Participation in serious crimes in international law: lessons from the United Nations' ad hoc tribunals

Abstract

In criminal law, the imposition of individual criminal responsibility is based on the premise that such an individual would have, through some conduct (a positive act or an omission) brought about a result which is prohibited by the criminal law. In other words, such an individual would have committed a crime. Couched in legal parlance as participation, an individual’s role in the commission of a crime may take place prior to, during, or after, the commission of the crime. Different legal systems have developed a series of principles on how to categorise the different kinds of participation for which responsibility would be imposed and a sentence if convicted. However, in cases of a multiplicity of individuals who see to the planning and ordering of, or preparation for, the commission of crimes, it becomes a little bit complicated: how can responsibility be assigned to the different participants so that each and every individual who partook, in some form, is held accountable. While domestic legal systems seem to have overcome such a challenge in the attribution of criminal responsibility when there are multiple parties to a crime, international criminal law is still uncertain on how to surmount this legal conundrum. Even though the modes of participation that exist in domestic legal systems have been recognized and applied by international tribunals and courts, answers are still being sought as to what really can be considered participation in international criminal justice, and what is the exact scope of the applicability of the rules of participation. The fact that mass atrocities were perpetrated by numerous individuals, yet, an established tribunal or court limited itself to the masterminds or remote actors (those who planned, prepared or ordered the commission of these crimes) does not mean that they are the only individuals who bear responsibility. Beyond the International Military Tribunal for Nuremberg, two situations resulting in the establishment of two United Nations ad hoc Tribunals occurred in the former Yugoslavia and Rwanda. The Statutes of these ad hoc Tribunals, in addition to stipulating the crimes over which they would have jurisdiction, spelt out the modes of participation for which individual criminal responsibility would be imposed. In the years that have followed, the Trial and Appeal Chambers have construed these modes of participation, identifying and building the differentiating features between them. At times, the Trial and Appeal Chambers approached the situations by applying the doctrine of joint criminal enterprise in order to properly grasp the historical landscape within which different actors, at various times, played significant roles towards the mayhem that befell these States. As these ad hoc Tribunals are gradually winding down, it becomes imperative to identify and evaluate the soundness of the distinguishing principles, especially when it comes to participation in the perpetration of serious crimes in international law. It is hoped that this dissertation will examine the jurisprudence of the Trial and Appeal Chambers, and will ultimately serve as a useful guide to international criminal law scholars and practitioners as they borrow from this jurisprudence for future use.