Extended Liability, Defences, and Child Soldiers

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 641-676

641

CHAP TER 12

EXTENDED LIABILITY,

DEFENCES, AND

CHILDSOLDIERS

A. EXTENDED LI ABILITY: AN INTRODUCTION

Since the beginni ng of international criminal law, a number of con-

cepts have been employed to hold persons liable for the commission of

international cr imes, in addition to holding persons liable for personal-

ly committing such crimes.1 Tables 1 and 2 set out the various forms of

1 “Personally comm itting” has been def‌ine d as follows: “the physical perpet ra-

tion of a crimi nal act or the culpable omission of a n act that was mandated by

a rule of crim inal law” while the per son “must have acted with the int ent to

commit the cri me, or with an awareness of t he substantial likel ihood that the

crime would occu r as a consequence of his or her conduct”; see Ta di ć (IT-94-

1-A), Appeals Chamber Judgment, 15 July 1999 at p ara 188, and Kaing alias Duch

(001/18-07-2007/ECCC/TC), Tria l Chamber Judgment, 26 July 2010 at paras

480– 81. Direc t participation can al so be found in a situation where the conduct

of the accused wa s as much an integral par t of the crimes as the cr imes that

conduct enabled; see Gac umbitsi (ICTR-2001-64-A), Appeals Chamber Judg-

ment, 7 July 2006 at par a 161; Ndind abahiz i (ICTR-2001-71-A), Appeals Chamber

Judgment, 16 January 2 007 at para 123; Kalimanzira (ICTR-05-88 -A), Appeals

Chamber Judgme nt, 20 October 2010 at para 219; Kanyarukiga (ICTR- 02-78-T),

Trial Chambe r Judgment, 1 November 2010 at para 622; Karemera et al (ICTR-

98-44-T), Trial Chamber Judg ment, 2 February 2012 at para 1606. For an ana ly-

sis of concepts of ext ended liability in nationa l legal systems, see Albin Es er,

“Individual Cr iminal Respons ibility” in Antonio Cass ese, Paola Gaeta, and John

RWD Jones, Th e Rome Statute of the Intern ational Crimina l Court: A Commen-

tary, Volume I (Oxford: Oxford Universit y Press, 2002) at 781–83 and Elies van

Sliedregt, The Crimina l Responsibility of Individual s for Violations of Internation al

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW642

extended liability, including both participation in completed offences and incomplete (or “inchoate” in that the activity

is punishable without proof that the crime itself was completed) offences, cross-referenced to the statutes of the major

international criminal tribunals.

Table 1: Modes of Participation in Completed Offences

Nuremberg/

Tok yo

CC10*ICTY/ICTR** SCSL†ECCC†† ICC‡

Planning No No Yes Yes Yes No

Ord er in g No Ye s Yes Ye s Yes Ye s

Inducing No No No No No Yes

Soliciting No No No No No Yes

Instigating Yes No Yes Yes Yes No

Co-perpetration No No No No No “Commits jointly”

Complicity No No Only genocide No No No

Participation No No No No Only genocide No

Aiding and Abetting “Accomplices” “Accessory or abetted”

“Took a consenting part”

Yes Yes Yes Yes

Accessory after the

Fact

No “Accessory” “Committed” “Committed” “Committed” No

Joint Criminal

Enterprise

“Common plan” “Was connected with” “Committed” “Committed” “Committed” “Common pur-

pose”

Humanitarian L aw, 2d ed (Oxford: O xford University Press, 2012) at 61–91, 95–96, 102–4, 110, 112–19, and 131–33. For an argument in sup-

port of one unitar y form of extended form of liabil ity as opposed to a large number of d ifferentiated models, se e James G Stewart, ‘The End

of ‘Modes of Liabi lity’ for Internationa l Crimes” (2012) 25 Le iden J Int’l L 165.

Extended Liabil ity, Defence s, and Child Soldiers 643

Nuremberg/

Tok yo

CC10*ICTY/ICTR** SCSL†ECCC†† ICC‡

Command or Superior

Responsibility

“Leaders,

organizers”

“High position”

Only crimes against peace

Yes Yes Yes Yes

MembershipNoYes No NoNoNo

* Control Council Law No 10 (CC10).

** International Criminal Tribunal for the fo rmer Yugoslavia (ICTY)/Internatio nal Criminal Tribunal for Rwanda (ICTR).

†Special Court for Sier ra Leone (SCSL).

†† Extraordinar y Chambers in the Courts of Cambo dia (ECCC).

‡International Criminal Court (ICC).

Table 2: Inchoate Offences

Nuremberg/

Tok yo

CC10 ICTY/ICTR SCSL ECCC ICC

Incitement No No Only genocide No No Only genocide

Conspiracy Yes Only crimes against

peace

Only genocide No Only genocide No

Attempt No No Only genocide No Only genocide Yes

Planning Only crimes

against peace

Only crimes against

peace

No No No Only aggression

Preparing Only crimes

against peace

Only crimes against

peace

No No No Only aggression

Initiation Only crimes

against peace

Only crimes against

peace

No No No Only aggression

ExecutionNoNo No NoNoOnly aggression

Membership Yes Yes No No No No