THE DEMISE OF THE AIDING-AND-ABETTING LAW AT THE

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOLSOVIA:

THE MENS REA

 

By. Jason D Keck

 

Submitted in accordance with the requirements for the

Rule of Law Externship

 

Professor Henry H. Perritt Jr.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

August 15, 2009

 

 

 

 

 

 

 

 

 

 

 

 

I.       INTRODUCTION    

The International Criminal Tribunal for the former Yugoslavia (“ICTY” or “Tribunal”) has the power to impose criminal liability for aiding and abetting another.  Over the past decade, the Tribunal has developed a doctrine for imposing such liability on one who fails to act.  This mode of criminal punishment for “omission” has created an obscure, unpredictable, and potentially dangerous law.  To correct this, the ICTY should either require a heightened mens rea[1] standard for finding aiding-and-betting by omission liability (“omission liability” or “7(1) omission liability”) or revert to its early case law when the ICTY rejected omission liability altogether.  This paper discusses the evolution of the ICTY’s omission liability case law and compares current ICTY omission liability case law with United States conspiracy and accessory liability case law.  In so doing, this paper identifies possible repercussions and dangers from current ICTY omission liability case law and concludes by prescribing a potential solution to cure the deficiencies of current omission liability case law at the ICTY.

II.    BACKGROUND OF THE ICTY

The ICTY is a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990’s.  The ICTY was officially established On May 25, 1993 by United Nations Security Council Resolution 837 with the unanimous approval of the United Nations Security Council.[2] Since its inception, the ICTY has irreversibly changed the landscape of international humanitarian law.[3]  While the most significant number of cases heard at the Tribunal have dealt with alleged crimes committed by Serbs and Bosnian Serbs, the Tribunal has investigated and brought charges against persons from every ethnic background.[4] 

UN Security Council Resolution 827 adopted a "statute" for the Tribunal which, among other things, defined the Tribunal's authority to[5] “prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since January 1, 1991.”[6]  These violations of international humanitarian law can be classified as: (1) grave breaches of the 1949 Geneva Conventions (Statute, Article 2);[7] (2) violations of the laws or customs of war (Statute, Article 3);[8] (3) genocide (Statute, Article 4)[9]; and (4) crimes against humanity (Statute, Article 5).[10]

The ICTY has personal jurisdiction over individuals regardless of their actual role in the criminal act.[11]  Neither official positions, nor the defense of that the accused merely followed orders issued by superiors relieves an accused of criminal responsibility.[12]  Superiors are responsible for the acts of their subordinates if they “knew or had reason to know that the subordinate was about to commit such acts or had done so and the supervisor failed to take necessary and reasonable measures to prevent such acts and to punish the perpetrators thereof.[13]

Situated in The Hague, Netherlands, the ICTY has charged 161 persons.[14]  Those indicted by the ICTY include heads of state, prime ministers, army chiefs-of-staff, interior ministers and many other high- and mid-level political, military and police leaders from various parties to the Yugoslav conflicts.[15]  The ICTY’s indictments address crimes committed from 1991 to 2001 against members of various ethnic groups in Croatia, Bosnia and Herzegovina, Serbia, Kosovo and the Former Yugoslav Republic of Macedonia.[16]  Since its inception, the ICTY has convicted more than 60 individuals, and currently more than 40 people are in different stages of proceedings before the Tribunal.[17]

The Tribunal's judges have the solemn responsibility to determine the guilt or innocence of those accused of perpetrating war crimes in the former Yugoslavia, and to pass sentence on those whom they convict.[18]  In the course of a trial, they listen to witnesses and examine documentary and other evidence presented in court.[19]  The ICTY organizes the Chambers into three Trial Chambers and an Appeals Chamber.[20]  The ICTY assigns three judges to hear each case, and at least one judge per case must be a permanent judge.[21]  The President may divide the Trial Chamber into sections of three judges each, composed of both permanent and ad litem judges.[22]  The Appeals Chamber consists of seven permanent Judges, five of whom are permanent judges of the ICTY and two of whom are permanent judges of the International Criminal Tribunal for Rwanda (“ICTR”).[23]  These seven judges also constitute the Appeals Chamber of the ICTR.  The Appeals Chamber hears all appeals and decides the outcome by a bench of the five sitting judges.[24]

 

 

III. RELEVANT LEGAL STANDARDS

A.     ICTY aiding-and-abetting statutory provisions.

The statute of the ICTY adopts an expansive understanding of "individual criminal responsibility" to include two species of vicarious liability: (1) liability for planning, instigating, ordering, committing or otherwise aiding and abetting  in planning, preparing or execution of a crime;[25] and (2) liability on superiors for acts committed by subordinates when the superior "knew or had reason to know that the subordinate was about to commit [crimes] or had done ∏so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators . . . ."[26]  The first expansive mode of individual criminal responsibility is codified in Article 7(1) of the ICTY statute and is often referred to as Joint Criminal Enterprise liability or “JCE.”  JCE is but one species of Article 7(1) liability; aiding-and-abetting can occur without satisfying the elements of JCE.  The second mode of liability is codified in Article 7(3) and is often referred to as Command Responsibility liability.  Both modes of liability are addressed in this paper, although, the mens rea stemming from Article 7(1) omission liability is the focus.

1.      Article 7(3) Liability[27]

The doctrine of Command Responsibility[28] holds a commander personally responsible for violation of International Criminal Law committed by his subordinates.  Command Responsibility liability requires proof of authority and effective command and control over the actor.[29]  It also requires proof that the commander either ordered the conduct, or had knowledge of it, and did nothing to prevent it and took no remedial action.[30]

The ICTY judgment in Prosecutor v. Oric[31] is a good example of the limitations of the Command Responsibility theory in circumstances in which the fighting force is disorganized.  Oric involved the effort by Bosniacs[32] in Srebrenica to organize a resistance to overwhelming Serb forces in the area.  The defendant was 25 years old and hurriedly selected as the commander of Bosniac military forces. He was not taken seriously by the political leadership.  The trial chamber acquitted him on most of the charges in the indictment on the grounds that the prosecution had not proven that the criminal acts were committed by persons over whom he had effective control.  He was, however, convicted for certain acts of which he had knowledge and nevertheless avoided dealing with by delegating responsibility to a subordinate and not checking up on him.[33]

2.      Article 7(1) Liability

Individuals may be liable for the actions of others even when the elements of command responsibility under Article 7(3) cannot be satisfied.[34]  The doctrine of liability known as joint criminal enterprise arose in the Prosecutor v. Tadic[35] decision.  The Appeals Chamber concluded that Article 7(1), which makes individuals liable for planning, aiding or abetting conduct by others that violates International Criminal Law, necessarily includes JCE liability that may “occur through participation in the realization of a common design or purpose,” in addition to the more direct form of liability when the perpetrator actually commits the crime himself.[36]  Provisions for direct individual liability are found in Articles 2, 3, 4, and 5 of the Statute.[37] 

JCE is more favorable to the prosecution than command responsibility because, under JCE, the prosecutor need not prove authority, effective command and control or even knowledge of the conduct by another. Instead, the prosecutor need only prove a common criminal plan,[38] define its membership,[39] prove participation by the defendant,[40] specify the act directly violating ICL, and prove that it done by a member and was either within the purpose of the plan, or foreseeable.

Article 7(1) liability or JCE also recognizes omissions or an aider-and-abettor’s failure to act when he has a duty to do so.  This means of culpability is the focus of this paper and specifically the requisite mens rea that accompanies Article 7(1) omission liability.

 

 

 

 

B.     Aiding-and-abetting Law of the ICTY

1.      Early aiding-and-abetting case law of the ICTY

Initially, the ICTY limited aiding-and-abetting liability to affirmative acts intended to assist, encourage or lend moral support to the commission of a crime.[41]  The aiding-and-abetting may occur before, during, or after the commission of the principal crime.[42]  That aider-and-abettor must have knowledge that his or her acts assist in the commission of the crime of the principal perpetrator.[43]  The aider-and-abettor must also be aware of the principal perpetrator’s criminal acts, although not necessarily their legal characterization, and the principal’s criminal state of mind.[44]  “The aider-and-abettor does not need to know either the precise crime that was intended or the one that was actually committed; it is sufficient that he or she be aware that one of a number of crimes will probably be committed, if one of those crimes is in fact committed.”[45]

2.      Omission Liability Evolution and Elements

In addition to the requirements set out in part (1) above, over the past decade, the ICTY has also recognized omission liability, thus broadening the scope of “acts” in the legal framework.  The evolution of omission liability is the focus of this paper and will potentially have lasting effects on both international and domestic criminal law.  To understand the concept of omission liability, it is important first to understand aiding-and-abetting.  Article 7(1) of the ICTY Statute addresses aiding-and-abetting another person who is the principal perpetrator of a crime under Articles 2, 3, 4, or 5[46] of the Statute.[47]  In other words, a conviction for omission liability requires that all the basic elements in part (1) above and all the elements in the following paragraph be satisfied.[48]  To refresh the provisions in part (1), proving liability for an aider-and-abettor requires that: (1) the principal perpetrator must have committed a crime punishable under the Articles 2, 3, 4, or 5 of the Statute; (2) the participant (aider-and-abettor) must have either instigated or aided and abetted (by omission) the crime; and (3) the participant’s (aider-and-abettor) state of mind must be an awareness that he or she is assisting the principal perpetrator in the commission of a crime.[49]

            The ICTY now recognizes omissions or instigations as satisfying the second element, namely that the participant (aider-and-abettor) must have either instigated or aided-and-abetted (by omission) the crime.[50]  Essentially, the case law for finding liability for omission is:  The actus reus of omission liability is fulfilled when the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime and had a substantial effect on the realization of that crime.[51]  In addition, omission liability implicitly requires that the accused had the ability to act, such that there were means available to the accused to fulfill his duty.[52]  In addition, the mens rea for omission liability is that “[t]he aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal, however, as the Appeals Chamber in Simic[53] held:[54]

it is not necessary that the aider and abettor knows either the precise crime that was intended or the one that was, in the event, committed.  If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.[55] (emphasis added).

 

3.      ICTY Omission Liability Cases

 

Current ICTY omission liability law is currently governed by the most recent decision by the Appeal Chamber’s in Sljivancanin.[56]  The Slijvancanin appeal stemmed from the Trial Chamber’s finding that 194 people were taken from the Vukovar hospital to Ovcara, where Serb forces mistreated them and later executed them.[57]  The Trial Chamber concluded that Slijvancanin could not be held liable under Article 7(1), the aiding-and-abetting statute, for having failed to prevent the commission of crimes, or to punish the perpetrators.[58]  In so holding, the court found that once all JNA[59] military police withdrew from Ocvara pursuant to Slijvancanin’s superior’s order, Slijvancanin necessarily ceased to be responsible for the security of the prisoners of war, and therefore, Slijvancanin was not responsible for the murders committed by paramilitary troops after the JNA military police were withdrawn from Ovcara.[60]  In appealing the Trial Chamber’s holding, the Prosecution argued that Slijvancanin acquittal was based on two errors: (1) the Trial Chamber’s failure to find that Slijvancanin knew, at the time of his visit to Ovcara, that the paramilitaries would likely kill the prisoners; and (2) the Trial Chamber’s erroneous finding that Slijvancanin legal duty towards the prisoners ended upon the withdrawal of the last JNA troops from Ovcara upon Slijvancanin’s superior officer’s order.[61] 

In paragraphs 62 and 63 of the Appeals Chamber’s holding, the court essentially overturned the Trial Chamber’s factual findings regarding Slijvancanin’s mens rea culpability.[62]  In said paragraphs, the Appellate Chamber, showing no deference to the Trial Chamber, concluded that the fact that Slijvancanin inquired to his superior regarding his next duties, that Slijvancanin’s supervisor must have told Slijvancanin that he had withdrawn JNA protection from the prisoners of war held at Ovcara and thus also Slijvancanin’s responsibility for the prisoners of war.[63]  The Appeals Chamber found the Trial Chamber’s was incorrect in finding that Slijvancanin’s knew of the presence of the JNA troops that precluded him from concluding that the killing of the prisoners of war was a likely occurrence.  The Appeals Chamber, overturning the Trial Chamber held that “the only reasonable inference [was] that upon learning of the order to withdraw the troops, Slijvancanin must have realized that the killing of the prisoners of war at Ovcara had become a likely occurrence.”[64]  In other words, the Appeals Chamber altered the factual findings of the Trial Chamber and as a result also found Slijvancanin to now possess the requisite mens rea to be found liable under an omission liability standard.

Once the Appellate Chamber overturned the Trial Chambers factual finding, the Appellate Chamber extended the omission law by one step.  The Appeals Chamber held that the killing of prisoners of war was the likely outcome of their being left in the custody of the TOs and paramilitaries, Slijvancanin must have also realized that, given his responsibility for the prisoners of war, if he failed to take action to ensure the continued protection of prisoners of war he would be assisting the TOs[65] and paramilitaries to carry out the murders.[66] (Emphasis added).  As a result, the Appeals Chamber found that Slijvancanin’s breached his duty to protect the soldiers when he failed to protect them, therefore assisted in the murders of the prisoners, and thus satisfied the requisite mens rea.[67]

The recency of the May 5, 2009 judgment in Slijvancanin leaves it unclear whether the judgment has set a new standard in the ICTY omission case law or whether the judgment will remain an outlier.  The Slijvancanin is the most recent case in a line of cases that seem to progressively relax the requirements of omission liability.  The following cases illustrate this.

In the Aleksovski case, the Trial Chamber found the accused liable for aiding-and-abetting through omission when vicious beatings of detainees took place near his office.  The Chamber found that the accused was so close that he had to be aware of what was happening and was under an obligation to prevent it from happening, but chose to do nothing to stop the improper conduct.[68]

In another instance, in Kvocka, an accused incurred criminal liability when the accused did not expressly speak out against a group of individuals who were committing crimes for which the accused had previously been a member of and was physically present to witness.[69]  Kvocka noted that the accused was a low-level actor and had no official authority with the group.[70]

4.      ICTY Interpretative Questions and Factual Examples

            Because the basic elements of aiding-and-abetting must first be satisfied to find an accused subsequently guilty of omission liability, many of the legal issues regarding overt aiding-and-abetting and omission liability are analogous.  In the first step, the Prosecution bears the burden of proving the underlying criminal acts of the perpetrator or perpetrators.[71]  This burden on the Prosecution includes proving a completed principal crime.[72]  In other words, an accessory does not incur criminal liability for overt aiding-and-abetting or omission liability for substantially contributing to a crime that does not take place, or does not take place to completion.[73]  Furthermore, another issue is the identification of the principal perpetrator or perpetrators.  The Appeals Chamber in Krstic held that a defendant may be convicted for aiding-and-abetting a crime which requires specific intent “even where the principal perpetrators have not been tried or identified.”[74]

            In Krstic, the Appeals Chamber said that a defendant may be convicted for aiding-and-abetting a crime which requires specific intent “even where the principal perpetrators have not been tried or identified,”[75] with regard to Krstic’s awareness of the genocidal intent of the VRS[76] Main Staff.  Individual members of the Main Staff were not tried or identified specifically.[77]  The implied proposition, however, is that Krstic was aware that the Main Staff, or at least members of the Main Staff, had the intention to commit genocide.[78] In the case of Krstic, then, the perpetrators to which Krstic assisted are not named personally, but they are identifiable.[79]  Even if the triers of fact are not aware of the specific identities of the principal perpetrators, the evidence shows that Krstic was.[80]  Thus, the holding in Krstic is not that the principal perpetrators can be completely unknown, only that they do not have to specifically identified.[81]  In other words, an aider-and-abettor can be convicted for aiding-and-abetting the commission of the underlying crime when the principal perpetrator(s) possess the requisite mens rea and committed the unlawful act (actus reus), even though they are not individually identified. 

            The second and third major issues for finding omission liability are which differing interpretations of the mens rea and actus reas requirements are applicable.  In many cases, these are largely factual issues that ultimately seem to have neither correlation nor consistency among judgments. 

            First, the major interpretive issues surrounding the actus reas requirement stem from the Oric[82] Trial Chamber, which gave the following interpretation as its understanding of the actus reas of aiding-and-abetting:

Aiding-and-abetting may be constituted by any contribution to the planning[83], preparation or execution of a finally completed crime, provided that, on the one hand, the contribution falls short of one’s own co-perpetration[84] in or instigation[85] or ordering[86] of the crime, and, on the other hand, they are substantial and efficient enough to make the performance of the crime possible or at least easier. Within this realm, any kind of physical or psychological, verbal or instrumental assistance or support, regardless whether rendered directly to the perpetrator or by way of an intermediary, as well as irrespective of whether the participant was present or removed both in time and place from the actual commission of the crime, may suffice as furthering or facilitating the performance of the crime, provided that it was rendered before, during or after the principal act, but yet still prior to the full completion of the crime.[87]

 

            The Oric Trial Chamber did not elaborate on the undefined, but commonly used terms “significant”[88] or “substantial;”[89] instead, the Trial Chamber “left open” to what degree the effect of the accessory’s[90] acts must be “substantial” or “significant.”[91]  The question of whether an act constitutes “substantial assistance” to a crime is a fact-based inquiry and a major interpretive issue.[92]

            Another example of the actus reus interpretation is found in the Limaj trial.  The Limaj Trial Chamber considered a fact pattern where the Accused (Balaj) released the chains of a prisoner, who was taken several hours later by other guards, beaten, and returned to his cell.[93]  The Trial Chamber held that it was not proved that the releasing of the chains was related to the beating.[94]  In another fact pattern, the Trial Chamber found that Balaj did aid-and-abet the commission of a crime when he stood guard at the door while a prisoner was beaten.[95]  Balaj was armed with an automatic weapon.[96]  The Trial Chamber held that Balaj substantially contributed to the crime because he effectively prevented the detainee from escaping and, by doing so, encouraged the guards to beat the prisoner.[97]

Another actus reus interpretative example can be found in Simic where the Trial Chamber found that although the accused Zaric did not take part in and did not approve of the beatings of prisoners, he was nevertheless liable for aiding-and-abetting cruel treatment because his participation in the interrogations and in a TV interview with non-Serb prisoners gave moral support and encouragement to the beatings.[98]  (The TV interview took place in Zaric’s office, where Zaric and four prisoners appeared in an interview with a journalist in which the bruises and scars of the detainees were covered and they were forced under threat of more beatings to say that they were not being mistreated).[99]

An accused can also be found liable for aiding-and-abetting a crime when it is found that his conduct amounts to “tacit approval” and encouragement of the crime, and that such conduct substantially contributed to the crime.[100]  The Brdjanin Appeal Chamber pointed held that mere presence at the scene of a crime is not sufficient to trigger criminal liability; the presence must be shown to have a significant legitimizing or encouraging effect on the principal.[101]  The “encouragement” form of aiding-and-abetting can only be applied in limited circumstances: the accused must hold a position of authority, he must be physically present at the scene of a crime, and his non-intervention in the crime must be seen as tacit approval and encouragement.[102]  The perpetrators must be aware of the commander’s authority and his presence, an inference which can be drawn from the facts of the case, but an inference which must be the only reasonable inference from the evidence.[103]  This is to be distinguished from other forms of aiding-and-abetting, in which the principal perpetrators need not even know of the aider and abettor’s existence, nor his assistance to the crime.[104]

Second, many interpretations arise from the aiding-and-abetting mens rea requirement.  It is undisputed that omission liability requires intent.  There is much confusion, however, about the role of intent in the definition of the crime.  As with the actus reus, several lines of thought exist among the panels of the Tribunal in defining the mens rea for aiding-and-abetting.  Many cases combine intent with the knowledge or awareness of the aider-and-abettor that he is assisting in the perpetration of a criminal act.[105]  For these cases, the required mens rea is that the accessory had the knowledge that, by his or her conduct or omission, the accessory is assisting or facilitating the commission of a crime.[106]  Most recently, however, the Appeals Chamber attempted to clarify the elements of the mens rea requirements in an omission case when it held that (1) the aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator; and (2) he must be aware of the essential elements of the crime which was ultimately committed by the principal.[107]  The following cases demonstrate differing interpretations of the mens rea requirement.

            In Sljivancanin, the Appellate Chamber overturned the Trial Chamber’s factual finding as to the accused’s mental state.[108]  The Appellate Chamber essentially lowered the Prosecution’s burden of proof in inferring that ample evidence (albeit disputed) was present to show that the accused had met with his superior prior to the night of the executions.[109]  The Appellate Chamber, with essentially no evidence took the inference one step further and concluded that the accused must of spoken with his superior regarding withdrawal of JNA troops from the area they were currently in.[110]  A third and final step was taken by the Appellate Chamber when it found “the only reasonable inference is that upon learning of the order to withdraw the troops, Sljivancanin must have realized that the killing of the prisoners of war . . . had become a likely occurrence.” (Emphasis added).[111]

            In Judge Vaz’s dissent, she specifically says that “there is no clear evidence cited [to support the majorities] conclusion.”[112]  To the contrary, the dissent makes clear that the conclusion, must “be the only reasonable one,” and there is no evidence in this regard.[113] (Emphasis in original). In support of the dissent, Judge Vaz cites the fact that there is no certainty about the exact time when the accused supposedly met with his supervisor and that “such lack of precision with regard to the culpable mens rea should be fatal to any conclusion regarding guilt beyond a reasonable doubt.[114]  Thus many of the legal issues surrounding the culpable mens rea are often determined on what amount of evidence is necessary to find liability.

 

 

C.     United States Conspiracy and Accessory Liability Law

Using ICTY omission liability law as a basis for comparative analysis with United States conspiracy and accessory liability law will give insight as to one danger of evolving international criminal law at the ICTY and from an American jurisprudence standpoint illustrate the more relaxed mens rea required to obtain a conviction.

1.      Background

First, it is important to distinguish between conspiracy and accessory liability law in the United States.[115]  The relevant difference between conspiracy and accessory liability is that, while an agreement is an essential element of the crime of conspiracy, aid sufficient for accessory liability may be given without any agreement between the parties.  Accordingly, conspiracy is a separate and distinct offense from that of aiding-and-abetting since it involves the additional element of agreement not necessarily present in the mere joint conduct common in aiding-and-abetting.  United States accessory liability law also known as aiding-and-abetting is most similar to the ICTY aiding-and-abetting case law and is best suited for comparative analysis because both the ICTY and the United States do not require a prior agreement and do not require the accessory to be present at the scene of the crime.

2.      Elements

The elements for aiding-and-abetting are well settled in American jurisprudence and are federally codified in 18 U.S.C. § 2(a)(1982), which states that “whoever commits an offense against the United States or aids, abets, counsels, commands, includes or procures its commission, is punishable as a principal.”[116]  Thus, to convict a defendant of aiding-and-abetting the government must prove (1) commission of the underlying crime, (2) by a person other than the defendant[117], (3) a voluntary act or omission by the person charged as an aider-and-abettor, with (4) the specific intent that his act or omission bring about the underlying crime.[118]  Omission case law in the United States is extremely restrictive and is often seen in child abuse cases as illustrated in the next section.  It is also important to note that in both the ICTY case law and the United States, the aider-and-abettor must have a duty to act.[119]  The major difference between the ICTY and the United States stems from the mens rea requirement inherent in the third and fourth element.  To prove the existence of elements (3) and (4), the evidence must demonstrate that the person charged joined the venture, shared in it, and that his efforts contributed towards its success in which a general suspicion or knowledge [of legality] is not enough.[120]

3.      United States Aiding-and-abetting Case Law

 

One of the most readily apparent factual scenarios seen in American aiding and abetting by omission jurisprudence is exemplified by the facts in People v. Rolon.[121]  In Rolon, the defendant was convicted in the superior court of assault on a child under eight years of age resulting in death, second degree murder, and willfully causing a child to suffer under circumstances likely to result in death.[122]  The defendant appealed, and the appellate court affirmed.[123]

            In so doing, the appellate court held that a parent has a duty to protect his or her young child and may be criminally culpable on an aider-and-abettor theory for an assault causing death and on an implied malice theory for murder where the parent fails to take reasonably necessary steps for the child's protection, so long as the parent, with ability to do so, fails to take those steps with the intent of facilitating the perpetrator's offense.[124]

Bill Lopez was the father of six of appellant's seven children, including her one-year-old son Isaac.[125]  It was alleged that on April 20, 2003, at about 6:00 or 7:00 p.m., Lopez immersed Isaac in a tub of water and unspecified chemicals.[126]  Lopez then threw him against a wall, in the appellant's presence. Isaac had been crying, but stopped after he hit the wall.[127]  Lopez went to sleep at about midnight that night, while appellant stayed up to watch Isaac.[128]

Appellant described the events that followed during three interviews with police investigators.[129]  At about 2:00 a.m. on April 21, Lopez woke to the sound of Isaac crying.[130]  Lopez said Isaac might be hungry and asked appellant's son Christian to heat some food for him. Isaac continued to cry after being fed.[131]  Lopez punched Isaac in the chest. Appellant told Lopez to leave Isaac alone, and Lopez told her to shut up and not get involved.[132]

Appellant's neighbor Kristal Cardenas shared a wall with appellant.[133]  In the early morning hours of April 21, she heard a screaming child in appellant's apartment and a series of thumps against the wall that lasted for three minutes. The thumps and the screams ceased simultaneously.  At about 6:00 a.m. that morning, Lopez said he would take care of Isaac and told appellant to go to bed, which she did. Isaac was strapped into a car seat at that point. An hour later, Lopez woke appellant and told her Isaac was not breathing.[134]  She got up and saw Lopez administering cardiopulmonary resuscitation to Isaac, who was lying on a towel.[135]  He told her not to use the phone and asked her to help him revive Isaac.[136]  Appellant and Lopez immersed Isaac in a bathtub filled with water, and when that failed to wake Isaac, Lopez poured rubbing alcohol on Isaac's body. He then wrapped Isaac in a blanket and put him in a crib.[137]  The next morning, the police stopped Lopez with Issac in the vehicle and was subsequently arrested.[138]

On March 1, 2005, an information was filed charging appellant with one count of assault on a child under eight years of age resulting in death, one count of second degree murder, and one count of willfully causing a child to suffer under circumstances likely to result in death with an enhancement because death actually resulted.[139]  On June 26, 2006, a separate jury convicted Lopez of one count of assault on a child under eight years of age resulting in death, one count of first degree murder during the commission of torture[140], and one count of willfully causing a child to suffer under circumstances likely to result in death with an enhancement for actually resulting in death.[141]

At trial, the People's theory was that Lopez killed Isaac and that appellant aided and abetted Lopez by failing to perform her parental duty to protect Isaac.[142]  On January 31, 2007, the jury convicted appellant on all counts.[143]  In upholding the trial court’s opinion, the appellate court specifically stated that “[w]hile it is true that the mere presence of a person at the scene of the crime is insufficient to constitute him a principal. . . the trier of facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude that he assented to the commission of the crime, lent his countenance and approval and thereby aided-and-abetted the crime.”[144]  Significantly, the appellate court interpreted the mens rea requirement strictly: the appellate court emphasized that although the defendant in this case owed a legal duty to protect her son, the liability “as an aider-and-abettor requires that the parent, by his or her inaction, intend to aid the perpetrator in commission of the crime, or a crime of which the offense committed is a reasonable and probable outcome. (Emphasis added).[145]  For example, duty and failure to act is not enough; the defendant must have specific intent as to the result.  The appellate court’s language is noticeably different from the ICTY language that the Appeals Chamber in Sljivancanin when it “reject[ed] an elevated mens rea requirement for aiding-and-abetting, namely, the proposition that the aider-and-abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.”[146]  Therefore, it is evident that the mens rea requirement applied in Lopez is higher than the mens rea requirement applied in Sljivancanin at the ICTY.  The magnitude of that difference is, however, debatable.

In State v. Williquette,[147] the state of Wisconsin charged a mother with abusing her children in violation of Wisconsin statute sec. 940.201 Stats.  The state alleged that Williquette intentionally failed to protect her children from abuse inflicted by her husband, who is the father of the children.[148]  At the circuit court level, the state unsuccessfully argued that criminal liability should attach to a parent who fails to protect his or her children from abuse.[149]  The appeals court overturned the circuit court’s holding that although a parent’s failure to protect her children is not a direct act of abuse, probable cause existed to infer that Williquette aided-and-abetted the abuse by failing to act.[150]

Rationalizing its holding, the Wisconsin appellate court held that in order to allow the charges to go to trial and overturn the circuit court dismissal on an aiding-and-abetting theory, Williquette’s failure to act must constitute an omission that satisfies the requirement of conduct objectively aiding-and-abetting the execution of a crime.[151]  Finally, the court reiterated the key aspects of American omission liability law in that an inference of Williquette’s failure to protect her children (her omission) or the causal nexus was in furtherance of the intended result.[152] 

After holding that a parent has a duty to act to protect his or her children, the Appellate Court addressed the mens rea applicable to Williquette.  Reviewing the facts, the court found that although Williquette was not present when her husband abused their children.  Nevertheless, it reasoned the principles applicable to a “mere presence” case provided a useful starting point for its analysis.[153]  In a mere presence case, the appellate court held that mere presence and ambivalent conduct at the scene of the crime are insufficient for aiding-and-abetting.[154] The evidence however, in mere presence case, creates an inference that the defendant knew a crime had been or was about to be committed.[155]

Application of the facts showed that Williquette knew her husband repeatedly abused their children, yet she did nothing to prevent future occurrences.[156]  Williquette’s knowing failure to intervene, the court reasoned, would reasonably indicate an intent to assist the perpetrator.[157]  Similarly, Williquette allowed the abuse to continue when she failed to intervene, despite knowledge of a pattern of abuse in her absence.[158]  Inaction, in this instance, supports an inference of an intent to assist the crime.[159]  Therefore, all the inferences showing the defendant failed to protect her children (her omission) leads to the conclusion that the defendant intended to aid the commission of the crime.  Factual situations such as these are readily apparent and often interpreted the same.[160] 

4.      Interpretative Questions and Factual Examples

Analogous to omission liability case law at the ICTY, the major interpretive questions in the United States case law, for those courts willing to acknowledge omission liability law, is the defendant’s mens rea and whether the defendant’s mens rea is sufficient to find the defendant culpable.  The mens rea requirement in the United States is undoubtedly more difficult to satisfy than the mens rea requirement at the ICTY.  In fact, as mentioned above, the ICTY in Sljivancanin specifically rejected the United States’ heightened mens rea standard for omission liability.[161]  The Appeals Chamber in Sljivancanin held that it “reject[s] an elevated mens rea requirement for aiding-and-abetting, namely, the proposition that the aider-and-abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.”[162]  In other words, by omitting to perform a duty, under the heightened mens rea requirement, one is liable only if one intended that omission to assist in what would be a possible and foreseeable consequence.  The ICTY has rejected the United States current mens rea requirement for omission liability, and thus, has set the mens rea requirement somewhere below the United States.

5.       Hypothetical Distinctions Between the ICTY and the United States

The following hypothetical situations illustrate the difference between the requisite mens rea for omission liability in United States and at the ICTY.[163]  In these hypothetical scenarios, assume that because John is Ben’s roommate he has a duty to act because the law requires John to report any criminal activities by Ben to the authorities.[164]

·        HYPO 1: John and Ben have been good friends for six years and roommates for three.  Two weeks ago, Ben approached John and informed him that he was thinking of selling cocaine.  John, though hesitant, told Ben he would support Ben’s decision because he was Ben’s friend.  Four days ago, Ben told John that he was going to sell cocaine and he would be using their baking soda to “cut” the cocaine and that Ben would be using John’s and Ben’s mailbox to receive payments and shipments of cocaine.  John told Ben to do “whatever he had to do.”  John knew Ben was short on money and also informed Ben to “let him know if there was anything he could do to help,” apart from overtly helping Ben sell or receive the cocaine.  Five days ago, John witnessed Ben coming down the stairs holding a package that John knew to be cocaine.  Ben took the vehicle that John and Ben shared to “make a few deliveries.”  John knew this meant Ben would be delivering the cocaine to a customer.  John did not say anything to Ben’s as he left their house.  Today, the cops raided John and Ben’s home finding four kilograms of cocaine and charged Ben with possession with the intent to deliver cocaine and John with aiding and abetting by Ben’s crime by omission.  Assume Ben was subsequently convicted.

 

The first step, having assumed a duty to act, in analyzing the first hypothetical is to determine the content of the mens rea for the primary crime: possession with intent to deliver in the United States.  Although the language differs from state to state, a typical possession with intent to deliver statute requires that (1) the defendant knowingly possessed a controlled substance; (2) the defendant intended to deliver this substance to someone else; (3) the substance possessed was illegal and the defendant knew the substance was illegal; and (4) the substance was in a mixture weighing [a certain amount].”[165]  Thus, for the conviction of John as an aider-and-abettor by omission, all the above elements must be satisfied prior to John’s failure to act, and it also must be proven that John maintained the specific intent that his omission to act facilitate the commission of the underlying crime.[166] 

Under United States jurisprudence, John possessed the requisite mens rea to be found guilty as an aider-and-abettor for his failure to act.  First, it is obvious that John knew Ben possessed cocaine and that he intended to deliver this cocaine.  In fact, Ben informed John he was going to be purchasing cocaine, would be using John’s and Ben’s mailbox as a delivery and payment site, using John and Ben’s baking soda to “cut” the cocaine, and by using John and Ben’s vehicle to deliver the cocaine.  The very fact that Ben informed John that he would be selling cocaine made John aware of Ben’s criminal plans thus triggering John’s duty to alert the authorities. 

Next, the Prosecution can prove that John had specific intent that his omission (failure to contact the authorities) would aid Ben in possessing and delivering the cocaine.  The facts supporting the inference that John intended to further Ben’s criminal plan are that he: (1) was willing to support Ben’s decision; when (2) allowing Ben to use their mailbox; (3) allowing Ben to use the baking soda to “cut” the cocaine; (4) allowing Ben to use their vehicle to make deliveries, and (5) showing an overall tacit approval for Ben possessing and delivering cocaine.  The most important fact, however, is not that John allowed Ben to use their mutual belongings, but rather, the fact that John breached his legal duty of to report Ben upon knowing that Ben was engaged in illegal possession and delivery of cocaine.

Finally, the government will argue that without John’s intentional omission, Ben would not have succeeded in the commission of his crimes.  This establishes ability to prevent and nexus between omission and commission of the principal crime.  The government will argue that, without John and Ben’s baking soda, mailbox and vehicle, Ben would not have received nor been able to deliver the cocaine.  Furthermore, and more importantly, it is evident that John intended not to call the authorities so that Ben could continue in his criminal endeavors.  It is likely that the government would satisfy its burden.  Assuming this to be a mode of liability in the United States, John would have had the level of mens rea to be found liable as an aider-and-abettor.

   Analyzing the same hypothetical under the ICTY jurisprudence[167] is moot because the ICTY case law employs a lower mens rea standard than the United States and if John possesses the requisite mens rea under United States jurisprudence, a fortiorari, he possesses the requisite mens rea under the ICTY jurisprudence.  Therefore, conviction is certain ICTY jurisprudence as well, and a detailed analysis is unnecessary.

·        HYPO 2: John and Ben have been best friends for six years and roommates for three.  Seven years ago, Ben was arrested for possession with the intent to deliver cocaine and served 60 days in jail and 2 years probation.  Two months ago, Ben lost his job and informed John that he may not be able to pay his share of the rent.  Ben also said sarcastically that “maybe, I should go back to my old ways.”  John, concerned with Ben’s comment began to keep a closer eye on Ben because John knew what “Ben’s old ways” were.  One month ago, John witnessed Ben remove a package from the mailbox approximately the size of a shoebox.  John, although not completely sure, suspected the package contained drugs.  Over the next month, John noticed Ben spending money very freely.  Ben even purchased John a pair of $400 cuff links from Armani.  Ben informed John that he had received part of his inheritance.  John, knowing Ben’s father had recently passed away, was still skeptical, given Ben’s erratic behavior and constant ringing on his cell phone.  John had also been informed while at a club one night that Eric, John and Ben’s friend, was “glad Ben was back in the game.”  This only increased John’s suspicion, but still John did not approach Ben to inquire about him selling cocaine.  Today, the cops raided John and Ben’s home, finding four kilograms of cocaine, charging Ben with the possession and intent to deliver and John with aiding and abetting by omission Ben’s crime.  Assume Ben will be convicted. 

 

Assume the law is the same as the first hypothetical.  Thus, for the conviction of John as an aider-and-abettor by omission, all the elements of the principal crime must be established, and, in addition, John must of breached his to duty to act and have specifically intended that his omission facilitate the underlying crime.[168] 

Under this scenario, it is unlikely that John possessed the requisite mens rea to be found liable for aiding-and-abetting.  First, John will argue that he never knew Ben possessed any drugs and that he never knew Ben intended to sell any drugs.  John will likely argue that he never witnessed any drugs in his home nor witnessed Ben engaging in any tendering of drugs to others.  The facts do not show otherwise.  Further, John will also testify that he believed Ben received money from his inheritance and thus was able to justify Ben’s spending habits.  John will argue that never once did he possess a specific intent to aid Ben in the commission of his crime for the simple reason that he did not know Ben was about to or was committing a crime.  John never once encouraged Ben, helped Ben, sponsored Ben, or approved his behavior.  Most importantly, John’s duty was never triggered to contact the authorities because he did not know that Ben possessed drugs nor that Ben intended to sell drugs.  As a result, John either had no duty, or if he did, he did not possess the mens rea necessary to be found guilty in the United States.  Finally, although John may have had a sneaking suspicion of Ben’s behavior, ceteris paribus, the holding in Wiley says that John’s mere suspicion of Ben’s illegality is not enough, and therefore his efforts, his failure to act was not supported by the requisite mens rea.[169]

Analysis using the current ICTY mens rea standard is likely to lead to a different conclusion.  The appellate chamber in Sljivancaninreject[ed] an elevated mens rea requirement for omission liability, namely, the proposition that the aider-and-abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.”[170]  Finally, the applicable law also stems from the Appeals Chamber in Simic, which held that:[171]

it is not necessary that the aider and abettor knows either the precise crime that was intended or the one that was, in the event, committed.  If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.[172] (emphasis added).

 

It is likely that John would be found liable as an aider-and-abettor to Ben’s crimes under the ICTY standard.  Applying the Slijvancanin and Simic rules to the above facts, the government will successfully argue that although John may not have intended for his omissions to aid Ben in the commission of his crime, the facts indicate that John was aware that Ben was probably engaging in the commission of possession and distribution of cocaine.[173] (Emphasis added).  Thus, it follows that John’s mens rea under ICTY jurisdiction to trigger his duty to contact the authorities.  The facts that the government would rely on to prove the requisite mens rea include: John being aware of Ben’s criminal past; Ben’s financial situation followed by his erratic spending habits; John witnessing Ben remove a package from their mailbox; Ben informing John he should “go back to his old ways;” John witnessing an increased call volume on Ben’s cellular phone; and Eric, John and Ben’s friend, informing John that Ben was “back in the game.” The most important factor in the government’s case is the fact that John made the conscious decision to keep a closer eye on Ben.  This fact shows that John was aware that Ben was probably (or likely) engaging in criminal activity.  According to Sljivancanin¸ this awareness triggered John’s duty to contact the authorities, assuming he had such a duty[174] and his failure to do so enabled Ben to continue his illegal possession and delivery of cocaine.  The fact that John possessed the requisite mens rea to trigger his duty (contact the authorities) means that his subsequent omission is a basis for liability. 

·        HYPO 3: John and Ben have been good friends for six years and roommates for three years.  Two weeks ago, Ben decided he was interested in selling cocaine.  Ten days ago, Ben acquired 2 kilograms of pure Columbian cocaine delivered to John and Ben’s mailbox.  Intending to “cut” the cocaine, Ben also used all of John and Ben’s baking soda.  Additionally, one morning Ben asked John to borrow John’s car to go to school.  John knew Ben had class that morning and allowed Ben to borrow his vehicle.  John had never sold any drugs in his life nor witnessed Ben selling drugs or heard that Ben had ever sold drugs.  Today, the cops raided John and Ben’s home and found four kilograms of cocaine.  The government charged Ben with possession with the intent to deliver cocaine and John with aiding and abetting by omission Ben’s crime on both counts.  Assume Ben will be convicted.

 

Since Ben was not liable under United States law under the second hypothetical, a fortiarari, he is not liable under United States law for the third hypothetical.  Under this hypothetical, it is unlikely that John will be found liable for omission liability applying the holding in Oric requiring John to have an awareness that that he may be assisting the crime coupled with the holding in Sljivancanin.[175] 

There are no facts that would cause John to be aware of Ben’s underlying crime.  In fact, the hypothetical indicates John never witnessed Ben received the cocaine, “cut” the cocaine, or sell the cocaine.  Moreover, there is no evidence that John witnessed or even had reason to be aware that Ben received the cocaine in John and Ben’s mailbox.  Additionally, there is no evidence to show that John’s overt act of lending his car to Ben was not done in good faith and in reliance on the fact that John believed Ben was intending to attend class.  Finally, without any prior awareness of Ben handling, receiving, using, “cutting” or selling drugs, there is nothing to support an inference that John was aware that he may be aiding Ben in the commission of a crime.  Moreover, the government is unable to show any evidence to indicate that John was aware that Ben probably was engaged in the possession and distribution of cocaine.[176]  Thus, because John did not possess the requisite mens rea, his duty to contact the authorities was never triggered and as such, under this scenario, even under the reduced omission liability mens rea at the ICTY, it is unlikely John would be found liable.

 Analyzing the same hypothetical under the United States jurisprudence is moot because the ICTY case law employs a lower mens rea standard than the United States and if John does not possess the requisite mens rea under the ICTY jurisprudence, a fortiorari, he does not possesses the requisite mens rea under the United States standard.  Therefore, acquittal is certain under United States jurisprudence as well, and a detailed analysis is unnecessary.

IV.  HUMANITARIAN AND INTERNATIONAL RAMIFICATIONS OF EVOLVING ICTY AIDING-AND-ABETTING CASE LAW

 

The ICTY’s current mens rea standard for omission liability is destructive to international humanitarian law. The potential dangers that arise from the ICTY’s standard will not only negatively affect the accused, but also will discredit the international law of armed conflict as out of the step with national legal systems.

1.      Article 7(1) and 7(3) meshing modes of liability.

First, by recognizing omission liability, the ICTY has inherently blurred the distinction between the omission liability under 7(1) of the ICTY statute with command responsibility omission liability found in Article 7(3).  Article 7(1) of the statute says “any person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation, or execution of a crime . . . shall be individually responsible for that crime.”[177]  In addition, Article 7(3) of the statute says that “[any prohibited crimes by the statute that] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”[178]  Article 7(1) explicitly imposes liability: “shall be . . . responsible.” Article 7(3), on its face, merely eliminates a defense: “does not relieve . . . of criminal responsibility.” But 7(3) has language limiting the circumstances in which the defense is unavailable, and these limitations should be interpreted as circumscribing the crime of aiding and abetting in command situations.

      Article 7(1), gives the prosecutor a “magic bullet.”[179]  The doctrine does not require that there be proof of a clear intent on the part of the accused that the crime in question be committed, or that he or she knew that members of a criminal enterprise were going to commit them.  What is required instead is the lower mens rea standard invoking a type of recklessness which involves the willful omission of a duty that is likely to cause a foreseeable crime.[180]

      Article 7(3) similarly, at its outer limits also allows a superior to be held responsible for the crimes of subordinates which he or she failed to prevent or repress because of their own recklessness behavior.[181] 

      The confusion that is created in a fact scenario analogous to Sljivancanin where the accused is a superior whose alleged willful omission of a duty will give rise to liability under both 7(1) for his omission, but also under 7(3) for his failure to prevent the crime from commencing or punishing those who committed the crime.[182]  The problem that arises in blurring this distinction and inherently excluding statutory text is in the punishments of the accused.  Command responsibility under 7(3) has been a recognized principle of customary international law for many years.[183]  However, the (legal) nature of command responsibility is still open to debate in international criminal law: is it a mode of liability for the crimes committed by subordinates or rather a separate offense of the superior for failure to discharge his duties of control pursuant to international law?  In other words, is a superior to be held criminally liable for the crimes committed by his subordinates as an accessroy,[184] or for a separate offense of omission, consisting of the dereliction of his duty to control, prevent, or punish?[185] 

Limiting a superior’s responsibility for his failure to prevent or punish may have a substantial effect on sentencing to the extent that the supervisor would be convicted not for the principal crime, but for a separate offense of omission.  On the other hand, difficulties arise if superior responsibility is understood as a mode of liability pursuant to which a superior shall be sentenced for the international crimes of his subordinates.[186]  Recently, a trial chamber of the ICTY affirmed that superior responsibility pursuant to Article 7(3) shares a common feature with other modes of liability, and in particular with aiding-and-abetting, in that 7(1) and 7(3) both include accessories to principal crimes committed by other perpetrators.[187]  In addition, prior to Sljivancanin, in the effort to clearly differentiate superior responsibility from the modes of liability provided for in Article 7(1), the Halilovic[188] judgment stresses the different nature of Article 7(3), underscoring the fact that it is a responsibility for an omission, pursuant to which the superior is responsible for his failure to act in order to prevent or repress the crimes committed by his subordinates as required by international law:

Thus 'for the acts of his subordinates' as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act.[189]

Along the same lines the Hadzihasanovic judgment affirms that the accused shall not be convicted for the crimes committed by his subordinates, but only for the failure to fulfill his duty to prevent the crimes or punish the perpetrators.[190] To this extent, in the judges' view, superior responsibility must be considered as a mode of personal liability for omission.[191] (Emphasis added).

Post Hadzihasanovic and post Sljivancanin is where the lack of distinction between Article 7(1) and 7(3) has arisen and now lies.  Most ICTY cases as noted above do not interpret 7(3) as imposing liability for the actual acts of the subordinates, rather 7(3) imposes liability for the superior’s material omission.  Conversely, Article 7(1) of the Statute, in both Sljivancanin and earlier cases has been interpreted to hold that an aider-and-abettor is responsible for the underlying crime of his or her co-conspirators.[192]  By adopting omission as a form of liability under Article 7(1), it is unclear what the purpose of 7(3) is today.  If Article 7(3) requires a discounted mens rea in comparassion to 7(1) omission liability, the ICTY jurisprudence has not made this clear.  As a result prosecutors charging superiors under an omission liability theory will no longer proceed under 7(3) as under 7(1) an individual is charged for the underlying crime of his subordinates which is one of the most important sentencing factors and shows the crucial role played by the crime of subordinates in assessing the gravity or responsibility of the superior.[193]

2.      Domestic judicial norms

Given the inherent confusion between Articles 7(1) and 7(3) outlined in the previous section, coupled with the judgment in Sljivancanin, future convictions under Articles 7(1) and 7(3) could undermine the contribution of international judgments to the record of history.[194]  In deeply divided societies there is always the likelihood of denial of crimes or of a simple unwillingness to acknowledge their commission, irrespective of judicial pronouncements to the contrary.[195]  Nonetheless, by including modes of criminal liability that not only do not conform to domestic norms,[196] but also impose reckless or negligent levels of culpability will create judgments which leave room for doubt about the guilt of a particular individual which undermine the validity of the judgments’ message and may serve to add fuel to fire of those who seek to advance their own version of history.[197]  In the presence of competing narratives of the causes and conduct of a recent conflict, such judgments may in turn hinder the realization of the objectives of maintaining peace and reconciliation.[198]  Intended in such a context to be a tool for imparting justice and promoting the healing of wartime wounds, law and legal mechanisms may in fact, paradoxically, inflame an already tense situation.[199] 

Additionally, the ICTY in adopting a lower culpable mens rea for any given crime inherently opens the door to more individuals being indicted and convicted.  Today, the ICTY intends to complete its mandate by 2013.[200]  The ICTY intends to complete this mandate by achieving convictions of the most senior leaders and transferring cases against lower-level accused to competent national jurisdictions.[201]  As of 2004, more than $1 billion had been spent by the ICTY and ICTR together on several dozen cases involving well under 100 defendants.[202]  By opening the door, the ICTY has set persuasive precedent for future courts to seek the indictment of more individuals given the lower mens rea standard the prosecutor must prove creating more lengthy and expensive trials.

3.      Discrediting of the law of armed conflicts.

The principles of criminal liability to be applied by international courts should have a solid foundation in domestic legal systems in order to increase the likelihood that the judgments of those tribunals will be accepted by the local population.  The lack of continuity between domestic and international criminal law can have ‘a corrosive potential impact on the public support for international criminal justice.[203]  Liability under a 7(1) omission theory for a superior and also under 7(3) are forms of liability that is actually unknown in domestic courts and is a hybrid of several concepts.[204]  On one hand, it is not consistent with any form of complicity, since there is no need to prove the causal link with the underlying crime committed by the subordinate and since the mens rea threshold is lower than the one required for complicity.[205]  On the other hand, it is hardly conceivable as a separate offence of failure to act since the liability of the superior is strictly and necessarily dependent from the commission of the crime by the subordinate.[206]

In addition, the language “aiding-and-abetting by omission” is not found anywhere within the aiding-and-abetting statute, Article 7(1).[207]  Essentially, the Oric Trial Chamber set a long line of ICTY precedent willing to recognize omission liability,[208] a form of liability refused to be adopted by many domestic courts, including the United States.[209] 

      The final problem, in a non-exhaustive list, with the aiding-and-abetting case law is the ICTY continues to discount an accused inherent fundamental rights, namely an accused right to be informed and an accused right to a fair trial.  The Appeals Chamber in Sljivancanin fostered an all-too-marked trend of other international criminal tribunals to gravitate towards the lowest common denominator in the rules and procedures applicable to protecting defendant rights.  As one commentator has noted, "[t]here has been relatively little interest in the rights of the accused before international criminal courts," and fair trials are often all but impossible because of serious evidentiary problems in these cases.[210]

        First, an accused has the right to be informed.  Not only does the ICTY acknowledge a witnesses right to be informed under Article 21(4)(a) of the Statute, but the right to be informed is also a widely accepted international humanitarian right afforded to all accused.[211]  The right to be informed, in fact, was argued unsuccessfully by Sljivancanin in his appeal brief.[212]  In this scenario, the right to be informed is hindered by the first problem discussed above, namely the blurring of the distinction between Article 7(1) and 7(3).  Sljivancanin argued in his brief that in his indictment, to the extent “omission” is mentioned, is generalized and relates to either culpable omission under Article 7(1) of the Statute which, in any event, was not alleged, or to his alleged superior responsibility under Article 7(3) of the statute.  Thus, Sljivancanin claims he was not informed as to the charges under Article 7(1).  Although the Appeals Chamber did not agree with Sljivancanin, his argument does hold merit.  By failing to properly inform the accused of the exact mode of liability he is charged with, an accused is prejudiced to the extent of arguments he can make, namely, challenging jurisdiction of certain tribunals in their application of the law and the treatment of witnesses.  This is fundamental right that should be afforded to all accused individuals, and ICTY aiding-and-abetting case law continues to discount this humanitarian right.

      Second, encompassing all the problems discussed above, an accused should have a right to a fair trial.  The European Commission of Human Rights, under Article 6(1) guarantees an individual’s right to a fair trial.[213]  Including all the above potential repercussions of 7(1) liability by omission, the ICTY has further driven an accused fundamental and international guaranteed right to receive a fair trial.  This is coupled with multiple evidentiary problems and presumption of innocence problems already probing the ICTY and not discussed in this paper.[214]  The ICTY is a major international court setting persuasive precedent[215] for both current and future courts and should adhere to the greatest standard of ensuring a defendant’s fundamental rights.

 

 

V.     RESOLUTION

 

The ICTY should follow one of two alternatives to currently developing mens rea requirements for omission liability.  First, the only way to ensure resolution at the ICTY of the problems specifically detailed in Section IV of this paper is to refrain from recognizing aiding-and-abetting by omission case law under 7(1).  Because 7(3) liability punishes the omission of the crime, 7(1) liability should not extend to superiors for omissions as the inherent unfairness detailed in section IV of this paper discounts an accused’s right to a fair trial. Fundamentally, the ICTY should no longer recognize aiding-and-abetting by omission under Article 7(1).

In the alternative, the ICTY should adopt the heightened culpable mens rea for aiding-and-abetting by omission that was specifically rejected in Sljivancanin.  The adoption of the heightened mens rea for Article 7(1) will not have the same effects as refusal to recognize omission liability under 7(1), however, it too will have benefits.  First, the heightened standard will distinguish Article 7(1) with 7(3).  This will help ensure that an accused is put on notice of his charges, able to build an ample defense, and receive an overall more fair trial.  Additionally, proving the higher mens rea is consistent with the punishment for 7(1) omission liability in that the accused is punished for his or her subordinates underlying crime(s).  Thus, if the ICTY continues to recognize the aiding-and-abetting by omission under Article 7(1), it should specifically accept the mens rea requirement that was rejected in Sljivancanin and is congruent to Article 7(3).



[1] In order for a state to impose criminal penalties on an individual, it must be shown that he or she has committed some unlawful act (actus reus) or engaged in some prohibited course of conduct, together with a wrongful intent or mens rea.  See Powell v. State of Texas, 392 U.S. 514 (1968).

[2] S. C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993). 

[3] United Nations, International Criminal Tribunal for the former Yugoslavia, www.icty.org, June 9, 2009

[4] Id.

[5] The investigations and prosecutions are actually brought by the Office of the Prosecutor (“OTP”).

[6] ICTY Statute, Art. 1. The Secretary-General commented that January 1, 1991, determined in Article 1 of the Statute as the beginning of the Tribunal's jurisdiction, was chosen as "a neutral date which is not tied to any specific event and is clearly intended to convey the notion that no judgment as to the international or internal character of the conflict [in the former Yugoslavia] is being exercised." Report, supra note 25. There was no specification of the final date in the Statute. Statute, supra note 25; Report, supra note 25, at P 28. Consequently, the Tribunal has a legal basis to prosecute the war crimes committed in Kosovo. 

[7] Geneva Conventions of 12 August 1949 for the Protection of War Victims note 53, 6 U.S.T. 3114, 75 U.N.T.S. 31.

[8] ICTY Article 3 of the Statute provides the following definition of the violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d) seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;  

(e) plunder of public or private property.

[9] ICTY Article 4 of the Statute provides the following definition of genocide:

1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of [sic] committing any of the other acts enumerated in paragraph 3 of this article.

2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;(e) forcibly transferring children of the group to another group.

3. The following acts shall be punishable:(a) genocide;

(b) conspiracy to commit genocide;

(c) direct and public incitement to commit genocide;

(d) attempt to commit genocide;

(e) complicity in genocide.

[10] ICTY Article 5 of the Statute provides the following definition of crimes against humanity:

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;

(i) other inhumane acts.

 

[11] ICTY Statute, Art. 7(1) ("A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."). 

[12] Id. art. 7(4) ("The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires."). 

[13] Id. art. 7(2-3).

[14] United Nations, International Criminal Tribunal for the former Yugoslavia, www.icty.org, June 9, 2009

[15] Id.

[16] Id; Macedonia gained its independence peacefully from Yugoslavia in 1991, but Greece's objection to the new state's use of what it considered a Hellenic name and symbols delayed international recognition, which occurred under the provisional designation of "the Former Yugoslav Republic of Macedonia." In 1995, Greece lifted a 20-month trade embargo and the two countries agreed to normalize relations. The United States began referring to Macedonia by its constitutional name, Republic of Macedonia, in 2004 and negotiations continue between Greece and Macedonia to resolve the name issue.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] ICTY Article 7(1).

[26] ICTY Article 7(3).

[27] Although the language to this Article appears to be a savings clause, it is interpreted to be an independent mode of liability.  See  Prosecutor v. Milan Martic, Amended Indictment, Case No.: IT-95-11, 14 July 2003, para. 9.

[28] See ICTY Article 7(3).

[29] Cassese, Antonio, International Criminal Law, 8th Ed., p.242.  See e.g., Prosecutor v. Zejnil Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-T, Judgement, 16 November 1998 (“Čelebići Trial Judgement”), para. 334, stating that “the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act.”  Considerations of the nature of command responsibility reemerged in the Trial Chamber in Halilovic, where the Chamber concluded that “Article 7(3) command responsibility is responsibility for an omission… [Which] is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates.” Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Judgement, 16 November 2005 (“Halilović Trial Judgement”), para. 54.  See also Oric Trial Judgement, concluding that a commander is held liable under Article 7(3) “merely for his neglect of duty with regard to crimes committed by subordinates.” Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement, 30 June 2006 (“Orić Trial Judgement”), para. 293. 

[30] Id.

[31] Prosecutor v. Naser Oric, Case No.: IT-03-68 (Intl. Crim. Trib. For the Former Yugo., Tr. Chamber, June 30, 2006).

[32] Bosnian Muslims.

[33] Oric Trial Judgment, June 30, 2006.

[34] See Article 7(3) Liability.

[35] Prosecutor v. Miroslav Tadic, Case No.: IT-95-9 (Intl. Crim. Trib. For the Former Yugo., Tr. Chamber, October 17, 2003.

[36] Id.

[37] See footnotes 6 – 10, supra.

[38] Prosecutor v. Blagojevic & Jokic, Case No.: IT-02-60,  para. 698 (citing Tadic, Appeals Chamber Judgment para. 227) (Intl. Crim. Trib. For the Former Yugo., Tr. Chamber, May 9, 2007).

[39] Id at para. 698 (citing Tadic, Appeals Chamber Judgment para. 227).

[40] Id at, para. 698 (citing Tadic, Appeals Chamber Judgment para. 227).

[41] Prosecutor v. Tadić, Judgment on Sentencing Appeal, Case No.: IT-95-9, para 229 (Intl. Crim. Trib. For the Former Yugo., App. Chamber, November 28, 2006); Prosecutor v. Blaškić, Appeal Judgement, Case No.: IT-95-14,  paras 45-46, 48 ((Intl. Crim. Trib. For the Former Yugo., App. Chamber, July 29, 2004);  Prosecutor v. Kvočka et al., Appeal Judgment, Case No.: IT-98-30/1, para. 89((Intl. Crim. Trib. For the Former Yugo., App. Chamber, February 28, 2005); Prosecutor v. Simić et al., Appeal Judgement, Case No.: IT-95-9, para. 85 (Intl. Crim. Trib. For the Former Yugo., App. Chamber, November 28, 2006).

[42] Blaškić Appeal Judgement, para. 48; Simić et al. Appeal Judgement, para. 85; Blagojević and Jokić Appeal Judgement, para. 127.

[43] Blaškić Appeal Judgement, paras 45-46; Simić et al. Appeal Judgement, para. 86; Brđanin Appeal Judgement, paras 484, 488; Blagojević and Jokić Appeal Judgement, para. 127.

[44] Aleksovski Appeal Judgement, para. 162; Simić et al. Appeal Judgement, para. 86; Brđanin Appeal Judgement, paras 484, 487-488.

[45] Blaškić Appeal Judgement, para. 50; Simić et al. Appeal Judgement, para. 86.

[46] See footnote 37, supra.

[47] Oric, Trial Judgment, para. 269.

[48] Oric Appeal Judgment, para. 43.

[49] Oric, Trial Judgment, para. 269, internal citations omitted.

[50] Oric Trial Judgment, para. 283. The Chamber pointed out that it has not expressly been held that aiding-and-abetting can be committed through implied conduct, but several courts have stated that instigation can be committed through implied conduct.  Instigation and aiding-and-abetting are so closely related, however, the Trial Chamber appeared to hold that implied conduct works for aiding-and-abetting as well.  Footnote 790.

[51] Prosecutor v. Sljivancanin, Appeal Judgment, Case No.: IT-95-13/1-A, para. 21 (Intl. Crim. Trib. For the Former Yugo., App. Chamber, May 5, 2009); Simic Appeal Judgment, para 85.

[52] Id.

[53] In Simic, the Trial Chamber found that although the accused Zaric did not take part in and did not approve of the beatings of prisoners, he was nevertheless liable for aiding and abetting cruel treatment because his participating in the interrogations and in a TV interview with non-Serb prisoners gave moral support and encouragement to the beatings.[53] (The TV interview took place in Zaric’s office, where Zaric and four prisoners appeared in an interview with a journalist in which the bruises and scars of the detainees were covered and they were forced under threat of more beatings to say that they were not being mistreated. Para. 729.)

[54] Simic Appeal Judgment, para 85.

[55] Simic Appeal Judgment, para 86, citing Blaskic Appeal Judgment, para 50.

[56] Prosecutor v. Sljivancanin, Appeal Judgment, Case No.: IT-95-13/1-A, (Intl. Crim. Trib. For the Former Yugo., App. Chamber, May 5, 2009)

[57] See Slijvancanin Schedule to the Trial Judgment.

[58] Prosecutor v. Slijvancanin, Trial Judgment, Case No.: IT-95-13/1-A, para. 673, (Intl. Crim. Trib. For the Former Yugo., Tr. Chamber, September 27, 2007)

[59] The JNA is the Yugoslav Army and is sometimes referred to as the VJ.

[60] Prosecutor v. Slijvancanin, Trial Judgment, Case No.: IT-95-13/1-A, at paras. 674 and 715.

[61] Prosecutor v. Slijvancanin, Prosecution Notice of Appeal,  IT-95-13/1-A, para. 8(i).

[62] Slijvancanin Appeal Judgment, para. 62 and 63.

[63] Id.

[64] Id.

[65] Territorial Defense Team.

[66] Slijvancanin Appeal Judgment, para. 62 and 63.

[67] Id.

[68] Prosecutor v. Aleksovski, Trial Judgment, Case No.: IT-95-14/1, paras. 87-88 (Intl. Crim. Trib. For the Former Yugo., Tr. Chamber, June 25, 2009)

[69] Prosecutor v. Kvocka, Trial Judgment, Case No.: IT-98-30/1, para. 259 (Intl. Crim. Trib. For the Former Yugo., Tr. Chamber, November 2, 2001).

[70] Id.

[71] Aleksovski Appeals Judgment, para. 165; Simic Trial Judgment, para. 161; Brdjanin Trial Judgment, para 271.

[72] Oric Trial Judgment, footnote 732.

[73] Oric, Trial Judgment, para. 282.

[74] Prosecutor v. Krstic , Appeals Judgment, Case No.: IT-98-33, para. 145 (Intl. Crim. Trib. For the Former Yugo., App. Chamber, February 28, 2005)

[75] Id.

[76] Army of the Serb Republic.

[77] Prosecutor v. Krstic , Appeals Judgment, Case No.: IT-98-33, para. 145.

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Oric was acquitted after being accused that the accused aided and abetted the wanton destruction of a city through his position and responsibility as group leader in a military force, and his failure to prevent wanton destruction by his subordinates—an obligation that extended to preventing destruction committed by other fighters and civilians.  The Appeals Chamber affirmed the Trial Chambers finding that the Accused could not have prevented the wanton destruction committed by civilians or other fighters, and that he did not have an encouraging presence on his own subordinates. 

[83] Planning, See Section 7(1) Liability, supra.

[84] Committing, See Section 7(1) Liability, supra.

[85] Instigating, See Section 7(1) Liability, supra.

[86] Ordering, See Section 7(1) Liability, supra.

[87] Oric Trial Judgment, para. 282 (internal citations omitted); Aiding-and-abetting, See Section 7(1) Liability, supra.

[88] See Kvocka Trial Judgment, para. 256

[89] The use of the word “substantial” traces back to the Tadic Trial Judgment, para. 690.

[90] Accessory is used interchangeably with an individual aider-and-abettor.

[91] Oric Trial Judgment, footnote 783.

[92] Blagojevic and Jokic Appeals Judgment, para. 134

[93] Prosecutor v. Limaj, Trial Judgment, Case No.: IT-03-66, para. 650, (Intl. Crim. Trib. For the Former Yugo., Tr. Chamber, November 30, 2005)

[94] Id. at para. 654.

[95] Id.

[96] Id.

[97] Prosecutor v. Limaj Appeals Judgment, Case No.: IT-03-66, para. 122, (Intl. Crim. Trib. For the Former Yugo., App. Chamber, September 27, 2007).

[98] Simic Trial Judgment, para. 1015.

[99] Id. at para. 479.

[100] Brdjanin Appeals Judgment, para. 273. See also, Tadic Trial Judgment, para. 690.

[101] Kvocka Trial Judgment, para. 257.

[102] Brdjanin Appeals Judgment, para. 273.

[103] Brdjanin Appeals Judgment, para. 280.

[104] Brdjanin Appeals Judgment, para. 349.

[105] See Oric Trial Judgment, para. 286, citing Čelebići Trial Judgement, para. 328; Tadić Appeal Judgement, para. 229; Kunarac Trial Judgement, para. 392; Kvoćka Trial Judgement, para. 253; Brđanin Trial Judgement, paras 272 et seq.; Limaj Trial Judgement, para. 518;

[106] See, eg., Aleksovski Appeals Judgment, para. 162; Limaj Trial Judgment, para. 518.

[107] Sljivancanin Appeal Judgment, para. 159.

[108] Id. at 62.

[109] Id.

[110] Id.

[111] Id.

[112] Sljivancanin, Appeals Judgment, Judge Vaz Dissent, para. 4.

[113] Id.

[114] Id.

[115]  At law, an accomplice is a person who actively participates in the commission of a crime, even though they take no part in the actual criminal offense.  An accomplice differs from an accessory in that an accomplice is present at the actual crime, and could be prosecuted even if the main criminal (the principal) is not charged or convicted.  An accessory is generally not present at the actual crime, and may be subject to lesser penalties than an accomplice or principal.

[116] United States v. Wiley, 846 F.2d 150, 154 (2nd Cir. 1988).

[117] Other than the defendant in this case means an individual other than the accessory, commonly this is the principal.

[118] United States v. Wiley, 846 F.2d 150, 154 (2nd Cir. 1988).

[119] United States v. Williquette, 370 N.W.2d 86 (Wis. App. 1985).

[120] United States v. Wiley, 846 F.2d 150, 154 (2nd Cir. 1988); United States v. Zambrano,  776 F.2d 1091, 1097 (2nd Cir. 1985).

[121] 160 Cal.App.4th at 1206 (2008).

[122] Id.

[123] Id.

[124] Id. at 1209.

[125] Id.

[126] Id.

[127] Id.

[128] Id.

[129] Id.

[130] Id.

[131] Id.

[132] Id.

[133] Id.

[134] Id.

[135] Id.

[136] Id.

[137] Id.

[138] Id.

[139] Id.

[140] Lopez and the Appellant were not charged with the same crimes.

[141] 160 Cal.App.4th at 1209 (2008).

[142] Id. at 1212.

[143] Id.

[144] Id. at 1217.

[145] Id. at 1219.

[146] Sljivancanin, Appeals Judgment, para. 159.

[147] 370 N.W.2d 282, 283 (Wis. App. 1985)

[148] Id.

[149] Id.

[150] Id.

[151] Id. at 284.

[152] Id.

[153] Id.

[154] State v. Haugen, 191 N.W.2d 12, 15 (Wis. App. 1971).

[155] Id. at 14-15.

[156] Williquette, 370 N.W.2d at 285.

[157] Id.

[158] Id.

[159] Id.

[160] See State v. Austin, 172 N.W.2d 284 (S.D. 1069); Mobely v. State, 85 N.E.2d 489 (Ind. 489).

[161] Sljivancanin, Appeals Judgment, para. 159.

[162] Id.

[163] Of course, these hypothetical situations could never be heard at the ICTY given its jurisdictional limitations.

[164] Most jurisdictions in the United States do not recognize aiding and abetting by omission unless, first, there is a legal duty for the aider and abettor to act.  Often times this is seen in a mother/father and offspring relationship or within the civil context, individuals with fiduciary relations. 

[165] See People v. Crawford, 582 N.W.2d 785, 792 (Mich. 1998).

[166] Id.

[167] Of course there is no statute for the illegal possession or delivery of drugs at the ICTY, however, these hypotheticals show the mens rea necessary for conviction for omission liability.

[168] Id.

[169] United States v. Wiley, 846 F.2d 150, 154 (2nd Cir. 1988).

[170] Sljivancanin, Appeals Judgment, para. 159.

[171] Id.

[172] Simic Appeal Judgment, para 86, citing Blaskic Appeal Judgment, para 50.

[173] See Id.

[174] See footnote 164. supra.

[175] Sljivancanin, Appeals Judgment, para. 159

[176] Simic Appeal Judgment, para 86, citing Blaskic Appeal Judgment, para 50.

 

[177] ICTY Statute 7(1).

[178] ICTY Statute 7(3).

[179] W. A. Schabas, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’, (2003) 37 New

England School of Law Journal 1015, at 1032.

[180] Id.

[181] Darcy., Leiden Journal of International Law, 20 (2007), pp. 377–404

[182] Article 7(3) is the recognized form of liability for superior omissions until 7(1) acknowledged omission liability.

[183] See K. Ambos, 'Superior Responsibility', in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), The Rome Statute of International Criminal Law, Vol. I (Oxford: Oxford University Press, 2002) 825-848; as regards ICTY case law, see Judgment, Delalic and others (IT-96-21-T), Trial Chamber, 16 November 1998, §§ 333, 343.

[184] As an accessory is used here not necessarily to describe the formal status of the superior pursuant to criminal law categories, but rather from the perspective of the consequences that attach to his liability. In international criminal law (following the Anglo-American system, as well as in many civil law countries) the accessory is charged and convicted for the (same) crime committed by the perpetrators, i.e. for the principal crime, see E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: TMC Asser Press, 2003), 61 ff. 

[185] Chantal, Meloni, Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior? Chantal Oxford University Press 2007

[186] Id.

[187] Oric, Trial Judgment, paras. 292- 293

[188] See Prosecutor v.  Halilovic, Case No.: IT-01-48-T, para. 54 (Intl. Crim. Trib. for the Former Yugo., Tr. Chamber, November 16, 2005).

[189] Id.

[190] Prosecutor v. Hadzihasanovic, Trial Judgment, Case No.: IT-01-47, para. 2075 (Intl. Crim. Trib. for the Former Yugo., Tr. Chamber, March 15, 2006).

[191] Id. at 2075-2076. 

[192] Oric, Trial Judgment,  paras. 292- 293; See also Sljavancanin generally.

[193] Chantal, Meloni, Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior? Chantal Oxford University Press 2007

[194] Leiden Journal of International Law, 20 (2007), pp. 377–404

[195] R. Minear, Victor’s Justice: The Tokyo War Crimes Trial (1971). In the context of Rwanda see Humphrey, supra

note 93, at 137. In the context of the ICTY, there is a similar perception among certain groupings in Bosnia

and Herzegovina; see L. E. Fletcher and H. Weinstein, ‘A World unto Itself? The Application of International

Justice in the Former Yugoslavia’, in E. Stover and H. Weinstein (eds.), My Neighbor, My Enemy: Justice and

Community in the Aftermath of Mass Atrocity (2004), 29, at 40–1..

[196] See Section 4, Discrediting the law of armed conflicts.

[197] Leiden Journal of International Law, 20 (2007), pp. 377–404

[198] Id.

[199] Id.

[200] United Nations, ICTY, www.icty.org, June 14, 2009

[201] Id.

[202] Daryl A. Mundis, Note and Comment, The Judicial Effects of the "Completion Strategies" of the Ad Hoc International Criminal Tribunals, 99 Am . J. Int'l L. 142, 142 (2005); See also Eric Husketh, Note and Comment, Pole Pole: Hastening Justice at UNICTR, 3 Nw. U. J. Int'l Hum. Rts. 8, 17-18 (2005), at 17-18 (discussing ICTR costs).

 

[203] M. Dama ˇska, ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law

455, at 471.

[204] Meloni at 631

[205] Id.

[206] Id.

[207] Article 7(1) says: “A person who planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime.”  The words “omission” or “failure to act’ are not seen anywhere in Articles 2 to 5.

[208] Oric Trial Judgment, para. 283. The Chamber pointed out that it has not expressly been held that aiding and abetting can be committed through implied conduct, but several courts have stated that instigation can be committed through implied conduct.  Instigation and aiding and abetting are so closely related, however, the Trial Chamber appeared to hold that implied conduct works for aiding and abetting as well.  Footnote 790

[209] Other then in circumstances where an individual owes a duty to the victim, usually in cases of parental rights and fiduciaries as discussed in section III above.  In the hypotheticals in section III above, if the assumption that John owed a duty to Ben was not in tact, the United States would not entertain any of the three hypotheticals nor is a court likely to charge John with any crimes.

[210] Jacob Katz Cogan, International Criminal Courts: Difficulties and Prospects, 27 Yale J.Int'l L. 111, 118021 (2002).

[211] See Article 5(2) on the European Convention on Human Rights.

[212] Sljivancanin Appeal Brief, paras. 222-223.

[213] See 6(1) of ECHR.

[214] See David Aronofsky, 34 Den.J.Intl.L. & Policy, 17.

[215] Arguably binding precedent on the ICTR as its Appeals Chamber also compromise the ICTY Appeals Chamber.