An odd couple: Domestic crimes and international responsibility in the special tribunal for Lebanon

Journal of International Criminal Justice

Volumn 5, Issue 5, 2007, Pages 1139-1152

  Milanović, Marko ^a  

^a Belgrade Centre for Human Rights   (Serbia)

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EID: 36248930902     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm074     Document Type: Article

References (51)

1. Report of the Secretary-General on the establishment of a special tribunal for Lebanon. UN Doc. S/2006/893, 15 November 2006 (hereinafter the 'UNLC Report').
2. UNLC Report, supra note 1, §st 23-25: 23. In keeping with the Security Council mandate requesting the Secretary-General to establish a tribunal of an international character and in the circumstances of Lebanon where a pattern of terrorist attacks seems to have emerged, it was considered whether to qualify the crimes as crimes against humanity and to define them, for the purpose of this statute, as murder or other inhumane acts of similar gravity causing great suffering or serious injury to body or to mental health, when committed as part of a widespread or systematic attack directed against the civilian population. 24. Mindful of the differences in scope and number of victims between the series of terrorist attacks committed in Lebanon and the killings and executions perpetrated on a large and massive scale in other parts of the world subject to the jurisdiction of any of the existing international criminal jurisdictions, it was nevertheless considered that the 14 attacks committed in Lebanon could meet the prima facie definition of the crime, as developed in the jurisprudence of international criminal tribunals. The attacks that occurred in Lebanon since 1 October 2004 could reveal a "pattern" or "methodical plan" of attacks against a civilian population, albeit not in its entirety. They could be "collective" in nature, or "a multiple commission of acts" and, as such, exclude a single, isolated or random conduct of an individual acting alone. For the crime of murder, as part of a systematic attack against a civilian population, to qualify as a "crime against humanity", its massive scale is not an indispensable element. 25. However, considering the views expressed by interested members of the Security Council, there was insufficient support for the inclusion of crimes against humanity within the subject matter jurisdiction of the tribunal. For this reason, therefore, the qualification of the crimes was limited to common crimes under the Lebanese Criminal Code.
3. Indeed, the Legal Counsel himself has officially stated that 'The text of the statute, the language of the report, the preparatory work and the background of the negotiations clearly demonstrate that the tribunal will not be competent to qualify the attacks as crimes against humanity.' Statement by Mr Nicolas Michel, Under-Secretary-General for Legal Affairs, the Legal Counsel, at the informal consultations held by the Security Council on 20 November 2006, UN Doc. S/2006/893/Add.1, at 2.
4. See generally, B. Saul, Defining Terrorism in International Law (Oxford: Oxford University Press, 2006), esp. Chapter IV, but see A. Cassese, 'The Multifaceted Criminal Notion of Terrorism in International Law', 4 Journal of International Criminal Justice (2006) 933.
5. See Art. 5 of the Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), available online at http://www.eccc.gov.kh/english/ cabinet/law/4/KR_Law_as_amended_27_Oct_2004_Eng.pdf (visited 9 September 2007).
6. UNTAET Regulation No. 2000/15, 6 June 2000, available online at http://www.pict-pcti.org/courts/pdf/eastimor/200015.pdf (visited 9 September 2007).
7. For more, see the contributions by N.N. Jurdi, 'The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon, and C. Aptel,'Some Innovations in the Statute of the Special Tribunal for Lebanon', in this Symposium.
8. See e.g. Art. 11(2) of the Universal Declaration of Human Rights and Art. 15 of the ICCPR.
9. See Art. 22 of the Rome Statute of the ICC.
10. See generally, S. Lamb,'Nullum crimen, nulla poena sine lege in International Criminal Law, in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 733, at 735-742.
11. But see, S. Powles,'Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?', 2 Journal of International Criminal Justice (2004) 606.
12. See more, B.I. Bonafé, 'Finding a Proper Role for Command Responsibility', 5 Journal of International Criminal Justice (2007) 599.
13. As explained by James Cockayne in his foreword to this Symposium, this would make the stricter standard for civilian defendants applicable even to military superiors charged before the STL.
14. See W Schabas, The UN International Criminal Tribunals (Cambridge: Cambridge University Press, 2006), at 319.
15. Ibid., at 315.
16. See e.g. Schabas, supra note 14, at 310.
17. See e.g. K. Hamdorf, 'The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law', 5 Journal of International Criminal Justice (2007) 208.
18. See Judgment, Tadié (IT-94-1), Appeals Chamber, 15 July 1999, §st 178-237 (Tadié Appeals Chamber Judgment').
19. See A.M. Danner and J. S. Martinez, 'Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law', 93 California Law Review (2005) 75, at 109.
20. Which reads: In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:... (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.
21. Since the drafting of the Rome Statute preceded the ICTY's extensive jurisprudence on JCE initiated in Tadić, it will be necessary to await the ICC's first cases to see how the interpretation of Art. 25(3)(d) unfolds in the light of the three distinct categories of JCE elaborated on by the ICTY. This author, at least, shares the view of Professor Cassese that this provision should and will be interpreted expansively to allow for JCE3, but that some of the elements of JCE3 can and should be more clearly defined - see more A. Cassese, 'The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise, 5 Journal of International Criminal Justice (2007) 109, esp. at 132.
22. Tadić Appeals Chamber Judgment, supra note 18, §225.
23. Art. 3(1)(b) reads: Contributed in any other way to the commission of the crime set forth in article 2 of this Statute by a group of persons acting with a common purpose, where such contribution is intentional and is either made with the aim of furthering the general criminal activity or purpose of the group or in the knowledge of the intention of the group to commit the crime.
24. See A. Esser, 'Individual Criminal Responsibility, in A. Cassese et al., supra note 10, at 767, 802.
25. This is one of the reasons for the unease (generally not shared by this author) that many eminent scholars have with the concept of JCE. See e.g. H. van der Wilt, 'Joint Criminal Enterprise: Possibilities and Limitations', 5 Journal of International Criminal Justice (2007) 91.
26. See Tadié Appeals Chamber Judgment, supra note 18, § 227.
27. See also Schabas, supra note 14, at 311-312.
28. Tadić Appeals Chamber Judgment, supra note 18, §230.
29. Tadić Appeals Chamber Judgment, supra note 18, §231.
30. Cited according to Schabas, supra note 14, at 312.
31. Ibid.
32. Judgment, Brima, Kamara and Kanu (SCSL-2004-16-PT), 20 June 2007, available online at http://www.sc-sl.org/AFRC.html (visited 9 September 2007).
33. Ibid., §60.
34. Ibid., §67.
35. Ibid., §st 73-76.
36. Ibid., §st 71, 77-85.
37. Ibid., §85.
38. The defective nature of the JCE pleaded by the SCSL prosecutor in the AFRC indictment was well noted by Professor Schabas - see Schabas, supra note 14, at 312. He also cautions that the Trial Chamber's decision in AFRC may have fatal consequences for the prosecution's case against Charles Taylor, as not only is that case going to be decided by the same Trial Chamber, but also because the prosecution pleaded JCE against Taylor in the same manner as in the AFRC trial.
39. See W. Schabas, 'Special Court for Sierra Leone Rejects Joint Criminal Enterprise', Trial of Charles Taylor Blog, available online at http://charlestaylortrial.org/expert-commentary/ professor-william-schabas-on-afrc-decision/ (visited 9 September 2007).
40. See UNLC Report, supra note 1, at 34. Under article 3, paragraph 1, of the statute, all those who committed, participated as accomplice, organized or directed others to commit the crime, or otherwise contributed to the commission of the crime, shall be individually responsible. This is a reflection of the Lebanese Criminal Code and general criminal law principles, evidenced, inter alia, by article 2, paragraph 3, of the International Convention for the Suppression of Terrorist Bombings of 1997 (General Assembly resolution 52/164, annex). Article 3, paragraph 2, reflects the principle of command responsibility both under international law and national criminal
41. For instance, Section 14 on modes of individual responsibility of the Regulation creating the Special Panels in East Timor simply reproduces word for word Art. 25 ICCSt., and does not distinguish between international and common crimes within the special panels' jurisdiction (supra note 6). Another good example would be the drafting of the ICTY and ICTR Statutes, when Arts II and III of the Genocide Convention (defining the crime of genocide and other prohibited acts) were copied and pasted to Arts 4 and 2 of the ICTY and ICTR Statute respectively, while at the same time including a general provision on accomplice liability in Arts 7(1) and 6(1) of the Statutes which also applied to genocide. This then led to widely conflicting case-law within the ICTY and the ICTR when it came to distinguishing complicity in genocide from aiding and abetting genocide, with some Chambers concluding that there is an overlap between complicity in genocide and aiding and abetting genocide, and others attempting to manufacture a distinction.
42. See Schabas, supra note 14, at 183, as well as C. Eboe-Osuji, "Complicity in Genocide' versus 'Aiding and Abetting Genocide': Construing the Difference in the ICTR and ICTY Statutes', 3 Journal of International Criminal Justice (2005) 56.
43. UNLC Report, supra note 1, §26.
44. See Schabas, supra note 14, at 324.
45. See e.g. D. Akande, 'The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations', 46 International and Comparative Law Quaterly (ICLQ) (1997) 309.
46. See also J.G. Merills, International Dispute Settlement (3rd edn., Cambridge: Cambridge University Press, 2004), at 249-252;
47. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1-A), Appeals Chamber, 2 October 1995, esp. §§ 9-48.
48. Res. 1757 (2007), fourth preambular paragraph.
49. See Schabas, supra note 14, at 65.
50. The statutes of all the ad hoc tribunals incorporated Art. 14 of the ICCPR, which prescribes basic rights of the accused in criminal proceedings - see Art. 21 ICTYSt., Art. 20 ICTRSt., Art. 17 SCSLSt. and now Art. 16 STLSt. None of them, however, includes Art. 15 of the ICCPR, which provides for the principle of legality, and only the Rome Statute of the ICC contains such a provision (Art. 22). The founding instruments of the hybrid courts in Kosovo, East Timor and Cambodia do explicitly mandate respect for the nullum crimen principle.
51. Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction - Joint Criminal Enterprise, Milutinović et al. (IT-99-37-AR 72), Appeals Chamber, 21 May 2003.