Theories of Co-perpetration in International Criminal Law

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The proper construction of co-perpetration responsibility in international criminal law has become one of the most enduring controversies in this field, with the UN Tribunals endorsing the theory of joint criminal enterprise, and the International Criminal Court adopting the alternative joint control over the crime theory to define this mode of liability. This book seeks to reconcile the ICTY/R’s and ICC’s jurisprudence by providing a definition of co-perpetration that could be uniformly applied in the two justice models that these institutions represent: the ad hoc- and the treaty-based model. An evaluation framework is adopted, pursuant to which the origins, merits and deficiencies of the said competing theories are critically assessed, and a refined legal framework of co-perpetration responsibility is proposed.
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Biographical Note

Lachezar D. Yanev, Ph.D. (2016, cum laude), Tilburg University, is an Assistant Professor in international criminal law at that university. He has previously worked as an assistant legal officer in Trial Chamber II of the SCSL, and has also interned at the ICTY (Office of the Prosecutor) and the ICC (Office of the Prosecutor). He holds an LL.M. degree in international criminal and human rights law (Utrecht University, 2010, cum laude) and has taught courses in comparative and international criminal law at Tilburg University. His research and publications extend in the field of international criminal law and human rights law.

Table of contents

Preface List of Abbreviations List of Cases List of Legislation 1 A First Look at Individual Liability within the Context of Mass Criminality  1.1 Introduction  1.2 The Nature of International Crimes: Explaining the Need for a Theory of Joint Liability   1.2.1  The Inherent Challenges of Assigning Liability in a Context of Mass Criminality   1.2.2  The Limits of Traditional Modes of Liability  1.3 Theories of Co-perpetration   1.3.1  Choosing between Approaches   1.3.2  jce : A Subjective Approach to Co-perpetration   1.3.3  Joint Control over the Crime: A Material-objective Approach to Co-perpetration  1.4 Book Scope and Structure   1.4.1  Joint Principal Liability in the Wake of International Criminal Law   1.4.2  Co-perpetration Based on jce : Legal Framework and Issues of Controversy   1.4.3  Co-perpetration Based on Joint Control: Legal Framework and Issues of Controversy  1.5 An Evaluation Framework for Co-perpetration Responsibility in International Criminal Law   1.5.1  Legal Basis under International Criminal Law   1.5.2  Effective Legal Tool for Allocating Individual Criminal Responsibility   1.5.3  Respect for Fundamental Principles of Criminal Justice  1.6 Concluding Remarks 2 Back to Nuremberg: The Genesis of Joint Liability for International Crimes  2.1 Introduction  2.2 ‘Conspiracy’ and ‘Criminal Organizations’: First Approach to Mass War Criminality   2.2.1  Introducing the Concepts of Conspiracy and Membership in a Criminal Organization: Bernays’ Prosecutorial Strategy   2.2.2  Reviewing the Law on Conspiracy and Criminal Membership   2.2.3  Drafting the imt Charter: The London Negotiations on Conspiracy and Membership in a Criminal Organization   2.2.4  Reaching a Compromise and the Final Text of the imt Charter   2.2.5  The imt Judgment: Judicial Definition of Conspiracy and Membership in a Criminal Organization   2.2.6  The imtfe Judgment: Controversy and an Adherent Approach to Conspiracy   2.2.7  Preliminary Conclusions  2.3 The Notion of ‘Common Design/Purpose’   2.3.1  Article ii (2) ccl – Refining the Modes of Criminal Liability   2.3.2  The Principal-accessory Distinction in Post-Nuremberg Jurisprudence   2.3.3  Liability for Acting in Pursuance of a Common Criminal Purpose/Design  2.4 Conclusion 3 Joint Criminal Enterprise: Doctrinal Framework and Nature  3.1 Introduction  3.2 Drafting Modes of Liability into the icty Statute: From Nuremberg to The Hague  3.3 Introducing the Common Purpose Doctrine in the icty Jurisprudence   3.3.1  The Tadić Trial Judgement (7 May 1997): Case Facts and Findings   3.3.2  The Furundžija Trial Judgement (10 December 1998): A New Reading of Common Purpose Liability   3.3.3  The Tadić Appeal Judgement (15 July 1999): Systemizing Common Purpose Liability  3.4 Joint Criminal Enterprise: Theoretical Framework   3.4.1  The Objective (Material) Elements   3.4.2  The Subjective (Mental) Elements  3.5 Joint Criminal Enterprise vis-à-vis the Nuremberg-era Notions on Joint Liability   3.5.1  jce and the Notions of Conspiracy and Membership in a Criminal Organization   3.5.2  jce and the Nuremberg-era Common Purpose Theory  3.6 Conclusion 4 The Pitfalls of Joint Criminal Enterprise Liability  4.1 Introduction  4.2 The Customary Status and Nature of jce iii Liability   4.2.1  Defining Customary International Law: Theories of Formation   4.2.2  The icty / R Methodology Affirming the Customary Status of the jce Doctrine: An Appraisal   4.2.3  jce iii and Customary International Criminal Law   4.2.4  Evaluating the Customary Status of jce iii   4.2.5  The Nature of jce iii liability  4.3 The Law on jce with No Physical Perpetrators   4.3.1  A Dubious Start: Early icty Case Law on jce with No Physical Perpetrators   4.3.2  Adopting the Notion of Leadership-level jce   4.3.3  Linking the Physical Perpetrators to the ‘Leadership-level’ jce   4.3.4  Concluding Remarks  4.4 Conclusion 5 Co-perpetration Based on Joint Control over the Crime: Doctrinal Framework  5.1 Introduction  5.2 Doctrinal and Jurisprudential Origins of the Theory of Co-perpetration Based on Joint Control over the Crime   5.2.1  Back to 1963: Roxin’s “Täterschaft Und Tatherrschaft”   5.2.2  The icty Stakić Trial Judgment: A Debut for the Joint Control Theory in International Criminal Proceedings  5.3 Introducing the Joint Control Theory in the icc Case Law   5.3.1 The Prosecutor v. Lubanga : Case Facts and Early Submissions on Co-perpetration   5.3.2  The Lubanga Decision on the Confirmation of Charges  5.4 Joint Control over the Crime: Theoretical Framework   5.4.1  The Objective (Material) Elements   5.4.2  The Subjective (Mental) Elements  5.5 Conclusion 6 Rethinking the Theory of Co-perpetration Based on Joint Control over the Crime  6.1 Introduction  6.2 Reviewing the Legal Basis for the Joint Control Theory   6.2.1  Alleged Basis in Article 25(3) rs   6.2.2  A Basis under Article 21(1)(b) rs : ‘Principles and Rules of International Law’?   6.2.3  A Basis under Article 21(1)(c) rs : ‘General Principles of Law’?  6.3 Rethinking the Merits of the Theory of Co-perpetration Based on Joint Control   6.3.1  The ‘Joint Control’ Criterion: A Theoretical Critique   6.3.2  The ‘Joint Control’ Criterion in Practice: Much Ado for Nothing?  6.4 Conclusion 7 Co-perpetration Responsibility in International Criminal Law: Forging a Path Forward  7.1 Introduction  7.2 Searching for the Right Formula: The Alternative Views of Two icc Judges   7.2.1  Judge Fulford’s Notion of Co-perpetration and ‘Operative Links’   7.2.2  Judge Van den Wyngaert’s Notion of Co-perpetration and ‘Direct Contributions’  7.3 Testing the Theories of jce and Joint Control over the Crime   7.3.1  Legal Basis   7.3.2  Effectiveness   7.3.3  Fairness  7.4 Co-perpetration Responsibility in International Criminal Law: A Single Legal Framework  7.5 Conclusion Bibliography Index

Readership

This book will mainly appeal to scholars and practitioners working in the field of international criminal law, as well as to domestic authorities confronted with the prosecution of international crimes.