit contextual element, nor alludes to a collective act. This raises the question of whether genocide requires some form of contextual embedding.4 Can a single perpetrator acting with the intent to destroy commit genocide? Or does a perpetrator have to participate in a collective campaign of (destructive) violence to qualify as a génocidaire? The scholarly debate on this issue is divided. Whereas some scholars reject that genocide implies a collective act and focus on the intent of individual accused,5 others argue that genocide is best characterised as a type of system criminality – i.e. widespread 1

2

3

4

5

Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951), Article 2.The legal definition of genocide differs from the meaning of genocide in everyday speech and social science. D. Luban, ‘Calling Genocide by its Rightful Name: Lemkin’s Word, Darfur, and the UN Report’, 7 Chicago Journal of International Law (2006-2007) 303, 308; L. van den Herik, ‘The Schism between the Legal and the Social Concept of Genocide in Light of the Responsibility to Protect’ in R. Henham and P. Behrens (eds.), The Criminal Law of Genocide: International, Comparative and Contextual Aspects (Aldershot: Ashgate Publishing, 2007) 75, 75-76. Statute for the International Criminal Tribunal for Rwanda, SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc. S/RES/955 (8 November 1994) (ICTR Statute), Article 2(2); Statute for the International Criminal Tribunal for the former Yugoslavia, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc. S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc. S/RES/1877 (7 July 2009) (ICTY Statute), Article 4(2); Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (ICC Statute), Article 6. E.g. Prosecutor v. Krstić, Judgment, Case No. IT-98-33-T, Trial Chamber I, 2 August 2001 (Krstić Trial Chamber judgment), para. 541; Prosecutor v. Kayishema and Ruzindana, Judgment, Case No. ICTR-95-1-T, Trial Chamber II, 21 May 1999 (Kayishema and Ruzindana Trial Chamber judgment), para. 88; Prosecutor v. Jelisić, Judgment, Case No. IT-95-10-T, Trial Chamber I, 14 December 1999 (Jelisić Trial Chamber judgment), para. 60. The question concerning genocide’s contextual embedding is connected to the scholarly debate on the requisite level of intent. See W.A. Schabas, Unimaginable Atrocities: Justice, Politics and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012) 146; W.A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2009) 242-243. While acknowledging this connection, this chapter focuses on genocide’s contextual embedding. E.g. P. Akhavan, ‘The Crime of Genocide in the ICTR Jurisprudence’, 3 Journal of International Criminal Justice (2005) 989, 996; G. Mettraux, International Crimes and the ad hoc Tribunals (Oxford: Oxford University Press, 2005) 211; K. Heller, ‘International Decisions: Prosecutor v. Karemera, Ngirumpaste and Nzirorera’, 101 American Journal of International Law (2007) 157, 159. Similarly see, O. Triffterer, ‘Genocide, its Particular Intent to Destroy in Whole or in Part the Group as such’, 14 Leiden Journal of International Law (2001) 399, 399-408, 402; R. Arnold, ‘The Mens Rea of Genocide under the Statute of the International Criminal Court’, 14 Criminal Law Forum (2003) 127, 150.

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FACTS MATTER and organised (state) criminality – and accordingly attach value to the existence of an objective context of violence.6 A similar disagreement exists in the case law of the ad hoc Tribunals and the ICC. On the one hand, the Tribunals find that the existence of a collective act is not a necessary requirement of genocide.7 It is only a factor that is evidential of the accused’s genocidal intent. On the other hand, the ICC’s Elements of Crimes explicitly require that the accused operated ‘in the context of a manifest pattern of similar conduct’.8 Before the ICC, the context of collective violence thus constitutes a distinct legal element, which potentially creates ‘a separate “Rome regime” of crimes’.9 The disagreement on the contextual embedding of genocide creates undesirable uncertainties about the exact meaning of this crime. This chapter seeks to address these uncertainties and aims to clarify the issue of contextual embedding by supplementing the current theoretical discourse with factual analyses. These analyses assess the application of genocide in individual cases and describe how the ad hoc Tribunals and the ICC have dealt with the contextual embedding of genocide in practice. In this way, it is made clear that the genocide concept has an open texture and develops in interplay with the facts of individual cases. As a result, the contextual embedding of genocide differs per case and is difficult to capture in one uniform standard. While respecting this flexibility and context-dependency, the chapter emphasises that courts cannot freely tweak the law to fit the facts. To prevent such abuses, courts are advised to justify their decisions pursuant to a methodology of casuistic reasoning. The chapter is structured as follows. Section 2 starts with an analysis of the scholarly debate on the contextual embedding of genocide. It distinguishes two schools of thought that are referred to as the goal-oriented model and the structure-based model. Sections 3 and 4 proceed to describe the case law of the ad hoc Tribunals and the ICC, respectively. I evaluate to what extent the theoretical distinction between the goal-oriented and the 6

7

8

9

E.g. W.A. Schabas, ‘Darfur and the “Odious Scourge”: The Commission of Inquiry’s Findings on Genocide’, 18 Leiden Journal of International Law (2005) 871, 877; A. Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation’, 99 Columbia Law Review (1999) 2259, 2288; S. Kirsch, ‘The Two Notions of Genocide: Distinguishing Macro Phenomena and Individual Misconduct’, 42 Creighton Law Review (2009) 347, 352-355; C. Kress, ‘The Darfur Report and Genocidal Intent’, 3 Journal of International Criminal Justice (2005) 562, 572; T. Simon, ‘Defining Genocide’, 15 Wisconsin International Law Journal (1996) 243, 248; H. Vest, ‘A Structure-Based Concept of Genocidal Intent’, 5 Journal of International Criminal Justice (2007) 781, 784. Prosecutor v. Jelisić, Judgment, Case No. IT-95-10-A, Appeals Chamber, 5 July 2001 (Jelisić Appeals Chamber judgment), para. 48; Prosecutor v. Krstić, Judgment, Case No. IT-98-33-A, Appeals Chamber, 19 April 2004 (Krstić Appeals Chamber judgment), paras. 223-224; Jelisić Trial Chamber judgment, para. 100; Kayishema and Ruzindana Trial Chamber judgment, para. 94. Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st sess (ICC-ASP/1/3 and Corr.1) (3-10 September 2002) (Elements of Crimes), Articles 6(a)(4), 6(b)(4), 6(c)(5), 6(d)(5), 6(e)(7). R. Cryer, ‘The Definitions of International Crimes in the Al-Bashir Arrest Warrant Decision’, 7 Journal of International Criminal Justice (2009) 283, 295-296.

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IV

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OF

GENOCIDE

structured-based model influences the courts’ interpretation and application of genocide. Emphasis is thereby placed on the factual circumstances on the basis of which the courts assess and establish genocide in individual cases. Since the International Criminal Tribunal for Rwanda (ICTR) has the most experience with genocide cases, its case law forms the primary basis of analysis. The case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) is used to complement this analysis, as it has more extensively dealt with the challenges of establishing genocide outside a clear genocidal context. The ICC case law on genocide is still very limited. The Al-Bashir Pre-Trial Chamber has rendered a handful of decisions relating to the possible commission of genocide in Darfur, but a final judgment in this case is still to be delivered. The following analysis of ICC case law is therefore only preliminary. Section 5 interprets and values the results of the case law analyses in light of the open texture of genocide and the casuistic method of legal reasoning. In this way, I demonstrate that the contextual embedding of genocide in practice is characterised by a bounded flexibility. Section 6 concludes with some observations on the implications of this finding for scholars’ future study and courts’ future use of the genocide concept.

4.2

GOAL-ORIENTED

VERSUS

STRUCTURE-BASED MODEL

The status of genocide as an international crime is uncontroversial, yet the interpretation of the legal elements of this crime continues to raise considerable difficulties.10 One of these difficulties concerns the question of whether genocide requires some form of contextual embedding: can a single perpetrator acting with the intent to destroy commit genocide? Or does genocide require a collective campaign of (destructive) violence? In the scholarly debate, two views on this issue have emerged. The first view holds that the accused’s genocidal intentions do not have to result in the actual destruction of a protected group.11 The scholars adopting this view recognise that genocide generally encompasses large-scale and organised violence.12 At the same time, they emphasise that the legal elements of genocide are already satisfied when an individual intends to destroy (part of) a protected group and kills a single person for that end. Triffterer, for example, asserts that

10 R. Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2010) 204. See also Schabas 2012 (n. 4 above) 104. 11 E.g. L. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (Leiden: Martinus Nijhoff Publishers, 2005) 108; Triffterer (n. 5 above) 402; Akhavan (n. 5 above) 996; Mettraux (n. 5 above) 211; Heller (n. 5 above) 159. 12 E.g. Arnold (n. 5 above) 133-134; Akhavan (n. 5 above) 997.

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FACTS MATTER for the commission of genocide it is sufficient that the perpetrator merely intended ‘to destroy, in whole or in part, a […] group, as such.’ This means that the perpetrator must only intend to achieve this consequence or result. For the completion of the crime, therefore, it does not matter whether he was in this regard successful or not or perhaps will never be (…).13 According to this assertion, genocide is above all determined by the goals of the individual perpetrator(s), rather than by the scale of the crimes committed. Genocide thus becomes a primarily goal-oriented crime. This allegedly ensures the (more) effective prevention of genocide. After all, criminal responsibility for genocide can be established in relation to conduct that took place before the occurrence of an actual massacre.14 The second view is referred to as the structure-based model.15 This model is premised on the thought that genocide – like war crimes and crimes against humanity – is a type of system criminality. It accordingly holds that the conduct of individual perpetrators (Einzeltaten) should be observed and valued in light of a collective act and its underlying organisational structures (Gesamttat).16 From this perspective, the idea of a lone génocidaire who seeks to commit genocide on his own initiative and by his own means becomes ‘a sophomoric hypothèse d’école’ – i.e. a useless academic construct – that forms ‘a distraction for international judicial institutions’.17 The structure-based model has been implemented in two ways. The first way takes as its starting-point that intent is only legally relevant insofar as it is realistic and amounts to more than a vain hope. Kirsch in this respect finds that ‘a single individual cannot realistically believe that his or her individual genocidal conduct and desire will actually cause the total destruction of a protected group’.18 Therefore, ‘the individual’s desire to commit genocide must be related to the results of a collective activity to which he or she

13 Triffterer (n. 5 above) 402-403. 14 E.g. Arnold (n. 5 above) 133; Triffterer (n. 5 above) 401. On the distinction between the prevention and the criminal punishment of genocide, see Van den Herik (n. 1 above) 93-94. 15 K. Ambos, ‘What Does “Intent to Destroy” in Genocide Mean?’, 91 International Review of the Red Cross (2009) 833, 841; Vest (n. 6 above) 782. 16 E.g. Kress (n. 6 above) 572; Kirsch (n. 6 above) 354. Although, scholars generally agree that this campaign must be genocidal in character, the threshold they adopt in this respect differs. For example, whereas Vest requires a practical certainty that the implementation of a plan leads to the (partial) destruction of a protected group, for Kress it suffices that the campaign is of a nature capable to bring about the planned destruction. Vest (n. 6 above) 792-793; C. Kress, ‘The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber’s Decision in the Al-Bashir Case’, 7 Journal of International Criminal Justice (2009) 297, 306. In relation to the ICC, Cryer argues that the requisite policy may also be non-genocidal. Cryer (n. 9 above) 291-292. 17 Schabas (n. 6 above) 877. See also Greenawalt (n. 6 above) 2288; Kirsch (n. 6 above) 352-355; Kress (n. 6 above) 572; Simon (n. 6 above) 248; Vest (n. 6 above) 784. 18 Kirsch (n. 6 above) 354. See also Kress (n. 16 above) 304-305; Vest (n. 6 above) 789-790.

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OF

GENOCIDE

contributes’.19 The second view presents the collective act as an autonomous element of genocide. Schabas in this regard asserts that evidence of a plan or policy has been essential for all genocide convictions.20 He therefore argues that the finding of such a plan or policy ‘lies at the very heart of the debate’ on genocide.21 The structure-based model adds a significant difficulty to genocide prosecutions: the construction of a link between the accused’s misconduct and the collective genocidal campaign. It must be ascertained that the accused’s actions did not only occur against the background of a collective campaign of violence, but genuinely formed part of it.22 This link is mostly construed in terms of the accused’s mens rea. In particular, it is found that the accused must have known of the collective act and the destructive results thereof.23 The assessment of this standard varies depending on the accused’s position. Whereas knowledge on the part of political and military leaders can be established relatively easily (after all, they are responsible for the design of the collective act), it cannot be presumed in relation to low-ranking perpetrators.24

4.3 4.3.1

THE

AD HOC

TRIBUNALS

AND THE

CONTEXTUAL EMBEDDING

OF

GENOCIDE

General Interpretation

The ad hoc Tribunals have addressed questions concerning the contextual embedding of genocide in relation to their findings on the accused’s genocidal intent. The Tribunals emphasise that genocidal intent is a form of ‘special’ intent.25 According to the Akayesu 19 20 21 22 23

Kirsch (n. 6 above) 354. See also Kress (n. 16 above) 304-305. Schabas (n. 4 above) 131. Schabas (n. 6 above) 877. Kirsch (n. 6 above) 355. E.g. W.A. Schabas, ‘The Jelisić Case and the Mens Rea of the Crime of Genocide’, 14 Leiden Journal of International Law (2001) 125, 137; Greenawalt (n. 6 above) 2288; Kirsch (n. 6 above) 357; Kress (n. 6 above) 577; Vest (n. 6 above) 792. Contrary to these authors, Ambos argues that ‘the knowledge need not concern the ultimate destruction of the group in the future – indeed, this is only a future expectation which as such cannot be known but only hoped or desired – but only the overall genocidal context’. See Ambos (n. 15 above) 848. 24 Similarly, N. Jørgenson, ‘The Definition of Genocide: Joining the Dots in the Light of Recent Practice’, 1 International Criminal Law Review (2002) 285, 299; Van den Herik (n. 11 above) 122. See also Report of the International Law Commission on the work of its forty-eighth session, UN Doc A/51/10 (6 May-26 July 1996) 45, para. 10. 25 E.g. Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, Trial Chamber I, 2 September 1998 (Akayesu Trial Chamber judgment), para. 498; Prosecutor v. Rutaganda, Judgment, Case No. ICTR-96-3-T, Trial Chamber I, 6 December 1999 (Rutaganda Trial Chamber judgment), para. 58; Prosecutor v. Musema, Judgment, Case No. ICTR-96-13-A, Trial Chamber I, 27 January 2000 (Musema Trial Chamber judgment), para. 164; Prosecutor v. Seromba, Judgment, Case No. ICTR-2001-66-T, Trial Chamber I, 13 December 2006 (Seromba Trial Chamber judgment), para. 319; Prosecutor v. Gacumbitsi, Judgment, Case No. ICTR2001-64-A, Appeals Chamber, 7 July 2006 (Gacumbitsi Appeals Chamber judgment), para. 39; Kayishema and Ruzindana Trial Chamber judgment, para. 91.

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FACTS MATTER Trial Chamber, this means that ‘the perpetration of the act charged (...) extends beyond its actual commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to destroy, in whole or in part, the group of which the individual is just one element’.26 By reasoning in this way, the Chamber sets a high threshold: the tribunals need to establish that the perpetrator aimed for the (partial) destruction of a protected group.27 Legal practice illustrates that this threshold is difficult to meet, since it is hard to find direct evidence showing that the accused pursued a destructive purpose. The Tribunals therefore accept that genocidal intent can be inferred from the acts, utterances and position of the accused and from the pattern of purposeful action.28 The latter category includes circumstances such as the general policy underlying the acts; the methodical way of planning; the systematic manner of killing; the number of victims; the scale of atrocities; and the use of derogatory language towards members of the targeted group.29 This list of circumstances clarifies that the accused’s intent can be deduced from the organised context of collective violence in which he participated. The Jelisić Appeals Chamber has explicitly confirmed the relevance of such an organised setting by emphasising that ‘in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime’.30 It is not required that this plan or policy consists (exclusively) of destructive acts or that it has a destructive effect. However, ‘the extent of the actual destruction, if it does take place, will more often than not be a factor from which the inference may be drawn that the underlying acts were committed with [genocidal intent]’.31

26 Akayesu Trial Chamber judgment, para. 522 (emphasis added). 27 Prosecutor v. Milošević, Decision on motion for judgment of acquittal, Case No. IT-02-54-T, Trial Chamber I, 16 June 2004 (Milošević Rule 98bis decision), paras. 125-126; Akayesu Trial Chamber judgment, para. 497. 28 E.g. Kayishema and Ruzindana Trial Chamber judgment, para. 93; Rutaganda Trial Chamber judgment, para. 61; Musema Trial Chamber judgment, para. 167. Factors that are relevant in relation to the accused’s position include the accused’s education, his experience as an officer, his general capabilities especially with respect to his duties and responsibilities stemming from his specific professional position. Prosecutor v. Tolimir, Judgment, Case No. IT-05-88/2-T, Trial Chamber II, 12 December 2012 (Tolimir Trial Chamber judgment), para. 1161. 29 E.g. Prosecutor v. Bagilishema, Judgment, Case No. ICTR-95-1A-T, Trial Chamber I, 7 June 2001 (Bagilishema Trial Chamber judgment), para. 62; Prosecutor v. Semanza, Judgment, Case No. ICTR-9720-T, Trial Chamber I, 15 May 2003 (Semanza Trial Chamber judgment), para. 313; Prosecutor v. Kajelijeli, Judgment, Case No. ICTR-98-44A-T, Trial Chamber II, 1 December 2003 (Kajelijeli Trial Chamber judgment), paras. 804, 806; Prosecutor v. Blagojević and Jokić, Judgment, Case No. IT-02-60-A, Appeals Chamber, 9 May 2007 (Blagojević and Jokić Appeals Chamber judgment), para. 123. 30 Jelisić Appeals Chamber judgment, para. 48. 31 Milošević Rule 98bis decision, para. 125. See also Prosecutor v. Brđanin, Judgment, Case No. IT-99-36-T, Trial Chamber II, 1 September 2004 (Brđanin Trial Chamber judgment), para. 697.

110

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OF

GENOCIDE

It follows from this account that the ad hoc Tribunals assume a close evidential connection between the accused’s genocidal intent and the existence of a collective act. This does, however, not imply that the finding of a genocidal campaign32 or plan also forms a legal element of genocide.33 According to the Jelisić Trial Chamber, the drafters of the Genocide Convention ‘did not discount the possibility of a lone individual seeking to destroy a group as such’.34 Thus, it is ‘theoretically possible’ that the crimes committed by a single perpetrator ‘are sufficient to establish the material element of the crime of genocide and it is a priori possible to conceive that the accused harboured the plan to exterminate an entire group without this intent having been supported by any organization in which other individuals participated’.35 In this light, the Tribunals maintain that genocidal intent has to be established above all on the basis of the accused’s own conduct.36

4.3.2

Genocidal Intent Applied

As the previous section has shown, the ad hoc Tribunals’ interpretation of genocidal intent entails a delicate balance between the accused’s individual goals and his participation in a collective context. How has this balance been implemented in practice? Based on which facts have the Tribunals determined whether an accused acted with genocidal intent? Case law analysis reveals that the ICTR and the ICTY assess genocidal intent in light of circumstances relating to (i) the campaign of collective violence; (ii) the indicted crimes; and (iii) the acts and utterances of the accused. In relation to the first category, the Tribunals inter alia refer to the political background;37 the implication of (state) organisations in the commission of crimes;38 the implementation of discriminatory measures;39 the implementation of a military

32 Krstić Appeals Chamber judgment, paras. 223-224. 33 Prosecutor v. Popović et al., Judgment, Case No. IT-05-88-T, Trial Chamber II, 10 June 2010 (Popović et al. Trial Chamber judgment), paras. 829-830; Jelisić Appeals Chamber judgment, para. 48; Kayishema and Ruzindana Trial Chamber judgment, para. 94. 34 Jelisić Trial Chamber judgment, para. 100. 35 Jelisić Trial Chamber judgment, para. 100. 36 Bagilishema Trial Chamber judgment, para. 63. 37 E.g. Prosecutor v. Stakić, Judgment, Case No. IT-97-24-T, Trial Chamber II, 31 July 2003 (Stakić Trial Chamber judgment), para. 548; Akayesu Trial Chamber judgment, paras. 78-109; Kayishema and Ruzindana Trial Chamber judgment, paras. 277-282; Brđanin Trial Chamber judgment, paras. 978, 981. 38 E.g. Akayesu Trial Chamber judgment, paras. 109-110, 128; Kayishema and Ruzindana Trial Chamber judgment, paras. 277-286; Stakić Trial Chamber judgment, paras. 548-549. 39 E.g. Akayesu Trial Chamber judgment, paras. 107, 123; Kayishema and Ruzindana Trial Chamber judgment, paras. 287-288; Musema Trial Chamber judgment, para. 928.

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FACTS MATTER program;40 the use of derogatory language;41 the discriminatory, yet indiscriminate, and cruel character of the crimes;42 the planned, systemic and coordinated character of the crimes;43 the geographically widespread commission of crimes;44 and the number of victims.45 The Akayesu Trial Chamber has, for example, established that the massacres in Rwanda were aimed at exterminating the Tutsi group ‘considering their undeniable scale, their systematic nature and their atrociousness’.46 It has substantiated this finding with reference to the expert witness statement of Alison Desforges, who testified: on the basis of the statements made by certain political leaders, on the basis of songs and slogans popular among the Interahamwe, I believe that these people had the intention of completely wiping out the Tutsi from Rwanda so that – as they said on certain occasions – their children, later on, would not know what a Tutsi looked like, unless they referred to history books.47 The second category of relevant factual circumstances is largely analogous to the first one. Also in this respect, reference is made to the implication of (state) organisations in the commission of crimes;48 the implementation of discriminatory measures;49 the use of derogatory language;50 the discriminatory, yet indiscriminate, and cruel character of the

40 E.g. Kayishema and Ruzindana Trial Chamber judgment, paras. 283-286; Popović et al. Trial Chamber judgment, para. 837. 41 E.g. Akayesu Trial Chamber judgment, paras. 118, 120; Musema Trial Chamber judgment, para. 932. 42 E.g. Prosecutor v. Bizimungu et al., Judgment, Case No. ICTR-00-56-T, Trial Chamber II, 17 May 2011 (Bizimungu et al. Trial Chamber judgment), para. 2080; Akayesu Trial Chamber judgment, paras. 116, 121,123-124, 128; Kayishema and Ruzindana Trial Chamber judgment, paras. 290-291; Rutaganda Trial Chamber judgment, para. 399; Musema Trial Chamber judgment, para. 928; Semanza Trial Chamber judgment, para. 423. 43 E.g. Akayesu Trial Chamber judgment, paras. 118-119, 126; Kayishema and Ruzindana Trial Chamber judgment, paras. 278-289; Rutaganda Trial Chamber judgment, para. 399; Semanza Trial Chamber judgment, para. 423; Brđanin Trial Chamber judgment, para. 98; Bizimungu et al. Trial Chamber judgment, para. 2080-2082. 44 E.g. Prosecutor v. Bagosora et al., Judgment, Case No. ICTR-98-41-T, Trial Chamber I, 18 December 2008 (Bagosora et al. Trial Chamber judgment), para. 2156; Akayesu Trial Chamber judgment, para. 114; Kayishema and Ruzindana Trial Chamber judgment, paras. 289-290; Rutaganda Trial Chamber judgment, para. 399; Musema Trial Chamber judgment, para. 928; Brđanin Trial Chamber judgment, para. 983. 45 E.g. Akayesu Trial Chamber judgment, paras. 111, 114-115; Kayishema and Ruzindana Trial Chamber judgment, para. 531; Semanza Trial Chamber judgment, para. 423. 46 Akayesu Trial Chamber judgment, para. 118. 47 Akayesu Trial Chamber judgment, para. 118. 48 E.g. Prosecutor v. Simba, Judgment, Case No. ICTR-01-76-T, Trial Chamber I, 13 December 2005 (Simba Trial Chamber judgment), para. 416; Kayishema and Ruzindana Trial Chamber judgment, para. 312; Popović et al. Trial Chamber judgment, para. 858; Tolimir Trial Chamber judgment, para. 770. 49 E.g. Kayishema and Ruzindana Trial Chamber judgment, para. 307. 50 E.g. Tolimir Trial Chamber judgment, para. 773.

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crimes;51 the widespread, planned and systematic character of the crimes;52 and the number of victims.53 Even so, this category should be clearly distinguished from the previous category, since it does not concern the overall context of violence, but specifically relates to the indicted crimes. Note, for example, the following reasoning of the Kayishema and Ruzindana Trial Chamber of the ICTR: [t]he number of Tutsis killed in the massacres, for which Kayishema is responsible, either individually or as a superior, provides evidence of Kayishema’s intent. The Trial Chamber finds that enormous number[s] of Tutsis were killed in each of the four crime sites. (…) Not only were Tutsis killed in tremendous numbers, but they were also killed regardless of gender or age. Men and women, old and young, were killed without mercy. Children were massacred before their parents’ eyes, women raped in front of their families. No Tutsi was spared, neither the weak nor the pregnant.54 The third category of relevant factual circumstances relates to the accused’s participation in the indicted crimes. It includes the acts of the accused, such as his ordering; instigation; encouragement; leading and directing of, or personal participation in, the planning

51 E.g. Prosceutor v. Stakić, Judgment, Case No. IT-97-24-A, Appeals Chamber, 22 March 2006 (Stakić Appeals Chamber judgment), para. 35; Kayishema and Ruzindana Trial Chamber judgment, para. 532; Rutaganda Trial Chamber judgment, para. 398; Musema Trial Chamber judgment, paras. 929-930, 932933; Semanza Trial Chamber judgment, para. 424; Bagosora et al. Trial Chamber judgment, paras. 2125, 2141, 2147, 2151; Bizimungu et al. Trial Chamber judgment, paras. 2078, 2080; Stakić Trial Chamber judgment, paras. 544-545; Popović et al. Trial Chamber judgment, paras. 856, 859-860, 1180, 1318; Jelisić Trial Chamber judgment, paras. 89-94, 106; Krstić Trial Chamber judgment, paras. 546-547, 594; Tolimir Trial Chamber judgment, para. 769. 52 E.g. Prosecutor v. Krajišnik, Judgment, Case No. IT-00-39-T, Trial Chamber I, 27 September 2006 (Krajišnik Trial Chamber judgment), para. 868; Prosecutor v. Blagojević and Jokić, Judgment, Case No. IT-02-60-T, Trial Chamber I, 27 January 2005 (Blagojević and Jokić Trial Chamber judgment), para. 674; Kayishema and Ruzindana Trial Chamber judgment, paras. 309-311; Rutaganda Trial Chamber judgment, para. 398; Semanza Trial Chamber judgment, para. 424; Simba Trial Chamber judgment, para. 416; Bagosora et al. Trial Chamber judgment, paras. 2125, 2142; Bizimungu et al. Trial Chamber judgment, paras. 2081-2082; Jelisić Trial Chamber judgment, paras. 88-93; Jelisić Appeals Chamber judgment, para. 71; Krstić Trial Chamber judgment, para. 546; Krstić Appeals Chamber judgment, para. 35; Stakić Trial Chamber judgment, paras. 544-545; Popović et al. Trial Chamber judgment, paras. 837, 856, 858-861, 1180; Tolimir Trial Chamber judgment, paras. 770, 773. 53 E.g. Kayishema and Ruzindana Trial Chamber judgment, para. 531; Musema Trial Chamber judgment, para. 929; Simba Trial Chamber judgment, para. 416; Bagosora et al. Trial Chamber judgment, paras. 2147, 2151; Bizimungu et al. Trial Chamber judgment, paras. 2078, 2081; Brđanin Trial Chamber judgment, paras. 974-977; Krstić Trial Chamber judgment, para. 594; Krstić Appeals Chamber judgment, para. 35; Krajišnik Trial Chamber judgment, para. 868; Popović et al. Trial Chamber judgment, para. 856; Tolimir Trial Chamber judgment, para. 770. 54 Kayishema and Ruzindana Trial Chamber judgment, paras. 531-532 (emphasis added).

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FACTS MATTER and execution of crimes.55 This category also takes account of the accused’s (organisational) position. Even though genocide is not a ‘leadership-crime’,56 the Tribunals regularly infer the accused’s genocidal intent from his position of authority;57 instrumental contribution to the implementation of the genocidal plan;58 leadership role in the execution of the crimes;59 and association with officials and prominent figures (at the loci delicti).60 Finally, value is attached to the accused’s utterances insofar as they concern abusive or dehumanising characterisations of the victims (e.g. ‘filth’, ‘dirt’, ‘dogs’, ‘cockroaches’);61 inciting speeches calling upon others to, for example, ‘take up their arms’ or ‘go back to work’;62 or specific calls to destroy the victims’ group (e.g. ‘eliminate the enemy’, ‘do not spare babies’, and ‘let’s exterminate them’).63 It follows from this outline that the finding of genocidal intent depends on a balanced evaluation of contextual circumstances concerning the collective campaign of violence 55 E.g. Prosecutor v. Niyitegeka, Judgment, Case No. ICTR-96-14-T, Trial Chamber I, 16 May 2003 (Niyitegeka Trial Chamber judgment), paras. 411-417, 427; Prosecutor v. Nahimana et al., Judgment, Case No. ICTR-9611-T, Trial Chamber I, 3 December 2003 (Nahimana et al. Trial Chamber judgment), paras. 966-968; Prosecutor v. Gacumbitsi, Judgment, Case No. ICTR-2001-64-T, Trial Chamber III, 17 June 2004 (Gacumbitsi Trial Chamber judgment), para. 259; Prosecutor v. Seromba, Judgment, Case No. ICTR-2001-66-A, Appeals Chamber, 12 March 2008 (Seromba Appeals Chamber judgment), paras. 177-180; Kayishema and Ruzindana Trial Chamber judgment, paras. 535-536, 543-544; Rutaganda Trial Chamber judgment, para. 398; Musema Trial Chamber judgment, para. 932; Semanza Trial Chamber judgment, paras. 426-427, 429, 431, 435; Simba Trial Chamber judgment, para. 418; Bagosora et al. Trial Chamber judgment, paras. 2126, 2148, 2152; Jelisić Trial Chamber judgment, paras. 74-75; Popović et al. Trial Chamber judgment, paras. 1179-1180, 1318, 14081410; Tolimir Trial Chamber judgment, paras. 1163, 1172. 56 Prosecutor v. Kayishema and Ruzindana, Judgment, Case No. ICTR-95-1-A, Appeals Chamber, 1 June 2001 (Kayishema and Ruzindana Appeals Chamber judgment), para. 170. 57 E.g. Rutaganda Trial Chamber judgment, para. 398; Musema Trial Chamber judgment, para. 932; Popović et al. Trial Chamber judgment, paras. 1313, 1412; Tolimir Trial Chamber judgment, paras. 1165, 1172. 58 E.g. Kayishema and Ruzindana Trial Chamber judgment, para. 535; Popović et al. Trial Chamber judgment, paras. 1179, 1314, 1318, 1409. 59 E.g. Kayishema and Ruzindana Trial Chamber judgment, para. 543; Niyitegeka Trial Chamber judgment, para. 419; Popović et al. Trial Chamber judgment, para. 1318; Tolimir Trial Chamber judgment, para. 1163. 60 E.g. Niyitegeka Trial Chamber judgment, para. 419; Krstić Appeals Chamber judgment, paras. 84, 102, 111, 113, 117; Stakić Trial Chamber judgment, paras. 548-549; Tolimir Trial Chamber judgment, para. 1165. 61 E.g. Kayishema and Ruzindana Trial Chamber judgment, paras. 538, 542; Nahimana et al. Trial Chamber judgment, paras. 959, 961; Simba Trial Chamber judgment, para. 418; Seromba Appeals Chamber judgment, para. 180; Jelisić Appeals Chamber judgment, paras. 66-68; Brđanin Trial Chamber judgment, para. 986; Tolimir Trial Chamber judgment, paras. 1167-1169, 1172. 62 E.g. Kayishema and Ruzindana Trial Chamber judgment, paras. 539, 542; Gacumbitsi Trial Chamber judgment, para. 259; Brđanin Trial Chamber judgment, paras. 986, 988; Jelisić Appeals Chamber judgment, paras. 66-68; Krajišnik Trial Chamber judgment, para. 1092-1093; Popović et al. Trial Chamber judgment, paras. 1179-1180, 1315. 63 E.g. Akayesu Trial Chamber judgment, para. 361; Kayishema and Ruzindana Trial Chamber judgment, para. 539; Simba Trial Chamber judgment, para. 418; Musema Trial Chamber judgment, para. 932; Semanza Trial Chamber judgment, para. 429; Niyitegeka Trial Chamber judgment, para. 419; Nahimana et al. Trial Chamber judgment, paras. 967-968; Bagosora et al. Trial Chamber judgment, para. 2156; Jelisić Appeals Chamber judgment, paras. 66-67; Krajišnik Trial Chamber judgment, paras. 869, 1092; Tolimir Trial Chamber judgment, para. 1170.

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and individual circumstances relating to the accused’s conduct. Both categories of circumstances include objective (actus reus) elements that focus on the actions of the alleged perpetrators (e.g. the general commission of widespread crimes and the accused’s planning of crimes) and subjective (mens rea) elements emphasising their criminal intentions (e.g. the general use of derogatory language and the accused’s calls for destruction). In combination, these facts give expression to a comprehensive and varied practice in which the ad hoc Tribunals assess whether (i) the indicted crimes formed part of a collective act; (ii) that was aimed at the (partial) destruction of a protected group;64 (iii) in which the accused participated; (iv) with genocidal intent. Based on this assessment, the Tribunals can exclude isolated acts of violence committed by lone génocidaires from the notion of genocide and at the same time ensure that the accused’s criminal responsibility for genocide does not lapse into guilt by association, but is based on his own conduct.

4.3.3

Interpreting Practice

When we take a closer look at the Tribunals’ assessment of genocidal intent, it appears that the relations between the various relevant circumstances and the way in which each of these circumstances is applied, differ per case. Whereas in some cases objective contextual circumstances are emphasised, in other cases focus is placed on circumstances relating to the subjective intentions of the individual accused. The resultant variations in the case law are most apparent insofar as they concern (i) the distinction between genocide and other forms of mass violence; (ii) the link between the indicted crimes and the overall genocidal campaign; and (iii) the link between the accused’s conduct and the collective context of violence. These issues therefore require further attention. 4.3.3.1 Distinguishing Genocide from Other Forms of Mass Violence Genocide concerns the intended physical or biological – as opposed to the social or cultural – destruction of (part of) a protected group. This unique feature distinguishes genocide from other forms of mass violence, most significantly ethnic cleansing.65 The

64 In response to questions concerning the applicability of JCE III to the crime of genocide, the ICTY has clarified that the common plan (the violent campaign) need not be inherently genocidal, but that genocide should at least have been a reasonably foreseen consequence. See Prosecutor v. Brđanin, Decision on interlocutory appeal, Case No. IT-99-36-R77, Appeals Chamber, 19 March 2004 (Brđanin Rule 98bis decision), para. 5-10. However, in practice the Tribunals only established genocide when the principal perpetrators aimed to destroy a protected group. Now that this chapter focuses on the application of genocide in legal practice, it will assume that the campaign of collective violence should in principle be aimed at the (partial) destruction of a protected group. 65 Ethnic cleansing is making a territory ethnically homogenous by means of forced displacement. It falls under the definition of deportation and forced transfer as crimes against humanity.

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FACTS MATTER Tribunals have accordingly sought to ascertain that the campaign in which the accused participated was specifically aimed at the physical or biological destruction a group of persons. They have thereby been confronted with distinct legal tasks, leading to different types and levels of contextual embedding. On the one hand, the destructive purpose of the Rwandan atrocities is generally recognised.66 There is clear evidence showing that the crimes committed, were targeted at the physical extermination of an entire group, rather than at the elimination of specific individuals.67 The Rwanda Tribunal has therefore had few problems with establishing that the perpetrators acted pursuant to a destructive policy based on the widespread, organised and discriminatory nature of crimes.68 On the other hand, qualifying the crimes committed during the Balkan war as genocide is less obvious from a legal point of view.69 As some scholars have argued, it seems that ‘the objective of the conflict in the former Yugoslavia was not to exterminate an ethnic group, but rather to expel it in order to create ethnically pure territories’.70 In this light, the ICTY has preferred to characterise the nation-wide campaigns pursued by the Balkan states as ethnic cleansing. Genocide charges have only been successful insofar 66 Van den Herik (n. 1 above) 77. The ICTR even qualified the Rwandan genocide as a fact of common knowledge. See Prosecutor v. Karemera et al., Decision on Prosecutor’s interlocutory appeal of decision on judicial notice, Case No. ICTR-98-44-AR73(C), Appeals Chamber, 16 June 2006 (Karemera et al. judicial notice decision), paras. 33-38. This was not the first time, a court took judicial notice of genocide. In 1981, Judge Thomas T. Johnson of the Superior Court of the State of California for the County of Los Angeles declared that: ‘this court does take judicial notice of the fact that Jews were gassed to death at Auschwitz Concentration Camp in Poland during the summer of 1944. (…) It is not reasonably subject to dispute. And it is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It is simply a fact.’ Mel Mermelstein v. The Institute for Historical Review, Superior Court of the State of California for the County of Los Angeles, Case No. C 356 542, 1985). I thank Professor Caroline Fournet for bringing this case to my attention. 67 Still, acts of mercy do not necessarily negate genocidal intent. See e.g. Prosecutor v. Rutaganda, Judgment, Case No. ICTR-96-3-A, Appeals Chamber, 26 May 2003 (Rutaganda Appeals Chamber judgment), para. 537; Prosecutor v. Nahimana et al., Judgment, Case No. ICTR-99-52-A, Appeals Chamber, 28 November 2007 (Nahimana et al. Appeals Chamber judgment), paras. 571-572; Kayishema and Ruzindana Appeals Chamber judgment, paras. 148-149; Jelisić Appeals Chamber judgment, para. 71; Akayesu Trial Chamber judgment, paras. 114, 118-119, 126; Kayishema and Ruzindana Trial Chamber judgment, paras. 278-290, 309-311, 531; Rutaganda Trial Chamber judgment, paras. 398-399; Semanza Trial Chamber judgment, paras. 423-424; Brđanin Trial Chamber judgment, para. 983; Bagosora et al. Trial Chamber judgment, paras. 2125, 2142, 2151, 2156; Musema Trial Chamber judgment, paras. 928-929; Bizimungu et al. Trial Chamber judgment, paras. 2078, 2080. 68 E.g. Akayesu Trial Chamber judgment, paras. 111, 114-115; Kayishema and Ruzindana Trial Chamber judgment, para. 531; Semanza Trial Chamber judgment, para. 423. 69 C. Tournaye, ‘Genocidal Intent before the ICTY’, 52 International and Comparative Law Quarterly (2003) 447, 447. Similarly, see E. van Sliedregt, ‘Commentary to the Judgement of the ICTY Trial Chamber in the Krstić Case’ in A. Klip and G. Sluiter (eds.), Annotated Leading Cases VII (Antwerp: Intersentia, 2005) 767, 767; W.A. Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina? The First Judgments of the International Criminal Tribunal for the former Yugoslavia’, 25 Fordham International Law Journal (2001) 23, 24-30; Van den Herik (n. 1 above) 81. 70 Tournaye (n. 69 above) 447-448. See also Van den Herik (n. 1 above) 81; Van Sliedregt (n. 69 above) 767; Schabas (n. 69 above) 24-30.

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as they were limited to specific regions or municipalities. The ICTY’s appraisal of the evidence adduced to prove these charges includes critical elements that are less evident in ICTR case law. For example, the Yugoslav Tribunal has found that the ‘mere’ widespread, organised and discriminatory commission of crimes is insufficient to qualify a violent campaign as genocidal.71 Moreover, it has refused to unequivocally accept evidence of derogatory statements as proof of genocidal intent, but has emphasised that such statements must be understood in their proper context.72 When this context is not genocidal (but, for example, persecutorial) in nature, ethnic insults cannot automatically be perceived as implicit calls for destruction. Consider, for example, the following finding of the Brđanin Trial Chamber: [i]n his utterances, the Accused openly derided and denigrated Bosnian Muslims and Bosnian Croats. He also stated publicly that only a small percentage of them could remain in the territory of the ARK. Some of the Accused’s utterances are openly nasty, hateful, intolerable, repulsive and disgraceful. On one occasion, speaking in public of mixed marriages, he remarked that children of such marriages could be thrown in the Vrbas River, and those who would swim out would be Serbian children. On another occasion, he publicly suggested a campaign of retaliatory ethnicity based murder, declaring that two Muslims would be killed in Banja Luka for every Serbian killed in Sarajevo. Whilst these utterances strongly suggest the Accused’s discriminatory intent, however, they do not allow for the conclusion that the Accused harboured the intent to destroy the Bosnian Muslims and Bosnian Croats of the ARK.73 In contrast to these critical considerations, the ICTY adopts a lenient approach insofar as it concerns the use of non-destructive acts – such as forcible transfer, illegitimate detention, or rape – for proving genocidal intent. The Yugoslav Tribunal takes as a 71 According to the Brđanin Trial Chamber, ‘while the general and widespread nature of the atrocities committed is evidence of a campaign of persecutions (…) in the circumstances of this case, it is not possible to conclude from it that the specific intent required for the crime of genocide is satisfied’. Brđanin Trial Chamber judgment, paras. 983-984. See also e.g. Krajišnik Trial Chamber judgment, paras. 868, 1093; Popović et al. Trial Chamber judgment, para. 1312. 72 The Stakić Appeals Chamber held that ‘evidence demonstrating ethnic bias, however reprehensible, does not necessarily prove genocidal intent. [Although such, MC] utterances might constitute evidence of genocidal intent even if they fall short of express calls for a group’s physical destruction’. Stakić Appeals Chamber judgment, para. 52. See also e.g. Brđanin Trial Chamber judgment, paras. 985-988; Krstić Appeals Chamber judgment, para. 130; Krajišnik Trial Chamber judgment, para. 1092; Stakić Trial Chamber judgment, para. 554; Stakić Appeals Chamber judgment, para. 52; Popović et al. Trial Chamber judgment, paras. 1177, 1312, 1399, 2086. 73 Brđanin Trial Chamber judgment, paras. 986-987.

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FACTS MATTER starting-point that non-destructive acts cannot independently constitute genocide, but only form circumstantial evidence that should be analysed in connection with the commission of (other) genocidal acts.74 This starting-point has, however, been implemented with a certain flexibility. In particular the qualification of the Srebrenica massacre as genocide is largely based on the commission of non-destructive acts. The Tolimir Trial Chamber has, for example, inferred the existence of a genocidal campaign in the Srebrenica region from the killing of almost 6000 Bosnian Muslims in combination with inter alia .

the persistent capture of the Bosnian Muslim men from the column; the almost simultaneous implementation of the operations to kill the men from Srebrenica and the forcible transfer of the Bosnian Muslim women, children and elderly out of Potočari (…); the forcible transfer of the Bosnian Muslim population from Žepa and the murder of three of its most prominent leaders (…); and the deliberate destruction of the mosques of Srebrenica and Žepa and the homes of Bosnian Muslims (…), following the fall of the respective enclaves.75 The ICTY’s findings on this issue have been criticised by scholars, who claim that the Yugoslav Tribunal thus waters down the distinction between genocide and other forms of mass violence and devalues the unique character of ‘the crime of crimes’.76 The Karadžić Trial Chamber has sought to address this criticism in its Rule 98bis decision. The Trial Chamber has initially dismissed the genocide charges relating to the crimes committed in detention facilities in Bosnia and Herzegovina, because ‘there is no evidence that these actions reached a level from which a reasonable trier of fact could draw an inference that they were committed with an intent to destroy’.77 After all, the crimes did not contribute to, or bring about, the physical destruction of the group to which the victims belonged.78 By reasoning in this way, the Chamber (implicitly)

74 E.g. Blagojević and Jokić Appeals Chamber judgment, para. 123; Tolimir Trial Chamber judgment, para. 748; Krstić Appeals Chamber judgment, paras. 33-35. An important exception to this practice is the Milošević Rule 98bis decision. This Chamber did not distinguish between acts of genocide leading to the destruction of a protected group and other acts such as forcible transfer. It consequently found that genocide could have been committed outside the scope of Srebrenica. Milošević Rule 98bis decision, para. 246. 75 Tolimir Trial Chamber judgment, para. 773. 76 See also Van den Herik (n. 1 above) 82; Van den Herik (n. 11 above) 120-121; Schabas (n. 6 above) 881; Schabas (n. 69 above) 45-47; Van Sliedregt (n. 69 above) 767-772. 77 Prosecutor v. Karadžić, Judgment, Case No. Case No. IT-95-5/18-T, Trial Chamber III, 28 June 2012 (Karadžić Trial Chamber Rule 98bis judgment), p. 28769 (emphasis added). 78 Karadžić Trial Chamber Rule 98bis judgment, p. 28766-28768.

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ascertains that genocidal intent cannot be based on evidence of crimes that cannot objectively lead to a group’s physical or biological destruction. The Karadžić Appeals Chamber has promptly reversed this finding.79 According to the Appeals Chamber, the evidence of Karadžić’ statements ‘assessed in conjunction with evidence regarding the scale and nature of the alleged genocidal and other culpable acts is sufficiently compelling’ for holding that he acted with genocidal intent.80 Whereas the Appeals Chamber does thus not explicitly reject the legal standard defined by the Trial Chamber, its findings on the evidential value of non-destructive acts seem to express the revival of a more generous approach towards the use of such acts for establishing genocidal intent. 4.3.3.2 Placing the Indicted Crimes in Context Once the existence of a collective campaign is established, the Tribunals proceed to determine whether and how the indicted crimes are linked to this campaign. To this end, they connect the circumstances concerning the collective act to the circumstances relating to the indicted crimes. The establishment of such a connection has been particularly important in the first judgments of the ICTR. In these judgments, the Rwanda Tribunal has inferred the accused’s genocidal intent from contextual circumstances concerning the national genocidal campaign, even when the charges were restricted to crimes committed in one municipality or during one attack.81 The ICTR has construed the linkages between the indicted crimes and the national campaign in terms of inter alia their temporal and/or geographical equivalence; the similar methods and objects of attack; and the participation of similar perpetrators in the attacks.82 The validity of these factual similarities is debatable. In particular, it is doubtful whether the fact that the indicted crimes were committed at the same time and place as the genocidal campaign justifies the conclusion that they were part of this campaign. Having established early on that genocide occurred in Rwanda, the ICTR’s later judgments have increasingly focused on the crimes that were allegedly committed in the specific localities or regions included in the charges.83 The Rwanda Tribunal has thus

79 Prosecutor v. Karadžić, Judgment, Case No. IT-95-5/18-AR98bis.1, Appeals Chamber, 11 July 2013 (Karadžić Appeals Chamber Rule 98bis judgment). 80 Karadžić Appeals Chamber Rule 98bis judgment, para. 100. 81 E.g. Akayesu Trial Chamber judgment, para. 730; Musema Trial Chamber judgment, paras. 928-931; Kayishema and Ruzindana Trial Chamber judgment, para. 528; Rutaganda Trial Chamber judgment, para. 399. 82 E.g. Prosecutor v. Karemera et al., Judgment, Case No. ICTR-98-44-T, Trial Chamber III, 2 February 2012 (Karemera et al. Trial Chamber judgment), paras. 1655-1656; Akayesu Trial Chamber judgment, para. 730; Kayishema and Ruzindana Trial Chamber judgment, para. 312; Rutaganda Trial Chamber judgment, para. 399; Semanza Trial Chamber judgment, para. 424; Musema Trial Chamber judgment, paras. 928-931. 83 E.g. Semanza Trial Chamber judgment, para. 427; Simba Trial Chamber judgment, para. 416. For a scholarly evaluation, see Van den Herik (n. 11 above) 105.

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FACTS MATTER moved away from genocide’s embedding in a nation-wide campaign towards a more localised embedding. As a result, its practice on this point has become to resemble the ICTY’s approach, which – in the absence of a national genocidal campaign – has consistently focused on the commission of genocide in specific regions and municipalities. Under this approach, the genocidal campaign and the indicted crimes effectively merge together, making it less important to construct a link between them.84 4.3.3.3 Linking the Accused to the Collective Act To make sure that criminal responsibility for genocide does not lapse into collective culpability, the ad hoc Tribunals have to complement their evaluations of the collective genocidal campaign with an assessment of whether the accused participated in this campaign with the intent to destroy. To this end, the Tribunals analyse the circumstances relating to the accused’s acts and utterances. In particular the ICTR has ascribed an increasingly central position to these circumstances.85 In this way, the Rwanda Tribunal meets the scholarly criticism that its first judgments were so focused on the general genocidal context that they did not ascertain the accused’s genocidal intent sufficiently.86 At the same time, the ad hoc Tribunals recognise that establishing genocidal intent based on individual circumstances has its own limitations and challenges. Most importantly, because an individual is generally unable to effectuate the intent to destroy by himself, his acts do not (have to) result in the destruction of a protected group.87 Individually, these acts can thus not articulate the destructive nature of genocide.88 The Tribunals therefore assess the accused’s acts and utterances in light of the collective act.89 In this respect, they rely upon three main ‘linking factors’. The first factor establishes an objective relation between the accused and the genocidal context. It looks into the accused’s actus reus and the effect of his conduct on the

84 In fact, the finding of such a link is largely limited to all-encompassing genocide prosecutions of senior leaders. See e.g. Milošević Rule 98bis decision, paras. 232-245 and Karadžić Trial Chamber Rule 98bis judgment, p. 28752. 85 E.g. Bagilishema Trial Chamber judgment, para. 63; Niyitegeka Trial Chamber judgment, paras. 411-419; Nahimana et al. Appeals Chamber judgment, paras. 527-539; Gacumbitsi Trial Chamber judgment, para. 259. 86 Critique came from e.g. J. Quigley, The Genocide Convention: An International Law Analysis (Aldershot: Ashgate Publishing, 2006) 118; Heller (n. 5 above) 159; Greenawalt (n. 6 above) 2282. 87 E.g. Triffterer (n. 5 above) 402; Akhavan (n. 5 above) 996; Mettraux (n. 5 above) 211; Heller (n. 5 above) 159; Van den Herik (n. 11 above) 108. 88 Similarly, P. Behrens, ‘A Moment of Kindness? Consistency and Genocidal Intent’ in R. Henham and P. Behrens (eds.), The Criminal Law of Genocide: International, Comparative and Contextual Aspects (Aldershot: Ashgate Publishing, 2007) 125, 136. 89 Semanza Trial Chamber judgment, para. 427. Conversely, e.g. Rutaganda Appeals Chamber judgment, para. 530.

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destructive campaign.90 The Nahimana et al. Trial Chamber has accordingly considered that Ferdinand Nahimana, in a Radio Rwanda broadcast on 25 April 1994, said he was happy that RTLM had been instrumental in awakening the majority people, meaning the Hutu population, and that the population had stood up with a view to halting the enemy. At this point in time, mass killing – in which RTLM broadcasts were playing a significant part – had been ongoing for almost three weeks. (…) As the mastermind of RTLM, Nahimana set in motion the communications weaponry that fought the “war of media, words, newspapers and radio stations” he described in his Radio Rwanda broadcast of 25 April as a complement to bullets. Nahimana also expressed his intent through RTLM, where the words broadcast were intended to kill on the basis of ethnicity, and that is what they did.91 The second factor focuses on the accused’s mens rea. In this respect, the Tribunals take account of the accused’s knowledge of the collective act, in particular his awareness of the destructive nature and consequences of the crimes committed.92 For example, the Popović et al. Trial Chamber of the ICTY has held indicative of Beara’s genocidal intent, the inferences which can be drawn from his detailed knowledge of the killing operation itself (…). As the most senior officer of the Security Branch – the entity charged with a central directing role – he had perhaps the clearest overall picture of the massive scale and scope of the killing operation. Further, from his walk through Bratunac on the night of 13 July, his personal visits to the various execution sights and the extensive logistical challenges he

90 E.g. Akayesu Trial Chamber judgment, para. 729; Gacumbitsi Trial Chamber judgment, para. 259; Nahimana et al. Trial Chamber judgment, paras. 957-969, 1022-1028; Krajišnik Trial Chamber judgment, para. 1092; Karadžić Trial Chamber Rule 98bis judgment, p. 28769. 91 Nahimana et al. Trial Chamber judgment, para. 966. 92 Reference has been made to the accused’s knowledge of the genocidal intent of the physical perpetrators (e.g. Semanza Trial Chamber judgment, para. 428; Bagosora et al. Trial Chamber judgment, para. 2144; Popović et al. Trial Chamber judgment, para. 2088), his knowledge that the principal perpetrators were committing genocide (e.g. Semanza Trial Chamber judgment, para. 427; Simba Trial Chamber judgment, para. 418); the accused’s knowledge of the destructive consequences of his own actions given his position (e.g. Simba Trial Chamber judgment, para. 418; Tolimir Trial Chamber judgment, paras. 1166, 1172); and his knowledge of the genocidal nature or consequences of the operation (e.g. Krstić Appeals Chamber judgment, para. 35; Popović et al. Trial Chamber judgment, paras. 1178-1180, 1313, 1401-1408, 1588; Tolimir Trial Chamber judgment, para. 1166).

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FACTS MATTER faced throughout, he had a very personal view of the staggering number of victims destined for execution.93 Third, the Tribunals assess the accused’s (organisational) position.94 The Niyitegeka Trial Chamber has, for example, attached value to the fact that the accused ‘was one of the leaders of two large-scale attacks by more than 6,000 armed attackers, comprising soldiers, policemen and Interahamwe, against Tutsi refugees at Muyira Hill’.95 It follows from this outline that each factor – actus reus, mens rea and position – has a distinctive character and emphasises a different aspect of the relation between the accused and the genocidal context. As such, the link between the accused and the collective action differs per factor. The validity or relevance of each of the individual factors, however, seems somewhat doubtful.96 In particular, linking the accused to the genocidal context on the mere basis of his position raises serious concerns in relation to the principle of individual criminal responsibility. This problem can be partly addressed by applying the linking factors in combination with each other.

4.3.4

Interim Conclusion

The previous case law analysis shows that the ad hoc Tribunals’ interpretation of the genocidal intent-element takes account of the accused’s individual goals and the existence of a collective context. The Tribunals’ application of this element in practice confirms that genocidal intent is subject to individual circumstances relating to the accused’s subjective goals and objective conduct and contextual circumstances concerning the purpose and scope of the collective campaign of violence. The evaluation of these circumstances varies depending on the facts and challenges of the case under consideration. As a result, the contextual embedding of genocide differs per case and cannot be captured in a uniform standard. It therefore seems inappropriate to characterise the Tribunals’ practice in terms of either the goal-oriented or the structure-based model.

93 Popović et al. Trial Chamber judgment, para. 1313. 94 E.g. Kayishema and Ruzindana Trial Chamber judgment, paras. 528-529, 543-544; Musema Trial Chamber judgment, para. 932; Niyitegeka Trial Chamber judgment, paras. 412-419. 95 Niyitegeka Trial Chamber judgment, para. 412 (emphasis added). 96 See also J. Jones, ‘“Whose Intent Is it Anyway?” Genocide and the Intent to Destroy a Group’ in L. Vohrah et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003) 467, 475; M. Freeman, ‘The Theory and Prevention of Genocide’, 6 Holocaust and Genocide Studies (1991) 185, 191-192; Van den Herik (n. 11 above) 122 citing R. Maison, ‘Le Crime de Genocide dans les Premiers Jugements du Tribunal Penal International pour le Rwanda’, 103 Revue Général de Droit International Public (1999) 129, 143-145; Jørgenson (n. 24 above) 299.

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THE ICC

AND THE

THE CONTEXTUAL EMBEDDING

CONTEXTUAL EMBEDDING

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OF

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GENOCIDE

General Interpretation

The ICC characterises genocide in terms of the accused’s intent to destroy. It finds that genocidal intent forms an ‘additional subjective element, normally referred to as dolus specialis or specific intent’.97 The Al-Bashir Pre-Trial Chamber (PTC) has emphasised that genocidal intent is discriminatory in nature. This means that a génocidaire selects his victims on account of their national, ethnic, racial or religious characteristics.98 Moreover, genocidal intent is aimed at the physical or biological destruction of a protected group.99 In this sense, it fundamentally differs from the intent of persecution as a crime against humanity. Although persecutory intent is discriminatory, it does not entail a destructive purpose.100 According to the ICC, genocidal intent can be inferred from all the relevant facts of a case taken together. The Court has not yet explained which facts it considers relevant in this respect, but has merely emphasised the holistic nature of its inference exercise. This means that genocidal intent may be established even if each fact on its own does not allow such an inference to be made.101 In addition to the elements of genocide that are laid down in the Genocide Convention, the ICC’s Elements of Crimes (hereinafter ‘the Elements’) – drawn up to assist the Court in the interpretation and application of the statutory definitions of international crimes102 – provide for a so-called ‘contextual element’. This element stipulates that the actions of the accused must fall within ‘the context of a manifest pattern of similar conduct directed against [a protected, MC] group or was conduct that could itself effect such destruction’.103 The Elements do not establish a corresponding mental requirement. They do not, for example, explicitly require that the accused knew that he acted within in a pattern of criminal conduct. The Preparatory Commission that drafted the contextual

97 Prosecutor v. Al-Bashir, Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir, Case No. ICC-02/05-01/09, Pre-Trial Chamber I, 4 March 2009 (Al-Bashir first warrant of arrest decision), para. 139. 98 Al-Bashir first warrant of arrest decision, para. 114. 99 Al-Bashir first warrant of arrest decision, para. 139. 100 Al-Bashir first warrant of arrest decision, paras. 140-145. In her separate and partly dissenting opinion, Judge Ušacka appears to take a different approach. She attaches more relevance to the crime of forced displacement for the finding of genocidal intent. Prosecutor v. Al-Bashir, Separate and partly dissenting opinion Judge Anita Ušacka, Case No. ICC-02/05-01/09, Pre-Trial Chamber I, 4 March 2009 (Separate and partly dissenting opinion Judge Ušacka), paras. 57-61. 101 Al-Bashir first warrant of arrest decision, para. 153. 102 Article 9 ICC Statute. 103 Articles 6(a)(4), 6(b)(4), 6(c)(5), 6(d)(5), 6(e)(7) Elements of Crimes. Articles 6(a) and (b) of the Elements of Crimes clarify that the term ‘in the context of’ signifies that the campaign includes the initial acts in an emerging pattern, while the term ‘manifest’ should be understood as an objective manifestation.

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FACTS MATTER element, however, agreed that such knowledge is generally subsumed in the accused’s genocidal intent.104 If not, then the Court has to determine the applicable mental requirement on a case-by-case basis. The Preparatory Commission has also explained that the ‘pattern of similar conduct’ does not have to be committed with genocidal intent or pursuant to a genocidal plan.105 The contextual element is already satisfied when an individual – acting with the intent to destroy a protected group – commits, for example, a murder in the course of a collective campaign involving the widespread commission of murders. The fact that the other murders do not constitute genocide but qualify as crimes against humanity, is irrelevant in this respect.106 The Commission has thus merely sought to ensure that genocide encompasses a collective campaign of violence, without qualifying this campaign in terms of its underlying purpose. This limited aim seems to be at odds with the Al-Bashir PTC’s interpretation of the contextual element. The PTC in this case considered that the contextual element ensures that ‘the threat against the existence of the targeted group, or part thereof, becomes concrete and real, as opposed to just being latent or hypothetical’.107 According to Kress, this finding essentially implies that the accused should have acted in the context of a genocidal campaign of collective violence.108 If Kress’ argument is correct, it signifies that the Court’s interpretation of the contextual element goes beyond the intentions of the drafters of the Rome Statute.

4.4.2

Genocide Applied

4.4.2.1 Genocidal Intent So far, the ICC has only applied the crime of genocide in relation to the conflict in Darfur. The question of whether genocide has been committed in Darfur is controversial. The UN International Commission of Inquiry on Darfur and several legal scholars have explicitly argued that the Darfur crimes constitute crimes against humanity, instead of genocide.109 NGOs and human rights activists, however, continue to characterise them

104 V. Oosterveld, ‘The Context of Genocide’ in R. Lee et al. (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley: Transnational Publishers, 2001) 44, 47. 105 Oosterveld (n. 104 above) 49. 106 Oosterveld (n. 104 above) 47-48. 107 Al-Bashir first warrant of arrest decision, para. 124. 108 Kress (n. 16 above) 300. This interpretation has been criticised by Cryer (n. 9 above) 290-291. 109 See, Report of the International Commission of Inquiry on Darfur to the Secretary-General, UN Doc. S/2005/60 (1 February 2005) 3-4 (UN Commission of Inquiry Report). For a scholarly view on this issue, see G.P. Fletcher and J.D. Ohlin, ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’, 3 Journal of International Criminal Justice (2005) 539, 545-546; A. Cayley, ‘The Prosecutor’s Strategy in Seeking the Arrest of Sudanese President Al-Bashir on Charges of Genocide’, 6 Journal of International

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as genocidal.110 Also the ICC Prosecutor has insisted upon the issuance of an arrest warrant against Omar Al-Bashir – the President of Sudan – on charges of genocide.111 In evaluating the Prosecutor’s application for such an arrest warrant, the PTC has linked its assessment of Al-Bashir’s genocidal intent to the campaign pursued by the Sudanese government. This link is subject to the accused’s control over Sudan’s state apparatus (including the Sudanese armed forces and the Janjaweed militia) and to his use of this apparatus for carrying out the alleged genocidal campaign.112 If it is established that Al-Bashir exercised full control over the state apparatus, his individual genocidal intent implies the existence of a genocidal campaign.113 By contrast, if he shared control with other political and military leaders, the finding of a genocidal campaign would be dependant upon the showing of reasonable grounds to believe that those who shared the control of the apparatus’ of the State of Sudan with Omar Al Bashir agreed that the (…) counter-insurgency campaign [of the government of Sudan] would, inter alia, aim at the destruction, in whole or in part, of the Fur, Masalit and Zaghawa groups.114 Considering the importance of the accused’s control over (the persons responsible for) the governmental campaign for establishing his genocidal intent, it is unfortunate that the PTC has neither defined the notion of control, nor determined to what extent and in which way Al-Bashir exercised such control.115 This makes it difficult to fully appreciate the ICC’s understanding of the genocidal intent-element. For now, the findings of the

110

111

112 113 114 115

Criminal Justice (2008) 829, 829-840; Schabas (n. 6 above); Kress (n. 6 above) 563-565; Cryer (n. 9 above) 289-295. E.g. United Human Rights Council, Genocide in Darfur, available at ; Save Darfur, available at . See also D. Cheadle and J. Prendergast, Not on Our Watch: The Mission to End Genocide in Darfur and Beyond (New York: Hyperion, 2007); M. Daly, Darfur’s Sorrow: A History of Destruction and Genocide (Cambridge: Cambridge University Press, 2007). E.g. Prosecutor v. Al-Bashir, Prosecution’s application for leave to appeal the “Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmed Al-Bashir”, Case No. ICC-02/05-01/09, Office of the Prosecutor, 13 March 2009; Prosecutor v. Al-Bashir, Prosecution response to observations of Amicus Curiae in respect of the Prosecution’s appeal against the “Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir”, Case No. ICC-02/05-01/09, Office of the Prosecutor, 6 July 2009. Al-Bashir first warrant of arrest decision, para. 148. Al-Bashir first warrant of arrest decision, para. 149. Al-Bashir first warrant of arrest decision, para. 150. For example, the PTC did not determine whether the accused had total control over the government or whether he shared such control with other political and military leaders. This can possibly be explained by the early stage of the proceedings and by the rudimentary character of the evidence to be considered. See, Al-Bashir first warrant of arrest decision, para. 223.

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FACTS MATTER Court only seem to justify the general observation that the existence of a collective act can be relevant for establishing the accused’s genocidal intent.116 This finding is confirmed by the fact that the Al-Bashir PTC’s evaluation of the genocidal intent-element focuses on whether the commission of genocide formed a core component of the campaign pursued by the Sudanese government.117 In particular, the PTC has assessed the accused’s genocidal intent in light of evidence concerning the discriminating policy of the government;118 the official statements issued by the accused and other members at the highest level of the government;119 and the clear pattern of mass atrocities.120 On this basis, the PTC has found that Al-Bashir’s statements ‘do not provide, by themselves, any indicia of (…) genocidal intent’.121 It, however, recognised that a different conclusion may be warranted in light of other evidence concerning the commission of collective violence.122 In assessing the available evidence of collective violence, the PTC has taken particular effort to distinguish the existence of a genocidal campaign directed at the destruction of a group from other forms of mass violence. In this respect, it has clarified that the mere commission of war crimes and crimes against humanity – such as rape and forcible transfer – does not necessarily mean that the accused acted with genocidal intent.123 Such a conclusion requires additional evidence concerning, for example, the indiscriminate commission of a high number of discriminatory crimes124 and the introduction of measures that prevented the members of a protected group from fleeing to other areas.125 Furthermore, genocidal intent can be inferred from the commission of patterned and systematic attacks.126 However, when during these attacks the large majority of the 116 Al-Bashir first warrant of arrest decision, paras. 172, 205. 117 Al-Bashir first warrant of arrest decision, paras. 149-152. In contrast to the UN Commission of Inquiry, the ICC thus finds that the fact that there was no governmental policy to commit genocide, does not negate the possibility that particular individuals were acting with genocidal intent. See, UN Commission of inquiry report, 520. 118 Al-Bashir first warrant of arrest decision, para. 167. 119 Al-Bashir first warrant of arrest decision, paras. 170-176. 120 Al-Bashir first warrant of arrest decision, paras. 177-178. 121 Al-Bashir first warrant of arrest decision, para. 172. 122 Al-Bashir first warrant of arrest decision, paras. 172, 201. 123 Al-Bashir first warrant of arrest decision, paras. 182-183, 193-194. Interestingly, Judge Ušacka in her separate and partly dissenting opinion did not limit genocidal intent to the physical or biological destruction of a protected group. Instead, she adopted a view that has previously been expressed by Judge Shahabuddeen, namely that ‘while the terms of the Genocide Convention and the ICTY Statute specify that the “listed act” – or actus reus – of the crime of genocide must consist of an act of physical or biological destruction, it is sufficient to demonstrate that the intent with which that act was perpetrated encompassed the destruction of the group, regardless of whether such intended destruction was to be physical, biological, social or cultural.’ Separate and partly dissenting opinion Judge Ušacka, para. 60. 124 Al-Bashir first warrant of arrest decision, para. 196. 125 Al-Bashir first warrant of arrest decision, para. 198. 126 Al-Bashir first warrant of arrest decision, para. 189.

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population was neither killed nor injured, this forms a counter-indication for establishing genocide.127 In the absence of sufficient evidence of a specifically genocidal campaign, the PTC has initially decided that it could not establish Al-Bashir’s genocidal intent and thus rejected to issue an arrest warrant on genocide charges against him.128 After the prosecutor had successfully appealed this decision,129 the PTC has in second instance concluded that the existence of a policy to commit genocide is at least one of the possible explanations for the crimes committed.130 It is not completely clear to what extent this conclusion invalidates the PTC’s initial fact-driven interpretation of the genocidal intentelement. After all, the findings of the PTC in second instance resulted from the application of a different standard of proof, not from a different evaluation of evidence.131 It can therefore be argued that the ICC is allowed to uphold its original assessment of facts when and if the case enters the trial phase. In this view, the following analysis continues to adhere to the evidential findings of the first PTC decision. 4.4.2.2 Contextual Element The assessment of the contextual element by the Al-Bashir PTC is rather brief. The PTC ascertains that crimes were committed on a large scale, both in geographical and in numerical terms. Moreover, the commission of crimes was systematic and followed a regular pattern.132 According to the PTC, these facts justify the finding that there are at least ‘reasonable grounds to believe that the acts took place in the context of a manifest pattern of similar conduct directed against the targeted group’.133 The PTC’s findings give expression to a broad legal standard that does not constrain the criminal pattern in terms of its destructive purpose or results. This conforms to the drafters’ intention to only exclude isolated acts of violence from the scope of genocide, without requiring that the crimes are committed with genocidal intent or pursuant to a genocidal plan.134 At the same time, it seems that the Court’s practice can create a complex internal contradiction. Assuming that the ‘real and concrete threat’ criterion (as adopted by the Al-Bashir PTC) implies that the crimes must have a destructive effect 127 Al-Bashir first warrant of arrest decision, para. 196. 128 Al-Bashir first warrant of arrest decision, para. 205-206. 129 Prosecutor v. Al-Bashir, Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al-Bashir’, Case No. ICC-02/05-01/ 09-OA, Appeals Chamber, 3 February 2010, paras. 33, 39. 130 Prosecutor v. Al-Bashir, Second decision on the Prosecution’s application for a warrant of arrest, Case No. ICC-02/05-01/09-94, Pre-Trial Chamber I, 12 July 2010 (Al-Bashir second warrant of arrest decision), para. 4. 131 Al-Bashir second warrant of arrest decision, para. 2. 132 Al-Bashir second warrant of arrest decision, paras. 15-16. 133 Al-Bashir second warrant of arrest decision, para. 16. 134 Cryer (n. 10 above) 218; Oosterveld (n. 104 above) 47-48.

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FACTS MATTER (as has been argued in the scholarly debate), there is an inconsistency between the Court’s abstract interpretation and its practical application of the contextual element. Another concern regarding the ICC’s application of the contextual element relates to its failure to connect the pattern of criminal conduct to the crimes with which the accused is charged.135 In this way, the Court can establish the contextual element without ascertaining a material link between the accused’s conduct and the collective act. This seemingly goes against the text of the Elements of Crimes, which stipulates that the accused should have acted in the context of a pattern of similar conduct. More generally, the ICC’s application of the contextual element also raises questions concerning its added value. In particular, it seems that the Court’s findings on the largescale and organised nature of violence in relation to this element add little to its evaluation of the accused’s genocidal intent.136 After all, the latter evaluation already takes account of the pattern of crimes committed. In fact, the Court in this respect even takes pains to determine whether the accused acted in the context of a specifically genocidal campaign.

4.4.3

Interim Conclusion

The previous analysis of ICC case law shows that the element of genocidal intent and the contextual element ensure that the accused’s acts and intentions are embedded in a collective act. Although we cannot yet determine the specifics of the Court’s practice, it can be expected that the contextual embedding of genocide will vary depending on the factual circumstances of the case under consideration. The accused’s position of authority and control will likely play a particularly important role in this respect. After all, in cases against high-level accused with complete control over the forces engaging in violent actions, the accused’s individual intent will coincide with the establishment of a genocidal campaign. This allows for ascertaining the contextual embedding of genocide through the genocidal intent-element. The ICC can thereby focus on the acts and utterances of the accused and the policies that he pursued. By contrast, in cases against low-ranking accused, the Court will probably look beyond such individual circumstances. In these cases, the contextual element can play a more prominent function by requiring that the Court takes account of circumstantial evidence and links the accused’s actions to a campaign of collective violence. It seems difficult to capture this varied scheme exclusively in terms of either the goal-oriented or the structure-based model.

135 Al-Bashir second warrant of arrest decision, paras. 15-16. 136 In relation to the genocidal intent element, the PTC already refers to inter alia the systematic character of the hindrance of medical and humanitarian assistance in the refugee camps in Darfur; the systematic acts of pillage; the large number of unlawful attacks, acts of murder, forcible transfer and torture. Al-Bashir first warrant of arrest decision, paras. 189, 192.

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GENOCIDE: A CASUISTIC CONCEPT Sliding Scale of Contextual Embedding

The previous case law analyses show that the ad hoc Tribunals and the ICC establish genocide on the basis of various individual, contextual, subjective and objective circumstances. The courts’ assessment of these circumstances depends on the facts of the specific case under consideration and on the challenges that these facts present. For example, whereas in some cases the acts and utterances of the individual accused are emphasised, in other cases the focus is on the course and purpose of the violent campaign in which the accused operated. As a result, significant variations emerge insofar as it concerns the nature and scope of the collective violence (e.g. relevance of non-destructive acts) and the linkages between this violence, on the one hand, and the indicted crimes and the individual accused, on the other (e.g. knowledge or position). The type and level of genocide’s contextual embedding thus differ per case. This makes it difficult to capture the contextual embedding of genocide in one uniform standard and to denote in general terms whether emphasis is placed on the accused’s purpose or the context of violence in which he participated. Genocide can therefore not be seen as a predetermined and fixed legal concept. Instead, the meaning of genocide is context-dependent and remains susceptible to a gradual case-by-case development. In light of this finding, the current scholarly debate – which characterises genocide in terms of either the structure-based or the goal-oriented model – seems too stringent. Rather than presenting these models as alternatives that exclude each other, they can better be perceived as two poles of a continuum along which the case law of the courts can be positioned. Also the differences between the legal frameworks of the ad hoc Tribunals and the ICC need to be nuanced. On the one hand, the case law analyses show that the Tribunals’ finding that genocide can be committed by a lone génocidaire does not mean that the ICTY and ICTR do not attach any value to the existence of a genocidal campaign. On the other hand, the inclusion of an autonomous contextual element in the Elements of Crimes does not automatically imply that the ICC will pay more extensive attention to the contextual embedding of genocide. Whether this is so depends on the Court’s application of the contextual element in individual cases and on the way in which this element is shaped in practice. Of course, it can be argued that the ICC’s recognition of a contextual element has important restrictive value. By stipulating the contextual element as an autonomous legal element, the Court is required to evaluate the context of crimes in all cases that come before it. It cannot completely refrain from engaging in a contextual analysis and may not focus exclusively on the goals pursued by individual accused. This does, however, not detract from the finding that the meaning of genocide and the nature and scope of its

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FACTS MATTER contextual embedding are not exclusively determined by the incorporation of a contextual element in the abstract legal framework. They are also shaped by the application of genocide in individual cases and by the way in which courts customise this crime to the factual situation to which it applies.

4.5.2

Casuistry and Factors

To understand and appraise the flexibility of (the contextual embedding of) genocide, we need to explore the character and process of judicial reasoning in international criminal law. International criminal courts are required to justify their decisions on the basis of (statutory or customary) rules. These rules are context-independent, i.e. applicable to a variety of unknown future situations. They are therefore necessarily formulated in relatively abstract terms. For example, the rules on genocide only stipulate that genocide concerns the commission of crimes with the intent to destroy. They do not determine the level of intent or the facts based on which this intent can be established. Thus, rules have – what Hart calls – an ‘open texture’.137 Because of this open texture, concrete cases will bring up questions concerning the rules’ meaning and scope. For example, can a person who aimed for the destruction of a protected group without the support of an organised apparatus be qualified as a génocidaire? Considering the uncertainties that legal rules can generate, their central position as all decisive standards must be nuanced. Rules do not settle the discussion on the meaning and scope of the law, but stimulate an argumentative process.138 International criminal courts have an autonomous position in this process. They exercise a certain discretion to answer case-specific questions and to adjust the law accordingly. By thus advancing and modifying the law in interplay with the facts of the case before them, courts develop the law in a casuistic way.139 In international criminal law, this casuistic

137 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994) 127-128. On this issue see also J. Brennan, The Open Texture of Moral Concepts (Michigan: Macmillan Press, 1977). 138 K. Rozemond, ‘De Casuïstische Grenzen van het Materiële Strafrecht’, 37 Delikt en Delinkwent (2007) 465, 479-481; F.V. Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1991) 227; L.M. Soriano, ‘The Use of Precedents as Arguments of Authority, Arguments ab Exemplo and Arguments of Reason in Civil Law Systems’, 11 Ratio Juris (1998) 90, 94-95; J. Klabbers, ‘The Meaning of Rules’, 20 International Relations (2006) 295, 298-300; M.J. Borgers, ‘De Communicatieve Strafrechter’ in Controverses rondom Legaliteit en Legitimatie, Handelingen Nederlandse Juristen-Vereniging 2011-1 (Deventer: Kluwer, 2011) 103, 117; H. van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’, 8 International Criminal Law Review (2008) 229, 263-264; E. van Sliedregt, ‘System Criminality at the ICTY’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 183, 199-200. 139 Similarly, Van der Wilt (n. 138 above) 264-266.

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process has resulted in the formulation of judicial criteria. The ad hoc Tribunals and the ICC have, for example, clarified that genocidal intent is a form of special intent, akin to individual purpose. Moreover, they have indicated the factual circumstances from which genocidal intent can be inferred. These circumstances play an essential role in the process of judicial reasoning. They help to define the nature and scope of genocide and provide further guidance on its assessment in individual cases. Legal theory clarifies that – in contrast to the elements of crime – factual circumstances are not laid down as necessary conditions of criminal responsibility that need to be established in every case. Instead, they function as factors. Factors are open-ended illustrations of legally relevant patterns of facts that courts can use to substantiate their decision. Each factor favours a certain outcome and provides reasons that move the decision-maker in a specific direction.140 This implies, on the one hand, that the mere existence of a factor does not determine the decision. In other words, the finding of a factor in itself does not compel or automatically result in a particular outcome. On the other hand, not all relevant factors have to be established in each case for the accused to be held criminally responsible. The establishment of criminal responsibility rather depends on a balancing exercise: the relative strength of the factors favouring and disfavouring a decision have to be weighted against each other.141 The casuistic development of the law through the flexible use of factors entails a certain risk of abuse. In particular, there is a danger that judges will freely tweak the law to fit the facts. This is problematic in light of the principle of legality. This principle – explicitly laid down in Article 22 of the Rome Statute and recognised in the case law of the ad hoc Tribunals – protects accused from an arbitrary use of power by binding judges to existing law.142 It accordingly requires that courts justify their decisions with valid argumentation. This does not only mean that courts have to interpret the law on the basis of the sources of law and methods of interpretation stipulated in the Rome Statute, the Statute of the International Court of Justice (ICJ) and the Vienna Convention on the Law of Treaties (VCLT). They should also carefully justify the formulation and use of relevant factors. In this respect, the casuistic methodology of judicial reasoning provides for at least two important restrictions. First, casuistry recognises that the determination of relevant factors involves a particularly complicated process of interpretation. It restrains this process by requiring 140 G. Sartor, Legal Reasoning: A Cognitive Approach to the Law (Dordrecht: Springer, 2005) 177. 141 G. Sartor, ‘Reasoning with Factors’, 19 Argumentation (2005) 417, 423; K. van Willigenburg, ‘Casuïstiek en Scherpe Normen in het Materiële Strafrecht’, 27 Delikt en Delinkwent (2011) 365, 371-372. 142 M. Boot, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp: Intersentia, 2002) 246-251, 365-396; K. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009) 303-308, 331-333.

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FACTS MATTER ‘teleological links’ between factors and goals. This means that factors must originate from the desire to achieve the object of the applicable legal rule and reflect the belief that acting and deciding in a specific way promotes that object.143 Sartor illustrates this as follows: ‘my having the goal that the children are in good health, plus my belief that keeping the children at home when they are sick contributes to their good health, allows me to infer that the children being sick is a factor that favours keeping them at home’.144 In relation to international criminal law, this reasoning scheme clarifies that having the goal to limit criminal responsibility for genocide to crimes that are part of a context of collective violence; and believing that establishing genocide in case of the widespread commission of crimes promotes this goal; is a reason for perceiving such widespread commission of crimes as a factor for holding an accused responsible for genocide. By thus connecting factors to goals, casuistic reasoning refines and operationalises the process of teleological reasoning.145 Second, the methodology of casuistry structures and restricts the weighing and balancing of (competing) factors by means of analogous reasoning from precedent. It takes as a starting-point that like cases should be decided similarly, whereas unlike case should be decided differently.146 From this perspective, it holds that the fact that precedent (X) had outcome (Y) in the presence on factors (Z), justifies that the combination of factors (Z) produces outcome (Y) in future cases as well.147 Courts should thus connect their assessment of a set of factors to the analogous use of these factors in previous cases. Prototype cases have a special position and role in this respect. They bring together all factors that favour a qualification in optima forma.148 Sartor provides the following example: [a]ssume (…) that the qualification of a worker as an employee would be favoured to the extent that the worker is dedicating a larger proportion of his working time to one work-giver; is following the directions of the work-giver; 143 Van der Wilt (n. 138 above) 271-272; Sartor (n. 140 above) 178-179; Sartor (n. 141 above) 417-418. Contrary, Roth argues that ‘it depends on a choice which case features are relevant in comparing cases, and that this choice is to some extent contingent’. B, Roth, Case-Based Reasoning in the Law: A Formal Theory of Reasoning by Case Comparison, 26 November 2003, PhD Thesis, 27, 46. 144 Sartor (n. 140 above) 179 (emphasis added). 145 M. Cupido, ‘The Policy underlying Crimes against Humanity: Practical Reflections on a Theoretical Debate’, 22 Criminal Law Forum (2011) 275, 304 and chapter 2 of this study. 146 T. Bench-Capon and G. Sartor, ‘Using Values and Theories to Resolve Disagreement in Law’ in J. Breuker et al. (eds.), Legal Knowledge and Information Systems: Jurix 2000 the Thirteenth Annual Conference (Amsterdam: IOS Press, 2000) 73, 74; Sartor (n. 140 above) 738. 147 Soriano (n. 138 above) 99; Sartor (n. 140 above) 738. 148 Sartor (n. 140 above) 192. Sartor’s description of prototypes corresponds with Hart’s ‘standard case’ – i.e. a case in which no doubts are felt about its application. H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, 71 Harvard Law Review (1958) 593, 607-608.

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is working within the premises of the work-giver; or using the work-giver’s tools.149 Looking at these factors, ‘the prototypical employee is a person who is working full time for a single employer, under detailed directions, within the employer’s premises and using the employers’ tools’.150 However, this does not imply that persons who differ from the prototype by expressing a less optimal combination of factors (e.g. persons who work only 50 percent of their time for a single employee without detailed directions) are excluded form the status of employee. The prototype case can entail factors that are absent in a new situation, whereas this new situation may also incorporate additional factors that hinder the prototypical features from playing their known function. As long as the similarities between the cases outweigh the differences, they can still be governed by the same legal principle. In relation to the crime of genocide, the Holocaust is generally seen as a prototype. The crime ‘emerged from the factual matrix’ of the crimes committed against the Jews during World War II, which makes the Holocaust the standard case of genocide.151 Insights from casuistry clarify that this does not mean that only situations that are identical to the Holocaust can be qualified as genocide.152 Genocide has an open texture that gives judges a certain discretion to modernise and adapt this crime to the challenges presented by new fact situations.153 Genocide can thus also be applied to more marginal situations that differ from the Holocaust in scope, style and technique. The discretion that courts have in this respect is, however, limited. They need to ascertain that the similarities between the Holocaust and the new situation outweigh the differences.154 It must be recognised that casuistic reasoning from (prototypical) precedents is not a pre-determined, strict, and all-decisive process. It cannot be defined beforehand and in abstracto to what extent two cases need to cohere. As a result, courts retain a certain discretion to determine, for example, whether the Srebrenica massacre shows sufficient similarities with the Holocaust to justify the qualification of this situation as genocide. 149 G. Sartor, Factors and Dimensions in Legal Reasoning, available online at . 150 Sartor (n. 149 above). 151 P. Akhavan, Reducing Genocide to Law: Definition, Meaning and the Ultimate Crime (Cambridge: Cambridge University Press, 2012) 120. See also L. Douglas, ‘Perpetrator Proceedings and Didactic Trials’ in A. Duff et al. (eds.), The Trial on Trial: Volume 2. Judgment and Calling to Account (Portland: Hart Publishing, 2006) 191, 197-198; Schabas 2012 (n. 4 above) 104. 152 Social scientists have extensively debated the uniqueness of the Holocaust. E.g. A.S. Rosenbaum, Is the Holocaust Unique? Perspectives on Comparative Genocide (Boulder, CO: Westview Press, 1995); Freeman (n. 96 above) 187-188. 153 Douglas (n. 151 above) 197-199. 154 Similarly, M. Lippman, ‘Genocide the Crime of the Century: The Jurisprudence of Death at the Dawn of the New Millennium’, 23 Houston Journal of International Law (2001) 467, 527; Freeman (n. 96 above) 187.

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FACTS MATTER Even so, the process of analogical reasoning still offers a useful context of deliberation that guides judges through the complexities of each case.155 In particular, it requires that judges assess and substantiate precisely whether there is a sufficient connection between the precedent and the present case. In other words, they must explain their decisions with reference to the similarities and differences between the case at hand and relevant precedents.156 For example, which parallels can be drawn between the Srebrenica massacre and the Holocaust that justify their classification under the same legal principle? In this way, the methodology of casuistry enables judges to progressively refine the meaning of original paradigms within the confinements of a meticulous argumentative process. It thus establishes a neat balance between the need for flexibility and legal development, on the one hand, and the requirements of legality and legal certainty, on the other. Judicial reasoning that disturbs this balance by neglecting the restrictions of the casuistic methodology runs the risk of lapsing into a boundless ‘everything goes’ type of decision-making. This way of reasoning is logically and legally unsound and should therefore be rejected as ‘bad casuistry’.

4.5.3

Valuing the Casuistry of Genocide

How should the flexible approach of the ad hoc Tribunals and the ICC towards the contextual embedding of genocide be valued from the perspective of casuistry? What do the insights from casuistry learn us about the courts’ contextual embedding of genocide in practice? Answering these questions is challenging, especially because the ad hoc Tribunals and the ICC do not engage in an explicit process of analogical reasoning in which the factual similarities and differences between cases are identified. As a result, the interplay between law and facts remains somewhat implicit, making it difficult to determine exactly which considerations have influenced the judicial assessment and development of genocide in recent cases. The previous case law analyses, however, seem to suggest that legal practice is at least somewhat affected by the specific historical and political context in which international courts function. This neither implies that genocide trials are show trials, nor that judges are susceptible to political pressures. It merely means that genocide cases present courts with controversial fact situations and difficult questions. In dealing with these situations and answering these questions, judges rely upon the open texture of genocide to respond to the sensitivities of the case under consideration and to anticipate the consequences of their decisions.

155 A.R. Jonsen and S. Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988) 135; Borgers (n. 138 above) 133. 156 Jonsen and Toulmin (n. 155 above) 31, 35, 252-252.

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As a result of genocide’s context-dependency, the case law of the Tribunals and the ICC cannot be captured in a uniform standard, but shows variation. From a casuistic standpoint, this variation is not necessarily problematic. One of the fundamental thoughts underlying casuistry is that the law develops in interplay with facts. It is modified with each new case coming before the courts and thus transforms continuously. It is therefore only logical that the type and scope of genocide’s contextual embedding differ depending on the circumstances of individual cases. For example, it can be expected that in situations concerning large-scale destructive violence, the courts will largely establish the commission of genocide on the basis of contextual circumstances. As long as there is some additional evidence showing that the accused participated in this context, they can determine his genocidal intent without many problems. By contrast, when there is only little contextual evidence concerning the existence of a collective genocidal campaign, it is likely that more value is attached to evidence relating to the accused’s mens rea. In this case, there will have to be strong indications that the accused aimed to destroy at least part of a protected group in order to classify him as a génocidaire. Having said that, the fact that casuistry perceives genocide as a flexible, contextdependent concept does not mean that it accepts all forms of differentiation. Casuistry entails a specific methodology that places nuanced restrictions on the judicial development of genocide by requiring that courts justify their decisions following a process of analogical reasoning from (prototypical) precedents. As discussed above, the Holocaust is the prototype of genocide that forms the natural yardstick in this analogical reasoning process. Whereas this does not imply that only situations that are identical to the Holocaust can be qualified as genocide, it does mean that courts cannot apply the genocide concept to cases that substantially and fundamentally differ from this prototype. In this view, it can, for example, be argued that the commission of crimes by a lone génocidaire differs to such an extent from the prototypical genocide that it will be difficult to classify these situations under the same legal rule. At first sight, the differences between them outweigh the similarities. To reach a different conclusion on this matter, courts have to engage in a particularly precise and comprehensive process of analogical reasoning in which they show that the two situations do share sufficient relevant similarities to be treated analogously. Implementing the methodology of casuistry in judicial practice is essential, since a failure to do so can result in an abuse of the law’s context-dependency. It is therefore unfortunate to see that the previous case law analyses bring forward several methodological irregularities. For one, the courts’ use of non-destructive acts as factors for ascertaining the contextual embedding of genocide seems invalid. Recall that the formulation of factors is restricted by ‘teleological links’ that connect factors to the goals of

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FACTS MATTER the legal rule for which they are used. Considering that the rules on genocide seek to criminalise conduct that is aimed at the physical or biological destruction of a protected group, it is inconceivable how crimes not pursuing this objective to destroy can still be used to prove the commission of genocide. The judicial practice to partially infer genocidal intent from the commission of non-genocidal acts should therefore be looked upon critically. It seems to illegitimately detach the genocidal intent-element from the destructive purpose of genocide. Another matter in need of further consideration is the courts’ weighing of relevant factual circumstances against each other. It seems that this weighing process has not been carried out consistently and does not always conform to the restrictions of analogical reasoning. Note, for example, that the ICTY has at least partially based its finding of genocide in Srebrenica on the forcible transfer of part of the population to other areas.157 By contrast, the Al-Bashir PTC has found that the fact that people were not precluded from fleeing the area and safely reached refugee camps contradicts the claim that genocide occurred. Before the ICC, the forcible transfer of the population is thus a counter-indication of genocide.158 While recognising that the ad hoc Tribunals and the ICC operate in a unique legal context and are not bound by each other’s case law, it seems that their statutory frameworks are not so distinctive that they can explain and justify this different evaluation of evidence. Of course, this does not mean that there are no valid reasons for the differences and that the courts have engaged in an illegitimate process of judicial reasoning. It does, however, signify that the justificatory reasons underlying the courts’ distinctive appraisals are not immediately evident, but remain somewhat uncertain. To prevent similar irregularities and uncertainties in the future, it is advisable that international criminal courts implement the methodology of casuistry more explicitly in case law. This means that they cannot confine their reasoning process to the interpretation of legal rules in terms of judicial criteria. The courts should also explicitly substantiate their presentation, construction and assessment of fact(or)s and connect these factors to the relevant legal elements and precedents. In other words, they need to clarify which factual circumstances underlie their classification of an accused as génocidaire and explain why these facts are relevant for establishing genocide. Moreover, the courts should connect their decisions to previous judicial findings on factually similar situations. In this way, they can make the interplay between law and fact transparent and illustrate how their conclusions have been confined by the requirements of analogical

157 See sub-section 4.3.3.1. 158 See sub-section 4.4.2.1.

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reasoning from precedent. This will have a positive effect on the consistency of the law and the legality of judicial decisions.

4.6

CONCLUSIONS

The analyses of the case law of the ad hoc Tribunals and the ICC show that the judicial assessment of genocide is subject to the facts of the situation under consideration and to the challenges that this situation presents to the court. In particular, genocide’s contextual embedding is shaped by the decisions in individual cases and customised to the present legal, historical and political realities. As a result, the type and level of contextual embedding differ per case. This requires a nuanced approach to the strict division between the structure-based and the goal-oriented model. Rather than seeing these models as alternatives that exclude each other, they should be perceived as two poles of a continuum along which the case law of the courts can be positioned. To explain and evaluate the flexibility and context-dependency of genocide, this chapter has discussed the open texture of the law and the casuistic nature of its development. It has demonstrated that the openness of the law does not give courts unlimited discretion to fit the law to the facts. The principle of legality prohibits that the judicial sensitivity for political and historical realities lapses into an illegitimate use of such realities. The courts have therefore been advised to implement the methodology of casuistry more explicitly. Without imposing a uniform and onerous legal framework, this methodology warrants that the interplay between law and facts is made transparent. In this way, it aptly balances the need for flexibility and judicial creativity, on the one hand, against the need for legality and consistency, on the other. This chapter has formulated some broad guidelines on how courts can use the methodology of casuistry to clarify and restrain the contextual embedding of genocide. However, further research is required. Rather than focusing exclusively on the question of whether a case falls within the goal-oriented or the structure-based model, this research should look beyond abstract labels. In particular, it should seek to explicate the interplay between law and facts underlying the contextual embedding of genocide and try to position cases on a continuum between the goal-oriented and the structurebased model. In this way, the study of genocide can start to transcend the oversimplified theoretical distinctions that dominate the current scholarly debate.

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Epilogue: Developing a Casuistic Framework of Judicial Reasoning

V 5.1

EPILOGUE

INTRODUCTION

In Judicial Creativity at the International Criminal Tribunals, Judge Wald maintains that the judicial process in international criminal law seldom climaxes in a ‘Eureka! I have found it’ moment: it is rather a journey of exploration horizontally across courts and countries and vertically, through experience with different cases in the same court over time. The first search does not always produce the prize; a dialogue is often indispensable between judges from different backgrounds and even from different courts (…).1 In this study, I have described and assessed this journey of exploration in relation to the ad hoc Tribunals and the International Criminal Court (ICC) by using the theory and methodology of casuistry. In this way, I have shown that substantive international criminal law is not controlled by general rules alone, but operates and develops in interplay with the facts of individual cases. It is therefore important to assess the meaning of international crimes and modes of liability in light of legal practice. This assessment can reveal new insights that put the established views and critiques on the nature and scope of criminal responsibility for international crimes in a different perspective. In this concluding epilogue, I take a reflective and critical approach towards the practice of the ad hoc Tribunals and the ICC. Whereas the previous case studies have primarily described how the courts apply the law in individual cases, the epilogue critically reflects upon this practice from a legality perspective. Based on this reflection, I make several recommendations for improving (the study of) judicial reasoning in international criminal law. My argument develops as follows. In section 2, I briefly reiterate the normative framework on which this study is based. Against this background, I proceed to sketch the reasoning process of the ad hoc Tribunals and the ICC. I thereby take a step back from the detailed analyses of the previous chapters and appraise judicial practice with a birds’ eye view. The most important finding following from this appraisal is that the courts do not explicate the interplay between law and facts in a consistent and structured way. Thus, they create uncertainties and ambiguities that are problematic in light of the principle of legality. I argue that these legality concerns can be addressed by complementing the court’s current reasoning process with casuistic argumentation techniques and by using these techniques to study judicial practice. In the prologue to this study, I have explained the general theory and methodology of casuistry. It seems that casuistry is most effective when it is embedded in the specific 1

P. Wald, ‘Note from the Bench’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2011) xxxv, xxxvii.

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FACTS MATTER (legal, institutional and social) context in which the ad hoc Tribunals and the ICC operate and is customised to the particular challenges that characterise this context.2 To realise such embedding and customisation, section 3 analyses two domestic models of legal reasoning from precedent: the rule-model and the reason-model. Sections 4 and 5 illustrate that international criminal law can particularly learn and benefit from the reason-model. By implementing the basic thoughts and argumentation steps underlying this model in international practice and doctrine, courts and scholars can make the casuistic interplay between facts and law more transparent and controlled. This will help to clarify the meaning of international crimes and modes of liability and to restrain the application of these concepts in individual cases. In this way, the values underlying the principle of legality can be advanced without forestalling the development of international criminal law. In the concluding section of this epilogue (section 6), I look back on my findings on the role of casuistry in the case law of the ad hoc Tribunals and the ICC. In addition, I provide some broad prospects on the value of casuistry for the future practice, study and development of substantive international criminal law.

JUDICIAL REASONING

5.2 5.2.1

IN

INTERNATIONAL CRIMINAL LAW

Basic Starting-Points and Assumptions

Substantive international criminal law can be characterised as an open legal system. It is composed of (statutory and customary) rules that stipulate relatively indeterminate definitions of international crimes and modes of liability. These definitions do not control the meaning of the law completely and are unable to rigidly constrain the decision-making process of international criminal courts. Instead, they give the courts a certain leeway of discretion, which enables the judicial development of rudimentary and outdated legal concepts. As a result of this development, substantive international criminal law has taken ‘on a force of its own’: it has become ‘something that is not so much “laid” down from above as something that “grows up”’.3

2

3

More generally on the context-dependency of judicial reasoning, see D. Walton and G. Sartor, ‘Teleological Justification of Argumentation Schemes’, 27 Argumentation (2013) 111, 133; M. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (New York: Oxford University Press, 2004). D.N. MacCormick and R.S. Summers, ‘Further General Reflections and Conclusions’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 531, 543. MacCormick and Summers use this expression in relation to domestic law, but is similarly applies to substantive international criminal law.

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The facts of individual cases have played an important role in the judicial construction of international criminal law. The ad hoc Tribunals and the ICC have rethought the meaning of substantive legal concepts in terms of real situations and have adjusted international crimes and modes of liability in response to the issues and questions that arose in particular cases. In this way, the courts have inextricably linked the law to its practical function. The interplay between law and practice can be appraised positively insofar as it enables courts to do justice to the specific circumstances of individual cases, to adapt the law to changed conditions, and to modernise criminal responsibility for international crimes. At the same time, the law’s susceptibility to change and its opportunities for creative progress also generate a certain degree of uncertainty and fluidity. This creates the risk that courts apply the law in an irregular, unforeseen, or incomprehensible way subject to the personal intuitions of individual judges. The principle of legality is thereby put under pressure. As was clarified in the prologue to this study, the principle of legality does not prohibit the judicial development of substantive international criminal law per se and by all means. Instead, it mainly requires that this development proceeds in a rational and controlled way. How can such rationality and control be achieved and maintained? Considering that international criminal law does not provide for any effective institutional structures and mechanisms for control (such as an educational system for professional judicial training or a framework for legislative supervision), (the methodology of) judicial argumentation seems to impose the most powerful checks on the authority of the ad hoc Tribunals and the ICC.4 The courts’ practice can thus best be controlled by developing an argumentation model that curtails the discursive process of public justification. Christie gives voice to this thought by asserting that [i]n law as in science, we proceed by using a previously agreed upon method of arriving at conclusions on the basis of the evidence available. It is submitted that this model of legal argument, because it controls the decisions of courts and protects the participation of the parties in the resolution of their disputes, will permit the assertion that judicial decision-making is objective and fair.5

4

5

MacCormick and Summers (n. 3 above) 550. Lasser illustrates this connection between the lack of institutional control and the importance of judicial reasoning in a comparative case study of the French, US and EU judicial systems. Lasser (n. 2 above). G. Christie, ‘The Objectivity in the Law’, 78 Yale Law Journal (1969) 1340-1341. This does not imply that the methods of the law are the same as the method of natural sciences. C.E. Smith, Feit en Rechtsnorm. Een Methodologisch Onderzoek naar de Betekenis van de Feiten voor de Rechtsvinding en Legitimatie van het Rechtsoordeel, 10 September 1998, PhD Thesis, 58-61.

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FACTS MATTER Following this assertion, the legality of international criminal law is primarily subject to judicial argumentation. The legality requirements (such as the foreseeability and equality of law) are satisfied when decisions are explained according to specific reasoning steps.6 It thus becomes essential that the ad hoc Tribunals and the ICC reveal the reasons for their findings. These reasons have to meet a certain validity threshold: the courts should explain their findings on the basis of an argumentation framework that is capable of ensuring the rationality of judicial decision-making.7 This framework is shaped by socalled secondary rules of adjudication, which formulate normative standards for identifying, interpreting and applying substantive international criminal law. Amongst others, they regulate whether and how courts have to make the reasons underlying their decisions transparent. In this way, secondary rules of adjudication allow for distinguishing between good and bad, relevant and irrelevant arguments.8 Precedents play an important role in secondary rules of argumentation, in particular in developing legal systems that are governed by indecisive and open-textured rules. The doctrine of precedent is based on the thought that judicial decisions need to cohere with the pre-established legal context of cases that have already been settled. It accordingly requires that courts formally follow or are normatively guided by decisions reached in prior cases and that they solve new problems conform solutions from the past. In this way, the doctrine of precedent gives expression to a case-based reasoning model in which courts use previous judicial findings to operationalise open-ended rules and vaguely defined legal concepts.9 The controlling force of this reasoning model depends on the

6

7 8

9

Similarly, F.V. Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1991) 237-238; C.E. Smith, Regels van Rechtsvinding (Den Haag: Boom Juridische Uitgevers, 2007) 120-121, 131-132, 136, 140; V. Grosswald Curran, ‘Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union’, 7 Columbia Journal of European Law (2001) 63, 78-82; B. van Klink, ‘Rechtsvinding en Rechtszekerheid in het Strafrecht’ in E. Broers and B. van Klink (eds.), De Rechter als Rechtsvormer (Den Haag: Boom Juridische Uitgevers, 2001) 197, 212; MacCormick and Summers (n. 3 above) 550; Christie (n. 5 above) 1311, 1340; Smith (n. 5 above) 86. M. Taruffo, ‘Judicial Decisions and Artificial Intelligence’, 6 Artificial Intelligence and Law (1998) 311, 315; V.R. Walker, ‘Discovering the Logic of Legal Reasoning’, 35 Hofstra Law Review (2007) 1687, 1687. More generally on the need for protocols regulating argumentation, D.N. MacCormick and R.S. Summers, ‘Introduction’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 1, 10; Walton and Sartor (n. 2 above) 124. C. Groendijk and A. Oskamp, ‘Case Recognition and Strategy Classification’, ICAIL Proceedings of the 4th International Conference on Artificial Intelligence and Law (New York: ACM Press, 1993) 125, 125. On the formal and substantive rationes underlying resort to precedent, see e.g. M. Adams, ‘Heden en Verleden in de Rechtspleging. Rechtsvergelijkende en Rechtstheoretische Beschouwingen over de Precedent- en Zwaartekrachtwerking van Rechterlijke Uitspraken’, 3 Rechtsgeleerd Magazijn Themis (2006) 106, 107-111; F. Schauer, ‘Precedent’, 39 Stanford Law Review (1987) 571, 571-606; Z. Bankowski et al., ‘Rationales for Precedent’ in D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 481, 481-500.

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analogy between cases:10 courts can only justify the decision in the case before them with precedents concerning sufficiently similar situations. Walker therefore finds that [t]he logic of legal reasoning should capture the kinds of reasons that courts routinely give for considering two cases to be similar, and for distinguishing one case from another. (…) At a minimum, it will involve identifying the attributes that are relevant for comparing legal cases, devising a valid and reliable method of classifying actual cases on those attributes and determining how judges and regulators should decide whether two cases are sufficiently similar or dissimilar.11 To put Walker’s objective into practice, we can rely upon insights from casuistry and Artificial Intelligence and Law (AI&L) on factor-based reasoning. These insights are particularly useful for structuring the interplay between law and facts and for controlling the application of the law in individual cases. Throughout this study, the theory and methodology of casuistry and AI&L have therefore been taken as a starting-point and bench-mark to analyse and evaluate the case law of the ad hoc Tribunals and the ICC.

5.2.2

A Sketch of Judicial Reasoning in International Criminal Law

The previous section has established that the legality of substantive international criminal law depends on the quality of judicial argumentation. It is therefore appropriate to assess how international criminal courts explain their decisions in judgments. International criminal law has not developed an institutional practice in which advocatesgeneral, reporting judges or academic commentators provide additional information on the reasons underlying the courts’ findings. The judgments should therefore be selfexplanatory and must by themselves provide a sufficient basis to understand the judicial decision. In this light, it is particularly opportune that the Statutes of the ad hoc Tribunals and the ICC regulate that the judgments have to include a reasoned and public opinion of the courts’ findings and conclusions.12 None of the relevant statutory 10 Kratochwil (n. 6 above) 223. Recall that I do not use the terms ‘analogies’ and ‘analogical reasoning’ to describe situations in which rules are extended by analogy to cases that were not originally covered by it, but to depict the qualification of a fact-situation within the scope of existing law. 11 Walker (n. 7 above) 1703-1704. 12 Statute for the International Criminal Tribunal for Rwanda, SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc. S/RES/955 (8 November 1994) (ICTR Statute), Article 22(2); Statute for the International Criminal Tribunal for the former Yugoslavia, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc. S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc. S/RES/ 1877 (7 July 2009) (ICTY Statute), Article 23(2); Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute), Article 74(4).

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FACTS MATTER provisions, however, specifies any substantive standards that should be met in this respect.13 The ad hoc Tribunals and the ICC thus retain considerable freedom to fill in the specific details of their opinion, which has generated different types and levels of judicial argumentation. Nonetheless, it is possible to discern some typical reasoning patterns. The ad hoc Tribunals and the ICC generally commence their reasoning process with a statement of the relevant rules. Whereas the practice of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) is defined by rules of customary law, the ICC primarily relies on the provisions of the Rome Statute. All three courts, however, recognise the need to interpret the applicable rules, since even the most detailed statutory regulations incorporate abstract terms and concepts that allow for different understandings. On this account, the courts engage in extensive analyses based on the methods of interpretation that are laid down in the Vienna Convention on the Law of Treaties (VCLT).14 These analyses typically result in the formulation of a standard or criterion. According to the ICTY, the term ‘systematic attack’, for example, refers to the ‘organized nature of the violence and the improbability of [its, MC] random occurrence’.15 Furthermore, the Tribunal has determined that an accused can only be held responsible as a ‘superior’ if he exercised ‘effective control’ over the persons who committed the indicted crimes. This requires that the accused had ‘the material ability to prevent or punish the subordinates’ alleged criminal conduct’.16 By thus rephrasing abstract legal rules in terms of more specific standards, the judicial criteria make the law more concrete. They clarify the contours of the rule for which they apply and frame the rule’s potential scope.17 13 Of course, the courts are bound to specific sources of law and methods of interpretations, but the Statutes do not ascertain how the courts should use these sources and methods in their process of justification. 14 On the judicial use of the canons of interpretation from the VCLT, see e.g. W.A. Schabas, ‘Interpreting the Statutes of the ad hoc Tribunals’ in L.C. Vohrah et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003) 847, 847888; J. Powderly, ‘Judicial Interpretation at the ad hoc Tribunals: Method from Chaos?’ in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2010) 17, 17-45. 15 See e.g. Prosecutor v. Kunarac et al., Judgment, Case No. IT-96-23 and IT-96-23/1-A, Appeals Chamber, 12 June 2002, para. 94; Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-A, Appeals Chamber, 29 July 2004 (Blaškić Appeals Chamber judgment), para. 101; Prosecutor v. Kordić and Čerkez, Judgment, Case No. IT95-14/2-A, Appeals Chamber, 17 December 2004, para. 94; Prosecutor v. Martić, Judgment, Case No. IT95-11-T, Trial Chamber I, 12 June 2007, para. 49. 16 See e.g. Prosecutor v. Mucić et al., Judgment, Case No. IT-96-21-A, Appeals Chamber, 20 February 2001 (Mucić et al. Appeals Chamber judgment), paras. 196-198; Prosecutor v. Krnojelac, Judgment, Case No. IT97-25-A, Appeals Chamber, 17 September 2003, para. 93; Prosecutor v. Đorđević, Judgment, Case No. IT0587/1-T, Trial Chamber II, 23 February 2011, para. 1881; Blaškić Appeals Chamber judgment, para. 67. 17 Similarly in relation to domestic law, M. Taruffo, ‘Institutional Factors Influencing Precedents’ in D.N. MacCormick and R.S. Summers, Interpreting Precedents: A Comparative Study (Aldershot: Ashgate Publishing, 1997) 437, 459.

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The meaning of judicial criteria needs to be further specified on a case-by-case basis in light the particular facts of individual cases.18 To structure this process, the ad hoc Tribunals and the ICC sometimes draw up lists of relevant factual circumstances.19 These lists specify the facts that determine whether a judicial criterion applies in an individual case. The ICTY has, for example, held that the existence of a policy to commit crimes against humanity can be inferred from inter alia the overall political background; the mobilisation of armed forces; and the execution of temporally and geographically repeated and coordinated military offensives.20 In a similar way, the ICTR has ascertained that an accused’s intent to commit genocide can be deduced from his acts, utterances and position and from the pattern of purposeful action.21 The latter category includes circumstances such as the methodical way of planning; the systematic manner of killing; the number of victims; and the scale of atrocities. In addition to drafting lists of relevant circumstances, the courts also identify facts that are in themselves insufficient to meet the standard of a judicial criterion. In relation to the genocidal intent-element, the ICTY has, for example, determined that the expression of derogatory language is relevant for establishing genocidal intent, but ‘does not in and of itself evidence such intent’.22 The lists of factual circumstances guide the implementation of judicial criteria in practice. The ad hoc Tribunals and the ICC accordingly substantiate their decisions with circumstances that can be traced back to the applicable fact lists. For example, the existence of a policy to commit crimes against humanity has regularly been based on the interval and relations between military operations:23 the indicted crimes meet the policy threshold, because the villages in region X were attacked daily over a period of one month following a consistent pattern. Such reasoning neatly conforms to the related list of relevant facts, which qualifies ‘the execution of temporally and geographically repeated and coordinated military offensives’ as one of the circumstances from which the existence of a policy can be inferred. This practice suggests that the description, interpretation and evaluation of the facts of individual cases is guided by and connected to the lists of relevant factual circumstances. The ad hoc Tribunals and the ICC, however, often 18 E.g. Prosecutor v. Vasiljević, Judgment, Case No. IT-98-32-A, Appeals Chamber, 25 February 2004, para. 100; Prosecutor v. Lubanga, Judgment, Case No. ICC 01/04-01/06-2842, Trial Chamber I, 14 March 2012 (Lubanga Trial Chamber judgment), para. 1001. 19 See e.g. Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-T, Trial Chamber I, 3 March 2000 (Blaškić Trial Chamber judgment), para. 204; Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, Trial Chamber I, 2 September 1998 (Akayesu Trial Chamber judgment), para. 523; Prosecutor v. Krajišnik, Judgment, Case No. IT-00-39-T, Trial Chamber I, 27 September 2006, para. 1081. 20 Blaškić Trial Chamber judgment, para. 204. 21 E.g. Akayesu Trial Chamber judgment, para. 523. 22 Prosecutor v. Popović et al., Judgment, Case No. IT-05-88-T, Trial Chamber II, 10 June 2010 (Popović et al. Trial Chamber judgment), para. 1399. 23 On this issue, see M. Cupido, ‘The Policy underlying Crimes against Humanity: Practical Reflections on a Theoretical Debate’, 22 Criminal Law Forum (2010) 275 and chapter 2 of this study.

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FACTS MATTER refrain from making this connection explicit. They do not explain in a consistent and structured way whether and how the circumstances of the case before them are reflected in the applicable lists of relevant facts. In crimes against humanity cases, the courts have, for example, not always explicated that the commission of patterned and frequent attacks at the villages in region X demonstrates the execution of temporally and geographically repeated and coordinated military offensives, which evidence the existence of a policy to commit crimes against humanity. As a result, the connection between the conclusions in individual cases and the legal framework of rules, criteria and relevant factual circumstance often remains unclear. Despite the fact that judicial decisions are not a source of law proper, the legal findings of the ad hoc Tribunals and the ICC do have a certain precedential effect.24 The ICTY and ICTR are in principle bound by the ratio decidendi of previous Appeals Chamber judgments in (substantially) similar cases.25 Likewise, the Rome Statute of the ICC stipulates that the Court ‘may apply principles and rules of law as interpreted in its previous decisions’.26 In practice, the courts accordingly tend to restate the judicial criteria from prior judgments when they define (the legal elements of) international crimes and modes of liability. In this way, the courts expand the influence of judicial criteria beyond the case in which they were drafted originally. Some criteria even transcend the context of a specific court. Both the ad hoc Tribunals and the ICC, for example, apply ‘the material ability to prevent or punish’ as a standard of effective control for superior responsibility.27 This criterion thus appears to have become an integral part of substantive international criminal law. 24 For a scholarly evaluation of this issue, see C. Harris, ‘Precedent in the Practice of the ICTY’ in R. May et al. (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (The Hague: Kluwer Law International, 2001) 341, 341-356; A. Orie, ‘Stare Decisis in the ICTY Appeal System? Successor Responsibility in the Hadžihasanović Case’, 10 Journal of International Criminal Justice (2012) 635, 635-644; V. Nehrlich, ‘The Status of ICTY and ICTR Precedent in Proceedings before the ICC’ in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 305-325; G. Bitti, ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC’ in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 285, 292-299. 25 Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/1-A, Appeals Chamber, 24 March 2000 (Aleksovski Appeals Chamber judgment), paras. 89-115; Prosecutor v. Semanza, Decision, Case No. ICTR-97-20-A, Appeals Chamber, 31 May 2000, para. 92; Prosecutor v. Semanza, Separate opinion Judge Shahabuddeen, Case No. ICTR-97-20-A, Appeals Chamber, 31 May 2000, paras. 6-17. 26 Article 21(2) ICC Statute. 27 Prosecutor v. Bemba Gombo, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, Pre-Trial Chamber II, 15 June 2009 (Bemba confirmation of charges decision), para. 415; Mucić et al. Appeals Chamber judgment, para. 256; Prosecutor v. Musema, Judgment, Case No. ICTR-96-13-A, Appeals Chamber, 27 January 2000, para. 135. On the relevance of external (inter)national precedents in general, see Prosecutor v. Kupreškić et al., Judgment, Case No. IT-95-16-T, Trial Chamber II, 14 January 2000, paras. 537-542.

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It is not clear whether the lists of factual circumstances that can be used to establish a legal rule or judicial criterion carry a similar precedential weight and have a comparable case-transcending effect. The ad hoc Tribunals and the ICC qualify the function and application of relevant facts as a matter of evidence, as opposed to substantive law.28 This seemingly implies that the lists of facts do not define the meaning of international crimes and modes of liability, but only help to explain whether a case meets the evidential threshold of the rule or criterion for which they are used. Even so, the ad hoc Tribunals and the ICC regularly reiterate the circumstances that were listed in previous judgments when they set out the applicable law in new cases. This suggests that the lists of factual circumstances steer the determination of relevant and insufficient facts and thus influence the courts’ conception and use of substantive international criminal law.

5.2.3

Evaluating International Criminal Law Practice

How should we appraise this judicial practice? Does it comply with the standards of casuistry on which this study is based? As a starting-point, it must be recognised that the ad hoc Tribunals and the ICC take great effort to substantiate their findings with sufficient reasons. In this respect, they accept the law’s openness and acknowledge that the statutory and customary definitions of international crimes and modes of liability cannot be applied deductively. Instead, the meaning of these substantive legal concepts needs to be established on a case-by-case basis according to a casuistic reasoning process. The ad hoc Tribunals and the ICC structure this process by formulating judicial criteria and relevant factual circumstances, such as ‘the material ability to prevent or punish’ or the execution of ‘temporally and geographically repeated and coordinated military offensives’. The criteria and relevant circumstances designate the standards under which an international crime or mode of liability applies. These standards are phrased in universal terms, independent of the specific situation from which they arose. In this way, the applicability of judicial criteria and categories of factual circumstances is detached from the factual background of individual cases. This context-independency allows courts to rely upon the criteria and fact categories from precedents irrespective of the factual similarities and differences between cases. Legal theory learns us that the general and context-independent standards of judicial criteria and fact categories do not fully describe and control the law’s meaning. Whereas such standards may be suited to settle so-called ‘easy cases’,29 ‘hard cases’ that fall outside the law’s established meaning cannot be resolved by the deductive application of general

28 E.g. Bemba confirmation of charges decision, para. 416, nn. 537, 538; Blaškić Appeals Chamber judgment, para. 69. 29 Smith (n. 5 above) 203.

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FACTS MATTER legal standards.30 The previous case study on genocide, for example, shows that the mere finding that génocidaires act ‘with the clear purpose to destroy a protected group’ is insufficient to ascertain whether genocidal intent can be established in relation to persons who sought to destroy a protected group outside the context of a collective campaign of destructive violence. It is therefore inappropriate for courts to justify an accused’s classification as a criminal perpetrator with mere reference to a rule, criterion or fact category. Instead, they should use additional argumentation techniques that bridge the gap between the general legal standards and the case-specific facts.31 In this way, courts can clarify why a marginal situation falls within or outside the scope of the law and at the same time give further insights into the meaning of the law, which are relevant for future cases.32 According to Burchard, the current argumentation practice of the ad hoc Tribunals and the ICC gives insufficient expression to the complexity of classifying individual cases under general legal rules. He argues that when looking at the outwardly visible mode of operation of international criminal tribunals (…) [l]egal reasoning, especially in the judgments, is still couched in the language of discovery; it is based on syllogistic forms of argumentation; solutions of legal problems are portrayed as the singularly correct ones; and the overall rhetorical style is that of closure.33 The previous findings and case studies make clear that Buchard’s claim is (too) strongly worded and needs to be nuanced in light of legal practice. Having said that, we should recognise that there is still room for improving the argumentation process of the ad hoc Tribunals and the ICC. In particular the interplay between law and facts governing the classification of (hard) cases under general rules can be displayed in a more structured and transparent way. Certainly, the courts at times already seek to elucidate this interplay by explicitly connecting their findings of fact to the relevant legal standards. For example,

30 Similarly in relation to the function and value of judicial criteria in domestic (criminal) law, K. Rozemond, De Methode van het Materiële Strafrecht (Nijmegen: Ars Aequi, 2011) 15, 17, 24; K. van Willigenburg, Casuïstiek en Precedentwerking in het Materiële Strafrecht, PhD manuscript, on file with author, 5, 7, 167; Smith (n. 6 above) 118. 31 Similarly, F. Koster, ‘Iets over Cassatietechniek’ in G. Mols and M. Wladimiroff (eds.), Homo Advocatus: Spong-Bundel (Den Haag: Sdu Uitgevers, 1998) 73, 76; Smith (n. 6 above) 176-177; Van Willigenburg (n. 30 above) 151. 32 M.J. Borgers, ‘De Communicatieve Rechter’ in Controverses rondom Legaliteit en Legitimatie, Handelingen Nederlandse Juristen-Vereniging 2011-1 (Deventer: Kluwer, 2011) 103, 133. 33 C. Burchard, ‘The International Criminal Legal Process: Towards a Realistic Model of International Criminal Law in Action’ in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press, 2010) 81, 85.

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the Popović et al. Trial Chamber of the ICTY has held that Popović’ participation in forcible transfer did not meet the ‘significant contribution’ criterion for JCE, because there is a paucity of evidence concerning any action taken by him in support of this goal [of forcible transfer, MC]. Informing Momir Nikolić of the plan to remove the population, and instructing a member of the VRS to stop distributing bread do not amount to a significant contribution to the JCE to forcibly remove as required by the jurisprudence.34 Although reasoning in somewhat broader terms, the Lubanga Trial Chamber has similarly linked the ‘essential contribution’ criterion for joint perpetration to Lubanga’s involvement in the recruitment and conscription of child soldiers: [t]he role of the accused within the UPC/FPLC and the hierarchical relationship with the other co-perpetrators, viewed in combination with the activities he carried out personally in support of the common plan, as demonstrated by the rallies and visits to recruits and troops, lead to the conclusion that the implementation of the common plan would not have been possible without his contribution.35 By thus connecting general criteria for criminal responsibility to (the absence of) specific factual circumstances, the Trial Chambers give further insights into the nature and scope of the law. Unfortunately, however, there is no uniform practice on this point. The ad hoc Tribunals and the ICC do not consistently specify the facts on which their findings are based and they do not always link these facts explicitly to the applicable legal standards. For example, the Gotovina et al. Trial Chamber in relation to Gotovina’s mens rea considered that [h]aving evaluated Gotovina’s acts and conduct above and considering Gotovina’s participation in and statements at the Brioni meeting, the Trial Chamber finds that Gotovina had the state of mind that the crimes forming part of the objective should be carried out. Considering all of the above, the Trial Chamber accordingly finds that Gotovina was a member of the JCE. The Trial Chamber finds that Gotovina thus intended that his actions contribute to the JCE.36 34 Popović et al. Trial Chamber judgment, para. 1173 (emphasis added). 35 Lubanga Trial Chamber judgment, para. 1270. 36 Gotovina et al. Trial Chamber judgment, para. 2371 (emphasis added).

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FACTS MATTER The Trial Chamber’s general reference to previously stated facts leaves ambiguous which specific actions underlie Gotovina’s qualification as a JCE member. It also makes one wonder how Gotovina’s conduct relates to the ‘significant contribution’ requirement for JCE liability. Similar uncertainties arise in relation to the findings of the Lubanga Trial Chamber on the conscription of child soldiers. According to the Trial Chamber, Lubanga had knowledge of this illegal practice because ‘the evidence discussed above’ showed that he ‘was fully aware that children under the age of 15 had been, and continued to be, enlisted and conscripted by the UPC/FPLC and used to participate actively in hostilities during the timeframe of the charges’.37 Lubanga’s awareness of the existence of a non-international armed conflict was likewise explained with general reference to the evidence ‘rehearsed above’.38 These examples show that the ad hoc Tribunals and the ICC regularly leave the interplay between the applicable legal standards and the facts of individual cases somewhat opaque. This makes it difficult for future courts to connect their factual evaluation to the decisions made in prior cases. They cannot specify how their findings of fact relate to previous judicial assessments of factually similar situations. As a result, it remains uncertain whether the courts apply the law in a consistent way, i.e. whether they attach equal relevance and weight to particular factual circumstances. Of course, this does not necessarily mean that the ad hoc Tribunals and the ICC engage in unrestrained reasoning and apply the law to the facts as they see fit. On the contrary, the previous case studies make clear that the courts’ judgments display broadly universal patterns. Case law analyses, for example, show that the acts of individual génocidaires are in principle embedded in a context of collective violence.39 Furthermore, judicial practice demonstrates that the common plan-element of JCE and joint perpetration generally refers to the coordinated participation of accused in political and military structures, instead of their criminal agreement with the physical perpetrators.40 These universal practices of the ad hoc Tribunals and the ICC suggest that the courts are genuinely guided by the law, which may lead us to nuance any shortcomings in their judgments. At the same time, we can doubt whether the finding that extensive scholarly analyses display largely consistent judicial outcomes, remedies the fact that the judgments themselves leave the complex process of classifying (hard) cases under the law somewhat obscure. In this respect, we should realise that the courts have their own communicative function and their own responsibility to inform the parties, the affected communities and 37 Lubanga Trial Chamber judgment, para. 1347. 38 Lubanga Trial Chamber judgment, para. 1349. 39 See, M. Cupido, ‘The Contextual Embedding of Genocide: A Casuistic Analysis of the Interplay between Law and Facts’, 15 Melbourne Journal of International Law (2014) 378 and chapter 4 of this study. 40 See, M. Cupido, ‘Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration’ in E. van Sliedregt and S. Vasiliev (eds.), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014) 128 and chapter 3 of this study.

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the general public of the reasons underlying their decisions. The ad hoc Tribunals and the ICC arguably fail to fulfil this task insofar as they do not explicate the interplay between facts and law in their judgments. This is problematic in light of (the values underlying) the principle of legality, because it thus becomes difficult to determine from the outside whether the courts have applied the law in a consistent and rational way. To address this legality concern, we should examine how the ad hoc Tribunals and the ICC can make the classification of (hard) cases under the law more transparent. In this respect, particular attention needs to be paid to the ways in which the courts can apply existing judicial criteria and lists of factual circumstances in a more meaningful and structured way. In other words, we should seek to determine how general criteria and fact categories can be used to clarify the interplay between facts and law. In addition, we have to assess how knowledge about this interplay can help to control the application and development of substantive international criminal law. In this respect, we can rely on insights from casuistry and AI&L. These theories ascribe an important role to reasoning from precedent. In particular, they employ a methodology of analogical reasoning on the basis of factors derived from previous cases. Because this methodology looks beyond abstract legal concepts into the law’s practical application, it provides valuable guidelines for explaining, structuring and evaluating the classification of individual cases under general legal standards. To be workable, the methodology of casuistry and AI&L need to be tailored to the specific context in which the ad hoc Tribunals and the ICC operate.41 The courts themselves have limited abilities to realise such a tailored practice of casuistic reasoning, since they are constrained by their institutional position. The courts’ primary function lies in the field of responsive problem-solving, which means that they are, above all, responsible for making reasonable decisions on specific legal matters on a case-by-case basis. Judicial argumentation is thus necessarily related to and limited by the situation under consideration. The ad hoc Tribunals and the ICC can therefore not be expected to draft general models for judicial reasoning, nor to assess the implications of their decisions for the legal system as a whole.42 This leaves an important role for legal

41 Similarly, A. von der Lieth Gardner, An Artificial Intelligence Approach to the Law (Cambridge: A Bradford Book, 1987) 1; Walker (n. 7 above) 693. 42 D. Terris et al., The International Judge: An Introduction to the Men and Women who Decide the World’s Cases (Oxford: Oxford University Press, 2007) 128-129; Kratochwil (n. 6 above) 41. In cases where chambers have taken up a more constructive task, developing general theories of law, these theories have often been nuanced or adapted by later chambers in light of the specific circumstances of the case before them. Consider, for example, the slight changes that the Lubanga Trial Chamber and the Katanga Trial Chamber have already introduced in the control over the crime theory for (indirect) co-perpetration that was first set out by the Lubanga Pre-trial Chamber. Prosecutor v. Katanga, Judgment, Case No. ICC 01/0401/07-3436, Trial Chamber II, 8 March 2014, paras. 1386-1387, 1406; Lubanga Trial Chamber judgment, paras. 1009-1012

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FACTS MATTER doctrine. Scholars should assist and complement the courts’ work by developing methodological guidelines for judicial reasoning and by using these guidelines to analyse case law. Of course, this effort cannot produce a strict argumentation framework that determines all decisions beforehand and explains the law in every detail. Since the law’s logic is inherently limited, it is simply impossible to detract all legal uncertainties and to constrain the judicial reasoning process completely.43 Even so, it would be useful if scholars seek to find a middle ground between ‘the extremes of absolute certainty and total arbitrariness (…) which gives real substantive but not absolute weight to the ideal (…) of the equality before the law and rule of law’.44

5.3 5.3.1

DOMESTIC LESSONS

IN

REASONING

FROM

PRECEDENT

A Comparative Look at Precedents

Domestic law provides valuable starting-points for developing an international model for casuistic reasoning from precedent. Domestic legal systems mainly resort to precedents to establish the meaning of the law, to solve interpretative doubts, and to fill gaps in the legal framework.45 In particular in areas of law that are not codified or that are governed by incomprehensive and vague statutes, precedents are an indispensable means for concretisation.46 The value of precedents and the way in which they are applied, differ per system.47 In light of these differences, domestic practice can be classified in two ideal types.48 The first type represents the common law tradition. In this tradition, the qualification of precedents as sources of law and the adoption of a stare decisis doctrine have ‘evolved into a very specific practice of reasoning from decided cases’.49 This practice is characterised by a close connection between (the meaning of) the law and (the judicial decisions on) the facts of individual cases. The common law courts ‘contextualise’ their 43 Similarly, J. Horty, ‘Common Law Reasoning’, available online at , 41. 44 Bankowski et al. (n. 9 above) 495. 45 K. Langenburcher, ‘Argument by Analogy in European law’, 57 Cambridge Law Journal (1998) 481, 496; B. Levenbook, ‘The Meaning of a Precedent’, 6 Legal Theory (2000) 185, 211; MacCormick and Summers (n. 3 above) 458-459; MacCormick and Summers (n. 8 above) 11-12. 46 MacCormick and Summers (n. 3 above) 458-459. 47 E.g. Walton and Sartor (n. 2 above) 132; J. Bell, ‘Book Review: Comparing Precedent’, 82 Cornell Law Review (1996-1997) 1243, 1246, 1271. 48 Since these are ideal types, the reasoning styles of the individual legal systems may show variation. Moreover, it seems that the differences between these ideal types have diminished over the past years. On this issue, see e.g. G. Gilmore, ‘Legal Realism: Its Cause and Cure’, 70 Yale Law Journal (1961) 1037, 1042; MacCormick and Summers (n. 8 above) 2-4, 12. 49 R.A. Shiner, Legal Institutions and the Sources of Law (Dordrecht: Springer, 2005) 32.

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findings within specific factual situations and link the standards from previous cases to the circumstances from which they emerged.50 This contextual approach necessitates a detailed articulation of the facts of each case. It also postulates that courts determine the applicability of precedents to the case before them in light of the factual resemblence between these cases.51 Reasoning from precedent accordingly becomes a type of storytelling and story-matching whereby the law evolves through the ‘analogical extrapolation from one story to the next’.52 This process involves a broad practice of analogising and distinguishing. Common law lawyers continuously ‘engage in complex factual triages, distinguishing as factually different and distant those cases whose outcome would militate against their client’s interests; and, conversely, presenting as analogous the facts of cases whose outcomes militate in favour of their clients’.53 In this way, the common law is safeguarded against broad generalisations from previous decisions and remains susceptible to piecemeal reform:54 the common law is in constant flux, always in a process of further becoming, developing, and transforming as it cloaks itself with the habits of past decisions, tailored to the lines of the pending situation. The common law evolves with the ongoing derivation of legal standards from prior judicial decisions, but it is defined by continuous motion. (…) It is fluid, with a suppleness that resides in its inseparability from each discrete, concrete set of facts, the facts of the lived experiences which formed the basis of the litigation that led to the prior relevant court adjudications.55 The second ideal type is based on the civil law tradition. Though civil law systems generally do not recognise precedents as binding sources of law, the normative role of precedents has gained power over the past years. The role of precedents in civil law is characterised by a magisterial and deductive style of reasoning. This style excludes extensive factual comparisons:56 there is ‘none of the detailed analysis and in-depth 50 Grosswald Curran (n. 6 above) 76-77; MacCormick and Summers (n. 3 above) 537. See also J. Raz, The Authority of Law, available online at , 188. 51 Bankowski et al. (n. 9 above) 489. 52 Bankowski et al. (n. 9 above) 489. 53 Grosswald Curran (n. 6 above) 77. See also Bankowski et al. (n. 9 above) 489. 54 Raz (n. 50 above) 195-197. 55 Grosswald Curran (n. 6 above) 75. Similarly, Bankowski et al. (n. 9 above) 489. 56 MacCormick and Summers (n. 3 above) 444, 448, 536. See also Grosswald Curran (n. 6 above) 87-88. A nuanced approach is, however, required in this respect. According to Lundmark, the style of civil law judgments is becoming ‘less ministerial, bold and declaratory and more discursive, cautious, and factoriented. In short, judicial decisions are becoming more amenable to distinguishing and to (…) the use of the fact-based result of the decision in addition to the announced rationale and the discerned principles’.

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FACTS MATTER discussion of the point and purport of rulings on issues in prior cases, none of the careful teasing-out of points of distinction, both at the factual and at the legal level’.57 Following this practice, civil law courts use precedents as interpretative devices, i.e. as aids for good statutory interpretation that assist judges in giving a rational and reasonable explanation of legal rules.58 In particular, the courts conform to the ways in which a legal rule was interpreted in previous cases and apply the standards that were formulated in that respect in later cases that are governed by the same rule.59 For example, the Dutch courts have continuously reiterated the Supreme Court’s interpretation of co-perpetration as the ‘close and knowing cooperation’ between multiple participants.60 This criterion articulates a relatively abstract standard that can be employed irrespective of the factual differences and similarities between cases. The meaning and scope of the ‘close and knowing cooperation’ criterion are accordingly determined by the canonical formulation rather than by the factual context from which the criterion emerged (as is the case in the common law).61

5.3.2

Precedents: Rule versus Reason

Against the background of domestic practice, legal theory has developed two models of reasoning from precedent: the rule-model and the reason-model. The main distinction between these models lies in their definition of the analogy between cases: when are a precedent and present case sufficiently similar for the decision in the latter case to be modelled on the former? Under the rule-model, two cases are similar when they are governed by the same judicial rule.62 The model therefore finds that precedents have to be generalised into a rule that explains their outcome. This rule must in principle be followed in all later cases

57 58 59 60 61 62

T. Lundmark, ‘Book Review: Interpreting Precedents: A Comparative Study’, 46 American Journal of Comparative Law (1998) 211, 223-224. On this issue see also M. Adams, ‘The Rhetoric of Precedent and Comparative Legal Research’, 62 The Modern Law Review Limited (1999) 464, 464; M. Aikenhead, ‘Book Review: D. Neil MacCormick and Robert S. Summers, Interpreting Precedents: A Comparative Study’, 8 Artificial Intelligence and Law (2000) 283, 284. MacCormick and Summers (n. 3 above) 536. MacCormick and Summers (n. 3 above) 458-459; Grosswald Curran (n. 6 above) 87-88; Bankowski et al. (n. 9 above) 484. MacCormick and Summers (n. 3 above) 536-538. In Dutch, the courts require a ‘nauwe en bewuste samenwerking’. See HR 29 October 1934, NJ 1934, 1673 m.nt. T. MacCormick and Summers (n. 3 above) 537. G. Lamond, ‘Precedent’, 5 Philosophy Compass (2007) 699, 700; G. Lamond, ‘Precedent and Analogy in Legal Reasoning’, available online at ; J.F. Horty, ‘Rules and Reasons in the Theory of Precedent’, 17 Legal Theory (2011) 1, 1; B. Roth, Case-Based Reasoning in the Law: A Formal Theory of Reasoning by Case Comparison, 26 November 2003, PhD Thesis, 9.

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that satisfy its conditions for application.63 In this way, precedential constraint becomes analogous to constraint by rules. In the common law, this approach has resulted in intense discussions on how to determine the rule – i.e. the ratio decidendi or holding – underlying a decision.64 These discussions are spurred by the fact that the exact meaning and scope of ratio decidendi are often indeterminate.65 Courts do not always articulate a case’s ratio explicitly and even if they do, the ratio’s formulation lacks canonical force. The rules underlying precedents consequently have to be construed in retrospect and can be reviewed and adapted by later courts.66 This involves a creative process in which prior decisions are generalised and given case-transcending meaning.67 Since this process is organic and may endure continuously, established precedential rules can be adjusted to insights from new cases.68 The designation of precedents as rules implies that precedents outline an exclusionary category of relevant circumstances, which stipulate the necessary and sufficient conditions for application.69 A precedent, for example, applies when conditions x, y, and z are present. If a new case in addition to x, y, and z also incorporates conditions a and b, the precedent is still applicable.70 Since x, y, and z are jointly sufficient conditions for application, the new case remains within the scope of the precedential rule. Some critics have argued that this approach does not conform to the actual character and practical function of precedents. In particular, they have asserted that precedents – unlike rules – do not represent whole categories that specify the conditions under which they apply beforehand. Instead of exhausting all possible applications in advance, precedents ‘represent only salient possibilities, kinds of situations to which the applicability of some legal predicate has been treated as clear or intuitively seems clear’.71 In other words, precedents exemplify types of situations to which the law applies, but do not limit the law’s scope to these situations. In this way, they leave room for legal 63 F. Schauer, Playing by the Rules (Oxford: Clarendon Press, 1991) 187; G. Lamond, ‘Do Precedents Create Rules?’, 11 Legal Theory (2005) 1, 2; J.F. Horty and T. Bench-Capon, ‘A Factor-Based Definition of Precedential Restraint’, 20 Artificial Intelligence and Law (2012) 181, 182; Van Willigenburg (n. 30 above) 1; Levenbook (n. 45 above) 185; Horty (n. 62 above) 1. 64 MacCormick and Summer (n. 3 above) 474; Kratochwil (n. 5 above) 221; Shiner (n. 49 above) 36; Roth (n. 62 above) 12. For an overview of the debate on ratio decidendi, see N. Duxbury, The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008); R. Cross and J.W. Harris, Precedent in English Law (Oxford: Clarendon Press, 1991). 65 Although Hart argues that ‘in the vast majority of decided cases there is very little doubt’ about the rule for which a precedent is an authority. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994) 131. 66 Shiner (n. 49 above) 36, 55; Van Willigenburg (n. 30 above) 1-2, 76-77; Lamond (n. 63 above) 2, 9-10. 67 Kratochwil (n. 6 above) 221; Van Willigenburg (n. 30 above) 76-77, 80; Shiner (n. 49 above) 54-55. 68 Shiner (n. 49 above) 53. 69 Van Willigenburg (n. 30 above) 29-30, 141-142; Raz (n. 50 above) 183. 70 At least, as long as this does not lead to a result that is so unsatisfactory that the courts should reinterpret the rule or formulate an exception to it. 71 Von der Lieth Gardner (n. 41 above) 52. Similarly, Bell (n. 47 above) 1260-1261.

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FACTS MATTER development and refinement in light of previously unaccounted circumstances.72 The impact of precedents on future decisions thus becomes more nuanced than the qualification of precedential rationes as rules suggests. On this account, scholars have presented an alternative approach to reasoning from precedent: the reason-model.73 The reason-model takes as a starting-point that like cases should be treated similarly.74 From this perspective, it depicts precedents as examples of correct decisions relative to a particular factual situation. Later courts are required to treat these examples as rightly decided on their facts and have to ‘reach a decision that is consistent with the earlier court’s assessment of the balance of reasons’.75 This means that courts should follow precedents insofar as the circumstances of the case before them are analogous to the facts of precedent cases. The reason-model values this process of following precedents as an important formative exercise, because it affects the level of precedential constraint.76 After all, ‘[e]very time a precedent is followed, further facts are added to the list of those regarded as insufficient to defeat’ the precedent.77 By thus gradually defining the factual circumstances that do not justify a deviation from previous decisions, courts are restrained to a more and more precise concept of law. At the same time, the law retains a certain openness and flexibility, because it is shaped on a case-by-case basis.78 Each case constitutes ‘a new square in a mosaic, or a sculptor’s stroke, changing the face of the whole, altering its meaning through the addition of facts in its trajectory through time’.79 In practice, most new cases differ from precedents, either because they incorporate additional relevant facts or because they lack certain characteristic circumstances. Under the reason-model, courts can use these differences as a basis for distinguishing a case 72 A. Peczenik, ‘Jumps in Logic and Law. What Can One Expect from Logical Models of Legal Argumentation’, 4 Artificial Intelligence and Law (1996) 297, 311; Von der Lieth Gardner (n. 41 above) 52; Raz (n. 50 above) 187-189; Levenbook (n. 45 above) 201-211; Lamond 2007 (n. 62 above) 701-702; Lamond (n. 63 above) 3, 9-15. 73 The distinction between the rule- and reason-model should, however, not be exaggerated. As Roth shows, both models portray similar reasoning steps. Roth (n. 62 above) 11-13. Also Horty nuances the differences between the rule-model and the reason-model by defining rules by default. Horty (n. 62 above) 3. In addition to the reason-model, other alternative models perceive that the binding element of precedents should be found in the set of principles that justify the decision (the rationale of the decision), or that precedents are examples that need to be followed in future cases whose facts are on all fours with the precedent. Lamond 2007 (n. 62 above) 702-704; Lamond (n. 32 above) 2. 74 L.M. Soriano, ‘The Use of Precedents as Arguments of Authority, Arguments ab Exemplo and Arguments of Reason in Civil Law Systems’, 11 Ratio Juris (1998) 90, 99. 75 Horty (n. 62 above) 3. See also Lamond (n. 63 above) 3; Horty and Bench-Capon (n. 63 above) 183; Roth (n. 62 above) 10. 76 Horty (n. 62 above) 20. 77 Lamond (n. 63 above) 17. Similarly, Horty (n. 62 above) 9; Horty and Bench-Capon (n. 63 above) 201-202. Horty himself refers to an important difference between his own findings and those of Lamond. Horty (n. 62 above) n. 19. 78 E. Levi, ‘An Introduction to Legal Reasoning’, 15 University of Chicago Law Review (1948) 501, 503. 79 Grosswald Curran (n. 6 above) 107.

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from prior situations and for justifying a defeat from precedent.80 Suppose, for example, that a court establishes an accused’s knowledge of the commission of crimes in a notorious detention facility on the basis of his supervision over this facility. This decision creates the general presumption that an accused’s role as ‘crime scene supervisor’ is sufficient to ascertain the knowledge-requirement in future cases as well. However, when these cases incorporate additional circumstances that have not been accounted for previously – e.g. the criminal activities in a facility were incidental and well-hidden from outsiders – courts are permitted to set the established presumption aside.81 As the previous example shows, the process of distinguishing allows for adjusting the meaning and scope of precedents to changed circumstances and new insights. This raises fundamental questions about the status and effect of precedents.82 In particular, we can wonder whether there remains anything of the case-transcending value of precedents when they only have to be followed in the unlikely event that cases are factually identical. Does the reason-model not effectively reduce precedents to particularistic decisions that cannot restrain future judges (Einzelfallgerechtigkeit)? No, not completely. As said, courts are required to treat precedents as correctly decided on the basis of their facts. On this account, they have to engage in a process of analogical reasoning that explores the factual similarities and differences between the precedent and present case and should use this assessment to explain the court’s decision. This process becomes more and more confined with the increasing adjudication of cases, each entailing a specific combination of circumstances that needs to be respected. Take the following example concerning JCE liability. The JCE concept establishes criminal responsibility on the basis of the accused’s acceptance and pursuance of a common criminal plan. Suppose that the ICTY in one case applies JCE in relation to an accused who was instrumental to the preparation of crimes, but who did not participate in the crimes’ execution. Under the reason-model, this finding does not imply that future chambers can – as a rule – establish JCE liability each time an accused fulfilled a preparatory role (as the rule-model of reasoning from precedent suggests). Nevertheless, the reason-model requires that the ICTY’s previous evaluation of facts is respected. The original precedential starting-point can therefore only be renounced on the basis of factual differences between the present and precedent case that justify a different balance of reasons. This means that an accused’s criminal responsibility under JCE can no longer be absolved merely because he did not commit any crimes physically. Yet, future chambers may still find that the accused in the case before them played a much smaller and less significant role than the accused in 80 Lamond (n. 63 above) 3, 16. 81 Van Willigenburg (n. 30 above) 146-147. 82 Lamond 2007 (n. 62 above) 704; Van Willigenburg (n. 30 above) 146.

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FACTS MATTER precedent cases. Based on this distinction, they can conclude that the present accused cannot be held responsible under JCE. The previous account shows that the reason-model takes a typical contextual approach in which the meaning of precedents is embedded in particular fact situations: facts and law are weaved together. Whereas precedents thus lose their general rule-like applicability, they retain important controlling and case-transcending value. In particular, precedents help to clarify the law’s factual scope and to structure its application in individual cases.83 In this way, they control the rationality and consistency of judicial decision-making without tying courts to pre-established precedential rules.

5.3.3

Reasoning from Precedent in AI&L

AI&L has drawn inspiration from legal theory to design logical frameworks of case-based reasoning that combine the rule- and the reason-model of reasoning from precedent. AI&L takes as a starting-point that precedents can stipulate rule-like interpretations of legal norms.84 Think, for example, of the Dutch ‘close and knowing cooperation’ criterion for co-perpetration. Whereas AI&L recognises that these interpretations impose important restrains on judicial argumentation, it also emphasises that they cannot control the application of the law completely, because there is a ‘gap in generality between open-textured rule antecedents and specific case facts’.85 For example, the ‘close and knowing cooperation’ criterion does not determine whether the co-perpetrators’ cooperation needs to relate to the execution of crimes or whether collaboration during the preparatory stage also suffices. To close this gap between rules and facts, AI&L instructs courts to conduct contextual analyses conform the reason-model.86 It has therefore developed guidelines that help courts to identify the relevant facts of a case and to draw legal inferences from these facts.87 The value of these guidelines is two-fold: they offer a tool based on which courts can structure their argumentation, as well as an analytical scheme for scholars to evaluate judicial reasoning.

83 Soriano (n. 74 above) 100-101. 84 K.D. Ashley, ‘Case-Based Models of Legal Reasoning in a Civil Law Context’, available online at , 5. 85 L. Branting, ‘Building Explanations from Rules and Structured Cases’, 34 International Journal of ManMachine Studies (1991) 797, 798. See also G. Vossos et al., ‘An Example of Integrating Legal Case-Based Reasoning with Object-Oriented Rule-Based Systems: IKBALS II, ICAIL Proceedings of the 3rd International Conference on Artificial Intelligence and Law (New York: ACM Press, 1991) 31, 31-32, 35; T. BenchCapon and G. Sartor, ‘Using Argument Schemes for Hypothetical Reasoning in Law’, 18 Artificial Intelligence and Law (2010) 153, 153-154; Ashley (n. 84 above) 9. 86 Branting (n. 85 above) 798. See also Ashley (n. 84 above) 5; Vossos et al. (n. 85 above) 32. 87 Ashley (n. 84 above) 6-7.

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AI&L guidelines designate factors as the primary determinants of judicial reasoning. Factors are (categories of) legally significant fact patterns that favour a certain outcome and provide reasons for a specific decision.88 This implies that factors – unlike statutory provisions and judicial criteria – do not stipulate the necessary and sufficient conditions of criminal responsibility that have to be established in every case. Instead, they constitute open-ended illustrations of circumstances that courts can use to determine whether an accused’s conduct falls within the scope of the law. For example, the fact that a person discriminatorily attacked persons of a specific ethnicity in a village can be a reason for deciding that he acted with genocidal intent, without requiring courts to arrive at this conclusion. This allows for applying factors in a flexible way. Courts can tailor their description and evaluation of factors to the specific features of the case under consideration.89 For example, they can establish an accused’s genocidal intent on the basis of his personal expression of violent thoughts or his participation in a collective campaign of destructive violence, depending on the case-specific context. It should be emphasised that this flexibility does not authorise courts to define whatever factors suit them best. AI&L research clarifies that factors have to be determined in light of the reasons underlying the criminalisation of conduct.90 In other words, factors should follow from the desire to achieve the purpose of a rule and reflect the belief that acting and deciding in accordance with certain factors advances that purpose.91 In this light, AI&L requires that courts construe teleological links between factors and the purpose of the rule for which they are used. In genocide cases, courts should, for example, ask themselves which factual circumstances contribute to the physical or biological destruction of a protected group and define the relevant facts of the case on this basis. AI&L emphasises that the description of cases in terms of factors does in itself not determine or explain a judicial decision, but only provides input for a further reasoning phase in which all factors pro and con a decision are weighted in their variable combinations.92 Whereas this weighing process is relatively unproblematic when all factors point in

88 G. Sartor, Legal Reasoning: A Cognitive Approach to the Law (Dordrecht: Springer, 2005) 184. Contrary, Roth (n. 62 above) 27. 89 This has also been explicitly recognised by the ICTY. See e.g. Popović et al. Trial Chamber judgment, para. 832; Prosecutor v. Krstić, Judgment, Case No. IT-98-33-A, Appeals Chamber, 19 April 2004 (Krstić Appeals Chamber judgment), para. 14. 90 T. Bench-Capon, ‘The Missing Link Revisited: The Role of Teleology in Representing Legal Argument’, 10 Artificial Intelligence and Law (2002) 79, 93. 91 In this sense, AI&L seems to differ from Christie who argues that analogical reasoning does not require rules: ‘any two cases will be considered similar if according to whatever criterion or similarity is imposed, they are within a certain degree of proximity’. Christie cited by Kratochwil (n. 6 above) 222. 92 Sartor (n. 88 above) 178. Differently, see Roth (n. 62 above) 15, 18-20, 50-51.

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FACTS MATTER the same direction, difficulties arise when they pull in opposite ways. Suppose, for example, that an accused vigorously called for the extermination of an ethnic group, but at the same time saved individual members of this group from being killed. Whereas the former circumstance is a clear reason for deciding that the accused acted with genocidal intent, the latter circumstance contradicts this finding. But which of these factors carries more weight and is ultimately decisive? How should the factors favouring a conviction for genocide be balanced against the factors disfavouring this conclusion? To answer these questions, AI&L turns to analogical reasoning from precedent. AI&L perceives precedents as past situations in which competing sets of factors were weighted and decided upon.93 It assumes that new cases should be decided conform precedents and accordingly holds that a prior court’s evaluation of factors must be reapplied in later cases. This means that courts can only depart from precedents insofar as the factors of the case under consideration differ from the factors of precedents in relevant respects. Because each case deals with a unique factual context, every judicial decision presents new (combinations of) factors that need to be respected. In this way, courts are put under increasing precedential constraint.94 Suppose, for example, that a court decides that the accused’s saving of individual persons does not negate his genocidal intent, because he otherwise favourably participated in the genocidal campaign to destroy the ethnic group to which these persons belonged. Future courts have to apply this evaluation analogically. They can therefore only deviate from the prior court’s balance of factors if the case before them includes relevant circumstances that were unavailable in the precedent, such as the fact that the accused was forced to participate in the genocidal campaign by his superior. Prototypes are an important starting-point and yardstick in the process of analogical reasoning.95 Prototypes are standard cases that contain an optimal combination of factors. Whereas they do not exhaustively define the law, new cases can only be classified in terms of a prototype if they display sufficient factual resemblance to the prototypical notion.96 The applicability of prototypes accordingly depends on (i) the extent to which the factors of the prototype are present in the new situation and (ii) the presence of

93 Sartor (n. 88 above) 738. 94 Horty (n. 62 above) 3. 95 Sartor (n. 88 above) 192. Sartor’s description of prototypes corresponds with Hart’s ‘standard case’ – i.e. a case in which no doubts are felt about its application. H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, 71 Harvard Law Review (1958) 593, 607-608. Similarly see Smith (n. 6 above) 140. 96 Similarly in relation to legal theory, Christie (n. 5 above) 1337.

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additional factors in the new situation that hinder the prototypical features from playing their normal function.97 In this light, [m]uch legal argument involves debating whether a case is really the same as the problem or not. (…) The dialectical process is one of characterizing and recharacterizing the relevant features of the problem and case in terms of their legal significance in support of an argument either that the cases should be decided alike or differently.98 This dialectical process covers a variety of arguments and rhetorical techniques that elucidate the (importance of) factual distinctions and analogies.99 Amongst others, it includes the practice of ‘downplaying’ and ‘emphasising’. This practice allows courts to re-characterise the factual differences and similarities between cases by describing them at a different level of generality.100 Suppose, for example, that a court is confronted with a case in which two accused made different contributions to the commission of crimes. Whereas one of the accused executed crimes, the other contributed to the crimes’ preparation. The court can downplay this distinction and show that it is irrelevant by drawing a parallel in terms of a more abstract factor.101 For example, it can argue that both accused were closely involved in a criminal activity and made an essential contribution to this activity. The court’s argumentation on this point is restrained by the teleological basis of factors. This means that findings on the relevance of factual differences and similarities should be linked to the purpose of the applicable legal rule.102 In the example case, the court thus has to determine whether the accused’s physical commission of crimes is decisive in light of the purpose of the mode of liability under which he is charged.

97 Sartor (n. 88 above) 191. 98 V. Aleven and K.D. Ashley, ‘How Different Is Different? Arguing about the Significance of Similarities and Differences’, 1168 Lecture Notes in Computer Science (1996) 1, 8. On this issue, see also Kratochwil (n. 6 above). 99 See, e.g. D.B. Skalak and E.L. Rissland, ‘Arguments and Cases: An Inevitable Intertwining’, 1 Artificial Intelligence and Law (1992) 3, 15-41; T. Bench-Capon and G. Sartor, ‘Theory-Based Explanation of Case Law Domains’, ICAIL Proceedings of the 8th International Conference on Artificial Intelligence and Law (New York: ACM Press, 2001), 17-20. 100 Aleven and Ashley (n. 98 above) 8-12; Roth (n. 62 above) 92-98. 101 Aleven and Ashley (n. 98 above) 8; Sartor (n. 88 above) 777. 102 D.H. Berman and C.D. Hafner, ‘Representing Teleological Structures in Case-Based Legal Reasoning: The Missing Link’, ICAIL Proceedings of the 4th International Conference on Artificial Intelligence and Law (New York: ACM Press, 1993) 50, 57; Roth (n. 62 above) 101-102; Bench-Capon (n. 90 above) 87-88.

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5.4.1

LESSONS LEARNT: A NEW APPROACH INTERNATIONAL CRIMINAL LAW

TO

JUDICIAL REASONING

IN

The Reason-Model in International Criminal Law

Domestic theory and practice provide us with different models of reasoning from precedent that include numerous guidelines for judicial argumentation. This section evaluates how these models can help to clarify and structure the reasoning practice of the ad hoc Tribunals and the ICC. The section focuses on argumentation techniques from the reason-model, since these techniques seem particularly valuable for international criminal law. The reason-model requires that courts engage in a contextdependent process of analogical reasoning in which the (in)applicability of legal rules is explained in terms of the presence and absence of relevant factual circumstances. In this way, courts can clarify the interplay between law and facts and structure the application of the law to these facts, even in hard cases in which general (precedential) rules and criteria fall short. How can the ad hoc Tribunals and the ICC put the reason-model in practice? The first step of the reason-model is the formulation of relevant factors. The ad hoc Tribunals and the ICC can implement this step quite easily. They have already drawn up a number of lists of facts that are relevant or insufficient for establishing (the elements of) international crimes and modes of liability. ICTR case law, for example, stipulates that the element of genocidal intent can be inferred from the accused’s acts, utterances and position and from the pattern of purposeful action.103 Even though these lists of facts are necessarily non-exhaustive (since it is impossible to foresee all relevant circumstances that future cases will present), they allow courts to elucidate the crucial facets of criminal responsibility and to reveal the circumstances under which such responsibility can be ascertained. Thus, the lists structure the available evidence and guide courts through the complexities that this evidence presents. For example, the relevant circumstances for establishing genocidal intent instruct courts to assess the existence of a genocidal context in addition to the accused’s personal conduct. Considering this guiding function, it is advisable that the ad hoc Tribunals and the ICC supplement each legal element and each judicial criterion with a list of circumstances from which these elements and criteria can(not) be inferred. In this respect, the courts have to be mindful of the teleological links between law and facts: the listed facts should be connected to the legal purpose of the rule or criterion for which they are used. For example, the fact that genocide prohibits the biological or physical destruction of protected groups hinders the

103 E.g. Akayesu Trial Chamber judgment, para. 523.

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incorporation of factual circumstances relating to a group’s cultural destruction in the list of facts from which genocidal intent can be inferred. In the second step of the reason-model, the lists of factors are operationalised in interplay with the particular circumstances of individual cases. This means that the ad hoc Tribunals and the ICC have to explain how their assessment of the facts of the case before them relates to the circumstances that are included in the lists of relevant factors. To implement this type of reasoning in practice, the ad hoc Tribunals and the ICC do not have to change their argumention process rigorously. The courts’ judgments already include findings of law that stipulate the legally relevant circumstances in general terms; findings of fact that specify the circumstances of specific cases; and concluding findings, which ascertain if the established facts meet the legal standards. However, as shown before, the judgments do not always make the connections between these reasoning steps explicit. They do not consistently link the courts’ factual findings to the established legal framework and thus create uncertainties about the interplay between law and fact. To remedy this defect and to clearly articulate the linkage between general legal rules and case-specific facts, the courts are advised to structure and present their arguments according to a specific reasoning scheme. In relation to the policy for crimes against humanity, this scheme could, for example, broadly take the following shape. The courts (i) establish that a number of villages was encircled and attacked from different directions during a period of three months; (ii) argue that this fact shows the execution of temporally and geographically repeated and coordinated military offensives; (iii) recall that the execution of such offensives is included in the list of factual circumstances from which a policy to commit crimes against humanity can be inferred and; (iv) ascertain that this is a decisive reason for establishing a policy to commit crimes against humanity that trumps the applicable counter-indications. This argumentation scheme structures the available information in such a way that the lists of relevant facts are openly connected to the circumstances of individual cases. Thus, it is made clear which (combinations of) fact are sufficient to establish a rule or criterion and which are not. The third step of the reason-model seeks to control the interplay between law and facts through a process of analogical reasoning from precedent. In this step, courts position the case before them relative to positively and negatively decided precedents based on the presence and absence factors.104 In particular, they use the lists of relevant facts to compare the case before them with prior cases and justify their conclusions based on the thus established analogies. Such analogical reasoning is not included the current reasoning practice of the ad hoc Tribunals and the ICC. The effects of this hiatus become

104 Rozemond (n. 30 above) 13; Sartor (n. 88 above) 193.

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FACTS MATTER abundantly clear when we examine the ICTY’s development of the JCE doctrine from the Tadić to the Brđanin case.105 In the Tadić case, the ICTY Appeals Chamber relied on JCE to hold Tadić accountable for the murder of five men in the village of Jaskici. Even though it could not be ascertained that Tadić had physically killed the victims, the Appeals Chamber considered that the death of the men was a natural and foreseeable consequence of the common plan between Tadić and the members of his military unit to ethnically cleanse Jaskici. By reasoning in this way, the Appeals Chamber established Tadić’ responsibility under JCE on the basis of his agreement to participate in a relatively small-scale campaign of violence that was geographically and temporally confined.106 In the Brđanin case, the Prosecution sought to apply JCE in a different way. The Prosecution in this case claimed that Brđanin – a senior Bosnian-Serb politician – had cooperated with the leadership of the Serbian Democratic Party and the army of the Republika Srpška to formulate ‘a “strategic plan” to gain control over the Serb-populated areas in BosniaHerzegovina and to create a separate Bosnian state from which non-Serbs would be removed’.107 Brđanin was thus accused of having contributed to a political campaign covering a broad range of crimes committed over a long period of time by a large group of persons. In first instance, the Brđanin Trial Chamber decided that JCE does not apply to this type of situation: [a]lthough JCE is applicable in relation to cases involving ethnic cleansing, as the Tadić Appeal Judgement recognizes, it appears that, in providing for a definition of JCE, the Appeals Chamber had in mind a somewhat smaller enterprise than the one invoked in the present case.108 The Brđanin Appeals Chamber, however, dimissed this decision. It considered that the prior application of JCE to small-scale mob violence committed by low- and mid-level perpetrators ‘depended (…) on the size of these cases themselves and not on the requirement that JCE apply only to small-size cases’.109 In this light, the Appeals Chamber held that the JCE concept is not limited to confined incidents of group105 Prosecutor v. Tadić, Judgment, Case No. IT-94-1-A, Appeals Chamber, 15 July 1999 (Tadić Appeals Chamber judgment), paras. 185-229. 106 E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012) 136. 107 Van Sliedregt (n. 106 above) 159. 108 Prosecutor v. Brđanin, Judgment, Case No. IT-99-36-T, Trial Chamber II, 1 September 2004, para. 355. 109 Prosecutor v. Brđanin, Judgment, Case No. IT-99-36-A, Appeals Judgment, 3 April 2007 (Brđanin Appeals Chamber judgment), para. 425 (emphasis added). Admittedly, the Chamber refers to the several cases in which JCE was applied to situations of large-scale violence. However, this does not count as a true contextual evaluation.

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criminality, but can also be used to establish the criminal responsibility of senior political figures who contributed to large-scale system criminality from a remote position.110 Thus, the Brđanin Appeals Chamber designed a specific type of ‘leadership JCE’ that differs from the original JCE concept of the Tadić case. The findings of the Brđanin Appeals Chamber have been endorsed in later judgments, which makes ‘leadership JCE’ part of the ICTY’s established case law.111 Scholars have, however, heavily criticised this development, arguing that it extends JCE beyond its original scope in an illegitimate way.112 This critique is well explicable when the judicial development of JCE liability is analysed according to the methodological standards of the reason-model. These standards are premised on the thought that courts have to respect the evaluation of facts underlying prior decisions. From this perspective, the absence of a requirement that restricts JCE to small-scale mob violence does in itself not justify the extension of JCE liability to situations that fundamentally differ from existing practice. Instead, the finding that Tadić and Brđanin can both be held accountable under JCE despite their seemingly different roles, deserves further explanation. In this respect, the Tribunal should have engaged in a context-dependent process of analogical reasoning that defines and weighs the factual similarities and differences between the contribution of senior leaders to the commission of large-scale criminality, on the one hand, and the involvement of low- and mid-level perpetrators in small-scale mob violence, on the other. Of course, this reasoning process would not necessarily have halted the ICTY from progressively expanding JCE beyond its original paradigm, but at least this expansion would have been explained more openly. The Tribunal could, for example, have argued that the differences between the Tadić case and the Brđanin case are irrelevant in light of the values underlying JCE. The need to hold senior political and military figures responsible for the crimes that they have masterminded from a remote position is so prominent that it allows for the innovative construction of a broad concept of criminal responsibility.113 By explaining the development of JCE in this way, the ICTY could have spurred a more fruitful debate about the benefits and problems of this type of liability.

110 Van Sliedregt (n. 106) 137. 111 Van Sliedregt (n. 106) 164. 112 E.g. C. Farhang, ‘Point of No Return: Joint Criminal Enterprise in Brđanin’, 23 Leiden Journal of International Law (2010) 137; E. van Sliedregt, ‘System Criminality at the ICTY’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009) 183. 113 Interestingly, the Appeals Chamber itself seems to reject this teleological argument and finds that ‘policy considerations are inappropriate as a basis for a theory of individual criminal responsibility’. Brđanin Appeals Chamber judgment, para. 421.

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FACTS MATTER 5.4.2

Is Implementing the Reason-Model Practically Feasible?

So far, I have argued that the ad hoc Tribunals and the ICC can improve the judicial argumentation process by structuring their judgments according to the reason-model. It can, however, be questioned whether implementing the reason-model is practically feasible. Does this model not impose a too onerous burden on international criminal courts? In answering this question, we should be mindful that the role of courts is shaped by a delicate balance between a number of (possibly contradictory) objectives and values,114 such as the right to a reasoned opinion and demands for procedural fairness and administrative efficiency. Promoting one of these objectives can go at the expense of the other. For example, advancing judicial argumentation with a process of analogical reasoning from precedent can complicate judgments and prolong the drafting procedure.115 We should therefore be careful not to expect too much from the ad hoc Tribunals and the ICC, nor force them to disregard valid needs for efficiency and pragmatism. Instead, it is preferable to take a flexible approach that tailors the nature and scope of judicial argumentation to the specific features of individual cases and legal procedures.116 This allows courts to focus judicial reasoning on those situations and issues that are most significant, complex or controversial. One of the circumstances that can influence the level of judicial argumentation is the distinction between easy cases and hard cases. Whereas the courts’ argumentation in easy cases may be limited to a straightforward application of the law, decisions in hard cases require further explanation. Of course, the distinction between easy and hard cases is not always self-evident and can be difficult to define.117 This also relates to the fact that the complexity of cases can never be determined in general, but should always be assessed relative to a specific legal question. Having said that, it seems that courts are usually capable of recognising the difficult elements and controversial features of a case in practice. Note, for example, the distinct reasoning of the ICTY and ICTR on the crime of genocide.118 Whereas the ICTR has established the occurrence of genocide in Rwanda without complex (analogical) reasoning (from precedent), the ICTY has assessed the established facts more critically and has justified its findings on the occurrence of genocide more elaborately. This distinction can be explained by the fact that the

114 Similarly, J. de Poorter and H. van Roosmalen, Motivering bij Rechtsvorming. Over de Motivering van Uitspraken met een Rechtsvormend Element door de Afdeling Bestuursrechtspraak van de Raad van State (Den Haag: Raad van State, 2009) 9; Walker (n. 7 above) 1691. 115 On this issue in relation to domestic law, MacCormick and Summers (n. 3 above) 548. 116 Similarly in relation to domestic law, Adams (n. 9 above) 116-117; De Poorter and Van Roosmalen (n. 114 above) 22. 117 E.g. J. Klabbers, ‘The Meaning of Rules’, 20 International Relations (2006) 295, 297. 118 On this issue, see Cupido (n. 39).

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genocidal character of the Rwandan violence is generally undisputed. There is clear evidence of large-scale violence directed at the physical extermination of Tutsi’s. By contrast, the qualification of the atrocities committed in the former Yugoslavia as genocide is more controversial, since the apparent objective of the Balkan war was to expulse rather than to destroy certain ethnic groups. This requires that genocide convictions are explained with particular care. Apart from the complexity of cases, also the stage of a case before the court (pre-trial, trial or appeal) and the arguments of the parties may influence the implementation of the reason-model in practice. In general, it, for example, seems reasonable that Pre-Trial Chamber decisions on issues that will be addressed again during trial are based on less meticulous argumentation than the final judgments of Trial Chambers. The influence of the parties on judicial reasoning becomes particularly prominent when the trial is structured as an adversarial ‘battle’ between the prosecution and defence. Because courts are only meant to supervise this battle without actively intervening it, they can focus their argumentation on those issues that have been disputed by the parties and on the specific precedents that the parties have used to substantiate their position. At the international level, the ad hoc Tribunals and the ICC, however, take a more vigorous position and exercise an autonomous responsibility to provide a complete and accurate construction of each case. They should therefore look beyond the arguments of the parties and address all matters that they deem significant. The adoption of a flexible approach towards judicial argumentation has the effect that the reason-model will not always be implemented in full. It is important to emphasise that this does not detract from the model’s potential value, since even the acceptance of some basic elements of the reason-model that are easily put in practice can advance the argumentation practice of the ad hoc Tribunals and the ICC. For example, the mere specification of relevant and insufficient factual circumstances and the construction of linkages between these circumstances and the facts of individual cases already have an important clarifying effect. Furthermore, it seems that the reasonmodel’s analogical reasoning process is not only effective when cases are compared with every applicable precedent in all relevant respects. The transparency and controllability of judicial reasoning will already benefit from the designation of obvious factual distinctions and similarities between cases (e.g. small-scale mob violence by low- and mid-level perpetrators versus large-scale system criminality by senior leaders). Also the specification of the viewpoints from which cases are (dis)similar (e.g. case X is similar to case Y insofar as it concerns the organised character of the attack) will be advantageous to the court’s argumentation practice. I recognise that these changes will not give judicial argumentation a mathematic level of precision. This is inevitable, since even the most detailed description of rules, criteria,

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FACTS MATTER factors and precedents cannot preclude the existence of hard cases for which there are no or only contradictory precedents available.119 Courts will therefore always retain a certain discretion to apply the law in an autonomous way. Nevertheless, the reasonmodel makes it possible to structure and control this judicial discretion by confining courts to a specific context of deliberation: ‘there is a set of prescriptions to follow, or a set of alternatives to choose, that define the context in which the discretionary decision shall be made’.120 By thus guiding courts through the complexities of individual cases, the reason-model structures judicial argumentation and precludes that each case is decided on its own merits. This promotes efficient, consistent and transparent reasoning and ultimately advances the legality of substantive international criminal law.

5.5

LESSONS LEARNT: A NEW APPROACH CRIMINAL LAW

TO

STUDYING INTERNATIONAL

The previous section has drawn attention to some institutional and practical limitations that complicate the full implementation of the reason-model in judicial practice. The onus is on legal doctrine to assist the courts in facing these complications and to fill the gaps in their argumentation process. To fulfil this task, scholars are advised to develop a practical discourse that studies substantive international criminal law by using insights from casuistry and AI&L. This discourse could particularly explore the process of casuistic factor-based reasoning from a methodological, conceptual and normative perspective. On a methodological level, legal doctrine can seek to develop argumentation techniques that international criminal courts can use to clarify and structure the application of legal rules, judicial criteria and fact categories in individual cases. In this respect, this study has already looked into the role of fact(or)s. Further research is, however, needed to fully understand the character and function of factors and factor-based reasoning. Amongst others, it still has to be established whether and how factors interact. On this point, AI&L research has sometimes ascertained that factors can support a decision individually, while they negate this decision in their combination.121 For example, [t]he fact that the weather is hot may favour the conclusion that one should not go jogging. Similarly, the fact that it is raining also favours the conclusion 119 Roth (n. 62 above) 76. 120 Taruffo (n. 7 above) 320. See also Kratochwil (n. 6 above) 232. MacCormick and Summers present a more critical approach indicating that courts may abuse the extensive discussion of facts to ‘overdistinguish’ cases and to engage in non-overt departures. MacCormick and Summers (n. 3 above) 546-547. 121 E.g. Sartor (n. 88 above) 225.

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that one should not go jogging. However the combination of hot weather and rain can meet one’s tastes and indeed be a reason for one to decide to go jogging.122 In future research, legal scholarship should assess whether a similar interaction between factors influences the practice of international criminal courts. In addition, scholars can seek to develop prototypes of international crimes and modes of liability. To this end, they should analyse which factors characterise the prototype of, for example, genocide or JCE and examine to what extent new situations can deviate from these prototypes. Criminologists have already made a start with such research by defining prototypical notions of criminal participation in international crimes.123 Legal scholars can further refine these notions by using methodological insights from casuistry and AI&L. Thus, they can facilitate the process of analogical reasoning in practice. A third methodological issue that requires further exploration concerns the technical support for case-based reasoning. AI&L has developed a number of electronic systems that help to arrange complex (combinations of) fact and vast amounts of evidence in terms of factors, precedents and objectives.124 In this way, these systems contribute to the development of a comparison-base that can be used to examine the relations between cases. The ad hoc Tribunals and the ICC already employ various electronic databases – such as E-court and Live-note – for categorising evidence and transcripts. It would be interesting to see whether and how insights from AI&L can help to improve these databases. In a second line of research, scholars can use the methodology of casuistry and factor-based reasoning to study the conceptual patterns underlying the case law of international criminal courts. Whereas it should be recognised that the law’s inherent flexibility can make it difficult to develop universal standards, the previous case studies show that it is often possible to infer basic rules of thumb from the courts’ judgments. These rules of thumb give new insights into enduring ambiguities and controversies about the nature and scope of criminal responsibility for international crimes. For example, they can clarify that genocide is in principle not committed by lone génocidaires or that an accused’s preparation of a military attack generally ascertains his control over crimes. The rules of thumb can also be used to assess whether the decisions of

122 E.g. Sartor (n. 88 above) 225. 123 A. Smeulers, ‘Perpetrators of International Crimes: Towards a Typology’ in A. Smeulers and R. Haveman (eds.), Supranational Criminology: Towards a Criminology of International Crimes (Antwerp: Intersentia, 2008) 233, 233-265; S. Harrendorf, ‘How Can Criminology Contribute to an Explanation of International Crimes?’, 12 Journal of International Criminal Justice (2014) 231, 231-252. 124 For a short overview, see e.g. H. Prakken and G. Sartor, ‘The Role of Logic in Computational Models of Legal Argument – A Critical Survey’, available online at , 14-34.

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FACTS MATTER international criminal courts in individual cases give expression to a comprehensive and consistent notion of criminal responsibility for international crimes.125 Scholars should thereby take account of constructive thoughts underlying AI&L. AI&L assumes that judicial decisions do not only present competing factors, but also disclose a certain valueordering.126 This means that the finding that (set of) factors X outweighs (set of) factors Y also implies that the values promoted by X carry more weight than the values promoted by Y. Suppose, for example, that a court decides that the accused’s active participation in a political policy to ethnically cleanse a region (factor X) outweighs his unawareness of the specific ways in which this policy was implemented (factor Y). According to AI&L, this decision signifies that the effective prosecution of international crimes (value promoted by factor X) offsets an overly strict interpretation of individual criminal responsibility (value promoted by factor Y). It would be useful if future research explores such constructive considerations further and assesses how they can be used to explain and organise (the relations between) individual decisions. Finally, legal doctrine can start a normative line of research that takes the insights from casuistry and factor-based reasoning as a starting-point for critically appraising judicial argumentation in international criminal law. In this respect, scholars can use the reason-model of case-based reasoning as a framework and standard to analyse the reasoning practice of international criminal courts. In this way, they can, for example, determine the relevance of the facts that are listed in the categories of factual circumstances and evaluate the courts’ application and weighing of these facts in individual cases. This evaluation constitutes an important complement to the existing studies into the use of sources of law and methods of interpretation. It can reveal previously unnoticed irregularities in the judicial reasoning process, but may also nuance existing critiques. The case study into the policy to commit crimes against humanity, for example, shows how seemingly unreasonable inconsistencies in the courts’ general legal framework fade away in practice. The three lines of research set a difficult task for legal doctrine. It may be doubted whether scholars are able to fulfil this task and can solve the complex methodological, conceptual and normative issues discerned above. Can they, for example, ever ascertain the interaction between factors in a conclusive way? And will they be capable of

125 On such contructive notions, see K. Rozemond, Strafvorderlijke Rechtsvinding (Arnhem: Gouda Quint, 1998) 14, 40-42; K. Rozemond, ‘De Casuïstische Grenzen van het Materiële Strafrecht’, 37 Delikt en Delinkwent (2007) 465, 487-488; J. Struiksma, Het Geschil als Spil. De Empirische Cyclus van de Rechtswetenschap, available online at , 39-40, 41-43; Smith (n. 5 above) 88-97; MacCormick and Summers (n. 8 above) 10; Bench-Capon and Sartor (n. 99 above) 12-16. 126 Bench-Capon and Sartor (n. 99 above) 14; Bench-Capon (n. 90 above) 81. On the importance of legal values for judicial decision-making see also Smith (n. 5 above) 162-165.

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determining the effect of individual decisions on general principles of international criminal law with sufficient precision?127 Such concerns are legitimate and give cause for a careful and critical attitude towards research on judicial reasoning. At the same time, we should be wary not to lapse into obstructive scepticism about the possibilities for studying the casuistry of substantive international criminal law. Instead, it is more fruitful to openly encounter existing ambiguities and disagreements and to take them as a starting-point for a discursive and reflective debate about the challenges of rationalising (legal argumentation on) criminal responsibility for international crimes.128 Thus, instead of thinking in terms of limitations and putting the onus for the development of international criminal law entirely on the courts, legal doctrine should acknowledge its possibilities and take up its own responsibilities. This is one of the biggest challenges for scholarly discourse in the upcoming years.

5.6

CONCLUSIONS

At the end of this study, I should return to the question that formed the starting-point of analysis: how can casuistry help to clarify and control (the development of) substantive international criminal law? The previous analyses of casuistry and the evaluations of casuistic reasoning by international courts primarily show that ‘facts matter’. The ad hoc Tribunals and the ICC establish and develop criminal responsibility for international crimes in interplay with the factual circumstances of individual cases. Thus, they use facts to give shape and colour to abstract concepts of international crimes and modes of liability. The meaning of these concepts should therefore be ascertained in light of their application in practice. Practice shows that the ad hoc Tribunals and the ICC have a certain discretion to develop the law on a case-by-case basis and to apply abstract rules to specific facts in sometimes innovative ways. This enables the courts to gradually fine-tune substantive international criminal law, thus giving it ‘a vigorous life of its own’.129 Whereas such judicial development is not problematic per se, the principle of legality requires that it 127 Horty and Bench-Capon (n. 63 above) 211. 128 Similarly, G. Sartor, ‘A Sufficientist Approach to Reasonableness in Legal Decision-Making and Judicial Review’ in G. Bongiovanni et al. (eds.), Reasonableness and Law (New York: Springer, 2009) 17, 41-42; Sartor (n. 88 above) 157. According to Von der Lieth Gardner, ‘lawyers are not merely free to disagree; on hard questions of law they are expected to do so. Unlike other domains, in which writers of expert systems hope for consensus among the experts, the legal system makes institutional provision for expert disagreement – for instance, in the institutions of opposing counsel, dissenting judicial opinions, and appellate review of lower courts decisions’. Von der Lieth Gardner (n. 41 above) 3. In other words, disagreement about complex legal issues is an inherent part of the law and instead of circumventing it, we should accept and embrace it. 129 Schabas (n. 14 above) 886.

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FACTS MATTER proceeds in a transparent, foreseeable and consistent way. Domestic theory and practice concerning casuistry, factor-based reasoning and reasoning from precedents offer useful guidelines for putting this legality requirement into effect. In particular, they define a reason-model of analogical reasoning that can help the ad hoc Tribunals and the ICC to elucidate and structure the interplay between law and facts. Legal doctrine can assist and complement this judicial effort by using insights from casuistry and factor-based reasoning to conduct methodological, conceptual and normative research into judicial argumentation. I realise that it will not be easy to implement a framework of casuistic reasoning in practice, in particular because judicial argumentation is ‘an area of daunting complexity, where highly sophisticated legal expertise merges with cognitive and emotional competence’.130 To encounter this complexity successfully, it is important that scholars and practitioners combine their mutual strengths in a constructive dialogue that allows for the free exchange of ideas and concerns. This is surely challenging in a field of law that brings together professionals from various legal cultures (most importantly, common and civil law) and fields of law (public international law, criminal law, human rights law) with different perceptions on legal reasoning. In the coming years, we should seek to transcend these differences and to be more open to previously unforeseen insights, approaches and ideas. In this way, we will be better able to advance substantive international criminal law without violating the values underlying the principle of legality.

130 G. Sartor and L. Branting, ‘Introduction: Judicial Applications of Artificial Intelligence’, 6 Artificial Intelligence and Law (1998) 105, 105.

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FACTS MATTER Van der Wilt 2008 H. van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’, 8 International Criminal Law Review (2008), pp. 229-272 Van der Wilt 2009a H. van der Wilt, ‘The Continuous Quest for Proper Modes of Liability’, 7 Journal of International Criminal Justice (2009), pp. 307-314 Van der Wilt 2009b H. van der Wilt, ‘Joint Criminal Enterprise and Functional Perpetration’ in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge: Cambridge University Press, 2009), pp. 158-182 Van der Wilt 2013 H. van der Wilt, ‘Domestic Courts’ Contribution to the Development of International Criminal Law: Some Reflections’, 46 Israel Law Review (2013), pp. 207-231 Wirth 2009 S. Wirth, ‘Committing Liability in International Criminal Law’ in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009), pp. 329-337 Zahar and Sluiter 2008 A. Zahar and G. Sluiter, International Criminal Law: A Critical Introduction (Oxford: Oxford University Press, 2008)

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