Exclusion - 1F(a) Extended Liability, Defences, and Child Soldiers
| Author | Joseph Rikhof |
| Pages | 269-438 |
269
Exclusion — 1F(a) Extended Liability,
Defences, and Child Soldiers
A. EXTENDED LIABILITY
1) International Criminal Law
a) Introduction
Like domestic criminal law, international criminal law employs a num-
ber of concepts aimed at holding persons liable for the commission of
international crimes in addition to having personally committed such
crimes. As a matter of fact, the majority of cases decided by inter-
national criminal institutions involved persons who had not personally
committed these crimes. The reason for that choice lies in the nature
1 For a historical overview of the various forms of extended liability in international criminal
, 3d ed
A Theory of Punishable Participation in Universal Crimes
Kaing Guek Eav alias Duch
Duch
Duch, ibidHabré
Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-
Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido
Ntaganda-
270 | Exclusion and Refoulement: Criminality in International and Domestic Refugee Law
of the international crimes, which, because of their scale and collective
nature, call for an approach where the persons who are most culp-
able because of their leadership positions or directing minds usually
do not interact with the victims of the crimes. A good example of this
dierence between national domestic law and international law is the
attention given at the international level to legal concepts such as the
liability of military commanders or senior persons within a civilian
hierarchy who direct crimes from a distance or the concepts of joint
criminal enterprise (JCE) or co-perpetration, where the criminal liability
of a particular person within a larger group is dicult to pinpoint but
where there is no doubt that the group as a whole was responsible for
the commission of these crimes.
However, while the jurisprudence with respect to the parameters
of the international crimes of genocide, war crimes, and crimes against
humanity has been quite consistent, the same cannot be said for extended
liability. This is especially poignant when comparing the jurisprudence
of the International Criminal Tribunal of the former Yugoslavia (ICTY)
and the International Criminal Tribunal for Rwanda (ICTR) with that
of the International Criminal Court (ICC). The ICTY and ICTR were
instrumental in the development of the law in the area of JCE, which
over the years extended its application from smaller groups involved
in crimes to people administering entities such as camps where detain-
ees were abused to, more recently, groups of people organizing and
carrying out crimes over large territories. The ICC, on the other hand,
has so far preferred a legal construct where the control over the inter-
national crimes by persons occupying high positions in governments
where the conduct of the accused was as much an integral part of the crimes as the crimes
it enabled; see Gacumbitsi
para 161; Ndindabahizi Appeals Chamber Judgment, 16 January 2007 at para
123; Kalimanzira
KanyarukigaMunyakazi
Karemera et al
3 For a general overview of the principles of liability in the Rome Statute, including the
notion of hierarchy of blameworthiness, see Katanga
between the various modes of liability in the Rome Statute, see Lubanga (ICC-01/04-01/06),
Gbagbo-
Blé Goudé (ICC-02/11-
159; Lubanga (ICC-01/04-01/06 A5), Appeals Chamber Judgment, 1 December 2014 at para 462.
Exclusion — 1F(a) Extended Liability, Defences, and Child Soldiers | 271
or non-governmental organizations was criminalized by utilizing the
notion of co-perpetration. Neither approach is incompatible with the
other, but there has been disagreement among international criminal
institutions as to the proper basis of these legal concepts, which will be
further explored later in this chapter. This chapter will discuss extended
liability from both the perspective of forms of committing crimes by
conduct before during, and after those crimes took place as well as
criminal conduct, that has not resulted in crimes, the so-called inchoate
oences of conspiracy, incitement, and attempt.
b) Ordering
Ordering implies that a person in a position of authority uses that
authority to convince another to commit an oence, with the intent
that a crime be committed in the realization of that act or omission or
with the awareness of the substantial likelihood that a crime would be
committed in the realization of that act or omission.
4 For the distinctions between ordering, on the one hand, and soliciting, inducing (which are
Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle
Babala Wandu and Narcisse Arido
Gbagbo and Blé Goudé
Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo
Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée
Defence no case to answer motion,
5 Nahimana, Barayagwiza and Ngeze (“Media”)
Kalimanzira
Ndindiliyimana et al
11 February 2014 at para 365; Nyiramasuhuko et al
14 December 2015 at paras 1911, 1915;
Gbagbo and Blé Goudé (ICC-02/11-
les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit
ordonnéePublic Redacted Version
Gbagbo
and Blé Goudé
January 2019 on the
portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté
immédiate soit ordonnée Public
6 Taylor
Ntaganda
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