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Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25's Rorschach Blot

  • LEILA NADYA SADAT and JARROD M. JOLLY

Abstract

This article draws on well-established understandings of international treaty interpretation and the role of the judicial function to propose seven canons of treaty construction that may serve as the basis of a principled interpretation of the substantive law of the Rome Statute. This interpretative framework is then applied to the seemingly intractable debate within the Court and among scholars over the correct interpretation of Article 25, on modes of liability. The seven canons provide guidelines that may enable the ‘Rorschach blot’ of Article 25, capable of many divergent interpretations, to become uniformly and consistently understood and interpreted.

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1 The ‘Rorschach inkblot test’ is a psychological test in which individuals are shown a series of cards, each containing a picture of an inkblot that has been folded on itself to create a mirror image. The theory suggests that a person will impose a meaning on the image (which is otherwise meaningless), thus revealing something about his or her own character and thoughts.

2 See Prosecutor v. Thomas Lubanga Dyilo, Mémoire de la Défense de M. Thomas Lubanga relatif à l’appel à l’encontre du « Jugement rendu en application de l’Article 74 du Statut » rendu le 14 mars 2012, ICC-01/04-01/06-2948-Red, A.Ch., 3 December 2012, paras. 327–38; Prosecutor v. Thomas Lubanga Dyilo, Prosecution's Response to Thomas Lubanga's Appeal against Trial Chamber I's Judgment Pursuant to Article 74, ICC-01/04-01/06-2969-Red, A.Ch., 18 February 2013, paras. 258–73; Prosecutor v. Thomas Lubanga Dyilo, Legal Representatives of Victims, V01 Team, Corrigendum of Observations on the Appeals against the Decisions Pursuant to Articles 74 and 76 of the Rome Statute, ICC-01/04-01/06-2966-Corr-tEN, A.Ch., 4 February 2013, paras. 59–71. See also the Dissenting Opinion of Judge Cuno Tarfusser to Prosecutor v. Germain Katanga, Judgment on the Appeal of Mr Germain Katanga Against the Decision of Trial Chamber II of 21 November 2012, entitled ‘Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges Against the Accused Persons’, ICC-01/04-01/07-3363, A.Ch., March 27, 2013, paras. 15–16 (noting that the Court's jurisprudence on Art. 25 is ‘far from being uncontentious or settled’).

3 Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, T.Ch.I., 14 March 2012 [hereinafter Lubanga Trial Judgment].

4 Ibid., at paras. 918–33, 976–1006. See, in particular, para. 999, note 2705 (citing a long line of the Court's jurisprudence in support of its view that ‘the contribution of the co-perpetrator must be essential’).

5 Separate Opinion of Judge Adrian Fulford to Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, T.Ch.I, 14 March 2012 [hereinafter Lubanga Trial Judgment (Fulford Opinion)].

6 Prosecutor v. Mathieu Ngudjolo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-4, T.Ch.II, 18 December 2012 [hereinafter Ngudjolo Trial Judgment].

7 Concurring Opinion of Judge Christine Van den Wyngaert to Prosecutor v. Mathieu Ngudjolo Chui, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-4, T.Ch.II, 18 December 2012 [hereinafter Ngudjolo Trial Judgment (Van den Wyngaert Opinion)].

8 Minority Opinion of Judge Christine Van den Wyngaert to Prosecutor v. Germain Katanga, Jugement rendu en application de l’article 74 du Statut, ICC-01/04-01/07-3436, T.Ch.II, 7 March 7 2014, paras. 277–81 [hereinafter Katanga Trial Judgment (Van den Wyngaert Opinion)].

9 Prosecutor v. Germain Katanga, Jugement rendu en application de l’article 74 du Statut, ICC-01/04-01/07-3436, T.Ch.II, 7 March 7 2014 [hereinafter Katanga Trial Judgment].

10 The analysis here is reminiscent of D. J. Bederman's influential article (which concerned the jurisprudence of the United States Supreme Court, not international courts) entitled, ‘Revivalist Canons and Treaty Interpretation’, (1994) 41 UCLA L. Rev. 953.

11 The merits and substance of the control theory have been discussed in depth elsewhere and are not further examined in this article. See, e.g., Ohlin, J. D., van Sliedregt, E., and Weigend, T., ‘Assessing the Control-Theory’, (2013) 26 LJIL 725; Jain, N., ‘The Control Theory of Perpetration in International Criminal Law’, (2011) 12 Chicago JIL 157; Weigend, T., ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’, (2011) 9 JICJ 91; Ohlin, J. D., ‘Joint Intentions to Commit International Crimes’, (2010) 11 Chicago JIL 693.

12 Abi-Saab, G., ‘The Appellate Body and Treaty Interpretation’, in Sacerdoti, G. et. al. (eds.), The WTO at Ten: The Contributions of the Dispute Settlement System (2006), 453 at 459.

13 Brölmann, C., ‘Specialized Rules of Treaty Interpretation: International Organizations’, in Hollis, D. B. (ed.), The Oxford Guide to Treaties (2012), 507 at 508, citing Weiler, J., ‘The Interpretation of Treaties: A Re-examination’, (2010) 21 EJIL 507.

14 See Brölmann, supra note 13, at 508–9.

15 ‘[J]udicial creativity cannot be used to fill any conceivable gap in the law. A reasonable limitation must be found. There is a reasonable limitation in the idea that the gap in the law must be one which prevents a court from dispensing justice as it is required to do under its constituent instrument. Judicial creativity is not license for unregulated action. A view is that it was really fear of unregulated action that underlay some of the more spectacular episodes of judicial reticence in the past. In conclusion, it appears that there is a basis for holding that states, having established an international criminal court, are to be regarded as also vesting it with a power of judicial creativity.’ Shahabuddeen, M., ‘Judicial Creativity and Joint Criminal Enterprise’, in Darcy, S. and Powderly, J. (eds.), Judicial Creativity at the International Criminal Tribunals (2010), 184 at 187.

16 Perhaps responding to this criticism, which was articulated by these authors in an earlier version of this paper presented to the Court in June 2013, the majority in the Katanga judgment endeavours to address this in a section on interpretation found in the judgment at paras. 43–57. See Katanga Trial Judgment, supra note 9.

17 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331 [hereinafter VCLT].

18 See generally Grover, L., ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’, (2010) 21 EJIL 543.

19 See generally Brölmann, supra note 13; Sadat, L. N., ‘Crimes Against Humanity in the Modern Age’, (2013) 107 AJIL 334, 372; Sadat, L. N., ‘The Legacy of the ICTY: The International Criminal Court’, (2003) 37 New Eng. L. Rev. 1073, 1077–8; Bederman, supra note 10, at 963–4 (suggesting that the methods of treaty construction applicable may depend on whether a treaty is legislative, constitutional, or contractual in character); Powderly, J., ‘Judicial Interpretation at the Ad Hoc Tribunals: Method from Chaos’, in Darcy, S. and Powderly, J. (eds.), Judicial Creativity at the International Criminal Tribunals (2010), 1744, at 33–4 (noting that early decisions of the ad hoc Tribunals recognized the ‘sui generis nature of their respective Statutes, as neither treaties nor strictly penal statutes’).

20 See, e.g., Fitzmaurice, G. G., ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’, (1951) 28 BYIL 1. On the wide range of ill-defined interpretive methodologies historically employed in international criminal law see Grover, supra note 18, at 547–9 (Grover notes that the jurisprudence of the ICTY and ICTR ‘contains inconsistent reasoning with references to inter alia the following methods of interpretation: literal, logical, contextual, purposive, effective, drafter's intent, and progressive. Human rights standards, including fairness to the accused, as well as interpretation most consistent with customary law have also been invoked as guiding considerations’.).

21 See generally Pellet, A., ‘Applicable Law’, in Cassese, A. et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 1051; Bitti, G., ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources in the Jurisprudence of the ICC’, in Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court (2008), 285.

22 See Ngudjolo Trial Judgment (Van den Wyngaert Opinion), supra note 7, at para. 18.

23 For the purposes of this article, we have accepted the applicability of Art. 22(2) to the interpretation of Art. 25. However, it is perhaps useful to observe that some legal systems would not treat modes of criminal responsibility in the same manner as the substantive criminal law to which they apply, and it is not obvious from the Rome Statute itself that this was the drafters’ intent. A full treatment of this question, therefore, is left for another day.

24 Art. 9(1) states that ‘Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties’; para. 2 of Art. 21 provides that the Court may apply principles and rules of law as interpreted in its previous decisions.

25 Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19 (2) (a) of the Statute of 3 October 2006, ICC-01/04-01/06-772, A.Ch., 14 December 2006, para. 34; See also Schabas, W., The International Criminal Court: A Commentary on the Rome Statute (2010), 385.

26 See generally Bitti, supra note 21; de Guzman, M. M., ‘Article 21 Applicable Law’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), 70512.

27 See Lubanga Trial Judgment (Fulford Opinion), supra note 5, at para. 13 note 25 (citing various decisions of the Appeal Chamber on this point). See also Schabas, supra note 25, at 387.

28 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS. 331.

29 See generally D. Jacobs, ‘Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict Theories’, in J. d’Aspremont and J. Kammerhofer (eds), International Legal Positivism in a Post-Modern World (forthcoming), draft manuscript available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2046311>.

30 The International Law Commission has noted that both Arts. 31 and 32 of the VCLT reflect customary international law. See United Nations, Report of the International Law Commission, Sixty-fifth Session (6 May–7 June and 8 July–9 August 2013), UN Doc. A/68/10 (2013), at 22. See also Powderly, supra note 19, at 34 (‘The customary international law status of the Vienna rules is beyond doubt, having been confirmed by a host of international tribunals’.).

31 See de Guzman, supra note 26, at 706–7 (noting the view that ‘“principles and rules of international law” is simply an awkward reference to customary international law’. ‘The inclusion of “principles . . . of international law” as a source of law distinct from “general principles” derived from national laws may reflect the drafters’ intention to enable the Court to apply principles that are neither derived from national laws nor part of customary international law. . . . In interpreting the term “principles” in paragraph 1 (b), the Court therefore must resolve whether the drafters intended anything more than a redundancy that, along with “rules”, refers simply to customary international law’.); Schabas, supra note 25, at 391 (‘Of course, “principles and rules of international law” is also an invitation to apply customary international law, where appropriate.’) [internal citations omitted].

32 Ngudjolo Trial Judgment (Van den Wyngaert Opinion), supra note 7, at para. 9. Judge Van den Wyngaert rejects an argument in the literature that the phrase ‘unless otherwise provided’ in Art. 30(1) of the Statute would allow ICC Chambers to apply customary international law for the interpretation of the modes of liability. Ibid., at note 16.

33 While it might be argued that Art. 10 of the Rome Statute is indicative of the drafters’ intention to limit recourse to customary international law, the ‘[t]he better legal view seems to be that Art. 10 is intended to contain the influence of the Rome Statute on the development of custom but not the influence of custom on the Rome Statute for purposes of interpretation’. Grover, supra note 18, at 572. See also L. N. Sadat, ‘Custom, Codification and Some Thoughts about the Relationship Between the Two: Article 10 of the ICC Statute’, (2000) 49 DePaul L Rev 909.

34 Rome Statute, Art. 21(1)(c). See de Guzman, supra note 26, at 709 (‘[t]his provision codifies the practice of other international courts, in particular the ICJ’).

35 Schabas, supra note 25, at 393.

36 See generally C. A. Ford, ‘Judicial Discretion in International Jurisprudence: Article 38(1)(c) and “General Principles of Law”’, (1994) 5 Duke J Comp & Int’l L 35, 66–80 (suggesting three possible approaches to the identification of general principles of law: comparativism, categoricism, and ‘an emerging synthesis’).

37 Joint Separate Opinion of Judge MacDonald and Judge Vohrah to Prosecutor v. Drazen Erdemovic, Judgment of the Appeals Chamber, IT-96-22-A, A.Ch., 7 October 1997, para. 57.

38 Schabas, supra note 25, at 394 (citing ‘Report of the Working Group on Applicable Law, UN Doc. A/CONF.183/C.1/WGAL/L.2, p.2. Adopted without change by the Committee of the Whole: UN Doc. A/CONF.183/C.1/L.76/Add.2, p.17.’).

39 Bos, M., ‘Theory and Practice of Treaty Interpretation’, in Davidson, S. (ed.), The Law of Treaties (2004), 374.

40 VCLT, Art. 32.

41 See United Nations, Report of the International Law Commission, Sixty-fifth session (6 May–7 June and 8 July–9 August 2013), UN Doc. A/68/10 (2013), 25–6.

42 See Powderly, supra note 19, at 40; Grover, supra note 18, at 552–8; Akande, D., ‘Sources of International Criminal Law’, in Cassese, A. et al. (eds.), Oxford Companion to International Criminal Justice (2009), 41 at 44–5.

43 See Jacobs, supra note 29, at 32–3 of draft manuscript.

44 See Powderly, supra note 19, at 41–2; Jacobs, supra note 29, at 33–5 of draft manuscript; Robinson, D., ‘The Identity Crisis of International Law’, (2008) 21 LJIL 925, 933–8.

45 Grover, supra note 18, at 554.

46 SW v. United Kingdom, Merits and Just Satisfaction, 335-B & 335-C Eur. Ct. H.R. (ser. A), paras. 34, 36 (1995).

47 Emer de Vattel, The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, B. Kapossy and R. Whatmore (eds.), 2008, 407.

48 See generally Shahabuddeen, M., ‘Does the Principle of Legality Stand in the Way of Progressive Development of the Law’, (2004) 2 JCIJ 1007, 1013 (‘Thus, the principle of nullum crimen sine lege does not bar progressive development of the law, provided that the developed law retains the essence of the original crime’); B. Van Schaack, ‘Crimen Sine Lege: Judicial Lawmaking at the Intersection of Laws and Morals’, (2008) 97 Geo. L.J. 119; Powderly, J., ‘Distinguishing Creativity from Activism: International Criminal Law and the “Legitimacy” of Judicial Development of the Law’ in Schabas, W. A., McDermott, Y., and Hayes, N. (eds.), The Ashgate Research Companion to International Criminal Law (2013), 223.

49 The Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee: June 16 th–July 24 th1920 (with Annexes) (2006), 333.

50 Lubanga Trial Judgment, supra note 3, at para. 608.

51 Rome Statute, Art. 128.

52 Bederman, supra note 10, at 1031.

53 See VCLT, Art. 33.

54 See Dissenting Opinion of Judge Hans-Peter Kaul to 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, ICC-01/09-1, P.T.Ch. II, 31 March 2010, paras. 37–8.

55 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04-168, 13 July 2006, para. 33.

56 Bederman, supra note 10, at 1031.

57 VCLT, Art. 32.

58 VCLT, Art. 31.

59 See, e.g., J. Klabbers, ‘Some Problems Regarding the Object and Purpose of Treaties’, (1997) 8 Fin. Y.B. Int’l L 138, 141.

60 Partly Dissenting Opinion of Judge Shahabuddeen to Prosecutor v. Milomir Stakić, Judgment of the Appeals Chamber, IT-97-24-A, A.Ch., 22 March 2006, para. 34.

61 See generally, Powderly, supra note 19, at 41–2.

62 Bederman, supra note 10, at 1032.

63 I. Brownlie, Principles of Public International Law (2008), 634.

65 Bederman, supra note 10, at 1032.

67 S.S. Lotus (France v. Turkey), 7 September 1927, PCIJ (Ser. A) No. 10, para. 37.

68 VCLT, Art. 32.

69 Lubanga Trial Judgment, supra note 3, at paras. 531–3.

70 See, e.g., Pellet, A., ‘Article 38’, in Zimmermann, A.et al. (eds.), The Statute of the International Court of Justice: A Commentary (2006), 780 (observing a hierarchy in Art. 38); see also Joint Separate Opinion of Judge MacDonald and Judge Vohrah to Prosecutor v. Drazen Erdemovic, Judgment of the Appeals Chamber, IT-96-22-A, A.Ch., 7 October 1997, para. 57; Prosecutor v. Kupreskic, et al., Judgment, IT-95-16-T.Ch. II, 14 January 2000, para. 591.

71 See Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, P-T.Ch.I, 29 January 2007, paras. 334–5 [hereinafter Lubanga Confirmation Decision]; J. D. Ohlin, ‘Joint Criminal Confusion’, (2009) 12 New Crim L Rev 406. It would seem that jurisprudence of the ad hoc tribunals can be considered by the ICC but only within the scope and hierarchy of Art. 21 of the Rome Statute, although the relevance of ‘international criminal practice’ is perhaps less clear. See Bitti, supra note 21, at 296–9 (noting various instances in which the jurisprudence of the ad hoc tribunals was considered by the ICC).

72 Rome Statute, Art. 22(1).

73 See generally Grover, supra note 18, at 558–63.

74 Rome Statute, Art 67(1)(c).

75 See War Crimes Research Office, American University Washington College of Law, Regulation 55 and the Rights of the Accused at the International Criminal Court (2013), 53–6 (recommending that the prosecution adopt a more flexible approach to charging from the outset, including charging multiple modes of liability, rather than relying on Regulation 55 later in proceedings).

76 See Katanga Trial Judgment, supra note 9; and Katanga Trial Judgment (Van den Wyngaert Opinion), supra note 8.

77 See, e.g., Prosecutor v. Zoran Kupreškić et al., Judgement, Case No. IT-95-16-T, T.Ch., 14 January 14 2000, paras. 720–48; G. Boas, J. L. Bischoff, and N. L. Reid, International Criminal Law Practitioner Library, 1: Forms of Responsibility in International Criminal Law (2008), 382–8; R. Cryer et al., An Introduction to International Criminal Law and Procedure (2010), 458–60; C. Damgaard, Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues (2008), 233.

78 See Situation in the Libyan Arab Jamahiriya, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-13, P.T.Ch.I, 27 June 2011, 6; Situation in the Republic of Côte D’Ivoire, Warrant of Arrest for Laurent Koudou Gbagbo, ICC-02/11-26-US-Exp, P.T.Ch.III, 23 November 2011, 5.

79 Stewart, J. G., ‘The End of “Modes of Liability”’, (2012) 25 LJIL 165, 212.

80 See, e.g., Ngudjolo Trial Judgment (Van den Wyngaert Opinion), supra note 7, at para. 9.

81 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep. 43.

82 One example is the decision of the Tadić court to reject the test articulated by the ICJ for attribution of state responsibility.

83 Charney, J. I., ‘Is International Law Threatened by Multiple International Tribunals’, (1999) 271 Recueil Des Cours 101, 347.

84 A. Cassese, International Criminal Law (2008), 33.

85 E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), 61.

86 H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (2009), 20.

87 Ibid., at 20–1 (citing the work of Kai Ambos in support); Eser, A., ‘Individual Criminal Responsibility’, in Cassese, A., Gaeta, P., and Jones, J. (eds.), The Rome Statute of the Criminal Court: A Commentary (2002) Vol. I, 767 at 781; Stewart, supra note 79, at 170 fn. 17; Werle, G., ‘Individual Criminal Responsibility in Article 25 ICC Statute’, (2007) 5 JICJ 953, 955.

88 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50–5 (1946) [emphasis added].

89 Hèctor Olàsolo suggests that this provision introduced the distinction between principal and accessorial liability in international criminal law. This is debatable given the plain language of the provision, which treats them both as forms of commission. In any event, he notes that ‘US military tribunals acting under Allied Control Council Law No. 10 embraced a unitary model’. Olásolo, supra note 86, at 21. See also K. J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011), 251–4 (noting that the irrelevance of the principal/accessory distinction stemmed from the fact that ‘any defendant any defendant whose actions fell within the parameters of Article II(2) was “deemed to have committed” a war crime, crime against humanity, or crime against peace’); S. Finnin, Elements of Accessorial Modes of Liability: Article 25(3)(b) and (c) of the Rome Statute of the International Criminal Court (2012), 16–17.

90 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, SC Res. 827, UN SCOR 48th sess., 3217th mtg. at 1–2 (1993); 32 ILM 1159 (1993).

91 Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, UN SCOR 49th sess., 3453rd mtg., UN Doc. S/Res/955 (1994); 33 ILM 1598 (1994).

92 Eser, supra note 87, at 781.

93 The absence of any reference to ‘principals’ or ‘accessories’ in the text of the 1996 Draft Code is notable, as is the fact that conviction under a particular mode of liability, per Art. 2(3), did not entail a different form of punishment, per Art. 3. But see Finnin, supra note 89, at 18 (suggesting that the enumeration of various modes of liabilities in Art. 2(3) of the 1996 Draft Code represented a ‘significant departure from previous drafts’ and ‘a move closer to the differential participation model’).

94 Prosecutor v. Radislav Krstić, Appeals Judgment, IT-98-33-A, A.Ch., 19 April 2004, paras. 135–44.

95 See, e.g., Separate Opinion of Judge David Hunt to Prosecutor v. Milutonović et al., Decision on Dragoljub Ojdanić Motion Challenging Jurisdiction: Joint Criminal Enterprise, IT-99-37-AR72, T.Ch., 21 May 2003, para. 31 (contending that attempts to apply the principal–accomplice classification is ‘unwise’ because it is ‘unnecessary’ to categorize different types of offenders for the sentencing purposes). See also van Sliedregt, supra note 85, at 78.

96 Prosecutor v. Tadić, Appeals Judgment, IT-94-1A, A.Ch., 15 July 1999, para. 190.

97 Ibid., at para. 220.

98 See generally Danner, A. M. and Martinez, J. S., ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’, (2005) 93 CalLRev 75; Badar, M. E., ‘“Just Convict Everyone!” – Joint Perpetration: From Tadić to Stakić and Back Again’, (2006) 6 IntlCLR 293, at 301; Ohlin, J. D., ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’, (2007) 5 JCIJ 69 (2007). For a defence of JCE see Cassese, A., ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’, (2007) 5 JICJ 109.

99 See, e.g., Shahabuddeen, supra note 15, at 184–203; van Sliedregt, E., ‘The Curious Case of International Criminal Liability’, (2012) 10 JICJ 1171, at 1184.

100 Darryl Robinson, while not using the ‘activist’ label, suggests that the JCE doctrine was developed by judges of the ICTY using ‘victim-focused teleological reasoning’ to read in a ground of liability vastly broader than any specifically listed in Article 7(1) of the ICTY Statute. See Robinson, supra note 44, at 942–3.

101 van Sliedregt, supra note 85, at 77.

102 Cassese, supra note 84, at 324–5.

103 See Prosecutor v. Charles Ghankay Taylor, Judgment of the Appeals Chamber, SCSL-03-01-A (10766–11114), A.Ch., 26 September 2013, paras. 650–71 (‘[T]he Appeals Chamber holds that the totality principle exhaustively describes the criteria for determining an appropriate sentence that is in accordance with the Statute and Rules, and further holds that under the Statute, Rules and customary international law, there is no hierarchy or distinction for sentencing purposes between forms of criminal participation. The Appeals Chamber concludes that the Trial Chamber erred in law by holding that aiding and abetting liability generally warrants a lesser sentence than other forms of criminal participation.’). It is worth noting that the Appeals Chamber cited the separate opinion of Judge Fulford in Lubanga in support of its argument, see note 1945.

104 Saland, P., ‘International Criminal Law Principles’, in Lee, R. S. (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 189 at 198.

105 See ‘Working paper submitted by Canada, Germany, Netherlands, and the United Kingdom’, UN Doc. A/AC.249/1997/WG.2/DP.1.

106 See van Sliedregt, supra note 85, at 64–5.

107 As Schabas notes, ‘[c]oncepts and words in one system did not necessarily have the same connotations as they did in others’. Schabas, supra note 25, at 424. M. Cherif Bassiouni similarly argues that many principles of criminal responsibility contained in the Statute reflect either a common law or civilist approach, with the choice between the two depending on the nature of diplomatic negotiations rather than a comparative legal analysis designed to ‘ascertain the existence of a general principle in the major legal systems of the world, reflecting the families of legal systems’. M. Cherif Bassiouni, Introduction to International Criminal Law: Second Revised Edition (2013), 286–7.

108 See generally Ambos, K., ‘Article 25: Individual Criminal Responsibility’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), 743; Werle, supra note 87, at 956–7. See also Yanev, L. and Kooijmans, T., ‘Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory’, (2013) 13 ICLR 789, at 804 (suggesting that the travaux préparatoires indicate that the drafters aimed to differentiate between principals and accessories on the basis that an early working paper submitted by Canada (UN Doc A/AC.249/L.4) contained a draft article on ‘principals’ and a separate one on ‘the responsibility of other persons in the completed crimes of principals’). However, Art. 25 in its final form merges all modes of liability into the one provision and does not contain the language of ‘principals’ and ‘the responsibility of other persons in the completed crimes of principals’. It can thus be plausibly argued that the drafters indeed intended to move away from a strict principal/accessory distinction by actually removing such specific language.

109 Eser, supra note 87, at 786–8.

110 For example, Schabas suggests, based on the drafting history of Art. 25, that ‘the terms in paragraph (b) seem to be drawn from continental models, whereas those of paragraph (c) belong to the common law’. ‘They should not be viewed as two different or distinct bases of liability, but rather as an effort to codify exhaustively various forms of complicity by drawing upon concepts familiar to jurists from different legal traditions.’ See Schabas, supra note 25, at 431. Further, it has been argued by some scholars that ordering (under para. 3(b)) is better categorized as belonging to para. 3(a) (commission ‘through another person’). See Ambos, supra note 108, at 765; Eser, supra note 87, at 797.

111 See 1997 International Convention for the Suppression of Terrorist Bombings, 2149 UNTS 256, Art. 2(3)(c).

112 ‘Another very divisive issue throughout the Preparatory Committee meetings was conspiracy, a concept strongly advocated by common law countries but unknown in some civil law systems. We were helped by the successful negotiations in 1997 of the Convention for the Suppression of Terrorist Bombings, which had been adopted by consensus. In Rome, it was easy to reach agreement to incorporate, with slight modifications, the text from the Convention which we now find in paragraph 3(d) of the Article 25 of the Rome Statute.’ Saland, supra note 104, at 199–200. See also Ohlin, supra note 71; Weigend, T., ‘Intent, Mistake of Law, and Co-Perpetration in the Lubanga Decision on Confirmation of Charges’, (2008) 6 JICJ 471, 477–8; Werle, supra note 87, at 970–1, 974–5 (arguing that Art. 25(3)(d) is a subsidiary mode of participation yielding the weakest form of liability but also that it may also broadly cover acts that warranted liability under the ICTY's case law on JCE).

113 Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, ICC-01/04-01/06-8-US-Corr, P-T.Ch.I, 10 February 2006 [hereinafter Lubanga Warrant of Arrest Decision].

114 Ibid., at para. 78.

115 Ibid., at para. 77.

116 Ibid., at para. 96. It has been noted, however, that ‘what the OTP [Office of the Prosecutor] formally labelled as co-perpetration based on joint control over the crime was in substance an articulation of the common purpose theory’, and that the Defence complained that the OTP was ‘in effect assimilating different theories’. See Yanev and Kooijmans, supra note 108, at 793.

117 Lubanga Confirmation Decision, supra note 71, at para. 320.

118 Ibid., at para. 322–67. See in particular fn. 418 (citing Professors Werle and Fletcher as well as Judge Schomburg) and fn. 421 (citing Professor Ambos’ commentary on Article 25 in Triffterer, supra note 108). Normally a scholar's nationality would be irrelevant or at least not worth noting explicitly. However the work of Claus Roxin is particularly reliant upon and related to German criminal law ideas and is not accessible in many other languages, including English. Thus it is perhaps unsurprising that two of the three scholars referred to were German.

119 Ibid., at para. 330.

120 Ibid., at para. 324.

121 Separate Opinion of Judge Schomburg to Prosecutor v. Gacumbitsi, Judgment of the Appeals Chamber, ICTR-2001–64-A, A.Ch., 7 July 2006, para. 21 (citing Article 25(3)(a) and its interpretation by the Pre-Trial Chamber in the Lubanga Warrant of Arrest Decision, supra note 113, para. 96 in support).

122 Lubanga Confirmation Decision, supra note 71, at para. 319.

123 See generally Ohlin et al, supra note 11, at 726; Jain, supra note 11, at 164 (Jain notes that ‘[t]he control theory was first systematized by Claus Roxin and is now endorsed [in Germany] by the majority of commentators, though in varying forms’).

124 Lubanga Confirmation Decision, supra note 71, at para. 338.

125 Ibid., at para. 342.

126 Ibid.

127 Ibid., at para. 330 fn. 418 (the Court cites secondary material as well as a footnote in the Separate Opinion of Judge Schomburg in Prosecutor v. Gacumbitsi, Judgment of the Appeals Chamber, ICTR-2001-64-A, A.Ch., 7 July 2006, para. 15 fn. 30). The nature and diversity of the sources relied on in this footnote has been contested. See Yanev and Kooijmans, supra note 108, at 813–14.

128 See Yanev and Kooijmans, supra note 108, at 813–21; van Sliedregt, supra note 85, at 86–7; Weigend, supra note 11, at 105; Jain, supra note 11, at 184.

129 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, P-T.Ch.I, 30 September 2008 [hereinafter Katanga/Ngudjolo Confirmation Decision].

130 Ibid., at para. 485 fn. 647. But notably the Court did not attempt to identify these legal systems or conduct its own examination of how the control theory is supposedly applied in them. Indeed, the ‘Chamber referred in fact exclusively to German and Spanish sources’. See Manacorda, S. and Meloni, C., ‘Indirect Perpetration versus Joint Criminal Enterprise’, (2011) 9 JICJ 159, 170 and fn. 53.

131 Ibid., at para. 492.

132 Ibid., at para. 493.

133 A. Cassese and P. Gaeta, Cassese's International Criminal Law (2013), 178. Neha Jain suggests that the theory of ‘Organisationsherrshaft’ ‘does not enjoy wide support in domestic legal systems, with the exception of Germany and a few Latin American states that are heavily influenced by German legal doctrine’. She notes that ‘the Chamber cites Claus Roxin almost exclusively in its elucidation of the elements of the doctrine’ and that ‘there is considerable debate even in German academic circles about the viability of the doctrine’. See Jain, supra note 11, at 184–5.

134 See, e.g., Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, P-T.Ch.II, 23 January 2012, paras. 296–7; Prosecutor v. William Samoei Ruto, Henry Kirpono Kosgey and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373, P-T.Ch.II, 23 January 2012, paras. 289–92; Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Corrigendum of the Decision on the Confirmation of Charges, ICC-02/05-03/09-121-Corr-Red, P-T.Ch.I, 7 March 2011, para. 126; Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, P-T.Ch.I, 8 February 2010, paras. 152–7; Prosecutor v. Jean-Pierre 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, ICC-01/05-01/08-424, P-T.Ch.II, 15 June 2009, paras. 346–8; Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, P-T.Ch.I, 4 March 2009, paras. 210–13.

135 Lubanga Trial Judgment, supra note 3, at para. 976. However, the majority notes that the Rome Statute should also be interpreted in conformity with Art. 31(1) of the Vienna Convention on the Law of Treaties i.e. ‘in good faith in accordance with the ordinary meaning to be given to the language of the Statute, bearing in mind the relevant context and in light of its object and purpose’. Ibid., at para. 979.

136 Ibid., at paras. 980–81.

137 Ibid., at para. 984.

138 Ibid., at para. 999.

139 Ibid., para.1005.

140 Ibid., at para. 999.

141 Lubanga Trial Judgment (Fulford Opinion), supra note 5, at para. 3.

142 Ibid., at para. 7.

143 Ibid., at para. 8.

144 Ibid., at para. 11.

145 Ibid., at para. 15.

146 Ibid., at para. 17.

147 Ngudjolo Trial Judgment, supra note 6.

148 Ngudjolo Trial Judgment (Van den Wyngaert Opinion), supra note 7.

149 Ibid., at para. 6.

150 Ibid., at para. 67.

151 Ibid., at paras. 8–21.

152 Ibid., at para. 44.

153 Ibid., at para. 46.

154 Ibid., at para. 47.

155 Ibid., at paras. 49–64.

156 See Katanga Trial Judgment, supra note 9.

157 Ibid., at para. 1406.

158 Ibid., at paras. 1383, 1384–88.

159 Ibid., at paras. 1373, 1384–88, 1400–12.

160 Katanga Trial Judgment (Van den Wyngaert Opinion), supra note 8. Van den Wyngaert was of the opinion that the Trial Chamber should have rendered its verdict under Art. 25(3)(a) and that Katanga should have been acquitted alongside Ngudjolo on 18 December 2012.

161 Ibid, at paras. 279–81. Indeed, Van den Wyangaert went further and highlighted that the Majority's rejection of the hierarchical interpretation of Art. 25(3) weakened the justification for importing the ‘control over the crime’ theory.

162 See Section 3.2, supra, in particular note 110. See also Ohlin et al., supra note 11, at 744.

163 Rome Statute, Art. 21(1).

164 See Section 3.2, supra.

165 See Section 3.2, supra, in particular note 108.

166 If the drafters truly intended to draw a strict distinction between principals and accessories, such language could have been used. For example, Art. 25 of the German Criminal Code (StGB) (which broadly reflects the language in Art. 25(3)(a) of the Rome Statute) is entitled ‘Principals’, while ‘aiding’ and ‘abetting’ are separated out into separate sections with these titles. See Jain, supra note 11, at 161–2.

167 Katanga Trial Judgment, supra note 9, at para. 1386.

168 Prosecutor v. Charles Ghankay Taylor, Judgment of the Appeals Chamber, SCSL-03-01-A (10766-11114), A.Ch., 26 September 2013, paras. 650–71.

169 Rome Statute, Art. 76; International Criminal Court, Rules of Procedure and Evidence, rule 145.

170 For an argument to the contrary see Ohlin et al, supra note 11, at 745. See also van Sliedregt, supra note 99, at 1182–5.

171 See Stewart, supra note 79, at 212 (‘A differentiated model uses legal terms to express graduated degrees of blame, but there is also a danger that modes of liability need not carry any great meaning for relevant audiences, further undermining the differentiated model's expressive capacity.’). James Stewart suggests that, under a unitary model, a judgment could append a concise plain-language explanation of the accused's contribution, thereby expressing culpability more effectively than by referring to formalistic modes of liability that vary widely in meaning between jurisdictions.

172 Ngudjolo Trial Judgment (Van den Wyngaert Opinion), supra note 7, at para. 16.

173 Ibid., at para. 18.

174 See notes 130 and 133. See also Yanev and Kooijmans, supra note 108, at 814–21 (‘Put plainly, it would appear that the broad support which Pre-Trial Chamber I has claimed for incorporating the control theory in Article 25(3) is primarily based on i) German academia, ii) the dissenting opinions of the German Judge Schomburg and iii) German law. . . . The control theory, in particular, has been used in some but rejected in other civil law jurisdictions, and is also alien to the common law world . . . [T]here is no one theory of joint perpetration which is “so fundamental that it will be found in virtually every legal system” and can therefore be seen as a general principle of law, within the meaning of Article 21(1)(c) [Rome Statute].’).

175 Ibid., at 803–7.

176 See note 112 and accompanying text.

177 ‘Article 25(3)(d) is hopelessly tangled because no coherent interpretation of the provision is possible; the only solution is amending the statute and establishing clear liability rules for joint criminal action.’ See Ohlin, supra note 71, at 408.

178 Shahabuddeen, supra note 15, at 202–3.

179 See Ohlin et al., supra note 11, at 745–6 (‘So far, the control-theory does not provide the limitation of liability that some expected it to bring.’).

180 See also the contribution of Yanev and Kooijimans, supra note 108 (advocating an abandonment of the control theory and endorsing an emphasis on a ‘common intent’ requirement with ‘intentionality’).

181 L. N. Sadat, The International Criminal Court and the Transformation of International Law (2002), 16–17.

* Henry H. Oberschelp Professor of Law; Director, Whitney R. Harris World Law Institute, Washington University School of Law; Special Adviser on Crimes Against Humanity to the ICC Prosecutor []. This essay represents the personal views of the author and does not represent the official views of any organ of the International Criminal Court.

** LL M in US Law, Washington University School of Law; BA and LL B, The University of Queensland [].

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Leiden Journal of International Law
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