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Abstract: The main modes of liability for crime committing, according to the jurisprudency of international criminal courts: the direct commission or the perpetration; the indirect commission or the commission through another person; the participation in a „joint criminal enterprise”. The mass graves discovered on the territory of the former Yugoslavia, the genocide of Rwanda, the use of children-soldiers, the mass rape and massacre of civil population in many African countries or other countries of the world, not only horrified the international community but also created an unprecedented challenge in modern world history: the prosecution and the trial by international criminal courts of the military and political leaders who are responsible for the commission of these crimes.
The international community, U.N. and the leaders of most states have agreed upon the fact that the phenomenon of impunity of those state or military leaders who conceive and orchestrate war crimes, crimes against humanity, aggression and genocide, regardless of the place where they might be committed, has to come to an end. Thus, they considered that the establishment of some criminal courts at an international level is the only viable way to prosecute the perpetrators as long as the states where the crimes occured, either have no genuine will or have no the capacity to do it. These courts, like all others in this respect, aim to convict the persons at the top levels of the structures committing the crimes, as well as to deter the commission of such crimes in the future.
The principles of international public law regarding the observance of the states sovereignity and the noninterference in the internal affaires of the states, frequently invoqued during the past centuries as a ground for the lack of involvement of the international community in trying this kind of crimes, can no longer be used nowadays. These crimes, by their magnitude of gravity, are affecting the values of the entire humanity to an extent going beyond the borders of a certain state and therefore the international community’s reaction must be adequate, that is, to act whith disregard to what a national authority decides when it has no will to do the right justice or, it simply cannot do it.
Even though, there is no doubt regarding the generous and bold purposes of the international criminal justice, its settlement, from a political and administrative point of view as well as from the perspective of the adequate judicial tools, continues to encounter many difficulties. We can offer some examples in this respect: the international criminal justice is not functioning within the powers’ structure of a state architecture but at an international level, under the auspicious of U.N., whitout the backing of proper executive and legislative powers; its activity is dependent in many situations on some international bodies and national autorities’ support; it has to deal with an impressive case law, that is, thousands of facts and perpetrators, who cannot be prosecuted entirely, but only selectively, even though, there is no legal provision to regulate such selection; there is a specific modus operandi for the crimes fallen under its competences, that is, the crimes commited by some large groups of perpetrators, more or less organized, and only in a few cases, individually; gathering the forensic evidence is a very difficult task, in most of the cases, because, on the one hand, the witnesses surviving the massacres can be found only exceptionally and, on the other hand, there are more than a few witnesses who refuse to cooperate with the international judicial bodies for fear of future reprisals or because they simply lack interest in seeing the perpetrators being convicted; these international courts cannot act with disregard to the internal or international political environment surrounding its activities, and therefore, even though criticized in some national legal systems, the practice of the opportunity and utility principles in accomplishing international justice cannot be excluded; finally, no matter how unfair it may seem, the total deletion of the impunity phenomenon in these cases is impossible because, even if hypothetically we assumed that the international courts have enough means to do it, a scale conviction of the perpetrators would automatically lead to the resurection of those tensions which have triggered and fueled the conflict.
Under the above mentioned circumstances, the conviction of the accused as perpetrators, coperpetrators or on the ground of any other main mode of liability for committing the crimes, proved to be very difficult. There is a pattern in committing these crimes, in the sense that, the facts are commited by the people at the lowest levels of the group hierarchy while these facts are masterminded by the leaders who, in most cases, didn’t personally do any material act. Thus, their conviction on the ground of the classical formulas of actus reus and mens rea, wouldn’t be possible. On the other hand, convicting the leaders on the ground of a derivative mode of liability for only aiding, abbeting, inciting, planning or ordering the commission of these crimes, would be a profound act of unjustice.
Considering these, the learning of international criminal courts’ jurisprudency with regard to the main modes of liability for crime committing, from the first trials of the ad-hoc tribunals, namely The International Criminal Tribunal for former Yugoslavia and The International Criminal Tribunal for Rwanda, which had been endowed with scarce statutory provisions and benefited from only some controversial judicial practice, until the current activity of the International Criminal Court which has to cope with some doctrinaire aspects of its statute provisions, the legitimacy and also the political and administrative support, offers us a very interesting perspective.
Keywords: international criminal courts, direct commission, indirect commission, joint criminal enterprise, war crimes, crimes against humanity, aggression, genocide, main modes of liability, derivative modes of liability |
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