Abstract
In this chapter, this book turns its focus to the conceptual counterpart of individual genocidal intent—that is, ‘collective genocidal intent’ called by various names such as ‘genocidal plan/plan of genocide’, ‘wider plan to destroy’, ‘wider-ranging intention to destroy’, ‘overall intent’, and so on in the relevant jurisprudence of the ad hoc tribunals. I demonstrate that, without collective genocidal intent, there is no individual genocidal intent. I also point out that what the ad hoc tribunals inferred from the overall context of violence had not been individual genocidal intent, but its collective counterpart. In the course of analyzing the notion of collective genocidal intent, this chapter finds a possibility of conceptual congruence between ‘collective genocidal intent’ of genocide and the ‘common/purpose plan’ element of JCE. The common characteristic of collective criminality is horizontally linking the two substantive theories of genocide and JCE. It is also noted that, both theories share a similar vertical structure: i.e., the combinations of ‘context level’ and ‘conduct level’ for genocide, and the level of ‘JCE members’ and that of ‘non-JCE members’ for JCE. Within this horizontal and vertical structure of both theories, I employ the two sets of parallel notions: ‘collective genocidal intent’ corresponding to ‘common purpose/plan’ on one hand, and ‘individual genocidal intent’ corresponding to ‘shared intent’ on the other. Within this conceptual framework, I detect the inherent logic of JCE within genocide. Under the conceptual force of the logic of JCE within the concept of genocide, individual genocidal intent is presumed (and thereby watered down) on the basis of objective features of individual participation, contribution and rank, in the same manner as ‘shared intent’ is presumed under the JCE doctrine. It is only when evidentiary weight of such objective aspects of an individual actor is strong enough to convince international judges that they proceed to presume individual genocidal intent. In this way, the catchphrase of the ‘crime of mens rea’ proves empty. At this juncture, the flow of arguments of this book compelled me to make a difficult observation: that is to say, genocide being a leadership crime. The weight and importance of collective criminality at the ‘context level’ (reflected in the two essential notions of ‘collective genocide’ and ‘collective genocidal intent’) which forcefully operates through the inherent logic of JCE within the concept of genocide left no other option. In this context, admitting principal liability for subordinate actors means unfair labeling of criminal liability of leadership actors and subordinate actors by grouping them together without proper differentiation. This would result in a deflation of criminal liability of leadership-level actors, while inflating that of subordinates. At the same time, it is emphasized that this does not exonerate subordinate actors: they can still be convicted as aiders and abettors of genocide.
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Notes
- 1.
Prosecutor v. Tadić , Appeals Judgment, 15 July 1999, para 191.
- 2.
See Chap. 3, footnote 8 supra.
- 3.
Jones 2003, p. 478.
- 4.
Ibid. at 468.
- 5.
Prosecutor v. Musema , Trial Judgment, 27 January 2000, para 354. In Sect. 3.2.1.3 supra, I concluded that the ‘general elements’ in Musema means ‘collective genocide’ that consists of ‘collective acts’ and ‘collective genocidal intent’.
- 6.
Prosecutor v. Kayishema and Ruzindana , Trial Judgment, 21 May 1999, para 274. Exactly the same mode of analysis which inquires whether the elements of genocide have been fulfilled in a collective context has been applied by the International Commission of Inquiry on Darfur as follows: “Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are: first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, […] the existence of a protected group being targeted by the authors of criminal conduct. […] However, one crucial element appears to be missing, at least as far as the central Government authorities are concerned: genocidal intent”. International Commission of Inquiry on Darfur , Established Pursuant to Resolution 1564 (2004), Report to the United Nations Secretary–General, 25 January 2005, para 518.
- 7.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 549. (emphasis added).
- 8.
Literatures that pay serious attention to the notion of collective genocidal intent include: Jones 2003, p. 467, Verdirame 2000, pp. 584–588; Fletcher and Ohlin 2005, pp. 545–548 (in particular, observing that “[i]n cases recognized by history as true genocide, the ethnic group as a whole carries the intent to destroy”.); Bantekas 2010, p. 210 (citing the same paragraph from Krstić , states, “[t]he execution of genocide involves two levels of intent: that of the criminal enterprise as a collectivity and that of the participating individuals”.); Kress 2007. pp. 622–623 (citing the same paragraph from Krstić , Claus Kress also states, “[…] the fundamental distinction between collective and individual genocidal intent, which was so well expressed by the Trial Chamber in Krstić [.] […] The [International] Court [of Justice] did recognize the possibility of a collective genocidal intent in theory. It failed, however, to shed light on the relevance of such a collective intent for the intent of individual perpetrators”.). What led Kress to recognize the distinction between collective and individual genocidal intent was the necessity of contextual element of genocide as an objective reference point for individual genocidal intent. He observes that, without a contextual element, an individual “cannot have a realistic genocidal intent”. (emphasis in original). Ibid. at 622. See also, as regards the core international crimes in general, Gadirov 2014, p. 355 (recommending the future case law of the ICC to “distinguish the executive collective intentions from subsidiary particular intentions, rather than downplaying the collective character of mass atrocities”.).
- 9.
Quoting philosopher David J. Velleman’s account of shared intention which, states that “intentions may be extramental, existing outside of mental states”, philosopher Brook Jenkins Sadler says she is “sympathetic to the idea that intentions are not necessarily mental states”. Sadler 2006, p. 125, footnote 29.
- 10.
Prosecutor v. Kayishema and Ruzindana , Trial Judgment, 21 May 1999, paras 291, 292 and 312.
- 11.
Prosecutor v. Jelisić, Trial Judgment, 14 December 1999, para 79.
- 12.
Ibid.
- 13.
Prosecutor v. Munyakazi , Trial Judgment, 5 July 2010, para 496.
- 14.
Prosecutor v. Gacumbitsi , Trial Judgment, 17 June 2004, para 288.
- 15.
Prosecutor v. Jelisić, Trial Judgment, 14 December 1999, para 28.
- 16.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 598.
- 17.
Prosecutor v. Tolimir , Trial Judgment, 12 December 2012, para 769. See also Prosecutor v. Blagojević and Jokić , Trial Judgment, 17 January 2005, para 674 (“one single scheme to commit genocide of the Bosnian Muslims of Srebrenica ”).
- 18.
Prosecutor v. Karadžić , Transcript, 28 June 2012, p. 28751. Yet, given that collective genocidal intent is to be generally formulated at the leadership level, this description of collective genocidal intent sounds crude and inappropriate.
- 19.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 622.
- 20.
Ibid. para 631 (“General Krstić participated in the full scope of the criminal plan to kill the Bosnian Muslim men originated earlier by General Mladić and other VRS officers”.). (emphasis added).
- 21.
Ibid para 632 (“On 15 July, General Krstić ’s participation in the killing plan reached an aggressive apex”.). (emphasis added).
- 22.
Prosecutor v. Akayesu , Trial Judgment, 2 September 1998, para 118.
- 23.
Ibid. para 119.
- 24.
Ibid. para 121.
- 25.
Kress 2006, pp. 495–496.
- 26.
For detailed examples of such international judges’ efforts to find ‘collective genocide’, see Sect. 3.2.1 supra.
- 27.
For a similar view, see Schabas 2005, p. 877 (“Although there is no shortage of authority claiming that a state plan or policy is not an element of the crime of genocide, the behavior of the Security Council and the Darfur Commission shows that state plan or policy is not only an essential ingredient of the crime, it is the question that lies at the very heart of the debate”.).
- 28.
The most conspicuous example would be the three underlying acts as provided in Articles 6(c), (d), and (e) of the ICC Statute. Cassese and his co-authors rightly point out that, in relation to these three acts, a plan or policy is required to be proven. Cassese et al. 2013, p. 141. See also Bantekas 2010, p. 209.
- 29.
International Commission of Inquiry on Darfur , Established Pursuant to Resolution 1564 (2004), Report to the United Nations Secretary–General, 25 January 2005, para 520. (emphasis in original).
- 30.
For a similar view, see Kress 2007, p. 623. The top-down vertical nature of genocidal intent is reflected in the mode of its analysis taken by the ad hoc tribunals, as we have extensively studied in Sect. 3.2 supra. Guglielmo Verdirame also observes: “[A] method for the judicial application of the dolus specialis in genocide has been crystallised by the ad hoc Tribunals. First, contextual elements are assessed. In particular, the existence of a genocidal plan and the commission of a genocide in a given situation are considered. Secondly, the Tribunals examine the genocidal intent of the individual, which is distinct but yet connected to the collective genocidal intent underlying the plan”. Verdirame 2000, p. 588.
- 31.
For a similar discussion in relation to a hypothetical ultimate mastermind’s individual mind, see Sect. 4.2.2.5 infra.
- 32.
It is to be noted that ‘biological destruction’ takes time. That is, in the case of ‘biological destruction’, the ‘destruction’ is to be conceived as a ‘remote harm’ or a ‘threat in the remote future’. For instance, the destructive consequence of ‘imposing measures intended to prevent births within the group’ (ICC Statute, Article 6(d)) or ‘forcibly transferring children of the group to another group’ (ICC Statute, Article 6(e)) would not be realized on the spot. For more discussion, see Chap. 3, footnotes 116 and 214 supra.
- 33.
See e.g., Prosecutor v. Karadžić , Transcript, 28 June 2012, pp. 28768–29770. In entering a judgment of acquittal on count 1 (genocide in certain municipalities in 1992), the Trial Chamber holds that “notwithstanding the [provocative] statements of the accused, there is no evidence upon which, if accepted, a reasonable trier of fact could find that the acts of killing, serious bodily or mental harm, and conditions of life inflicted on the Bosnian Muslims and/or Bosnian Croats [occurred in certain municipalities in 1992] were perpetrated with the dolus specialis required for genocide”. In this respect, it is to be noted that the focus of the Chamber discussion is not on the accused’s individual genocidal intent, but on the collective genocidal intent. Thus, the Chamber observes that “the [collective] nature, scale and context of these culpable acts, be it in all the municipalities covered by the indictment or the seven municipalities in which genocide is specifically alleged, do not reach the level from which a reasonable trier of fact could infer that they were committed with [collective] genocidal intent”. Ibid. at 28768.
- 34.
I use the word ‘anonymous’ because it is when the phrase “intent to destroy” is used in international judgments without any indication of its possessor, be it collective or individual, that it is very likely that the phrase points to the collective genocidal intent as is the case in Tolimir as follows (see the italicized phrase): “The Chamber […] found that these criminal acts were committed with the intent to physically destroy the protected group, thus amounting to the crime of genocide. The Chamber now turns to the question of whether the Accused had the requisite mens rea for the crime of genocide, namely, a specific intent “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Prosecutor v. Tolimir , Trial Judgment, 12 December 2012, para 1157.
- 35.
See Sect. 3.2.2 supra.
- 36.
I have already said this description of collective genocidal intent is crude and inappropriate. See this chapter, footnote 18 supra.
- 37.
Prosecutor v. Karadžić , Transcript, 28 June 2012, pp. 28751–28752 (“Accordingly, the Chamber finds that there is evidence on which, if accepted, a reasonable trier of fact could be satisfied beyond reasonable doubt that genocide charged pursuant to Article 4 of the Statute was carried out by Bosnian Serb forces in Srebrenica ”.).
- 38.
Ibid. at 28757–29758.
- 39.
In this respect, the Appeals Chamber is of the view that the Trial Chamber “also expressly considered evidence concerning Karadžić himself and other alleged JCE members”. Prosecutor v. Karadžić , Rule 98 bis Appeals Judgement, 11 July 2013, para 82. Despite that the Trial Chamber indeed makes a vague reference to Karadžić and other members of the Bosnian Serb leadership, the Appeals Chamber misses the Trial Chamber’s overall structure of evidentiary analysis consisting of the two-step inquiry upon (i) the anonymous collective genocidal intent of the physical perpetrators; and (ii) the accused’s individual genocidal intent within the framework of JCE I, which follows the analysis pattern of the ICTY’s other case law on genocide. In this context, para 83 of the Appeals Judgment deserves a close reading where the Appeals Chamber reinforces its position which I consider to be far-fetched because there is no reason for the Trial Chamber to employ a different analytic method in relation to count 1 (genocide in certain municipalities in 1992) and count 2 (genocide in Srebrenica in 1995), especially in view of the fact that the Prosecution alleges the JCE I for both counts. See Prosecutor v. Karadžić , Third Amended Indictment, paras 37–39 and paras 42–44 (Feb. 27, 2009).
- 40.
Prosecutor v. Karadžić , Transcript, 28 June 2012, pp. 28768–28769. (emphasis added).
- 41.
I make this observation on the basis of a combined reading of pages 28763 and 28769 of the transcript, paying special attention to the Chamber’s utterance of “notwithstanding the [genocidal] statements of the accused”. The relevant text in 28763 states: “The Prosecution submits that what is of relevance is whether there was dolus specialis. In that respect, the Prosecution responds by reference to statements of the accused that he shared the intent to destroy the Bosnian Muslim and/or Bosnian Croat groups in part and that he encouraged the destruction of this protected group by the organs under his authority and control”. On the other hand, the relevant text in 28769 states: “As stated earlier, the Prosecution in its response to the accused also refers to evidence of statements and speeches made by him and other members of the Bosnian Serb leadership which, according to the Prosecution, contained rhetorical warning of disappearance, elimination, annihilation or extinction of Bosnian Muslims in the event that war broke out. The Chamber has considered these examples as well as the other evidence received in relation to the accused in light of the scale and the context of the alleged crimes in the municipalities in 1992, and the inability to infer genocidal intent from other factors. Following this review, the Chamber finds that[,] notwithstanding the statements of the accused, there is no evidence upon which, if accepted, a reasonable trier of fact could find that the acts of killing, serious bodily or mental harm, and conditions of life inflicted on the Bosnian Muslims and/or Bosnian Croats were perpetrated with the dolus specialis required for genocide”. (emphasis added). In view of the context, this dolus specialis clearly indicates the collective genocidal intent.
- 42.
Prosecutor v. Karadžić , Transcript, 28 June 2012, p. 28769.
- 43.
International Commission of Inquiry on Darfur , Established Pursuant to Resolution 1564 (2004), Report to the United Nations Secretary–General, 25 January 2005, para 518.
- 44.
Yet, in contrast to the Darfur Commission of Inquiry’s main conclusion involving the notion of collective genocidal intent (‘governmental policy’), the Commission defines the concept of genocidal intent in an individualistic manner. See Chap. 2, footnote 27 supra and accompanying text.
- 45.
May 2010, pp. 126–127 (“It is indeed crucial that there be a plan that has as its purpose the destruction of protected group in whole or in substantial part . This is the collective intent that is the most important element of genocide”.). See also Ibid. at 211–212 (“Genocide requires just this collective intent, and planning satisfies the requirement”.). In discussing the Holocaust, May defines that a “plan plus the initiation […] is a form of collective intent”. Ibid. at 116. Larry May also uses the term “larger intent” for the purpose indicating collective genocidal intent (Ibid. at 209–10), while using the term “single intent” for individual genocidal intent (Ibid. at 119). William Schabas , on the other hand, prefers to use the term ‘policy’ for collective genocidal intent, e.g., as follows: “Neither the Darfur Commission nor the ICJ was looking for the specific intent of individual offenders. Rather, they were looking for the specific intent of a State, like Sudan, or a State-like entity, like the Bosnian Serbs. States, however, do not have specific intent. Individuals have specific intent. States have policy. The term specific intent is used to describe the inquiry, but its real subject is State policy”. Schabas 2007, p. 970. The delegation of the United States to the drafting negotiations of the ICC Elements of Crimes also submitted a proposal specifying the collective genocidal intent using the term ‘policy’. Proposal Submitted by the United States of America (Draft Elements of Crimes), U.N. Doc. PCNICC/1999/DP.4 (Feb. 4, 1999), at 5–6 (“That the person or persons were killed in conscious furtherance of a widespread or systematic policy or practice aimed at destroying such group”.). For an example in which the term ‘intention’ is used in connection with a collective, see the phrase “intention of the group” as provided in Article 25(3)(d)(ii) of the ICC Statute. See also Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. 91, para 190 (Feb. 26) (suggesting a collective interpretation of intent by using a phrase “the intent, as a matter of policy”).
- 46.
International Commission of Inquiry on Darfur , Established Pursuant to Resolution 1564 (2004), Report to the United Nations Secretary–General, 25 January 2005, para 518 (the Commission concluded that the intent behind the plan to attack civilian villages was “to drive the victims from their homes, primarily for purposes of counter-insurgency warfare”.).
- 47.
For a similar view, see Fletcher and Ohlin 2005, p. 545 (“The Report of the International Commission of Inquiry concludes that there was no genocide in Sudan because there was no genocidal intent at the collective level […]”.).
- 48.
International Commission of Inquiry on Darfur , Established Pursuant to Resolution 1564 (2004), Report to the United Nations Secretary–General, 25 January 2005, para 513.
- 49.
Ibid.
- 50.
Ibid. para 515.
- 51.
Ibid.
- 52.
Ibid. para 516.
- 53.
Ibid. para 517.
- 54.
I borrow the phrase ‘centralized guidance’ from the Dusseldörf Higher Regional Court in Jorgić case. Ambos 2014, p. 17 (the Dusseldörf Higher Regional Court “argued in Jorgić that genocide requires a ‘structurally organized centralized guidance’. The German Federal Constitutional Court (Bundesverfassungsgericht) adopted the same view”.). Nikola Jorgić was the first defendant ever convicted of genocide by a German national court. The Jorgić judgment rendered by Dusseldörf Higher Regional Court in 1997 reflects the collective theory of genocidal intent. The court issued the genocide conviction against the backdrop of ethnic cleansing in Bosnia and Herzegovina. Despite the killings personally committed by Jorgić himself, the actus reus found by the court seems to be a form of participation in a campaign of ethnic cleansing. Hence, the court makes detailed findings with regard to the role played by Jorgić in the context of ethnic cleansing. On the other hand, the genocidal intent found by the court is a collective genocidal intent possessed by the “Serb political and military leadership, which had orchestrated the cleansing campaign”. This collective genocidal intent was inferred from the “Serbs’ systematic method, statements by then-president of the Republic of Srpska, Radovan Karadžić , and the circumstances of the campaign”. This summary of Jorgić case is based on the description of the case in: Werle 2007.
- 55.
Prosecutor v. Tolimir , Trial Judgment, 12 December 2012, para 769.
- 56.
Ibid. para 770.
- 57.
Ibid.
- 58.
Ibid.
- 59.
Ibid.
- 60.
Ibid.
- 61.
Prosecutor v. Akayesu , Trial Judgment, 2 September 1998, para 730. (emphasis added).
- 62.
Ibid. para 728.
- 63.
Ibid. para 523. A representative example of “other culpable acts systematically directed against the same group” is the forcible transfer of women, children and elderly from Srebrenica by the VRS. In this respect, the Krstić Appeals Chamber endorses the Krstić Trial Chamber’s reliance on the proof of the forcible transfer in finding the collective genocidal intent of some members of the VRS Main Staff, making it clear that the “other culpable acts” encompasses conducts that do “not constitute in and of itself [one of the five] genocidal act[s]” listed in the Genocide Convention and other international instruments. Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, para 33.
- 64.
Prosecutor v. Akayesu , Trial Judgment, 2 September 1998, para 523.
- 65.
Ibid.
- 66.
Ibid.
- 67.
Ibid. para 524.
- 68.
Ibid.
- 69.
Ibid.
- 70.
Triffterer 2001, pp. 406–408.
- 71.
Ibid. at 408.
- 72.
In a similar vein, William Schabas is of the view that “[t]o be entirely accurate, nobody has ever actually been convicted of genocide in the absence of evidence that he or she was part of some broader plan or policy of a state or state-like entity”. Schabas 2012, p. 131.
- 73.
Prosecutor v. Akayesu , Trial Judgment, 2 September 1998, para 523. (emphasis added).
- 74.
Ibid. para 728. (emphasis added).
- 75.
There is even an assertion that “[e]ven an admission of a person regarding her state of mind is untrustworthy”. Shapira-Ettinger 2007, p. 2591.
- 76.
- 77.
Prosecutor v. Rutaganda , Appeals Judgment, 26 May 2003, para 522. (emphasis added).
- 78.
Ibid. para 530. (emphasis added).
- 79.
Ibid. para 529.
- 80.
Prosecutor v. Gacumbitsi , Appeals Judgment, 7 July 2006, para 44. (emphasis added).
- 81.
Ibid.
- 82.
Prosecutor v. Rutaganda , Trial Judgment, 6 December 1999, para 399. (emphasis added).
- 83.
Ibid. para 400. (emphasis added).
- 84.
Jelisić Appeals Judgment specifies the “relevant facts and circumstances” as, “[…] the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts”. Prosecutor v. Jelisić, Appeals Judgment, 5 July 2001, p. 47, as cited in Prosecutor v. Rutaganda , Appeals Judgment, 26 May 2003, para 525.
- 85.
Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, para 34. (emphasis added).
- 86.
This is difficult to understand since the ICTY and the ICTR share the same panel of the Appeals Chamber stationed in The Hague. This common appeals body has made a great contribution to maintaining consistency between the jurisprudence of the ICTY and the ICTR. For instance, explaining the two tribunals’ coherent jurisprudence of the contextual element of crimes against humanity despite the distinct component provided in the chapeau of the relevant articles in the ICTY Statute (“when committed in armed conflict”) and the ICTR Statute (“when committed […] on national, political, ethnic, racial or religious grounds”) respectively, M. Cherif Bassiouni attributes this jurisprudential consistency to the common appeals body. See Bassiouni ’s ‘foreword’ in Agbor 2013, pp. xxvi–xxv.
- 87.
See this chapter, footnote 80 supra and accompanying text.
- 88.
While the Krstić Trial Chamber convicted the accused of genocide proper, the Krstić Appeals Chamber reversed this conviction and convicted the accused of aiding and abetting genocide.
- 89.
An example of such challenge from defendants, see Prosecutor v. Rutaganda , Appeals Judgment, 26 May 2003, para 522 (“The Appellant asserts that the Trial Chamber, in particular, erred in law in finding that the specific intent could be inferred from the ‘general context of the perpetration of acts by others’”.).
- 90.
- 91.
- 92.
Prosecutor v. Kunarac et al., Trial Judgment, 22 February 2001, para 429. See also Prosecutor v. Tolimir , Trial Judgment, 12 December 2012, para 698.
- 93.
Ibid. para 429. This view had been subsequently endorsed by the Appeals Chamber. Prosecutor v. Kunarac et al., Appeals Judgment, 12 June 2002, para 94.
- 94.
Prosecutor v. Akayesu , Trial Judgment, 2 September 1998, para 580. (emphasis added). Note that the Chamber makes this observation in explaining the contextual element of crimes against humanity. It is to be also noted that Darryl Robinson and others place the feature of ‘improbability of random occurrence’ at the center of proving the ‘State or organizational policy’ element under Article 7(2)(a) of the ICC Statute. Drawing on international and national case law, they argue that the policy element is to be readily inferred by the “manner in which the acts occur”, and thus to be “satisfied by showing the improbability that the acts occurred randomly”. For this purpose, they ultimately suggest the test of “plausibility of a hypothesis of coincidence”. Prosecutor v. Gbagbo, Amicus Curiae Observations of Professors Robinson, deGuzman, Jalloh and Cryer, 9 October 2013, paras 22–36. M. Cherif Bassiouni also expresses a similar view in the context of discussing the crime of genocide. Bassiouni thus admits that genocidal intent can be shown by “the cumulative effect of the objective conduct” and/or “a particular objective pattern of conduct”. Bassiouni 1993, p. 234.
- 95.
On the other hand, in terms of the issue of proving the collective genocidal intent through the ‘manifest pattern of similar conduct ’, it deserves note that the ICJ observes that “for a pattern of conduct to be accepted as evidence of [the] existence [of genocidal intent], it would have to be such that it could only point to the existence of such intent”. Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. 91, paras 373 and 376 (Feb. 26). Recently, the ICJ clarified that the phrase “could only point to” signifies the ‘only reasonable inference’ standard of inferring genocidal intent from the facts other than direct evidence. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), I.C.J. para 148 (Feb. 3, 2015). As regards the ‘only reasonable inference’ test for inferring genocidal intent, see Prosecutor v. Brđanin, Trial Judgment, 1 September 2004, para 970.
- 96.
For a critique of this belief on the basis of the Akayesu Trial Chamber’s evidentiary consideration vis-à-vis the genocidal intent element, see Sect. 2.6.1 supra.
- 97.
In relation to this sentence, a commentator opines that the Akayesu Trial Chamber “confused special and general intent”. Akhavan 2005, p. 993. Another commentator understands that the sentence shows that the Chamber applied the knowledge-based approach. Mundorff 2009, p. 100. It seems neither of these observations pay due regard to the explanatory para 521.
- 98.
Prosecutor v. Sikirica et al., Prosecutor’s Second Revised Pre-Trial Brief, 13 October 2000, para 142.
- 99.
See the chart on page 51 supra.
- 100.
For a similar view, see Haren 2006, p. 221.
- 101.
See also Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 561 (“The Prosecution and the Defence, in this case, concur in their belief that the victims of genocide must be targeted by reason of their membership in a group. This is the only interpretation coinciding with the intent which characterises the crime of genocide. The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought”.). (emphasis added).
- 102.
William Schabas also points out the evidentiary difficulties associated with proving individual motives. Schabas 2009, p. 305. Schabas further observes that “[i]ndividual offenders should not be entitled to raise personal motives as a defence to genocide […]”. Ibid. at 306.
- 103.
Fisher 2012, p. 72. Similarly, emphasizing the historical paradigm of genocide between “embattled groups”, George Fletcher and Jens David Ohlin place emphasis on the “intent of the larger collective” and the “intent of nations”. They distinguish the ‘intent of the smaller group’ and the ‘intent of the larger collective’. The rationale behind this distinction is that the former is used for the actual prosecution of genocide as a proxy for the latter. Fletcher and Ohlin state that “the ethnic hatred at the heart of genocide stems from the intent of nations”. Fletcher and Ohlin 2005, pp. 547–548.
- 104.
Prosecutor v. Akayesu , Trial Judgment, 2 September 1998, paras 78–111.
- 105.
Prosecutor v. Kayishema and Ruzindana , Trial Judgment, 21 May 1999, para 54. (emphasis added).
- 106.
ICC Elements of Crimes, Article 7(1)(b), 1st Element. (emphasis added).
- 107.
In the same vein, William Schabas states that “it should be necessary for the prosecution to establish that genocide, taken in its collective dimension, was committed on the grounds of nationality, race, ethnicity, or religion”. Schabas 2009, p. 306. For ‘collective reason for targeting’ emphasized in Raphael Lemkin ’s writings, see Lemkin 2008, p. 79 (“However, if the confiscations are ordered against individuals solely because they are Poles, Jews, or Czechs, then the same confiscations tend in effect to weaken the national entities of which those persons are members”.); Ibid. at 93 (“De lege ferenda, the definition of genocide in the Hague Regulations thus amended should consist of two essential part: in the first should be included every action infringing upon the life, liberty, health, corporal integrity, economic existence, and the honor of the inhabitants when committed because they belong to a national, religious, or racial group; and in the second, every policy aiming at the destruction or the aggrandizement of one of such groups to the prejudice or detriment of another”.); Lemkin 1947, p. 147 (“The acts are directed against groups, as such, and individuals are selected for destruction only because they belong to these groups”.). (emphases added).
- 108.
For more discussion, see Sect. 2.3 supra.
- 109.
- 110.
Jones 2003, p. 477.
- 111.
Ibid. at 478.
- 112.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 549. (emphasis added).
- 113.
I say “should be distinguished” for the purpose of substantive law. In practice, I believe that the ‘shared intent ’ originates in the concept of genocide and its counterpart as the mens rea of ‘JCE to destroy a group’ are identical, both representing the individual genocidal intent.
- 114.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 550. (emphasis added).
- 115.
Ibid. para 571. (emphasis added). The Trial Chamber immediately applies this understanding to its discussion as follows: “[A]n enterprise attacking only the cultural or sociological characteristics of a human group […] would not fall under the definition of genocide”. Ibid. para 580. In this respect, compare the phrase “genocide as an enterprise” with the term “genocidal enterprise” used by the Krstić Appeals Chamber when it draws a conclusion that “[…] Krstić was not a participant in a genocidal enterprise […]”. In my opinion, the term ‘enterprise’ in the former is of a descriptive nature, whilst that in the latter is of a normative nature. For more discussion of this distinction, see this chapter, footnotes 125–130 infra and accompanying text.
- 116.
Lemkin 1947, p. 150.
- 117.
Lemkin 2008, p. 92.
- 118.
See Lemkin 1947, p. 151 (“practiced genocide”).
- 119.
See e.g., Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, para 34 (“[…] a finding that genocide has occurred may be entered”.).
- 120.
Lemkin 2008, p. 92.
- 121.
Lemkin 1947, p. 151.
- 122.
Of course, at that time the legal definition of genocide as embodied in the Genocide Convention had not yet been formulated and adopted into international law. So, at the time of the Greifelt indictment, the generic notion of genocide was not yet in any tension with the statutory definition of genocide. It might almost be said that at the time of Greifelt the generic notion was the only one that existed.
- 123.
United States v. Ulrich Greifelt et al. (‘RuSHA Case’), Case No. 8, Indictment, at 5 (1947–1948), available at http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Indictments.pdf. Accessed 23 December 2015. In this regard, the Tribunal concurred with the prosecution’s view. Trial of Ulrich Greifelt and Others, in 13 Law Reports of the War Criminals, p. 37 (UN War Crimes Commission ed., 1949).
- 124.
Trial of Ulrich Greifelt and Others, in 13 Law Reports of the War Criminals, p. 36 (UN War Crimes Commission ed., 1949). (emphasis added). In another occasion, the official record again uses the expression “the general concept of genocide”. Ibid. at 40.
- 125.
Harding 2013, pp. 250–251. Note that, in this context, Christopher Harding is using the term ‘joint criminal enterprise ’ in a generic sense beyond the boundary of international criminal law, encompassing the “European cartel offence”, the “ICTY joint criminal enterprise ”, and the domestic/transnational “organized crime”. Ibid. at 251–258. Harding states that ‘JCE in a descriptive sense ’ is used “to factually refer to the organizational structure within which a range of offending activities […] take place”. On the other hand, ‘JCE in a normative sense ’, as explained by Harding , is used “as a basis for legal liability” in respect of which the “enterprise and its objectives become essential components of both the actus reus and mens rea” of the offences of direction and participation normally committed by high-ranking actors.
- 126.
As to the idea of ‘JCE within a JCE ’, see Prosecutor v. Kvočka, Trial Judgment, 2 November 2001, para 307 (“A joint criminal enterprise can exist whenever two or more people participate in a common criminal endeavor. This criminal endeavor can range anywhere along a continuum from two persons conspiring to rob a bank to the systematic slaughter of millions during a vast criminal regime comprising thousands of participants. Within a joint criminal enterprise there may be other subsidiary criminal enterprises”.). In addition, Christopher Harding ’s observation on the notion of JCE at the ICTY deserves extended quotation: “Since the language of joint enterprise has been in that context used interchangeably with the vocabulary of ‘common plan’ or ‘design’, in practice the joint enterprise has been used to cover a range of factual situations: for instance, an organised system of repression, such as a concentration camp; a plan to rid the Prijedor region of its non-Serb population (the Tadić enterprise); or a general programme of ethnic cleansing in a large region of Bosnia. Thus, the ICTY joint enterprise is a much more variable concept, in terms of its scale of activity and its range of purposes […]. What is important, therefore, is to identify clearly and precisely in individual cases the enterprise in question, as something factually relevant to the role of the particular defendant. The problem, however, is that in a context of ongoing strife and fighting it is possible to identify a myriad of structures as organisations and enterprise, varying greatly in scope and function, and to a large extent the choice of enterprise for purposes of framing a charge may be very much in the discretion of the prosecutor”. Harding 2013, pp. 260–261.
- 127.
See Sect. 4.2.2.3 infra.
- 128.
Ambos 2009, p. 848.
- 129.
Fletcher and Ohlin 2005, pp. 546–547. It seems that, within the conceptual framework of Fletcher and Ohlin , the intent structure of genocide is three-layered: (i) individual intent; (ii) intent of the smaller collective such as JCE ; and (iii) intent of the larger collective such as a nation. Ibid. at 547–548. Fletcher and Ohlin explicitly identify the “smaller group” with JCE . Ibid. at 546 (“[…] the third group is the smaller group engaged in the common criminal purpose […] contemplated by […] joint criminal enterprise ”.). See also Ibid. at 547 (“[…] smaller groups that are the subject of joint criminal enterprise […]”.).
- 130.
Ibid. at 547.
- 131.
Harding 2013, pp. 247–248.
- 132.
Ibid. 259.
- 133.
Ibid.
- 134.
Ibid. 248. (emphasis added). Similarly, in respect of the essential feature of collective criminality , Kirsten Fisher states that “[c]onceivably, the description that is most apt at capturing what really happened is that they performed an action that contributed to a horrendous moral wrong by a collective of which they are, through their contribution, a part”. Fisher 2012, p. 72. (emphasis added).
- 135.
For a discussion of the tricky relationship between substantive law and evidence law, see Shapira-Ettinger 2007.
- 136.
For a case law in which the term ‘mens rea’ is paraphrased as “the role the participant wishes to assume”, see Prosecutor v. Stakić , Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002, para 50.
- 137.
In those cases where JCE is applied to genocide, it is not always the case that the ‘common purpose /plan’ element of JCE represents the collective genocidal intent. For instance, while ‘JCE to commit genocide ’ was applied in Krstić (the ‘common purpose /plan’ of which was to destroy the ‘Bosnian Muslims in Srebrenica ’), it was ‘JCE to Murder’ that guided the relevant discussion of genocide in Popović et al. Certainly, the ‘common purpose /plan’ in the latter case was to “murder the able-bodies Bosnian Muslim men from Srebrenica ”. Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, para 1072. Strictly speaking, this might cause a problem. That is because throughout the relevant case law of the ICTY dealing with the Srebrenica massacre, the collective genocidal intent has been defined as an intent to destroy the ‘Bosnian Muslims in Srebrenica ’ (not the ‘Bosnian Muslim men of military age in Srebrenica ’) constituting a ‘substantial part ’ of the Bosnian Muslims. But, in Popović et al. , the question of whether the content of ‘common purpose /plan’ element of JCE incorporates collective genocidal intent does not matter that much because the issue of collective genocidal intent is sufficiently addressed in the ‘legal findings related to crimes’ section of the judgment (as opposed to ‘legal findings related to modes of liability’ section). Ibid. paras 837–866. In other words, in Popović et al. , although the ‘JCE in a normative sense ’ in the ‘modes of liability’ section does not precisely cover the collective genocidal intent, the ‘legal findings related to crimes’ section dealing with genocide covers it.
- 138.
The proposition that individual genocidal intent of a member of JCE is to be dressed with the ‘shared intent ’ element of JCE explains the reason why the question of individual genocidal intent of the accused has been addressed in the ‘legal findings of individual criminal responsibility’ section (rather than ‘legal findings of the crime of genocide’ section) of the relevant judgments, in particular, at the ICTY.
- 139.
See the sources cited in Chap. 2, footnote 92 supra.
- 140.
Haan 2005, pp. 195–196. (emphasis added). For approving comment on Haan ’s observation, see Sliedregt 2012b, p. 141. Note that, as to the issue of whether ‘agreement’ or ‘understanding’ to commit particular crimes between a member of JCE and physical perpetrators is an element of JCE , the Brđanin Appeals Chamber clarified that such ‘agreement’ or ‘understanding’ is not required. Prosecutor v. Brđanin, Appeals Judgment, 3 April 2007, paras 415–419. For this reason, I omit the phrase “between the accused person and the direct perpetrator at all” at the end of the quoted paragraph. By the way, it is not clear why Haan mentions ‘agreement’ as a subjective element of JCE . In the relevant jurisprudence of the ICTY concerning JCE , the term ‘agreement’ is used in connection with the objective element of common plan. See e.g., Prosecutor v. Blagojević and Jokić , Trial Judgment, 17 January 2005, para 699.
- 141.
The ICC Pre-Trial Chamber in Lubanga classifies JCE as a subjective theory in terms of distinction between principals and accessories. Prosecutor v. Lubanga, Decision on the Confirmation of Charges, 29 January 2007, para 329. Moreover, in explicating the subjective theory, the Pre-Trial Chamber stresses the importance of ‘shared intent ’ by stating that ‘principals’ are those who have ‘shared intent’, “regardless of the level of contribution […]”. Ibid.
- 142.
In the context of discussing ordinary crimes in national jurisdictions, Keren Shapira-Ettinger argues that presuming mens rea is a common practice through the law of evidence, whilst substantive law ostensibly claims that mens rea is proved beyond reasonable doubt. Shapira-Ettinger 2007, pp. 2585–2586 (“Instead of producing evidence of a defendant’s state of mind, we allow the fact finders to use presumptions in order to deduce the existence of relevant mental occurrences according to their own experience. In doing so, we admit that our legal system does not speak with a single voice: substantive rules regarding the mental element requires the actual occurrences of a subjective mental state, whereas the law of evidence can provide only an assumption that the required state may have occurred”.). (emphasis added).
- 143.
Note, however, the ICTR case law that still reflects the logic of JCE even when JCE is not applied, as will be discussed in Sect. 4.2.2.3 infra.
- 144.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, paras 621–645. More specifically the relevant section is entitled, “genocidal joint criminal enterprise to kill the military-aged men”. Since the Trial Chamber defines the ‘in part’ element as indicating the ‘Bosnian Muslims in Srebrenica ’, the title of the section should have been ‘genocidal joint criminal enterprise to destroy the Bosnian Muslims in Srebrenica ’, rather than ‘genocidal joint criminal enterprise to kill the military-aged men’. Ibid. para 560. In this respect, the Krstić Appeals Chamber clarifies that “the Trial Chamber treated the killing of the men of military age as evidence from which to infer that Radislav Krstić and some members of the VRS Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica , the [substantial] part of the protected group [of Bosnian Muslims]”. Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, para 19. On the other hand, in view of the conceptual possibility of ‘JCE within a JCE ’, we cannot state that the term “genocidal joint criminal enterprise to kill the military-aged men” is completely incorrect. For the relevant case law that addressed the issue of ‘JCE within a JCE ’, see this chapter, footnote 126 supra.
- 145.
That was because, in Popović et al. and Tolimir , the JCE was defined as ‘JCE to Murder’ and ‘JCE to Forcibly Remove’ (as opposed to ‘JCE to destroy a protected group’ or ‘JCE to commit genocide ’). Thus, the ‘shared intent ’ as a mens rea of JCE in these two cases—i.e., ‘shared intent to murder’ and ‘shared intent to forcibly remove’—are not precisely identical with the individual genocidal intent. Yet, the notion of collective genocidal intent amply emphasized by the Trial Chambers in both cases plays a role of a melting pot in which such subtleties are adjusted or ignored.
- 146.
Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, para 1180 (“Accordingly, the Trial Chamber is satisfied beyond reasonable doubt that Popović participated in the JCE to Murder with genocidal intent. He is therefore guilty of genocide”).
- 147.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, paras 621–645.
- 148.
Ibid. para 633. (emphasis added). This paragraph belongs to a section on individual criminal responsibility (JCE ).
- 149.
In Krstić , contrary to Popović et al. and Tolimir , the concept of collective genocidal intent and the ‘common purpose /plan’ as an element of JCE are identical, because the JCE is defined as ‘JCE to destroy a protected group’. On the other hand, even though the quoted paragraph associates the notion of ‘destruction’ with the “Srebrenica ’s Bosnian Muslim military-aged male community”, I believe it is a mistake for the reason set out in this chapter, footnote 144 supra. The collective genocidal intent in Krstić was to destroy ‘a substantial part ’ of the Bosnian Muslims, and that ‘substantial part ’ was the Bosnian Muslims in Srebrenica . Thus, the concept of ‘destruction’ should be directed toward the Bosnian Muslims in Srebrenica . In this regard, apparently, the Krstić Trial Chamber was not careful enough throughout its judgement. See Prosecutor v. Krstić , Trial Judgment, 2 August 2001, paras 560 and 634; Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, paras 15 and 19.
- 150.
The Krstić Appeals Chamber’s summary of the Trial Chamber’s analysis in this respect is more or less similar. See Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, paras 42 and 83.
- 151.
William Schabas also points out the Krstić Trial Chamber’s practice of presuming the accused’s individual genocidal intent. Commenting on the Krstić Trial Judgment, Schabas observes that “[t]he Trial Chamber seemed to have presumed that General Krstić knew of the summary executions. This is certainly a mental element that falls shy of the standard of dolus specialis in continental law systems. Nevertheless, it would appear consistent with the text of the definition, to the extent that General Krstić had knowledge of the plan to destroy the Bosnian Muslims of Srebrenica and participated actively in it”. Schabas 2001, p. 50. (emphasis added).
- 152.
For a similar view submitted by the Prosecution, see Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 637 (“The Prosecution submits that “knowledge” of the genocidal intent accompanied by substantial contribution to the genocidal plan or enterprise amounts to a shared intent ”.). It seems that the Krstić formula, to some extent, resembles the notion of criminal organizations employed to punish Nazi members other than those at the leadership level on the basis of their membership therein after the World War II as explained by Elies van Sliedregt as follows: “Through the notion of criminal organizations, an offshoot of the concept of conspiracy and the other pillar of the collective criminality theory, it was possible to prosecute the thousands of ‘second-level’ Nazi members who had been involved in the commission of crimes, if only by knowing of the criminal acts of their fellow members and party leaders, and acquiescing in them. […] According to the judgment, knowledge of the criminal nature of the organization and some degree of voluntariness is required before one can be convicted of ‘membership of a criminal organization”. Sliedregt 2012b, pp. 26–30 (emphasis in original). For a careful proposal to employ the Nuremberg notion of membership responsibility in a criminal organization for the operation of the ICTR, see Jørgensen 2001.
- 153.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 644. See also, Ibid. paras 623–624, and 632.
- 154.
Ibid. paras 624–632.
- 155.
Ibid. para 624. For more specifics about the Drina Corps’ role during the massacre, see Ibid. para 623.
- 156.
Ibid. para 624.
- 157.
According to the control theory , in order to make an ‘essential contribution’, one must be in a position to frustrate the implementation of the common plan by not participating therein. See Prosecutor v. Lubanga, Decision on the Confirmation of Charges, 29 January 2007, para 347.
- 158.
For an overview of the ‘essential contribution’ element of the ICC’s control theory , see Jain 2014, pp 87–89. In particular, note the ambiguity and confusion within the relevant ICC jurisprudence involving the object of ‘essential contribution’—i.e., the question of whether it is a contribution to the common plan or to the specific crime. Ibid. at 88.
- 159.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 644. (emphasis added).
- 160.
For the ‘essential contribution’ element, see Ohlin 2014, p. 331.
- 161.
Ibid. paras 608, 618, 622 and 648.
- 162.
Ibid. para 648.
- 163.
Ibid. paras 634 and 644. In respect of the issue of the accused’s knowledge of the destructive consequences expected to materialize in the future, the Chamber’s indiscreet approach to the notion of knowledge that extended its scope to ‘constructive knowledge’ has triggered appeal from the accused. Thus, responding to the accused’s complaint that such phrases as “must have known”, “could not have failed to know”, and “could only surmise” demonstrate the Trial Chamber’s failure to accord to him the presumption of innocence, the Appeals Chamber observes that such language is “indicative of the nature of the case against Krstić being one based upon circumstantial evidence. While the Trial Chamber should have used less ambiguous language when making findings concerning Krstić ’s knowledge and intent, the regrettable choice of phraseology alone is not sufficient to overturn the Trial Chamber’s findings”. Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, paras 80–81. Subsequently, however, the Popović et al. Trial Chamber also took into account the accused’s constructive knowledge. Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, para 866 (considering the constructive knowledge of the devastating impact on the community in finding genocidal intent.).
- 164.
Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, paras 1404–1407. For a more detailed description of Nikolić’s knowledge, see Chap. 2, footnotes 144–149 supra and accompanying text.
- 165.
I quote here the Popović et al. Appeals Chamber’s description of the Trial Chamber’s deliberation on the issue of Nikolić’s individual genocidal intent. Prosecutor v. Popović et al. , Appeals Judgment, 30 January 2015, para 517.
- 166.
Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, para 1408 (“The Trial Chamber has found above that Nikolić played an important role in the JCE to Murder in terms of planning and organising detentions and executions. His contribution can properly be described as persistent and determined. The central issue, however, is whether those actions, combined with his knowledge of the genocidal intent of others, considered in the totality of the evidence, are sufficient to satisfy the Trial Chamber beyond reasonable doubt that Nikolić not only knew of the intent but that he shared it”.).
- 167.
Indeed, the Popović et al. Trial Chamber states that the consideration of Nikolić’s knowledge is the “starting point” of the analysis of his individual genocidal intent. Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, para 1401.
- 168.
Ibid. para 1410 (“While Beara and Popović can properly be described as architects of this genocidal operation, Nikolić was brought into carry out specific tasks assigned to him, in implementation of a monstrous plan, designed by others. His criminal acts, though horrific in nature, were confined to his sphere of responsibility – some specific detention and execution sites in Zvornik”.).
- 169.
Ibid. para 1412.
- 170.
Ibid. para 1414 (“Having considered and weighed all of the above factors individually and cumulatively, the Trial Chamber is not satisfied that the only reasonable inference to be drawn from Nikolić’s acts is that he shared the genocidal intent. Another reasonable inference is that Nikolić’s blind dedication to the Security Service led him to doggedly pursue the efficient execution of his assigned tasks in this operation, despite its murderous nature and the genocidal aim of his superiors. In these circumstances the stringent test for specific intent is not met and the Trial Chamber therefore finds that Nikolić did not participate in the JCE to Murder with genocidal intent”.).
- 171.
Ibid. para 1415.
- 172.
Prosecutor v. Popović et al. , Appeals Judgment, 30 January 2015, paras 525–530.
- 173.
Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, paras 1165 and 1298.
- 174.
Ibid. para 1392.
- 175.
For more discussion on the interrelationship among ‘common purpose /plan’, ‘shared intent ’ and ‘individual genocidal intent’, see Chap. 4, footnote 137 supra.
- 176.
Prosecutor v. Popović et al , Trial Judgment, 10 June 2010, paras 1180 and 1318.
- 177.
Ibid. para 1410.
- 178.
Ibid. para 1299.
- 179.
Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, paras 102–106 (detailing Krstić ’s contact with Beara who were at the actual execution sites).
- 180.
Prosecutor v. Popović et al. , Appeals Judgment, 30 January 2015, para 485.
- 181.
Ibid. para 490.
- 182.
Ibid.
- 183.
Ibid.
- 184.
Ibid.
- 185.
Prosecutor v. Popović et al. , Trial Judgment, 10 June 2010, paras 1299–1300.
- 186.
Ibid. paras 1301–1302.
- 187.
Ibid. para 1300.
- 188.
Ibid. para 1299.
- 189.
Ibid. paras 1313–1314. (emphasis added).
- 190.
See Sect. 3.2.1.2 supra.
- 191.
Prosecutor v. Kayishema and Ruzindana , Trial Judgment, 21 May 1999, paras 289–312. Note that both of the element of ‘agreement’ in the Anglo-American offence of conspiracy and the element of ‘common purpose /plan’ in JCE are generally classified as an objective element.
- 192.
Ibid. paras 289–291 and 312. On the basis of the Trial Judgment, the Appeals Chamber summarizes the Prosecution’s case during trial stating, “a genocide of the Tutsi population was planned and executed by public officials, both one a national and regional level, in Rwanda during 1994”. See Prosecutor v. Kayishema and Ruzindana , Appeals Judgment, 1 June 2001, para 139.
- 193.
Prosecutor v. Kayishema and Ruzindana , Trial Judgment, 21 May 1999, para 487. (emphasis added). The Chamber also does not distinguish “common intent” and “common plan” in para 545 of the judgment.
- 194.
Ibid. para 545. (emphasis added).
- 195.
It is interesting to note that, despite the fact that the Trial Chamber did not even mention the term ‘joint criminal enterprise ’, the Kayishema and Ruzindana Appeals Chamber explicitly referred to that term by mistake in affirming the Trial Chamber’s conviction for genocide in relation to the codefendant Ruzindana as if the Trial Chamber had officially applied the JCE doctrine. Prosecutor v. Kayishema and Ruzindana , Appeals Judgment, 1 June 2001, para 193 (“As noted above, the Trial Chamber found that Ruzindana played a pivotal role in carrying out the common plan which was the destruction of the Tutsi ethnic group in Kibuye. In addition, the Trial Chamber also found that […] [Ruzindana’s] actions also assisted in and contributed to the execution of the joint criminal enterprise […]. Ruzindana’s submissions have failed to challenge these findings”.).
- 196.
See Chap. 4, footnote 251 infra and accompanying text.
- 197.
Prosecutor v. Ngirabatware, Trial Judgment, 20 December 2012, para 1301. (emphasis added).
- 198.
Prosecutor v. Munyakazi , Trial Judgment, 5 July 2010, para 496.
- 199.
Ibid. para 496.
- 200.
For lack of relevant evidence, the Chamber declined to apply the doctrine of joint criminal enterprise . See Prosecutor v. Munyakazi , Trial Judgment, 5 July 2010, paras 436–436 and 489–490.
- 201.
Ibid. paras 490–491 and 496.
- 202.
Ibid. para 501.
- 203.
Ibid. para 496.
- 204.
Ibid. para 499.
- 205.
Ibid. para 496.
- 206.
Ibid.
- 207.
Ibid. para 499.
- 208.
Ibid. para 500.
- 209.
Ibid. Note that the Chamber makes reference to motive when it states, “ Whether Munyakazi led the attacks because he shared an animosity towards Tutsis or because he sought to curry favour with political associates or authorities, the Trial Chamber finds that[,] in leading the attacks, Munyazaki shared the specific intent to eliminate the protected group that had sought refuge at these two parishes”. (emphasis added).
- 210.
Ibid. para 422 (“[…] evidence with respect to Munyakazi ’s leadership role is well corroborated”.). See also Prosecutor v. Munyakazi , Appeals Judgment, 18 December 2014, para 139 (The Appeals Chamber summarizes the reasoning of the Trial Chamber observing, “[i]n view of the nature and scope of the crimes, the Trial Chamber inferred that the attackers, including Munyakazi , acted with genocidal intent”.); Ibid. 142 (In rejecting Munyakazi ’s appeal concerning his genocidal intent, the Appeals Chamber places emphasis on his active participation in the attacks taking a leadership role.).
- 211.
Prosecutor v. Munyakazi , Trial Judgment, 5 July 2010, paras 489–490.
- 212.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 642. (emphasis added). For case laws which take a similar approach to principal liability of genocide, see Prosecutor v. Stakić , Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002, para 50; Prosecutor v. Blagojević and Jokić , Trial Judgment, 17 January 2005, para 776.
- 213.
Prosecutor v. Krstić , Appeals Judgment, 19 April 2004, para 138.
- 214.
Ibid. paras 77–78.
- 215.
Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 633.
- 216.
For examples of the ‘implicit’ application of JCE , see Kayishema and Ruzindana and Munyakazi discussed in Sect. 4.2.2.3 supra.
- 217.
In a case where the accused was physically present at the crime scene, it might be enough to consider the objective facts within the accused’s personal realm. Such was the case in Mpambara in which the doctrine of JCE was officially pleaded by the Prosecution. Mpambara, as a bourgmestre of Rukara Commune during the Rwandan genocide, was personally present at crime scenes. Ultimately, the Trial Chamber acquitted the accused of genocide, because it was not established beyond reasonable doubt that he participated in JCE to commit genocide and, consequently, that he did not have the ‘shared intent ’. For the purpose of the Chamber’s acquittal decision in the context of applying the JCE doctrine, it was the objective features of Mpambara’s individual acts and participation that was determinative. Such alleged objective acts of the accused include: (i) distributing weapons and inciting genocide at Paris Centre on 9 April 1994; (ii) colluding with another person to kill Tutsi refugees; (iii) distributing rocks on the Parish church on 12 April 1994; and (iv) deliberately leaving Rukara unprotected. Prosecutor v. Mpambara, Trial Judgement, 12 September 2006, para 164.
- 218.
Bassiouni 1993, pp. 235–236.
- 219.
Prosecutor v. Karadžić , Transcript, 28 June 202, p. 28754.
- 220.
See e.g., Lemkin 2008, p. 89, footnote 45 (citing the Joint Declaration by members of the United Nations, dated Dec. 17, 1942 which refers to “Hitler ’s oft-repeated intention to exterminate the Jewish people in Europe”.).
- 221.
For a similar view, in the context of discussing the crime of aggression, see May 2006, pp. 311–312 and 315–316 (“Crimes against peace, unlike war crimes for instance, are crimes committed by States, yet criminal trials do not have States in the dock. The most obvious person to put in the dock when States commit crimes would be the State’s head. But even this person, the president of a State for instance, typically does not act as an individual but as a representative of the people, or of the ruling elite. Even the head of a State is not clearly responsible, as an individual, for waging aggressive war. […] So even if Hitler had been in the dock at Nuremberg, there would still have been serious questions about whether it was Hitler , qua individual person, who had the criminal intent to engage in aggressive war, or whether it was Hitler as head of State who had that intention”.).
- 222.
In this respect, Hans Vest rightly points out the importance of the ‘group intent’ aspect when he observes that “[…] it is dangerous to technically speak of ‘intending’ consequences of a collective act, as ‘intention’ is in the ordinary legal meaning referring to the result of one’s own conduct. Consequently, individuals can only intend to destroy (part of) a national, ethnic, racial or religious group ‘with the help of others’”. Vest 2007, p. 790. Indeed, during the drafting negotiations of the Genocide Convention, such expression as “with intent to co-operate in destroying a national, racial or religious group […]” was considered for the genocidal intent element. UN GAOR, 6th Comm., 3d Sess., U.N. Doc. A/C.6/217, at 2 (Oct. 5, 1948) (Belgium’s proposed amendments to the Ad Hoc Committee Draft Convention on Genocide). In a subsequent session, the Belgian delegation modified its original proposal whereby replace the word “co-operate” with the word “participate”. Mr. Kaeckenbeeck of the delegation explained that “the Belgian delegation had put forward its amendment on the ground that it was almost inconceivable that a crime aimed particularly at the destruction of a race or group could be the work of a single individual. […] The purpose of the Belgian delegation was to emphasize the collective character of genocide”. U.N. GAOR, 6th Comm., 3d Sess., 73d mtg. at 90, U.N. Doc. A/C.6/SR.73 (Oct. 13, 1948).
- 223.
Black’s Law Dictionary (9th edn., 2009) defines the term ‘possess’ as “[t]o have in one’s actual control; to have possession of”.
- 224.
Similarly, Alexander Greenawalt observes, “This aspect of genocidal intent [i.e., the question of superior order] poses a particular problem given the type of “administrative massacre” presented by the Holocaust, where a state deploys an entire bureaucracy and military chain of command to realize the genocidal plan. In such scenarios almost everyone, including high-ranking perpetrators, is a subordinate on some level”. Greenawalt 1999, pp. 2280–2281.
- 225.
For a view that acknowledges the possibility of a single individual’s full control over a genocidal apparatus, see Cupido 2014b, p. 25.
- 226.
For a similar view, see Ohlin 2007, p. 73 (“[I]t is the ethnic group as a whole that carries the intention to carry out the crime [of genocide]”.). With regard to the ‘concerted plan’ formulation in the French Criminal Code, see Elliott 2001, p. 140 (The French Criminal Code of 1992 replaced the ‘intent to destroy (mens rea)’ with the element of ‘concerted plan (actus reus)’ by providing the definition of genocide as follows: “Genocide consists in the execution of a concerted plan aimed at the total or partial destruction of a national, ethnic, racial or religious group, or of a group determined by any other arbitrary criteria, to commit or to have committed, against members of this group, one of the following acts: [1] A voluntary attack on life; [2] A serious attack on their physical or psychological integrity; [3] Submission to living conditions likely to lead to the total or partial destruction of the group; [4] Measures aiming to prevent reproduction; [5] Forced transfer of children …”) (emphasis added). See also U.N. GAOR, 6th Comm., 3d Sess., 73d mtg. at 95, U.N. Doc. A/C.6/SR.73 (Oct. 13, 1948) (Mr. Chaumont of the French delegation “thought the expression ‘aimed at the … destruction’ was preferable to “in the intent to destroy”, used by the Ad Hoc Committee [Draft Convention on Genocide]”.).
- 227.
Lemkin 2008, p. 79.
- 228.
Stuckenberg 2014, pp. 319–320.
- 229.
For the Krstić formula, see Sect. 4.2.2.2 supra.
- 230.
See this chapter, footnote 140 supra and accompanying text.
- 231.
An obvious exception would be Article 8(2)(e)(viii) of the ICC Statute in respect of which the ICC Elements of Crimes provides: “1. The perpetrator ordered a displacement of a civilian population. […] 3. The perpetrator was in a position to effect such displacement by giving such order. […]”.
- 232.
For example, the ICC Pre-Trial Chamber in Lubanga says that the first subjective element of its control theory of co-perpetration is “[t]he suspect must fulfil the subjective elements of the crime in question”. Prosecutor v. Lubanga, Decision on the Confirmation of Charges, 29 January 2007, para 349. For a critical overview of the relevant ICC jurisprudence concerning the question of subjective elements of the control theory, see Jain 2013, pp 860–862.
- 233.
I take the term ‘distance’ from the eloquent explanation of the relationship between the crime and modes of liability contained in Zahar and Sluiter 2007, pp. 219–221.
- 234.
Charter of the International Military Tribunal in the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Article 9, 8 August 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
- 235.
Boas et al. 2008, p. 157.
- 236.
Osiel 2009, pp. 23–24. Actually, this observation should not be considered a special principle only applicable to core international crimes. The idea is basically the one behind the general theory of co-perpetration in national jurisdictions around the world. Think of the textbook example of three persons robbing a bank together. One threatens the casher with a gun; another actually takes the money; the third one at the driver seat in a car outside the bank waiting for his friends. They are all perpetrators of the offence of bank robbery, and it is not important which element of crime is met by which person. In this regard, Gabriel Hallevy explains that the doctrine of co-perpetration “treats all members of the joint enterprise as one body that is liable for the commission of the offense”. Hallevy 2014, p. 51. (emphasis added).
- 237.
This observation fits well with Marjolein Cupido’s explanation of the liability-attributing function of the ‘common purpose /plan’ element: “The normative approach requires the formulation of specific criteria of attribution that help to determine who exactly is ‘most responsible’. In relation to JCE and join perpetration, the ‘common plan’ element qualifies as such a criterion of attribution: it forms the basis for the attribution of criminal acts committed by other participants to the accused. The analysis of the ICTY and ICC case law illustrates that the courts’ application of the ‘common plan’ element shows signs of what Hart defines as ‘role responsibility’. […] The ICTY and the ICC accordingly assess the accused’s knowledge of, and contribution to, the common plan in light of his or her social status and position of responsibility”. Cupido 2014a, p. 153.
- 238.
Prosecutor v. Stakić , Decision on Rule 98 bis Motion for Judgment of Acquittal, 31 October 2002, para 50. See also Prosecutor v. Krstić , Trial Judgment, 2 August 2001, para 642; Prosecutor v. Blagojević and Jokić , Trial Judgment, 17 January 2005, para 776.
- 239.
- 240.
See Harding 2013, pp. 247–248 (“The purpose of joint criminal enterprise liability […] is to capture such crucial organisational actors as serious offenders, and lift their veil of legitimacy by establishing an overarching criminal motivation and dedication. […] Joint criminal enterprise offences on the other hand comprise directing and facilitating activities which contribute significantly to the eventual commission of the predicate offences”.).
- 241.
See Drost 1959, p. 82 (“Culprits participating one way or another in the perpetration of the crime but acting under command of the law or superior orders and therefore claiming to act without intending the destruction of the group as such cannot excuse themselves with the legal plea of not falling under Article II [of the Genocide Convention]. They are to be brought under the sway of the following Article III dealing with the acts punishable under the convention other than acts of genocide proper”.).
- 242.
- 243.
Prosecutor v. Karadžić , Transcript, 11 June 2012, p. 28587.
- 244.
Ibid. at 28594.
- 245.
Similarly, the “Law” part in which the Kayishema and Ruzindana Trial Chamber addresses the meaning of “killing” by comparison of the term “meurtre” in the French version of the ICTR Statute demonstrates that the phrase “intent to destroy” in the definition of genocide is understood by the Chamber as an individual intent belonging to the very person who physically killed a member of the victim group. The Chamber observes that, since any genocidal conduct of killing “should be considered along with the specific intent of genocide”, there is “virtually no difference” between the English term “killing” (which simply means ‘causing death’) and French term “meurtre” (which means ‘deliberate homicide’). Since the matter of intent, recklessness or negligence etc. belongs to the realm of individual mens rea, it is safe to assume that the specific intent of genocide mentioned by the Chamber means that of physical perpetrator. See Prosecutor v. Kayishema and Ruzindana , Trial Judgment, 21 May 1999, paras 101–104.
- 246.
Prosecutor v. Karadžić , Transcript, 28 June 2012, p. 28751.
- 247.
Ibid. at 28751–28752.
- 248.
Ibid. at 28751.
- 249.
Prosecutor v. Karadžić , Rule 98 bis Appeals Judgement, 11 July 2013, para 79.
- 250.
Concerning the issue of number of crime vis-à-vis the crime of genocide, see also Sect. 3.5 supra.
- 251.
Weigend 2014, p. 264.
- 252.
Prosecutor v. Stakić , Appeals Judgment, 22 March 2006, para 55. See also Prosecutor v. Karadžić , Rule 98 bis Appeals Judgement, 11 July 2013, paras 56 (“The Appeals Chamber recalls that, in the context of assessing evidence of genocidal intent, a compartmentalised mode of analysis may obscure the proper inquiry. Rather than considering separately whether an accused intended to destroy a protected group through each of the relevant genocidal acts, a trial chamber should consider whether all the evidence, taken together, demonstrates a genocidal mental state”.).
In direct opposition to the intuition of collective criminality involving core international crimes which projects a top-down vertical individual responsibility scheme as well reflected in the principal liability theories centering around the notion of ‘common purpose /plan’, Nizeyimana is a typical example of the bottom-up analysis of genocidal intent. The genocidal intent element as understood and applied by the Nizeyimana Trial Chamber is incident-based, not case-based. That is to say, for the purpose of deciding on genocidal intent, the Chamber examines the relevant facts in each incident respectively. It thus follows that, while in one incident the accused can have genocidal intent, and in another incident it is possible for him not to have that intent. Does a person’s intent to destroy a group change from time to time while engaging in almost the same act—i.e., killing members of the group? The Nizeyimana Trial Chamber’s analysis of genocidal intent always starts from finding genocidal intent of physical perpetrators whose personal identity is unknown. Sometimes, they exist as a large group including soldiers, militiamen and armed civilians. In other occasions, they just form a small group of killers manned at a roadblock. Yet, the Chamber appears to be so confident in proclaiming their genocidal intent saying, “[t]he Chamber has no doubt that the assailants […] possessed genocidal intent”. Prosecutor v. Nizeyimana, Trial Judgment, 19 June 2012, paras 1505, 1513, 1521, 1523 and 1530. The famous Akayesu dictum ending with the phrase “even impossible to determine” seems to be unknown to the Trial Chamber in Nizeyimana. In any event, this genocidal intent of unidentified physical perpetrators always provides a ground upon which Nizeyimana’s individual genocidal intent is to be established. For Claus Kress ’s criticism of ICJ’s bottom-up mode of analysis that starts from inquiries “into the possible genocidal intent of unnamed individual perpetrators”, see Kress 2007. p. 623.
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Kim, S. (2016). Collective Genocidal Intent and Genocide as a Criminal Enterprise. In: A Collective Theory of Genocidal Intent . International Criminal Justice Series, vol 7. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-123-4_4
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