An Overview of the Influence of the Common Law and Civil Law on the Development of International Criminal Law

Rishab Reitz

This thesis analyses the influence of the common law (I refer to it as "Anglo-American law") and civil law (or "Romano-Germanic law") on the development of international criminal law. The first part offers a theoretical overview of the two major legal systems (Part A). I then examine certain substantive elements (Part B) as well as a number of procedural elements (Part C) which show a particular influence from one of the two legal systems on the development of international criminal law. Finally, I analyse if a process of hybridisation can help reconcile the different legal traditions in the international context (Part D).

AN OVERVIEW OF THE INFLUENCE OF ANGLO-AMERICAN AND ROMANO-GERMANIC LAW ON THE DEVELOPMENT OF INTERNATIONAL CRIMINAL LAW Master’s Thesis (2014) Supervisor: Prof. Dr. h.c. mult. Rene Blattmann In loving memory of my father, Dr. Falk Reitz. II TABLE OF CONTENTS BIBLIOGRAPHY ............................................................................................................................... V INTRODUCTION ............................................................................................................................... 1 PART A: THEORETICAL OVERVIEW OF THE TWO MAJOR LEGAL SYSTEMS ..................... 2 I. Anglo-American Legal System..................................................................................................... 2 II. Romano-Germanic Legal System ............................................................................................... 3 PART B: SUBSTANTIVE LAW.......................................................................................................... 4 I. Mens Rea ...................................................................................................................................... 4 1. Intent ........................................................................................................................................ 5 a) Intent in the Jurisprudence of the Ad Hoc Tribunals ........................................................... 5 b) Intent in the ICC .................................................................................................................. 6 2. Specific Intent .......................................................................................................................... 7 II. Forms of Criminal Responsibility ............................................................................................... 8 1. Principle Liability in the ICC ................................................................................................... 8 a) The “Control over the Crime” Theory ................................................................................. 8 b) Control over the Organisation ........................................................................................... 10 2. Joint Criminal Enterprise ....................................................................................................... 12 III. Conspiracy ............................................................................................................................... 13 IV. Grounds Excluding Criminal Responsibility ........................................................................... 16 1. Mistake of Legal Element ...................................................................................................... 16 a) Text..................................................................................................................................... 16 b) Context............................................................................................................................... 17 c) Drafting History ................................................................................................................. 17 d) The Layman's Parallel Evaluation Test .............................................................................. 18 2. Duress..................................................................................................................................... 20 PART C: PROCEDURAL LAW ........................................................................................................ 22 I. Control over the Proceedings...................................................................................................... 23 1. ICTY ...................................................................................................................................... 24 2. ICC ......................................................................................................................................... 25 II. Evidence Rules .......................................................................................................................... 26 1. ICTY ...................................................................................................................................... 27 a) Permitted Forms of Testimony........................................................................................... 28 b) Exclusionary Rules ............................................................................................................ 28 c) The Danger of a Due-Process Deficit in the ICTY ............................................................ 29 2. ICC ......................................................................................................................................... 30 a) Permitted Forms of Testimony........................................................................................... 30 b) Exclusionary Rules ............................................................................................................ 31 III III. Disclosure Rules ...................................................................................................................... 31 IV. Plea Bargaining ........................................................................................................................ 32 1. ICTY and ICTR...................................................................................................................... 33 2. ICC ......................................................................................................................................... 36 PART D: HYBRIDISATION ............................................................................................................. 37 CONCLUSION .................................................................................................................................. 39 IV BIBLIOGRAPHY Admire, David - International Criminal Court Revisited: An American Perspective, 15 Texas Review of Law & Politics (2010-2011), 339 Alschuler, Albert W. - Implementing the Criminal Defendant’s Right to Trial, University of Chicago Law Review (1983), 931 Ambos, Kai - Amicus Curiae Brief in the Matter of the Co-Prosecutors' Appeal of the Closing Order Against Kaing Guek Eav “Duch” Dated 8 August 2008- 20 Criminal Law Forum (2009), 353 Ambos, Kai - General Principles of Criminal Law in the Rome Statute, 10 Criminal Law Forum (1999), 1 Ambos, Kai - International criminal procedure: “adversarial”, “inquisitorial” or mixed?, 3 International Criminal Law Review (2003.), 1 Ambos, Kai - The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues, 12 International Criminal Law Review (2012), 115 Ambos, Kai - Treatise on International Criminal Law: Volume 1: Foundations and General Part, Oxford, 2013 Arzt, Gunther - The Problem of Mistake of Law, 9 Brigham Young University Law Review (1986), 711 Burens, Laura - Plea Bargaining in International Criminal Tribunals: The end of truth-seeking in International Courts?, 7-8 Zeitschrift für Internationale Strafrechtsdogmatik (2013), 322 Caianiello, Michele - Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models, 36 North Carolina Journal of International Law & Commercial Regulation (2011), 287 Carter, Linda / Pocar, Fausto - International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems, Cheltenham, 2013 Cassese, Antonio - International Criminal Law, 3rd edition, Oxford, 2013 Cassese, Antonio - The Oxford Companion to International Criminal Justice, New York, 2009 Cassese, Antonio - The Rome Statute of the International Criminal Court: A Commentary, Volume I, Oxford, 2002 Combs, Nancy A. - Legitimizing International Criminal Justice: The Importance of Process Control, 33 Michigan Journal of International Law (2012), 321 Damaška, Mirjan R. - Structures of Authority and Comparative Criminal Procedure, 84 Yale Law Journal (1975), 480 Damaška, Mirjan R. - The Faces of Authority and State Authority: A Comparative Approach to the Legal Process, New Haven and London, 1986 V Darcy, Shane – An Effective Measure of Bringing Justice?: The Joint Criminal Enterprise Doctrine of the International Criminal Tribunal for the Former Yugoslavia, 20 American University International Law Review (2004), 153 Delmas-Marty, Mireille - The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law, 1 Journal of International Criminal Justice (2003), 13 Elliott, Catherine - The French Law of Intent and Its Inﬂuence on the Development of International Criminal Law, 11 Criminal Law Forum (2000), 35 Eser, Albin / Rabenstein, Christiane - Strafjustiz im Spannungsfeld von Existenz und Fairness, Berlin, 2004 Fairlie, Megan - The Marriage of Common and Continental Law at the ICTY and its Progeny, Due Process Deficit, 4 International Criminal Law Review (2004), 243 Finnin, Sarah – Mental Elements under Article 30 of the Rome Statute of the International Criminal Court: A Comparative Analysis, 61 International and Comparative Law Quarterly (2012), 325 Fischer, Horst / Kress, Claus / Lüder, Sascha R. - International and National Prosecution of Crimes under International Law: Current Developments, Berlin, 2001 Glenn, H. Patrick - Legal Traditions of the World, 3rd edition, Oxford, 2007 Hamdorf, Kai - The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law, 5 Journal of International Criminal Justice (2007), 208 Heller, Kevin J. - Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis, 6 Journal of International Criminal Justice (2008), 419 Henham, Ralph / Findlay, Mark - Exploring the Boundaries of International Criminal Justice, Farnham and Burlington, 2011 Jackson, John - Finding the Best Epistemic Fit for International Criminal Tribunals, 7 Journal of International Criminal Justice (2009), 17 Jackson, John / Langer, Máximo / Tillers, Peter - Crime, Procedure and Evidence in a Comparative and International Context, Oxford, 2008 Johnson, Scott T. - On the Road to Disaster: The Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 International Legal Perspectives (1998), 111 Kadish, Sanford H. - Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 California Law Review (1985), 323 Kress, Claus - The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise, 1 Journal of International Criminal Justice 2003, 603 Langer, Máximo - The Rise of Managerial Judging in International Criminal Law, 53 American Journal of Comparative Law (2005), 835 VI Laufhütte, Heinrich Wilhelm - Strafgesetzbuch Leipziger Kommentar: Volume 1, 12th edition, Berlin, 2007 Lee, Roy S. - The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, The Hague, 2002 Marchuk, Iryna - The Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis, Berlin and Heidelberg, 2014 Morris, Virgina / Scharf, Michael P. - An Insider's Guide to the International Criminal Tribunal for the former Yugoslavia: A Documentary History and Analysis, Volume 2, New York, 1995 Mundis, Daryl A. - From ‘Common Law’ Towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and Evidence, 14 Leiden Journal of International Law (2001), 367 Ohlin, Jens David / van Sliedregt, Elies / Weigend, Thomas - Assessing the Control-Theory, 26 Leiden Journal of International Law (2013), 725 Nsereko, Daniel D. Ntanda - Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 5 Criminal Law Forum (1994), 507 Perkins, Rollin M. - Ignorance and Mistake in Criminal Law, 88 University of Pennsylvania Law Review (1939), 35 Petrig, Anna - Negotiated Justice and the Goals of International Criminal Tribunals, 8 ChicagoKent Journal of International and Comparative Law (2008), 1 Röben, Volker - The Procedure of the ICC: Status and Function of the Prosecutor, 7 Max Planck Yearbook of United Nations Law (2003), 513 Roxin, Claus – Täterschaft und Tatherrschaft, 8th edition, Berlin, 2006 Satzger, Helmut - German Criminal Law and the Rome Statute - A Critical Analysis of the New German Code of Crimes against International Law, 2 International Criminal Law Review (2002) Schabas, William A. - Genocide in International Law: The Crime of Crimes, 2nd edition, Cambridge, 2009 Schabas, William A. - The Jelisic Case and the Mens Rea of the Crime of Genocide, 14 Leiden Journal of International Law (2001), 125 Scharf, Michael P. - Trading Justice for Efficiency: Plea-Bargaining and International Tribunals, 2 Journal of International Criminal Justice (2004), 1070 Schulhofer, Stephen J. - Plea Bargaining as a Disaster, 101 Yale Law Journal (1992), 1979 Schuon, Christine - International Criminal Procedure, The Hague, 2010 Simmons, Kenneth W. - Mistake and Impossibility, Law and Fact, and Culpability: A Speculative Essay, 81 Journal of Criminal Law and Criminology (1990), 447 VII Van den Herik, Larissa / Stahn, Carsten - The Diversification and Fragmentation of International Criminal Law, Leiden, 2012 Van Sliedregt, Elies - Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide, 5 Journal of International Criminal Justice (2007), 184 Van Sliedregt, Elies - The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, The Hague, 2003 Werle, Gerhard - Principles of International Criminal Law, 1st edition, The Hague, 2005 Werle, Gerhard - Principles of International Criminal Law, 2nd edition, The Hague, 2009 Williams, Glanville L. - Criminal Law: The General Part, 2nd edition, London, 1961 Zweigert, Konrad / Kötz, Hein - Einführung in die Rechtsvergleichung, 3rd edition, Tübingen, 1996 VIII INTRODUCTION In the last two decades international criminal law has undergone rapid developments, such as the creation of new courts and tribunals. This has contributed to the increased relevance of this area of law for the international community. However, it also means that people from different legal cultures have had to work together to determine the substantive and procedural content of international criminal law. The fact that a legal institution like the International Criminal Court is operating successfully demonstrates that the cooperation between different legal cultures has to an extent been successful. However, this is not always the case. It could already be observed in the post-World War II tribunals that certain procedural rules which were particular to one legal system were vehemently criticised by lawyers from another legal system.1 In the courts or tribunals as they are today, it can also be observed that lawyers or judges will fall for reasoning that is particular to their legal culture or national jurisdiction and is not helpful in the international context. The two major legal systems which have influenced the development of international criminal law the most are the Anglo-American legal system (or “common law” system2) and the Romano-Germanic legal system3 (for this reason other legal systems like Islamic law will not be considered). Of course, there are also variations within the Romano-Germanic law systems, such as the French or German legal system and also within common law systems, such as the American or English legal system. A certain degree of generalisation is therefore needed to conduct such an analysis.4 It is submitted that misunderstandings between lawyers with an Anglo-American or Romano-Germanic legal background can be avoided by analysing the influence of these two legal systems on international criminal law. The reasons for this are twofold. First of all, it will lead to an increased awareness of the origins of particular procedural or substantive elements of international criminal law. A lawyer with such an understanding will also engage differently in a legal debate. Secondly, it will alert individuals to the fact that, despite the aforementioned influences, international criminal law occurs in a very different context to national criminal law Schuon, p. 5. These terms will be used interchangeably. 3 Also referred to as “civil law” systems. However, this term is also used to distinguish non-criminal law from criminal law (the latter being denoted “civil law“, see Glanville Williams, Learning the Law, 11th Edition, p. 2.) In order to avoid ambiguity, the term “Romano-Germanic” law will be used. 4 Carter and Pocar, p. 16. 1 2 1 and consequently national legal concepts cannot simply be transplanted into international criminal law. It should not be a contest over which legal system can dominate the other in international criminal law, rather a “hybridisation inspired by pluralism” needs to occur.5 However, this is not possible without having a sound knowledge of the origins of international criminal law. Hence, this thesis will first give a theoretical overview of the two major legal systems (Part A). It will then examine certain substantive elements (Part B) as well as a number of procedural elements (Part C) which show a particular influence from one of the two legal systems. Finally, it will be analysed if a process of hybridisation can help reconcile the different legal traditions in the international context (Part D). PART A: THEORETICAL OVERVIEW OF THE TWO MAJOR LEGAL SYSTEMS I. Anglo-American Legal System Just like the Romano-Germanic system, the Anglo-American legal system or common law system has its origins in Roman law.6 However, the historical incidence7 of the Norman Conquest of 1066 and the resulting isolation of the British Isles caused the law to develop in a very different way than the Romano-Germanic law systems on the continent.8 Philosophically, classic English liberalism had a strong influence on the common law system.9 Accordingly, the state is only supposed to intervene in times of crises, but it is not supposed to impose its beliefs on the individual.10 This sceptical position was adopted because it is assumed that no one knows what is objectively best and consequently everyone must be free to make their own choices.11 This philosophical attitude is reflected in procedural law, especially when analysing the role of a judge who is supposed to avoid intervening in the parties' presentation of the case as much as possible and only ensure a fair resolution of the dispute.12 This mind-set was described by Roscoe Pound in the following way: Delmas-Marty in Cassese, The Oxford Companion to International Criminal Justice, p. 99. Carter and Pocar, p. 17. 7 Glenn, p. 225. 8 Carter and Pocar, p. 17. 9 Schuon, p. 5-6. 10 Damaška, 84 YLJ (1975) 480, 532. 11 Ibid, 532-533. 12 Schuon, p. 6. 5 6 2 It is a frame of mind which is not ambitious to deduce the decision for the case in hand from a proposition formulated universally... It is the frame of mind behind the sure-footed Anglo-Saxon habit of dealing with things as they arise instead of anticipating them by abstract universal formulas.13 The “reasoning from case to case” which is characteristic of common law systems is the logical consequence of this mind-set.14 The common law judge will consider the relevant precedents, discern rules in these cases, i.e. solutions to specific problems, and out of these develop principles which he uses to solve the specific case.15 Another reason why the common law judge will more often refer to cases rather than statutes as is usual in Romano-Germanic legal systems, is a historic one: Up until the 19th century the English deemed legislation only necessary for specific social or economic problems, apart from that it was considered more of a nuisance by judges.16 II. Romano-Germanic Legal System The Romano-Germanic legal system also has its roots in Roman law, but is a far older development of it.17 The Canon law of the Roman Catholic Church and the development of commercial law have also influenced the Romano-Germanic legal system.18 From a philosophical point of view, German idealism and the Age of Reason were strong influences.19 The Romano-Germanic lawyer reasons deductively from principles to instances, trusts in syllogisms and has a propensity to systematise.20 This also has historical reasons. Roman law was rediscovered by Italian professors and further developed by other professors.21 Consequently, the law was characterised by its academic and theoretic approach. 22 The result was an Pouns in Zweigert and Kötz, p. 253. It should here be noted that it is not the doctrine of stare decisis as such which distinguishes the Anglo-American legal system from the Romano-Germanic legal system as commonly assumed. For common law courts will also seek to distinguish a precedent while courts in Romano-Germanic systems will often also adhere to precedent. Rather it is the different reasoning used for following precedents which distinguishes the systems (see Pouns in Zweigert and Kötz, pp. 253-259). 15 Pouns in Zweigert and Kötz, p. 257. 16 Ibid, pp. 259-260. 17 Carter and Pocar, p. 17. 18 Ibid. 19 Schuon, p. 6. 20 Pouns in Zweigert and Kötz, p. 253 21 Ibid, p. 252. 22 Pouns in Zweigert and Kötz, p. 252. 13 14 3 emphasis on scholarly authority, particularly in the French and German legal systems, where scholars like Pothier or Roxin had a similar influence to leading common law judges, such as Holmes.23 Consequently, Romano-Germanic law has also been referred to as professor's law (“Professorenrecht”), especially due to its technical and abstract expression.24 It was assumed that administering justice meant applying a rule through subsumption to a disputed case.25 For the RomanoGermanic lawyer only legally codified rules could fulfil this function. This written law exists and therefore it must also be enforced.26 This is why judges have to establish the true facts of the case and not primarily envisage dispute resolution as is done in common law systems.27 PART B: SUBSTANTIVE LAW Academic influence has largely focused on the differences in procedural law between Anglo-American and Romano-Germanic legal systems. However, an analysis of certain substantive feature of international criminal law will reveal that these two legal systems at times also have very opposing views regarding certain substantive parts of criminal law. I. Mens Rea International criminal law in particular still lacks uniformity in regard to the subjective requirements of international crimes.28 Due to the lack of clarity regarding the mens rea, various terms which are often inconsistent are being used (especially by the tribunals).29 This is also a consequence of the fact that different concepts of the mental element used in domestic jurisdictions have influenced international criminal law.30 Fletcher in Cassese, The Oxford Companion to International Criminal Justice, p. 105. Glenn, p. 139. 25 Pouns in Zweigert and Kötz, p. 258. 26 Glenn, p. 135. 27 Schuon, p. 6. 28 Marchuk, p. 115 29 Ibid. 30 Ibid. 23 24 4 1. Intent a) Intent in the Jurisprudence of the Ad Hoc Tribunals In the jurisprudence of the tribunals this lacking unanimity is particularly visible in the interpretation of intent for murder when constituting a crime against humanity and wilful killing as a war crime.31 The ICTY Čelebići Chamber held that the necessary mens rea for establishing these two crimes is present “where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of life”.32 The Akayesu Trial Chamber also required for murder the “intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause the victim's death, and is reckless whether death ensures or nor”.33 In both judgements not only intention but also recklessness are recognised as requisite mental elements. The Brđanin Trial Chamber attempted to bring more clarity regarding these requirements but achieved the opposite. It held that the concept of recklessness falls under the definition of dolus eventualis.34 However, a thorough comparative analysis of these concepts would have shown the error in arriving at such a conclusion. In most35 Romano-Germanic jurisdictions dolus eventualis is the lowest form of intent.36 In German law this form of intent is attributed to an actor when he is indifferent towards the effect (he may even dislike the effect), but he “knows that there is a high probability that the effect will occur if he acts, and he does so anyway”.37 However, in common law jurisdictions recklessness is considered to be a mental state one stage below intention.38 It involves the actor taking an unreasonable and unjustifiable risk of which the person is aware.39 It can cover the same factual constellations as dolus eventualis40, however, recklessness does not require as high a volitional component because the actor need not accept the risk.41 Consequently, it is more appropriate to posit recklessness as a mental state between Marchuk, p. 118. Prosecutor v. Delalic et al. (Čelebići), 16 November 1998, Trial Judgement, IT-96-21-T, paras 437, 439. 33 Prosecutor v. Akayesu, 2 September 1998, Trial Judgement, ICTR-96-4-T, para 589. 34 Prosecutor v. Brđanin, 1 September 2004, IT-99-36-T, Trial Judgement, para 386. 35 The structure of French law does not provide for dolus eventualis as a degree of intention, cf. van Sliedregt, The criminal responsibility of individuals for violations of international humanitarian law, p. 46. 36 Van Sliedregt, The criminal responsibility of individuals for violations of international humanitarian law, p. 46 37 Hamdorf, 5 JICJ (2007), 208, 214. 38 Van Sliedregt, The criminal responsibility of individuals for violations of international humanitarian law, p. 46 39 Finnin, 61 ICLQ (2012), 325, 334. 40 Werle, Principles of International Criminal Law, 2nd edition, p. 153. 41 Finnin, 61 ICLQ (2012), when analysing the Stakić case (cf. Prosecutor v Stakić, 31 July 2003, IT-97-24-T, Trial Judgement), 325, 335. 31 32 5 dolus eventualis and conscious negligence (the mental state below intention in Romano-Germanic legal systems). In any case, the concept of recklessness cannot simply be subsumed under dolus eventualis as done by the Brđanin Trial Chamber. b) Intent in the ICC Prior to the Rome Statute there was no codification of a general provision on the mental element; Article 30 of the ICC Statute was a step forward in this sense.42 However, it is also a compromise between Anglo-American and Romano-Germanic criminal law.43 The difficulties of arriving at a general provision regarding the mental element became particularly evident in the second meeting of the Preparatory Commission in August 1999, one reason being that common ground had to be found between concepts of various legal systems. 44 In one way the Commission did succeed as Article 30 does not appear to have either a clear AngloAmerican or Romano-Germanic influence. However, Article 30 of the ICC Statute did not succeed in completely avoiding ambiguity. The mens rea requirements of Article 30 appear to be stricter than in domestic jurisdictions, as the concepts of dolus eventualis and recklessness seem to be excluded.45 This intention is also evidenced in the drafting history.46 However, the Pre-Trial Chamber in the Lubanga Trial sought to extend the mens rea standard of Article 30 to “situations in which the suspect is aware that the risk of the objective elements of the crime may result from his or her actions or omissions and accepts such an outcome by reconciling himself or herself with it or consenting to it”.47 The Chamber wanted to interpret the wording “in the ordinary course of events” of Article 30 in this sense. The notion of accepting or reconciling oneself to an outcome is clearly found in the Romano-Germanic concept of dolus eventualis.48 However, one of the situations which the Chambers identifies where dolus eventualis could be applicable is when the perpetrator is aware of “the substantial likelihood that his or her actions or omissions would result in the realisation of the objective elements of the crime” and the perpetrator acted despite this awareness.49 Finnin, 61 ICLQ (2012), 325, 325-326. Satzger, 2 ICLR (2002), 261, 269. 44 Kelt and Hebel in Lee, p. 22. 45 Werle, Principles of International Criminal Law, 2nd edition, pp. 153-154. 46 Ohlin, 35 MJIL (2013), 79, 101. 47 Prosecutor v. Lubanga Dyilo, 29 January 2007, Decision on the Confirmation of Charges, ICC-01/04/06, paras 349 et seq., and esp. para 352. 48 Finnin, 61 ICLQ (2012), p. 334. 49 Prosecutor v. Lubanga Dyilo, 29 January 2007, Decision on the Confirmation of Charges, ICC-01/04/06, para 353. 42 43 6 However, the application of dolus eventualis as found in Romano-Germanic jurisdictions only requires the possibility that the perpetrator's actions will result in the crime and the acceptance of this.50 The Chamber's interpretation of the concept of dolus eventualis makes it partially meaningless.51 This only leads to further confusion regarding the mens rea standard as laid down in Article 30 of the ICC Statute. The understandable effort of the Chamber to extend the strict mens rea standard is rendered futile by applying a Romano-Germanic legal concept but not doing so consistently. This does not only confuse common law lawyers but also Romano-Germanic ones. 2. Specific Intent Whereas general intent is required for all crimes in international law, specific intent is a particular, additional mental element that does not only reflect the material elements of the crimes.52 It will commonly require that the agent pursues a specific goal that goes beyond a certain result of his conduct.53 This form of intent is in particular known in the context of genocide. The international courts and tribunals use the terms “special intent”, “specific intent”, and “dolus specialis” interchangeably.54 However, this is also a source of confusion due to the different domestic concepts behind these terms.55 The concept of dolus specialis is common to Romano-Germanic legal systems and it cannot be equated with the Anglo-American notion of “special” or “specific intent”.56 For example in French law (a Romano-Germanic legal system) dol spécial is the “intent to cause a result forbidden by law” and applies to “certain serious and major crimes”, normally those requiring a “particular result”.57 The concept of “specific intent” is again slightly different and is mostly relevant in common law jurisdictions for the defence of voluntary intoxication.58 In English law offences of “specific intent” require proof that the defendant “acted with a particular state of mind, that is, the state of mind required by the legal definition Marchuk, p. 131. Ibid. 52 Werle, Principles of International Criminal Law, 2nd edition, p. 149. 53 Cassese, International Criminal Law, 3rd edition, p. 44 54 Marchuk, p. 135. 55 Ibid. 56 Schabas, 14 LJIL (2001), 125, 129. 57 Elliott, 11 CLF (2000), 35, 38–39. 58 Schabas, 14 LJIL (2001), 125, 129. 50 51 7 of the fault element [or mens rea]”.59 By contrast, if the defendant is charged with an offence of “basic intent”, he can be convicted even if he did not act with the “state of mind required by the legal definition of the fault element”.60 This is for example possible if the defendant was voluntarily intoxicated at the relevant time and he would have had the requisite mens rea if he had been sober. So the concept of “specific intent” operates in a different conceptual framework than dolus specialis in certain Romano-Germanic systems such as the French. Consequently, the use of both these terms should be avoided because it will lead to confusion among lawyers from Anglo-American and Romano-Germanic legal systems likewise.61 Instead, either the Romano-Germanic or Anglo-American approach must be consistently followed or one must draw upon sources of international law like customary law (cf. Article 38(1) of the ICJ Statute) to come up with a concept that is appropriate in the context of international criminal law II. Forms of Criminal Responsibility 1. Principle Liability in the ICC Article 25 (3) of the ICC Statute determines that a person shall be “criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”. This provision reflects the three principal modes of liability, i.e. direct perpetration, co-perpetration and indirect perpetration (also listed in the provision in this order).62 A crucial question is on what basis one distinguishes these modes of liability from accomplice liability. a) The “Control over the Crime” Theory The Pre-Trial Chamber I of the ICC stated that the definitional criterion common to all form of commission is “control over the commission of the crime”63.64 The UK, Law Commission, Intoxication and Criminal Liability, Law Commission no. 314, 2009, p. 19. Ibid; see especially the leading case on offences of basis and specific intent DPP v Majewski [1977] AC 443, 478. 61 Schabas, 14 LJIL (2001), 125, 129. 62 Marchuk, p. 198. 63 See Prosecutor v. Lubanga Dyilo, 29 January 2007, Decision on the Confirmation of Charges, ICC-01/04/06, paras 326 et seq. 64 Werle, Principles of International Criminal Law, 2nd edition, p. 170. 59 60 8 judges rejected using a purely objective criterion where for example the actus reus requirements are said to be present if the accused performs the acts personally. 65 A completely subjective approach which could mean requiring an animus auctoris for a person to be principally liable was also not accepted.66 This approach has been used by the ad-hoc and hybrid tribunals.67 In the approach adopted by the Pre-Trial Chamber of the ICC instead “only those who have control over the commission of the offence – and are aware of having such control – may be principals”.68 So it also includes those who might be removed from the scene of the crime, but control the commission by deciding if and when the offence will be committed.69 Although the Pre-Trial Chamber explained that this is a concept found in various legal systems70, it is especially found in German criminal law. It is also an example of the abstract, systematic approach of Romano-Germanic systems. This theory was developed by Roxin who argued that co-perpetrators can accomplish a common criminal plan only if they work together, but each can individually frustrate the plan if they withdraw their contribution.71 However, Judge Fulford in his separate opinion in the Lubanga judgement criticised interpreting Article 25 of the Rome Statute in such a way. 72 He warned that the Chamber should not simply “apply a national statutory interpretation” because of “similarities of language, given the overall context is likely to be significantly different”. He alerted the judges to the fact that in the German legal system the sentencing range is dependent on the attributed mode of liability, however, these considerations are irrelevant in the ICC.73 Consequently, there is no need to differentiate rigorously between accessories and principals. Judge Fulford's remarks were largely considered as evidence of a hostile attitude of a common law jurist towards Romano-Germanic legal theories.74 Ambos in response to Judge Fulford's opinion points out that the validity of a Werle, Principles of International Criminal Law, 2nd edition, p. 170. Ibid. 67 Marchuk, p. 199. 68 Prosecutor v. Lubanga Dyilo, 29 January 2007, Decision on the Confirmation of Charges, ICC-01/04/06, para 332. 69 Ibid, para 330. 70 Ibid, para 330. The Pre-Trial Chamber also refers to Werle, Principles of International Criminal Law, 1st edition, margin no. 354. However, Werle asserted that the concept of commission through another person is common to various legal systems, not the “control over the crime approach”. 71 Roxin, Täterschaft und Tatherrschaft, 8th edition, p. 278; Marchuk, p. 200. 72 Prosecutor v. Lubanga Dyilo, 14 March 2012, Judgement pursuant to Article 74 of the Statute, Separate Opinion of Judge Adrian Fulford, ICC-01/04-01/06, paras 6 et seq. 73 Ibid, para 11; Marchuk, p. 201. 74 Marchuk, p. 201. 65 66 9 theory does not depend on its geographical origin but “on substantive normative and practical considerations” which Fulford does not offer.75 He further argues that Fulford ignores the drafter's decision to reject a unitarian concept of perpetration and opt for a more differentiated system.76 He suggests that differentiating between forms of perpetration at the level of imputation contributes to a “more just and fairer criminal justice system”.77 This corresponds to the opinion of Ohlin, who states that the distinction between principals and accessories fulfils the important value of fair labelling.78 In any case, this issue shows the necessity of not rejecting a concept because it is from another legal system (it is not very far-fetched to assume this in Judge Fulford's case), but to thoroughly evaluate if its use in the ICC is helpful and whether the concept is in accordance with the Rome Statute. b) Control over the Organisation In the context of international criminal law crimes of indirect perpetration, i.e. where the perpetrator commits a crime through another person, play a significant role. This is because international crimes which occur are often systematic attacks where leaders do not directly commit the crimes but direct others to do so. Consequently, in contrast to domestic crimes there is actually a rise in blameworthiness as one rises in the hierarchy.79 This was perceived by the District Court of Jerusalem in the Eichmann Trial: [I]n general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands and reach the higher ranks of command.80 The ICC again resorted to German criminal law theory in interpreting crimes of indirect perpetration. Thus in Katanga the Chamber first mentioned a doctrine (which is part of the control of crime theory) developed by Roxin in this context, i.e. the concept of a “perpetrator behind the perpetrator” (Täter hinter dem Täter). Ambos, 12 ICLR (2012), 115, 143. Ibid, 144. 77 Ibid, 145. 78 Ohlin, van Sliedregt and Weigend, 26 LJIL (2013), 725, 740–745 79 Prosecutor v. Katanga et al., 30 September 2008, Decision on the Confirmation of Charges, ICC-01/04-01/07, para 503. 80 The Attorney General v. Eichmann, 12 December 1961, Jerusalem District Court, Case No. 40/61, Judgement, 36 I.L.R.5-14, 18-276, para 439. 75 76 10 According to this concept a person may be criminally responsible if he acts through another regardless of whether the direct perpetrator is also responsible.81 The Chamber goes on to observe that the most relevant cases in international criminal law are those in which “the perpetrator behind the perpetrator commits the crime through another by means of 'control over an organisation' (Organisationsherrschaft)”.82 The Chamber lists several reasons for applying this theory, one of them being that the concept of perpetration through control over an organisation was applied by “numerous national jurisdictions” prior to the drafting of the Rome Statute.83 It specifically refers to decisions in Germany, Argentina, Peru, Chile and Spain.84 Interestingly, these are all Romano-Germanic legal systems. This is due to the fact that German law had a large impact on Spanishspeaking countries.85 However, Judge Christine Van den Wyngaert criticised this concept as being inconsistent with the plain reading of Article 25 (3)(a) of the Rome Statute.86 She argues that commission “through another person” cannot also mean through an organisation.87 She points out that Article 31(4) of the Vienna Convention on the Law of Treaties determines that "a special meaning shall be given to a term if it is established that the parties so intended", but the State Parties did not clearly state that the term “person” was to include “organisation”.88 She acknowledges that organisations are made up of persons, but for her a more adequate interpretation of the words “perpetration through another person” is that a “high level of personal involvement is required from the indirect perpetrator, i.e. the “domination of the individual will of the physical perpetrator”.89 However, the concept of control over the organisation need not be regarded as a new form of liability, as sometimes perceived, but could be seen as a “legal shorthand for the control exercised by the defendant over the streetlevel perpetrators” as suggested by Ohlin.90 According to this suggestion, the Prosecutor v. Katanga and Ngudjolo, 30 September 2008, Decision on the Confirmation of Charges, ICC-01/0401/07-717, para 496. 82 Ibid, para 498. 83 Ibid, para 502. 84 Ibid, footnote 666. 85 Fletcher in Cassese, The Oxford Companion to International Criminal Justice, p. 105. 86 Prosecutor v. Mathieu Ngudjolo Chui, 18 December 2012, Judgment pursuant to Article 74 of the Statute, ICC01/04-02/12, Concurring Opinion Judge Van den Wyngaert, para 57. 87 Ibid, para 52 88 Ibid. 89 Ibid, para 54. 90 Ohlin, van Sliedregt and Weigend, 26 LJIL (2013), 725, 737. 81 11 organisation could simply connect the indirect perpetrator with the direct perpetrator and could be considered the “through” element.91 Besides being consistent with Article 25(3)(a) of the Rome Statue, this view also acknowledges the context of international crimes where the indirect perpetrator will generally use his control over the organisation to commit a crime but does not necessarily dominate “the individual will of the physical perpetrator”. 2. Joint Criminal Enterprise Joint criminal enterprise is another concept of group liability which has played a major role in international criminal law, especially in the jurisprudence of the tribunals. It is a prosecutorial device used in many common law countries92, although it also has Romano-Germanic influences.93 A similar concept based on English criminal law, i.e. “acting with a common design”, was already used after the Second World War in the military commissions and tribunals alongside the theory of accomplice liability to prosecute and convict Nazi supporters.94 The ICTY then developed a group liability concept, commonly referred to as “joint criminal enterprise”, which provided the legal basis for many convictions.95 The actus reus of a joint criminal enterprise is satisfied if there is evidence of a plurality of persons, the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute, and participation of the accused in the common design.96 There are three forms of joint criminal enterprise (a basic form, a systematic form and an extended form) and the requisite mens rea will vary accordingly.97 Due to the different influences on the doctrine of joint criminal enterprise there has been substantial discussion on whether this mode of liability is a species of perpetration or a form of accomplice liability.98 The doctrine as such is considered to be a form of accomplice liability as found in the common law.99 The ICTY has Ohlin, van Sliedregt and Weigend, 26 LJIL (2013), 725, 738. Darcy, 20 American University International Law Review (2004), 153, 154-155. 93 Van Sliedregt, 5 JICJ (2007), 184, 198-199. 94 Ibid, 185. 95 Ibid, 184. 96 Prosecutor v. Duško Tadic, 15 July 1999, Appeal Judgment, IT-94-1-A, para 227. 97 For more details see Prosecutor v. Duško Tadic, 15 July 1999, Appeal Judgment, IT-94-1-A, paras 227, 228. 98 Van Sliedregt, 5 JICJ (2007), 184, 189. 99 Ibid, 190. 91 92 12 also specifically referred to joint criminal enterprise as “accomplice liability”.100 The correspondent common law concept on accomplice liability determines that the secondary party’s liability is derivative, i.e. it is incurred due to a violation of the law by the primary party to which the secondary party contributed.101 However, the terms “perpetrator” and “co-perpetrator” when referring to a participant in a joint criminal enterprise were also used in the ICTY.102 This suggests a Romano-Germanic influence and seems to contradict the Anglo-American concept of accomplice liability. For co-perpetration is a concept used in RomanoGermanic jurisdictions to distinguish those who are involved in the commission of a crime (co-perpetrator) from those who just assist in doing so (facilitator). 103 The facilitator will also receive a lower maximum sentence. 104 In French law for example the difference between a co-perpetrator or “co-auteur” and an accomplice is that the co-auteur has committed certain acts which are part of the actus reus of the offence whereas the accomplice only performed ancillary acts wanting to assist.105 This approach of categorising the offenders was also followed by the Tribunal106 and indicates a Romano-Germanic influence. However, it has also been criticised within the Tribunal itself, notably by Judge Hunt, a common law judge.107 Consequently, joint criminal enterprise as applied by the Tribunals incorporates both Anglo-American and Romano-Germanic elements. However, it is problematic that judges refer to elements of the two major legal systems which almost contradict each other. This suggests that the concept of one of the major legal systems should be largely followed (presumably the common law one) as a process of hybridisation seems impossible in this case. III. Conspiracy Perhaps, no international crime is associated with Anglo-American legal systems as much as conspiracy. In the common law, conspiracy is generally regarded as an “inchoate crime in which two or more persons agree to commit a crime, and make Prosecutor v. Duško Tadic, 15 July 1999, Appeal Judgment, IT-94-1-A, para 221 Kadish, 73 California Law Review (1985), 323, 337. 102 Prosecutor v. Duško Tadic, 15 July 1999, Appeal Judgment, IT-94-1-A, para 192. 103 Van Sliedregt, 5 JICJ (2007), 184, 190, 198. 104 Ibid, 190. 105 Ibid, 198-199. 106 Van Sliedregt, 5 JICJ (2007), 184,190. 107 Prosecutor v. Milutinović, Šainović & Ojdanić, 21 May 2003, Separate Opinion of Judge David Hunt on Challenge by Ojdanić to Jurisdiction Joint Criminal Enterprise, IT-99-37-AR72, para 31. 100 101 13 it punishable whether or not the agreed-upon crime ultimately occurs”.108 RomanoGermanic jurisprudence largely views the crime of conspiracy with great scepticism.109 The conception of this crime and analogous notions are regarded as forms of accomplice liability which link the accused to a crime that another person actually commits.110 The Nuremberg Charter gave the Tribunal jurisdiction over the crime of conspiracy to commit crimes against peace (see Article 6 (a) of the Nuremberg Charter), as well as over crimes of conspiracy to commit war crimes and crimes against humanity (conspiracy liability was supposedly extended to the last two crimes in a general clause in Article 6).111 However, the Nuremberg Tribunal followed a narrow interpretation of these provisions and did not recognise that conspiracy liability was also extended to crimes against humanity and war crimes through the general clause.112 Despite its limited use the crime of conspiracy to commit genocide was adopted in Article 3 (b) of the Genocide Convention (a text identical to that of a U.S. draft was used).113 Article III was also adopted verbatim in the ICTY and ICTR Statutes. The ICTR Trial Chamber accepted the guilty plea of Jean Kambanda, former Rwandan Prime Minister, for conspiracy to commit genocide, however, the offence was not defined.114 In Musema the Trial Chamber stated the elements of conspiracy to commit genocide, essentially those also found in the Genocide Convention. This approach was also followed by subsequent ICTR chambers.115 However, there have only been four conspiracy convictions and three of these were overturned.116 In the ICTY five people were charged in the Popović case with conspiracy to commit genocide for murdering thousands of Bosnian Muslim men around Srebrenica.117 One of the accused, Nikolić, posited that if an agreement to commit genocide was actually concluded, this was done two days before he joined the Bischoff in van den Herik and Stahn, p. 545. Fletcher in Cassese, The Oxford Companion to International Criminal Justice, p. 107. 110 Schabas, Genocide in International Law: The Crime of Crimes, p. 310. 111 Bischoff in van den Herik and Stahn, p. 545-546. 112 Ibid, p. 546. 113 Schabas, Genocide in International Law: The Crime of Crimes, p. 310. 114 Bischoff in van den Herik and Stahn, p. 547; Prosecutor v. Kambanda, 4 September 1998, Judgement and Sentence, IT-97-23-S, Part IV. 115 See for example Prosecutor v. Nahimana et al., 28 November 2007, Appeals Judgement, ICTR-99-52-A, para 896, Prosecutor v. Bagosara et al., 18 December 2008, Judgement and Sentence, ICTR-98-41-T, paras 2087-2088; Prosecutor v. Niyitegeka, 16 May 2003, Judgement and Sentence, ICTR-96-14-T, para 423. 116 Bischoff in van den Herik and Stahn, p. 548. 117 Ibid. 108 109 14 operation.118 He further relied on an ICTR judgement119 which suggested that conspiracy is not a continuing crime (which would have meant that he is not guilty).120 At this point the Chamber undertook an interesting analysis: It distanced itself from this position by stating that it is contrary to the common law which considers conspiracy a continuing crime, specifically referring to the case law of the United States.121 It then noted that this common law position was the basis of the Genocide Convention which was adopted in Article 4(3) of the ICTY Statute. Therefore, it found “good reason” to follow the common law position and hold that it was a continuing crime (other reasons for following this position were also given122) and that “an individual can join a conspiracy after the initial agreement is concluded”.123 The Trial Chamber, after establishing that the Bosnian Serb army leaders had entered an agreement,124 concluded that two of the five had committed conspiracy (the others lacked genocidal intent).125 This is an example of how a court resolved a legal issue by analysing the position of one legal system, i.e. the common law in this case, in this respect. The judgement of the ICTR which did not follow the common law position126 shows that courts have the liberty to distance themselves from certain legal positions, even though they are clearly derived from one legal system. This is because they are operating in the context of international law. However, this cherry-picking approach can also lead to incoherent concepts. The ICC Statute, however, did not adopt Article III of the Genocide Convention like the ICTR and ICTY Statutes did.127 The drafters of the Rome Statute preferred to include a provision on incitement to genocide and a general attempt provision which is applicable to all crimes.128 This shows the influence of the RomanoGermanic legal systems. Some suggest that this is due to the lack of agreement between delegates from the two major legal systems after “intensive debates”129 and some argue that the concept of conspiracy was “explicitly rejected”130. Prosecutor v. Popović et al., 10 June 2010, Trial Judgement, IT-05-88-T, para 870. Prosecutor v. Nahimana et al. , 28 November 2007, Appeal Judgement, ICTR-99-52-A, para 723. 120 Prosecutor v. Popović et al., 10 June 2010, Trial Judgement, IT-05-88-T, para 872. 121 United States v. Kissel, 218 U.S. 601, 607 (1910); United States v. Noble, 754 F.2d 1324, 1329 (7th Cir. 1985); United States v. Knight, 416 F.2d 1181, 1184 (9th Cir. 1969). 122 Prosecutor v. Popović et al., 10 June 2010, Trial Judgement, IT-05-88-T, para 874. 123 Ibid, para 876. 124 Ibid, para 881-886; Bischoff in van den Herik and Stahn, p. 548. 125 Ibid, paras 1416, 1591, 2092; Bischoff in van den Herik and Stahn, p. 549. 126 Prosecutor v. Nahimana et al. , 28 November 2007, Appeal Judgement, ICTR-99-52-A, para 723. 127 Bischoff in van den Herik and Stahn, p. 550. 128 Ibid. 129 Werle, Principles of International Criminal Law, 2nd edition, p. 229. 130 Ambos, 20 CLF (2009), 353, 369. 118 119 15 IV. Grounds Excluding Criminal Responsibility 1. Mistake of Legal Element Article 32 of the Rome Statue determines the legal consequences for a mistake of fact in paragraph 1 (i.e. the exclusion of criminal responsibility) and for a mistake of law in the first sentence of paragraph 2 (i.e. the irrelevance of such a mistake). However, Article 32 must also be considered for a third type of mistake which is also referred to as the mistake of legal element.131 This is a mistake by the accused regarding the “definition of a legal element in a crime such that he cannot be said to have acted 'knowingly' with regard to that element”.132 In the context of international crime this could for example occur when a perpetrator knows that an attack on the civilian population is a war crime and that most of his targets are civilians, but he falsely believes that he is not attacking a “civilian population” because soldiers are also within the targeted group.133 It is not entirely clear if Article 32 excludes criminal responsibility for such mistakes. A common law interpretation or a Romano-Germanic reading of this article can lead to different results (this is particularly obvious when considering the drafting history). For the sake of completeness the Article's text and context will be considered in addition to the drafting history which reveals the domestic origins. These are the three principles of interpretation for the Rome Statue as outlined in the Vienna Convention on the Law of Treaties.134 a) Text The text of Article 32 (2) differentiates between an irrelevant mistake of law “as to whether a particular type of conduct is a crime within the jurisdiction of the Court” (sentence 1) and a mistake of law which may exclude criminal responsibility if it “negates the mental element required by such a crime” (sentence 2). This distinction suggests that some mistakes of legal element could exclude criminal responsibility.135 Otherwise the drafters could have categorically excluded all mistakes of law (except the ones provided for in Article 33).136 Simmons, 81 Journal of Criminal Law and Criminology (1990), 447, 458. Heller, 6 JICJ (2008), 419, 423. 133 Ibid, 420. 134 Werle, Principles of International Criminal Law, 2nd edition, p. 54-55. 135 Heller, 6 JICJ (2008), 419, 426. 136 Ibid. 131 132 16 b) Context Article 32 determines when a mistake might negate the requisite mens rea. In this context Article 30 which determines what the necessary mental element is in the first place must be considered as well. The Preparatory Commission believed that a literal reading of Article 30 of the Rome Statute would have required perpetrators to understand the definition of a “protected person” in the Geneva Conventions.137 As a consequence, a person who honestly misunderstood the legal definition would have had a defence (of mistake of legal element).138 However, the Preparatory Commission wanted to avoid this “extreme” result.139 Consequently, it provided multiple times in the Element of Crimes (which must be applied by the Court according to Article 21(1) of the Rome Statute) that, if the perpetrator is aware of the factual circumstances underlying a legal rule, this is enough to prove that he acted “knowingly” as required by Article 30 (see for example Element 4 of Article 8 (2) (a) (ii)-1 in the Elements of Crimes regarding the war crime of torture).140 But the very fact that the Preparatory Commission introduced these “factual awareness” rules to limit the effect of a literal reading of Article 30, shows that in other instances (where these rules are not in place) it cannot be excluded that mistakes of legal element may serve as a defence in Article 32.141 c) Drafting History However, it is the drafting history and the influence of Anglo-American or RomanoGermanic law in particular that must be considered in this context. Article 32 (2) of the Rome Statue only excludes criminal responsibility for those mistakes of law which negate the mental element required by a crime. This reflects the position of Anglo-American law which bases the defence of mistake of law on the mental element.142 By contrast, most Romano-Germanic legal systems will regard “mistake as an excuse bearing on culpability, which does not necessarily imply lack of mens rea”.143 But it must be noted that the Preparatory Committee specifically chose to base Article 32 not on the lack of culpability but on the absence of mens rea.144 Eser in Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. I. 889, 922. Heller, 6 JICJ (2008), 419, 426. 139 Eser in Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. I. 889, 922. 140 Heller, 6 JICJ (2008), 419, 426. 141 Ibid, 427. 142 Van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, p. 312. 143 Van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, p. 312. 144 Heller, 6 JICJ (2008), 419, 427. 137 138 17 Consequently, one can come to the conclusion that Article 32 of the Rome Statute is “based on the traditional common law understanding”.145 For this reason the Anglo-American understanding regarding mistakes of legal element is very relevant. In the common law a mistake concerning the definition of a legal element will negate the mens rea if knowledge is required for that specific element of crime.146 It is disputed, whether the mistakes of legal element are limited to those of civil law or if mistakes of a legal element can also be made in regard to penal rules.147 Glanville argues that “‘if a statute creates a crime requiring knowledge, the accused is not guilty if, owing to a misunderstanding of some part of the general civil law, he thought the facts did not fall within the concepts used in the definition of the crime”.148 Thus in the English case Ocean Accident and Guarantee Corporation v. Cole (1932)149 an insurance company had issued a supposedly retrospective certificate of insurance which actually was not valid. However, the company was not convicted because it could not be shown that it knew of the falsity of the document. A similar approach when dealing with crimes requiring knowledge was adopted in American case law.150 Thus a person cannot be convicted of voting if he thought he was qualified to do so, although he actually was not.151 However, the drafters of the Model Penal Code make no such distinction when stating “[t]he general principle that ignorance of mistake law is no excuse...has no application when the circumstances made material by the definition of the offence include a legal element”.152 However, the ICC judges would only have to decide over this issue in a very limited number of cases, as almost all possible mistakes of legal element in the context of the Rome Statute concern non-penal rules of international humanitarian law.153 d) The Layman's Parallel Evaluation Test Even though the possibility of mistakes of legal element in the context of Article 32 is consequently accepted, it may be limited by the “layman's parallel evaluation Ambos, 10 CLF (1999), 1, 29. Heller, 6 JICJ (2008), 419, 428. 147 For a more extensive analysis see Heller, 6 JICJ (2008), 419, 428-429. 148 Williams, Criminal Law: The General Part, 2nd edition, p. 321. 149 Ocean Accident and Guarantee Corporation v. Cole [1932] 2 K.B. 100. 150 Williams, Criminal Law: The General Part, 2nd edition, p. 321. 151 Perkins, 88 U. Of Pa. L. Rev. (1939), 35, 51. 152 Model Penal Code commentaries, § 2.02, p. 250 as cited in Heller, 6 JICJ (2008), 419, 428. 153 Heller, 6 JICJ (2008), 419, 429. 145 146 18 test” (“Parallelwertung in der Laiensphäre”154), a concept from German criminal law, i.e. from a Romano-Germanic legal system. According to this test it is decisive “whether the perpetrator recognized the significance of the normative element” of a crime under international law.155 For this purpose it sufficient if the perpetrator “knows of the fundamental factual circumstances and comprehends the significance of the incriminating conduct that is described by those criteria”.156 The perpetrator's incorrect legal assessment is no bar to liability.157 Following this interpretation the availability of defences on the basis of mistakes of legal element are much more limited because a perpetrator would find it more difficult to argue that he did not understand the “significance of the incriminating conduct” and did not know the underlying “factual circumstances” than that he did not understand the definition of a legal element in a crime.158 However, it has already been discussed above that the Rome Statue had opted for a common law approach in regard to the mistake of legal element. Heller argues that for this reason the layman's test should not be applied.159 For the common law tradition requires more than understanding the significance of the incriminating conduct and knowing the underlying circumstances, i.e. it requires understanding the definition of a legal element in a crime.160 However, as this discussion is occurring in the context of the international criminal law it can be argued that the interplay of different domestic concepts (including Anglo-American and RomanoGermanic concepts) is a normal process in international law (maybe even one desired, if one aims at the hybridisation of international law). Nevertheless, another problem regarding the layman’s parallel evaluation test is that many other Romano-Germanic legal systems also do not follow it.161 This is due to the fact that many Romano-Germanic legal systems regard mistake as an excuse bearing on culpability (not on mens rea) and consequently do not need to regulate what knowledge of a legal element is required.162 German criminal law is an exception in this regard because a mistake of legal element can exclude intent if Ambos, Treatise on International Criminal Law: Vol. 1: Foundations and General Part, p. 373. Werle, Principles of International Criminal Law, 2nd edition, p. 213. 156 Ibid, p. 155. 157 Ibid, p. 213. 158 Heller, 6 JICJ (2008), 419, 437. 159 Ibid; regarding the common law influence on Article 30 of the Rome Statute see Vogel in Laufhütte et al. (eds.), vor § 15, margin 95. 160 Heller, 6 JICJ (2008), 419, 437. 161 Ibid, 438. 162 Heller, 6 JICJ (2008), 419, 438. 154 155 19 it qualifies as a “normative mistake”163 that falls under the German concept of “standard mistake” (Tatbestandsirrtum).164 This is the case if the laymen's parallel evaluation test is satisfied. Hence, German criminal law takes another approach than other Romano-Germanic legal systems. The legitimacy of the layman's test in the context of international criminal law is therefore questionable. Furthermore, when considering specific case scenarios in the international context, it becomes clear how difficult it is to still hold on to this “concept of awareness of social relevance” as phrased by Ambos165. One example is that of a soldier killing a peacekeeper because he (wrongly) believes that the peacekeeper is a combatant and consequently a legitimate target.166 Ambos alerts to the fact that because of the soldier's mistaken legal evaluation it is impossible for him to be aware of the social significance of his acts in the first place. 167 The concept of the layman's test “tries to infer from pure factual knowledge that the defendant was able to make the correct legal evaluation”, an assumption that is difficult to justify in the context of international criminal law.168 This might be different in the domestic context where the “illegality of a contemplated action will often be apparent even in the absence of a technical understanding of the law” (e.g. a physical attack on an innocent person).169 This again highlights the fact that one cannot simply transplant domestic concepts into international criminal law. It is inevitable that certain concepts of one legal culture will prevail in certain areas of the substantive law (the common law in this case). However, besides the awareness that a concept has been adopted from one certain legal cultures, it is important to evaluate if the concept is adequate in the context of international criminal law (as the concept of the layman's parallel test does not appear to be). 2. Duress Anglo-American and Romano-Germanic jurisdictions have different concepts regarding when the defence of duress may absolve the accused of criminal Normative meaning is largely to be identified with legal meaning, see Arzt, Birmingham Young University Law Review (1986), 711, 714. 164 Heller, 6 JICJ (2008), 419, 438. 165 Ambos, Treatise on International Criminal Law: Vol.1: Foundations and General Part, p. 373. 166 Ibid. 167 Ibid. 168 Ibid. 169 Heller, 6 JICJ (2008), 419, 439. 163 20 liability.170 These differences were explicitly discussed in the ICTY Erdemović case where the accused claimed that he could not refuse to kill 70 civilians because his commander threatened to kill him too, if he refused to.171 In most RomanoGermanic systems duress is acknowledged as a complete defence to all crimes.172 This becomes clear when considering for example Article 122-2 of the French Penal Code or Section 35(1) of the German Penal Code which make no exceptions (for example in the case of murder) to the defence of duress. 173 However, common law jurisdictions generally do not recognise duress as a complete defence, providing for exceptions in the cases of murder, attempted murder and treason. 174 This is for example the general position in English law and has been followed in the United States and Australia.175 In the Erdemović case the defence of duress was rejected176. The majority followed the common law approach and the dissenting judges the RomanoGermanic concept of duress. Judges McDonand and Vohrah recognised the opposing positions of the two major legal systems, but did not want to view the issue as a contest between Anglo-American and Romano-Germanic law.177 The judges ultimately (after considering the defence of duress in the context of international humanitarian law) came to the conclusion that “duress cannot afford a complete defence to a soldier charged with crimes against humanity or war crimes in international law involving the taking of innocent lives”, but that it can be considered in the mitigation of the accused's sentence.178 Due to the vote of a third judge this view prevailed.179 However, the dissenting judges were of the opinion that duress should be a complete defence and not exclude certain crimes.180 In their view the requirement of proportionality would help to limit the availability of this The defence of necessity is not considered separately because international criminal law does not distinguish sharply between necessity (also referred to as duress of circumstances) and duress as some domestic jurisdictions do. Thus Article 31(1)(d) of the Rome Statute incorporates both duress and necessity under a broader definition of duress, cf. Marchuk, p. 265. 171 Bischoff in van den Herik and Stahn, p. 551. 172 Prosecutor v. Drazen Erdemović, 7 October 1997, Appeal Judgement, IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para 59. 173 Ibid. 174 Ibid, para 60; Marchuk, p. 265. 175 Prosecutor v. Drazen Erdemović, 7 October 1997, Appeal Judgement, IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para 60. 176 Bischoff in van den Herik and Stahn, p. 551. 177 Prosecutor v. Drazen Erdemović, 7 October 1997, Appeal Judgement, IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para 72. 178 Ibid, para 88. 179 Bischoff in van den Herik and Stahn, p. 552. 180 Bischoff in van den Herik and Stahn, p. 552. 170 21 defence.181 This is in line with Romano-Germanic reasoning. This position was also reflected in Article 31 of the Rome Statute which does not provide for any exceptions to the defence of duress in cases of murder or other serious crimes.182 The defence of duress shows that at times a hybridisation of domestic legal concepts can be difficult to achieve in international criminal law. In these cases judges and lawyers should be aware which particular concept of a legal system has been chosen to ensure uniformity of the law. PART C: PROCEDURAL LAW Academic research has focused in particular on the differences between the procedural law of Romano-Germanic and Anglo-American jurisdictions as well as the respective influence on international criminal law. Traditionally, the two dominant models when discussing comparative criminal procedure are the inquisitorial model and the adversarial or accusatorial model. The criminal procedure of the inquisitorial model is characterised by its unitary nature; it is controlled and directed by a state authority.183 The institutions and agencies involved in the criminal law process are committed to resolving criminal cases by seeking the 'truth' of criminal events and thereby determining the responsibility for criminal actions.184 This is achieved by a “dedicated and rigorous process of inquiry within the framework of a hierarchically controlled process”185. This system is commonly associated with Romano-Germanic legal systems such as those of France or Germany. In comparison, the adversarial model sees the role of the state merely as a “kind of observing umpire” in a dualistic process with a battle between a prosecuting and a defending party.186 The “truth” is supposed to be establish according to this model through the “mutual counter-testing of two opposed interests” and not through the single-handed inquiry of a judge.187 Therefore, the parties have a more elevated role in the proceedings than in inquisitorial systems. The adversarial model is usually associated with common law jurisdictions such as Ibid; Prosecutor v. Drazen Erdemović, 7 October 1997, Appeal Judgement, IT-96-22-A, Separate and Dissenting Opinion of Judge Cassese, paras 40-50 and Separate and Dissenting Opinion of Judge Stephen, paras 63-69. 182 Bischoff in van den Herik and Stahn, p. 552-553. 183 Harding, in Eser and Rabenstein (eds.), Strafjustiz im Spannungsfeld von Existenz und Fairness, p. 4. 184 Ibid, p. 4. 185 Ibid. 186 Ibid. 187 Ibid. 181 22 those of England or the United States. The comparative law scholar Damaŝka (who was critical of this conventional analysis) has contributed to a deeper understanding of the exact differences between different legal systems by connecting different procedural systems to issues of state structure and authority.188 Thus he distinguishes between the conflict-solving model which is usually associated with adversarial systems and the policy-implementing model that is commonly encountered in Romano-Germanic jurisdictions.189 In this way the essence of the different systems can be seen and the particular institutional and political environment that distinguishes them.190 However, international society is not comparable to a nation state and therefore it is unclear how Damaŝka's theory can be applied to international criminal justice systems.191 Thus the adversarialinquisitorial dichotomy may still need to serve as a general framework for the understanding of international criminal procedure.192 I. Control over the Proceedings One notable difference between Anglo-American and Romano-Germanic legal systems is the control over the proceedings. As common law systems uphold the belief that only a fierce battle between the parties will help establish the truth, the parties play a central role in the proceedings.193 Hence, the parties decide what evidence they want to submit and may consequently even choose to not present certain evidence.194 The prosecutor controls most of the information on the case; thus he will also decide what witnesses to call.195 However, in Romano-Germanic jurisdictions the judges control the proceedings as they have a legal obligation to discover the true events of the case.196 Hence, judges will control what evidence is presented and will call witnesses as well as actively participate in their examination.197 Judges will exert this control over the proceedings with the help of Harding, in Eser and Rabenstein (eds.), Strafjustiz im Spannungsfeld von Existenz und Fairness, p. 4; see especially Damaŝka, The Faces of Authority and State Authority. 189 Sluiter in Cassese, The Oxford Companion to International Criminal Justice, p. 230. 190 Jackson, 7 JICJ (2009), 17, 19. 191 Sluiter in Cassese, The Oxford Companion to International Criminal Justice, p. 230 -231. 192 Ibid, p. 231. 193 Schuon, p. 56. 194 Ibid. 195 Tochilovsky in Fischer et al. (eds.), p. 633. 196 Schuon, p. 56. 197 Tochilovsky in Fischer et al. (eds.), p. 633. 188 23 an investigative dossier they receive before the trial.198 1. ICTY199 Initially, the procedural rules of the ICTY were of a very adversarial nature as they were modelled on a draft of the U.S. Department of Justice.200 Therefore, the procedural law of the ICTY intended a passive role for the judges and instead determined that the parties were primarily responsible for presenting evidence at the trial and developing their cases.201 This meant that a “two-case” system common in Anglo-American jurisdictions was adopted where the prosecution and defence each present their case and challenge the other party’s evidence.202 Judges were allowed to take active steps to establish the facts by summoning their own witnesses, asking questions and altering the order in which evidence was presented “in the interests of justice”.203 However, these powers were not used frequently as “judges conceived of themselves, and generally behaved, as passive umpires” and the Rules204 gave the parties a more active role.205 However, the proceedings under these procedural rules were too costly and lengthy and it was argued that this was due to the adversarial nature of the proceedings.206 ICTY judges and a United Nations Expert Group identified a lack of control of the proceedings by the judges as a cause for the delay. 207 New rules were adopted and numerous amendments which indicated a Romano-Germanic influence were made to expedite the trials. Pre-trial judges, status conferences and pre-trial conferences were introduced and allowed judges to exercise greater control over the case as they now also had more access to information.208 The new rules 73 bis and 73ter ICTY RPE allowed judges to have advance summaries of the facts Ibid, p. 634. The focus is on the ICTY and not the ICTR because most of the academic literature follows this approach (which is logical because the ICTY was set up before the ICTR and consequently set a precedent). 200 Combs, 33 Michigan Journal of International Law (2012), 321, 329. 201 Ibid. 202 Ibid. 203 Ibid. 204 Rules of Procedure and Evidence for the International Criminal Tribunal for the former Yugoslavia (ICTY RPE). 205 Tochilovsky in Fischer et al. (eds.), p. 632; Langer, 53 AJCL (2005), 835, 858. 206 Combs, 33 Michigan Journal of International Law (2012), 321, 329. 207 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, paras 76-77, U.N. Doc A/54/634 (Nov. 22, 1999). 208 Combs, 33 Michigan Journal of International Law (2012), 321, 330. 198 199 24 on which the witnesses would testify.209 Of course, these cannot be considered the equivalent of a “dossier” in a Romano-Germanic system210 but at the same time it does indicate an approximation. Other amendments also authorised the Trial Chamber to limit the number of witnesses that can be called by the Prosecution or defence211 or limit the amount of time that each party can use at trial212. Hence, one can observe a notable shift in the procedural law of the ICTY from a very partydriven Anglo-American approach to a position that accords judges more control over the proceedings.213 One cannot assert that the ICTY has adopted an inquisitorial approach as the parties still play a major role214 which highlights the underlying adversarial tradition. However, the influence of the inquisitorial Romano-Germanic tradition can also be observed. This is an example of how the interplay between the two major legal systems can contribute to an improved international criminal procedure. 2. ICC The ICC is structured on the adversarial model but at the same time there are such a number of inquisitorial elements that one can speak of a “mixed process system”.215 This is also reflected in the rules with respect to the control over the proceedings. The tasks of investigation and actual trial are to be carried out by the Prosecutor and the Pre-Trial Chamber (so not just one body) and consequently indicate an adversarial approach.216 Article 64(8)(b) of the Rome Statute, an important structural provision, determines that the presiding judge of the Trial Chamber may give directions for the conduct of proceedings. If the presiding judge does not give any directions, the Prosecutor and the defence “shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber” according to Rule 140 of the Rules of Procedure and Evidence (ICC RPE). However, the Trial Chamber does not have to examine the case and raise relevant evidence.217 Rather it is the parties who control what evidence is submitted and they Tochilovsky in Fischer et al. (eds.), p. 632, 635. Ibid. 211 Rules 73bis (C)(i), 73ter (C) ICTY RPE 212 Rules 73bis (C)(ii), 73ter (E) ICTY RPE 213 Mundis, 14 LJIL (2001), 14, 367, 382. 214 Ibid. 215 Röben, 7 Max Planck UNYB (2003), 513, 535. 216 Ibid. 217 Ibid. 209 210 25 therefore exercise control over the proceedings.218 This also follows the adversarial model. However, the judges have also been given wider powers which allow them to play a more active role and indicates the influence of Romano-Germanic law. Thus the judges can ask the parties to provide additional evidence or order the attendance of witnesses (Articles 64(6)(b), (d) and 69(3) of the Rome Statute).219 Furthermore, according to Rule 140(2)(d) ICC RPE the Trial Chamber has the right to question witnesses. Although the procedural law of the United States (a common law jurisdiction) also grants the judge such a right, it is rarely used as judges are supposed to take a more passive role.220 According to Rule 69 ICC RPE judges also have the right to accept or reject agreements of the Prosecutor and defence on certain facts. These procedural rules give judges more control over the proceedings and are examples of significant inquisitorial elements. However, many provisions do not clearly opt for the inquisitorial or adversarial tradition. It is for example very noteworthy that Article 64(8(b) of the Rome Statute allows the presiding judge to decide how the proceedings are conducted and how the evidence is to be submitted.221 The judge can essentially decide whether a Romano-Germanic approach (a judge with wider powers) or an Anglo-American approach (parties are main actors) should be followed.222 It is also important to recognise that the procedural rules avoid technical terms like cross-examination or judge d’instruction (investigating judge) and instead use more neutral terms.223 For this reason, one can also arrive at the conclusion that the ICC is not opting for one legal tradition over another but is developing its own, very unique224 set of procedural rules. II. Evidence Rules The differences between Anglo-American law and Romano-Germanic law regarding the admissibility of evidence have also affected the development of international criminal procedure. As the lay jury plays a major role in common law Ibid. Schuon, p. 293. 220 Ibid, p. 294. 221 Ibid, p. 292. 222 Ibid. 223 Kress, 1 JICJ (2003), 603, 605. 224 Ibid, 605. 218 219 26 systems, complex rules of evidence are present in these jurisdictions to restrict deliberations of the jury only to reliable forms of evidence. 225 Common law jurisdictions will usually have detailed rules defining inadmissible hearsay evidence226 and limit the admission of written statements.227 This is also to ensure the equality of arms between the parties because otherwise the prosecution could use their broader means of investigation to gather information before the trial without any confrontation with the witness.228 Although Romano-Germanic systems might have rules favouring the use of direct evidence over indirect evidence, there are not as detailed and technical rules regarding the admissibility of evidence as in common law countries. 229 This is due to the fact that judges are called to be “fact-finders” in Romano-Germanic jurisdictions.230 To fulfil the truth-seeking function, judges have more liberty to admit and assess both oral and written evidence.231 1. ICTY Although the procedural law of the ICTY has an adversarial background, the evidential rules of the ICTY resemble those of the inquisitorial Romano-Germanic tradition.232 For trials at the ICTY operate under a liberal evaluation of evidence.233 The Court specifically stated that detailed admission rules were developed in the trial by jury system and as there is no jury in the ICTY which needed to be “shielded from irrelevancies or given guidance as to the weight of evidence’ such rules were superfluous.234 The most important evidential rule is Rule 89 ICTY RPE which particularly states that the Chamber can admit any evidence which it deems to have probative value (Rule 89(C) ICTY RPE), i.e. evidence that has “persuasive value or tends to prove or disprove a matter in issue”235. However Rule 89(D) ICTY RPE Fletcher in Cassese, The Oxford Companion to International Criminal Justice, p. 109. Ibid. 227 Acquaviva in Carter and Pocar, p. 99. 228 Caianiello, 36 N.C.J. Int'l L. & Com. Reg. (2011), 287, 294. 229 Schuon, p. 31. 230 Acquaviva in Carter and Pocar, p. 100. 231 Ibid. 232 Fairlie, 4 ICLR (2004), 243, 281. 233 Ibid. 234 Statement by the President Made at a Briefing to Members of Diplomatic Missions, Summary of the Rules of Procedure at the International Criminal Tribunal for the Former Yugoslavia (1) United Nations Document IT/29 (1994), reprinted in Morris and Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, p. 650. 235 Nsereko, 5 CLF (1994), 507, 541. 225 226 27 also determines that the Chamber can exclude evidence if its “probative value is substantially outweighed by the need to ensure a fair trial”. The fact that evidence is scrutinised more closely at the admissibility stage resembles the approach of common law systems.236 For in Romano-Germanic jurisdictions evidence is used more readily at trial, but a judge will attribute the adequate weight to the evidence at a later stage.237However, generally, the provisions give the judges great discretion and allow for flexibility with regard to the admission of evidence.238 a) Permitted Forms of Testimony In regard to written testimony, there is a preference for live testimony239 to allow the accused to challenge the evidence which might be the basis for a conviction against him.240 However, the ICTY has introduced several provisions which allow written statements of witnesses as live testimony can be very time-consuming (witnesses recount events that have been discussed in other cases). 241 Thus Rule 92bis ICTY RPE lists the circumstances under which written statements may be permissible instead of oral testimony (e.g. if the evidence is of “a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts”242 or the evidence “relates to relevant historical, political or military background”243). Rule 81bis ICTY RPE allows for proceedings by videoconference link and consequently also for testimonies in this form if a Judge or a Chamber orders this. This more flexible approach is in line with the RomanoGermanic tradition.244 b) Exclusionary Rules It is to be noted that there is no exclusionary rule regarding hearsay evidence, a feature contrary to the adversarial common law tradition. The Appeals Chamber has made it clear that the admissibility of hearsay evidence is settled in the practice Schuon, p. 287. Ibid. 238 Acquaviva in Carter and Pocar, p. 105. 239 Fairlie, 4 ICLR (2004), 243, 283. 240 Acquaviva in Carter and Pocar, p. 115. 241 Ibid, p. 114. 242 Rule 92bis(a) ICTY RPE. 243 Rule 92bis(b) ICTY RPE. 244 However, this does not mean that there is no strong preference for oral testimony in Romano-Germanic systems; cf. §§ 261, 264 StPO in German law. But, generally, these rules are not as rigid as in common law systems. 236 237 28 of the Tribunal.245 Exactly because such evidence is permitted, the Tribunal requires that the hearsay evidence is reliable, i.e. “voluntary, truthful and trustworthy, as appropriate”. A general exclusionary rule can be found in, the amended, Rule 95 ICTY RPE which determines that no evidence is admissible “if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings”. This should supposedly also help judges protect the rights of the accused.246 However, it does not give judges very specific instructions on what type of evidence must be excluded247. Hence, although some rules seek to uphold the rights of the accused as in common law countries, the general approach of the ICTY regarding the admission of evidence follows the Romano-Germanic tradition. c) The Danger of a Due-Process Deficit in the ICTY However, the amalgamation of different elements from the two major legal systems in this manner brings with it the danger of a due-process deficit as argued by Fairlie. Rather than being a union of the procedural safeguards found in Romano-Germanic and Anglo-American law, the ICTY disregards numerous protections found in each of the legal systems.248 The accused on one hand has none of the pre-trial protections as usually found in Romano-Germanic legal systems.249 As the ICTY has not adopted the neutrality element in the pre-trial stage, something characteristic of the inquisitorial tradition, the “prosecutor’s work goes largely unchecked by the judges”250 and the individual has no particular opportunity to challenge evidence during the investigative stage251. On the other hand procedural safeguards found in the common law system are also not in place at the ICTY because the judges adopt a more passive role.252 Hence, as already pointed out, the limited exclusionary rule of the ICTY does not provide protection to the accused as in common law systems.253 Furthermore, the scarce rules regarding the Prosecutor v. Aleksovski, February 16 1999, Decision on Prosecutor’s Appeal on Admissibility of Evidence, para 15. Acquaviva in Carter and Pocar, p. 106. 247 Ibid. 248 Fairlie, 4 ICLR (2004), 243, 292. 249 Ibid. 250 Johnson, 10 International Legal Perspectives (1998), 111, 176. 251 Fairlie, 4 ICLR (2004), 243, 291. See also for further examples of how procedural safeguards found in RomanoGermanic law have been omitted in the ICTY. 252 Ibid. 253 Ibid. 245 246 29 admissibility of evidence also afford the accused less protection.254 This is an example of how the amalgamation of elements from both legal systems has produced an unfavourable outcome. 2. ICC The evidentiary rules of the ICC also follow a flexible approach as adopted in the ICTY while also including certain adversarial elements.255 The flexible approach, again as in the ICTY, is explainable by the fact that professional judges consider the evidence and not a lay jury.256 Hence, the primary evidentiary norm, Article 69(4) of the Rome Statute, provides that the Court can “rule on the relevance or admissibility of any evidence” and take into account, inter alia, “the probative value of the evidence”. In the Lubanga case the judges generally followed the jurisprudence of the ICTY in determining the admissibility of evidence (they specifically referred to the same indicia of reliability when assessing the probative value although emphasising that one should not limit it to these).257 Therefore, as with ICTY rules, the emphasis on scrutinising evidence at the admissibility stage indicates a common law influence, while the otherwise generally flexible approach demonstrates the influence of Romano-Germanic law. a) Permitted Forms of Testimony In regard to written testimony the ICC also follows the approach of the ICTY by providing in Article 69(2) of the Rome Statute that the “testimony of a witness at trial shall be given in person”, although other measures are permitted as well. Thus Article 69(2) of the Rome Statute further states that the Court “may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts”. However, Rule 68 ICC RPE also determines that the Prosecutor and the defence must have had the opportunity to examine the witness. The guaranteed opportunity of cross-examination is a stricter requirement than in the ICTY and indicates an approximation of the adversarial tradition in this particular aspect. Ibid. Schuon, p. 286. 256 Ibid. 257 Prosecutor v. Lubanga Dyilo, 13 June 2008, Decision on the Admissibility of Four Documents, ICC-01/04-01/061399, paras 28-29. 254 255 30 b) Exclusionary Rules The ICC also has no exclusionary rule regarding hearsay evidence and the protection afforded to the defendant in this regard is that judges must regard the probative value of the hearsay evidence.258 Such an approach would be unthinkable in common law jurisdictions like the United States where hearsay evidence is considered “inherently unreliable”.259 The ICC also has an exclusionary clause similar to that of the ICTY in Article 69(7) which determines that evidence obtained by means of a violation of the Rome Statute or “internationally recognized human rights” is not admissible, if it “casts substantial doubt on the reliability of the evidence” or the integrity of the proceedings would not be ensured as a result of the admission of evidence. This provision, as that of the ICTY mitigates the consequences of not following strict exclusionary rules.260 So judges have to evaluate on a case-by-case basis if internationally recognised rights of the defendant are possibly violated.261 Several Romano-Germanic jurisdictions operated like this in the past.262 So generally, the ICC like the ICTY has opted for a flexible approach as found in Romano-Germanic jurisdictions to cope with the substantial amount of cases. III. Disclosure Rules Depending on whether an adversarial or inquisitorial style of proceedings is followed, the disclosure will also be conspicuously different. As in an adversarial tradition the prosecution and the defence are supposed to prepare their cases independently of each other, any exchange of information between them is regulated by strict disclosure rules.263 This “two cases approach”264 is in line with the adversarial approach which regards the trial as a battle between two versions of events, in which the true version prevails.265 Disclosure is then necessary to ensure the prosecution and the defence have the “same level of information”.266 Admire, 15 Tex. Rev. L. & Pol. (2010-2011), 339, 354; Prosecutor v. Katanga and Ngudjolo, 30 September 2008, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, para 118. 259 Admire, 15 Tex. Rev. L. & Pol. (2010-2011), 339, 354. 260 Acquaviva in Carter and Pocar, p. 107. 261 Ibid. 262 Ibid. 263 Schuon, p. 15. 264 Ambos, 3 ICLR (2003), 1, 15. 265 Ibid, 16. 266 Ambos, 3 ICLR (2003), 1, 15. 258 31 However, in Romano-Germanic jurisdictions disclosure rules are not necessary to that extent, as a “one case approach”267 is adopted in the criminal proceedings where the prosecutor mostly conducts the investigations.268 As the prosecutor is expected to investigate incriminating and exonerating evidence, his position resembles more that of a “neutral procurator of justice”.269 Consequently, it is considered as sufficient if the defence has a right of inspection into the prosecutor’s dossier before the trial.270 The ICTY and the ICC also have a number of disclosure rules in accordance with their adversarial tradition, although the scope of these rules is broader than in some common law jurisdictions.271 Rule 66 ICTY RPE and Article 61(3) ICC Statute as well as Rules 76, 77, 121(2) ICC RPE determine that the Prosecutor has to disclose most incriminating evidence to the defence before the trial.272 Furthermore, exculpatory evidence has to be disclosed “as soon as practicable” according to Rule 68 ICTY RPE and Article 67(2) ICC Statute as well as Rule 83 ICC RPE.273 The defence does not have to disclose inculpatory evidence as this would constitute a violation of the privilege against self-incrimination of the accused as laid down in Article 67(1)(g) ICC Statute.274 Disclosure obligations only apply to the defence with respect to special defences like an alibi (Rule 67 ICTY RPE, Rules 78, 79 ICC RPE).275 Reports, memoranda or other internal documents are not subject to disclosure according to Rule 70 ICTY RPE and Rule 81 ICC RPE. These different disclosure rules indicate the influence of the adversarial tradition as such disclosure rules are not needed in inquisitorial systems as elaborated above. IV. Plea Bargaining Plea bargaining is a concept that has strong common law origins. The defendant will agree to plead guilty and possibly cooperate with the prosecution, in return for the charges being reduced or the prosecution agreeing to seek a lower sentence.276 Ibid. Schuon, p. 16. 269 Ibid. 270 Ambos, 3 ICLR (2003), 1, 15. 271 See Schuon, p. 111 et seq., 275 et seq. 272 Ambos, 3 ICLR (2003), 1, 13. 273 Ibid. 274 Ibid, 14. 275 Ibid. 276 Turner in Carter and Pocar, p. 36. 267 268 32 In international criminal law it will commonly be required that a guilty plea is voluntary, informed, unequivocal and has a sufficient factual basis (there are certain notable differences in the ICC277).278 Plea bargaining plays an important role in common law countries. In state and federal cases of the United States more than 90 % of convictions result from guilty pleas.279 Guilty pleas are also used in other common law countries like England or Australia.280 The two advantages are an efficient allocation of sources because no full trial is needed and the possibility for the prosecution to gain important insider information on criminal networks.281 However, due to its potential to inhibit the court from uncovering the truth282 or even effectively force defendants to a guilty plea because of the very beneficial plea discounts283, procedural safeguards have been put into place284. Thus in the United States the court will for example make an inquiry if the plea is voluntary, informed and factually based.285 However, these procedural safeguards are often not sufficient, as for example judges seeking to expedite the process may not conduct sufficient hearings.286 For this reason plea bargaining remains very controversial. Romano-Germanic jurisdictions generally rejected plea bargaining until the 1980s because it was considered as contradicting the principle of mandatory prosecution and the court’s duty to determine the facts of the case independently.287 However, Romano-Germanic jurisdictions have now also implemented modified forms of plea bargaining to conserve resources. But because the practice is still not entirely consistent with the inquisitorial tradition and is also extremely criticised, its application is much more limited (e.g. only to rather minor offences).288 1. ICTY and ICTR Initially neither the statutes nor the rules of the ICTY or ICTR explicitly provided for plea bargaining.289 However, a legal basis for plea bargains was later introduced See section IV 2. Turner in Carter and Pocar, p.46. 279 Ibid, p. 36. 280 Ibid. 281 Ibid. 282 Alschuler, 50 U. Chi. L. Review (1983), 931; Turner in Carter and Pocar, p. 37. 283 Schulhofer, 101 Yale L.J. (1992), 1979; Turner in Carter and Pocar, p. 37 284 Turner in Carter and Pocar, p. 37. 285 Ibid, p. 37. 286 Ibid, p. 38. 287 Ibid. 288 Ibid, p. 39. 289 Ibid, p. 41. 277 278 33 under Rule 62ter ICTY RPE and under Rule 62 of the ICTR’S Rules of Procedure and Evidence (ICTR RPE).290 In the ICTR seven people pleaded guilty and were convicted of international crimes.291 Plea bargaining played a lesser role than in the ICTY, presumably because of factors like the “the cultural background, the understanding of punishment and guilt and the acknowledgement of the guilt in Rwanda.” The fact that former Rwandan Prime Minister, Jean Kambanda, was imprisoned despite his guilty plea might have also have had a deterrent effect. 292 Hence, the particular circumstances and context of a conflict might also limit the usefulness of practices like plea bargaining.293 20 plea agreements have led to judgements before the ICTY.294 However, the differences between judges from a Romano-Germanic background and an AngloAmerican background were evident. Thus initially the practice of plea bargaining was disapproved in the ICTY, especially because its President, Cassese who is from a Romano-Germanic jurisdiction, opposed the practice: [W]e always have to keep in mind that this tribunal is not a municipal criminal court but one that is charged with trying persons accused of the gravest possible of all crimes. […]. After due reflection, we have decided that no one should be immune from prosecution for crimes such as these, no matter how useful their testimony may otherwise be.295 Thus Cassese is especially emphasising the truth-seeking function of international criminal procedure and highlighting that one should not settle for pragmatic solutions as found in the Anglo-American tradition when considering that some of the gravest crimes are being tried. However, in 2001 the new Rule 62ter ICTY RPE was introduced and the Court found no problem in allowing plea bargaining.296 However, this change in the Court’s stance can be explained by the fact that Judge Cassese had been replaced by Judge McDonald who comes from the United States, Burens, 7-8 ZIS 2013, 322, 327-328. Turner in Carter and Pocar, p. 42. 292 Burens, 7-8 ZIS 2013, 322, 328. 293 Ibid. 294 Ibid, 327. 295 Statement by the President Made at a Briefing to Members of Diplomatic Missions, Summary of the Rules of Procedure at the International Criminal Tribunal for the Former Yugoslavia (1) United Nations Document IT/29 (1994), reprinted in Morris and Scharf, An Insider’s Guide to the International Criminal Tribunal for Former Yugoslavia, p. 652. 296 Prosecutor v. Momir Nikolić, 2 December 2013, IT-02-60/1-S, para 57. 290 291 34 a common law adversarial system, and was in favour of plea bargains.297 By the time Judge McDonald took over there were also many more pending cases than during Judge Cassese’s term298. The ICTY also faced increasing pressure of the UN to finish its work.299 Judge McDonald, therefore, probably saw a greater need to resort to a pragmatic solution as found in common law systems. The plea bargains in the ICTY did not only involve more lenient sentences (sentence bargaining) but also the dropping of charges (charge bargaining).300 Despite the eventual acceptance of plea bargains by the ICTY, it remained a controversial practice. Thus Judge Schomburg who is from the German, inquisitorial legal system opposed plea bargains and criticised the inappropriate sentences recommended to the Court when considering the gravity of the crime.301 He also argued that “there is no peace without justice; there is no justice without truth, meaning the entire truth and nothing but the truth”. This again shows the strong adherence of Romano-Germanic lawyers and judges to the truth-seeking function of criminal trials. However, it has also been admitted that plea bargains can contribute to establish the facts and ensure a more accurate historic record.302 These examples show that judges discussing the use of plea bargains have to take into account numerous factors like the amount of pending cases, the gravity of the crimes or the potential contribution to the establishment of the true facts. When doing so they can be influenced by their respective legal backgrounds. Hence, it is important to acknowledge the context of international criminal law and provide for appropriate solutions. So for example if a court has a substantial number of pending cases with crimes of a very grave character, it should not categorically rule out plea bargains, but introduce further requirements which also contribute to the discovery of the truth and an accurate historical record (e.g. by calling for additional presentation of evidence when admissions of guilt are being reviewed303). Scharf, 2 JICJ (2004), 1070, 1073 et seq.; Burens, ZIS (2013), 322, 327. Scharf, 2 JICJ (2004), 1070, 1074. 299 Burens, ZIS (2013), 322, 327. 300 Scharf, 2 JICJ (2004), 1070, 1074. 301 Prosecutor v. Deronjić, 30 March 2004, Judgement, IT-02-61-S, Dissenting Opinion of Judge Wolfgang Schomburg, para 4 et seq, 14; Burens, ZIS (2013), 322, 327. 302 For example in Prosecutor v. Milan Babić, 29 June 2004, Judgement, IT-03-72-S, para 68; Schuon, p. 208. 303 Turner in Carter and Pocar, p. 64. 297 298 35 2. ICC The procedural law of the ICC does not provide for guilty pleas in the common law sense but for “proceedings on the admission of guilt” (Article 65 of the Rome Statute). A different wording from the common law terminology was consciously chosen due to a “rift between the proponents and the opponents of an Americanstyle plea-bargaining system”.304 The Romano-Germanic notion of “confession” was also not used305 and therefore it is to be seen as a compromise of lawyers from two legal systems at the level of international criminal law. Even though a different phrasing is used, plea bargaining is still essentially possible.306 However, according to Article 65(5) of the ICC Statue “discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court”. This provision was included to alleviate fears of European lawyers that plea agreements could bind the Court.307 Unlike the ICTY and ICTR Rules, according to Article 65(1)(c) of the Rome Statute judges must independently verify the factual basis of the parties’ agreement on the facts.308 The stronger involvement of the judge indicates the influence of RomanoGermanic law. Another difference to the Tribunals is that the guilty plea need not be unequivocal, a requirement found in some common law systems, which determines that a trial must be conducted if the accused pleads guilty and at the same time makes information available which could provide him with a defence.309 The omission has been criticised as the requirement safeguards the presumption of innocence which is very important when considering the seriousness of international crimes.310 Another conspicuous difference to common law legal systems is that the admission of guilt does not decisively influence the further course of events.311 An admission of guilt does not immediately mean a conviction or that there is no longer a need for trial. Rather Article 65 of the Rome Statute gives the Court different options, section 4 especially being a novelty in international criminal procedure.312 These particular characteristics are very different from usual Petrig, 8 Chi.-Kent J. Int’L & Comp. L. 1, 9-10. Ibid, 9. 306 Turner in Carter and Pocar, p. 42. 307 Petrig, 8 Chi.-Kent J. Int’L & Comp. L. 1, 10. 308 Turner in Carter and Pocar, p. 46. 309 Schuon, p. 301. 310 Ibid. 311 Ibid, p. 302. 312 Ibid. 304 305 36 common law requirements and indicate a Romano-Germanic influence.313 Generally, the requirements for an admission of guilt at the ICC are an example of how Anglo-American and Romano-Germanic notions can work out together even if there is room for improvement314. PART D: HYBRIDISATION The analysis of various procedural and substantive elements in international criminal law has shown that the interplay of the different legal systems has at times worked out well, but has also produced inconsistencies as pointed out in this thesis; the danger of a due-process deficit in the ICTY with regard to the evidentiary rules is a striking example. The question then arises how such developments in international criminal law can be avoided. As the domination of one legal tradition over another is generally not the desired solution in eradicating inconsistencies in international criminal law, there has been extensive debate on the hybridisation of legal systems as this seems a more adequate solution in the international context. Particularly, it allows for the incorporation of the most beneficial legal elements from all major legal traditions. However, hybridisation is not a simple juxtaposition of legal elements but rather, as defined by Delmas-Marty, a method requiring “genuine, creative re-composition through the search for a synthesis of, or equilibrium between, diverse elements or diverse systems”.315 Hybridisation, therefore, also goes “hand in hand with autonomisation” from its “national parents”, i.e. the major legal systems.316 As Delmas-Marty argues, this is achieved more easily by adopting a “common grammar”. 317 She explains that this would consist in “guiding, or meta principles that structure the system around general international law principles, human rights instruments and a comparison of the national criminal justice systems”.318 So this stands in sharp contrast to simply transplanting legal concepts and interpreting them in the light of national principles. It has to be noted that for example procedural approaches like the accusatorial tradition or inquisitorial tradition were developed Schuon, p. 302. See Turner in Carter and Pocar, p. 64 for more detailed suggestions. 315 Delmas-Marty, 1 JICJ (2003), 13, 18. 316 Delmas-Marty in Jackson et al., p. 258. 317 Ibid, p. 258. 318 Ibid. 313 314 37 in the respective domestic jurisdictions to correspond with the “social and political climates of their time”.319 Hence, adversarial proceedings developed in a political climate where justice was needed as a means of conflict resolution in a reactive state that is “limited to providing a framework within which citizens can pursue their chosen goals”.320 However, the inquisitorial tradition developed in an environment where justice served as an implementing policy in an activist state that sought the “material and moral betterment of its citizens”.321 As the political climate in the international context differs from that of domestic jurisdictions, the choice of international criminal procedure needs to be centred around other objectives. Jackson argues that such an objective could consist in eliminating “impunity of the highest civilian and military leaders in order to prevent a recurrence of war crimes and crimes against humanity” (this was also the reason for the creation of international criminal tribunals).322 Hence, he would centre international criminal procedure around this objective by for example prioritising certain cases which meet this criteria.323 This criterion could also be considered one of the guiding principles of the “common grammar” of international criminal law as demanded by Delmas-Marty. For this process of hybridisation to occur two particular suggestions made by former Judge Cassese should be considered. He submitted that judges have to decide whether notions and terms drawn from national criminal law, gain a “new lease of life” when transposed into the international context.324 If this is not the case, the judge must make an “adaptation or adjustment” necessary to satisfy the characteristic features of international proceedings.325 Only if this is also not possible, Cassese asserts, is the judge justified in drawing upon national criminal law.326 This can, in principal, also be applied to the substantive part of international criminal law. Does this mean that analysing the influence of the major legal systems on international criminal law is superfluous if one supports the process of hybridisation? It is submitted that the exact opposite is true for several reasons. First Jackson, 7 JICJ (2009), 17, 19. Damaška, The Faces of Justice and State Authority, p. 73; Jackson, 7 JICJ (2009), 17, 19. 321 Damaška, The Faces of Justice and State Authority, p. 80; Jackson, 7 JICJ (2009), 17, 19. 322 Jackson, 7 JICJ (2009), 17, 20. 323 Ibid. 324 Prosecutor v. Drazen Erdemović, 7 October 1997, Appeal Judgement, IT-96-22-A, Dissenting Opinion of President Cassese, para 6. 325 Ibid. 326 Ibid. 319 320 38 of all, it is only possible to determine if a particular concept has a “new lease of life” [emphasis added] when transposed into the international context if one knows what the original meaning of the concept was in the first place. Secondly, it is important to know the origins of legal concepts for cases where concepts which were supposedly transposed into the international context are actually polar opposites. This has in fact been one major source of criticism of the “hybridisation” approach.327 However, such conceptual inconsistencies are to be expected as the area of international criminal law is still fairly young in comparison to the criminal law of national jurisdictions. However, it is submitted that when such clashes of diametrically opposed legal concepts occur, it is necessary to evaluate which concept is more suitable in the international context and remove other legal elements which contradict this. The use of comparative law is necessary for this purpose. But it should also be emphasised that this process of hybridisation should not only involve the amalgamation of elements from the two mentioned legal systems but should also allow for other influences to ensure a truly international development. Otherwise the hybridisation of international criminal law would actually be merely confined to Western law and as Vogler argues allow the “obnoxious concept of ‘the civilised nations’” to re-emerge.328 Finally, it is crucial that this process of hybridisation does not lead to an international law regime that is entirely disconnected from domestic courts. Rather, hybridisation should also lead to a process of harmonisation between domestic and international law so that courts in the national jurisdictions are empowered as a result.329 CONCLUSION The fact that international criminal tribunals have been operating relatively successfully over a number of years shows that the international community has largely succeeded in overcoming systemic differences between different domestic jurisdictions. However, the analysis of several substantial and procedural element in this thesis highlights areas of international criminal law which are incoherent, especially because of the different influences of the two major legal traditions. In the substantive part of international criminal law there are conceptual problems in See Vogler in Findlay and Henham (eds.), p. 114. Ibid. 329 Delmas-Marty, 1 JICJ (2003), 13, 21. 327 328 39 particular with regard to the use of different mental states. Thus, judges have neither adequately differentiated between recklessness and dolus eventualis nor between specific intent and dolus specialis which all have different meanings within the domestic jurisdictions. The judges also did not ascribe any distinctly new meaning to these concepts within the international context. Rather, these concepts have been used in such a way which permits confusion among lawyers from both the major legal systems. In other areas of the substantive law such as accomplice liability or duress it was observed that Anglo-American and Romano-Germanic law have diametrically opposed views which both at times have been incorporated in international criminal law. This has naturally led to confusion as well. In such cases it seems necessary to opt for one particular legal tradition which is most suitable in the international context as hybridisation is nearly impossible. Other concepts such as conspiracy, however, were met with such opposition that they do not play a role in international criminal law. The procedural part of international criminal law has been influenced particularly by the adversarial tradition usually found in common law systems. Thus, a contest between the prosecution and defence is encouraged and disclosure rules which maintain this “two-case approach” are enforced. However, the specific context of international criminal law has allowed inquisitorial elements from Romano-Germanic traditions to have a major impact on the development of the procedural law. Particularly, the truth-seeking function from the inquisitorial tradition has gained importance when considering the seriousness of international crimes. Hence, increasingly judges play a more active role which is for example highlighted by the fact that they have a large discretion with regard to the admissibility of evidence. Practical considerations such as handling cases faster allow for common law practices such as plea bargaining. It has been observed that the interplay of the two major legal systems has, however, also led to significant due process deficits. Hence, international criminal law has presented the legal world with a fairly new challenge. The international context does not allow for the domination of one legal tradition, as coherent and logical as it may be. One cannot transplant legal elements from different jurisdictions into international criminal law and expect that justice will be effectively ensured. Rather, an ongoing process of hybridisation is required where elements of different jurisdictions are transposed into the international context and a sound conceptual basis with an international character is found. 40

RELATED PAPERS

RELATED TOPICS

Log In

An Overview of the Influence of the Common Law and Civil Law on the Development of International Criminal Law

An Overview of the Influence of the Common Law and Civil Law on the Development of International Criminal Law

Related Papers

RELATED PAPERS

RELATED TOPICS