Prosecution of International Crimes-a Historical and Empirical Overview

In general, both the development of the parameters of law dealing with international crimes and the application of this law by both international and national institutions have known historical ebbs and flows. A major impetus was received after the Second World War until about 1950 after which very little happened until the mid-nineties even though conflicts in which international crimes occurred continued unabated during the second half of the twentieth century. Most of the law of war crimes and crimes against humanity was developed in the immediate aftermath of the Second World War and consisted of the instruments setting up the two international military tribunals in Nuremberg and Tokyo, the legislative authority enabling domestic courts to deal with war criminals in Europe and Asia, the


Introduction
In general, both the development of the parameters of law dealing with international crimes and the application of this law by both international and national institutions have known historical ebbs and flows.A major impetus was received after the Second World War until about 1950 after which very little happened until the mid-nineties even though conflicts in which international crimes occurred continued unabated during the second half of the twentieth century.
Most of the law of war crimes and crimes against humanity was developed in the immediate aftermath of the Second World War and consisted of the instruments setting up the two international military tribunals in Nuremberg and Tokyo, the legislative authority enabling domestic courts to deal with war criminals in Europe and Asia, the caselaw developed by these tribunals and courts, 1 the adoption of the 1948 Genocide Convention and the passing of the Geneva Conventions which regulated the conduct of war, including its violations. 2 Virtually all the important principles for this area of law can be traced back to this time period with some other important cases, such as the Menten case in the Netherlands, 3 the Barbie, Papon and Touvier cases in France 4 and the Eichman trial in Israel 5 adding refinements to those principles.When international criminal law was examined by Canadian, 6 Australian 7 and British criminal courts 8 in the eighties and nineties, a direct link was made between the post-WWII law and the cases before them.This was not only done because the persons who had been investigated by the Canadian, British and Australian governments had committed their acts during the Second World War but also because there was no new law to speak of in the interim.However, there has been an explosion of new developments internationally in the area of war crimes in the last 20 years.

1. International institutions
The first international institutions since the post-WWII period were the International Criminal Tribunals for the Former Yugoslavia (ICTY) 9 and Rwanda (ICTR), 10 which were established in 1994 and 1995 respectively.These tribunals have their own Trial Chambers and a shared Appeals Chamber.The decisions of the Chambers of the two tribunals have greatly contributed to the development of the international law of war crimes, genocide and crimes against humanity.As of December 18, 2014, the ICTY has indicted 161 persons, the cases of 136 of those have been completed, resulting in the conviction and sentencing of 75 persons in 51 separate trial processes, 11 as well as 20 acquittals, while it also has transferred eight cases involving 13 persons to national jurisdictions, all to Bosnia and Herzegovina except two to Croatia and one to Serbia. 12The ICTR has indicted 93 persons of whom 76 have been arrested and 67 convicted in 44 judgments (plus another 12 have been acquitted) while deciding to transfer 11 persons for trial in national jurisdictions, one to the Netherlands, two to France and eight to Rwanda. 13part from the activities of the two ad hoc tribunals, 14 there has been a lot of work done under the auspices of the United Nations to establish a permanent international criminal court.The Statute of the International Criminal Court, which was adopted on July 17, 1998 15 and amended on June 11, 2010, 16 contains definitions of aggression, genocide, crimes against humanity and war crimes, which must be considered at those respective times the most contemporary formulation of international law pertaining to these crimes.The court started operating on July 1, 2002 and has indicted 31 persons in eight situations (nobody has been indicted in the most recent situation, Mali, yet) namely five leaders of the Lord Resistance Army for the Ugandan situation (two of which have died since the approval of the indictment); eight Sudanese persons in respect to the Darfur situation (including the head of state of Sudan); six for the situation in Kenya (the indictments of four have been confirmed but two was withdrawn by the prosecutor); three (including the head of state although the indictment has been withdrawn due to his death) for the situation in Libya; three (including the previous head of state and his wife) for the situation in Ivory Coast, two of whom are in custody; one for the situation involving the Central African Republic who is in custody; and six from the Democratic Republic of the Congo (DRC) regarding war crimes committed in the Ituri and Kivu regions of that country; five of the six indictees for the last situation were in custody at 12 Namely: Jankovic, decided by both the Trial and Appeal Chamber; Stankovic, both TC and AC; Todovic/Rasevic, both TC and AC; Mejakic/Gruban/Knezevic/Dusan Fustar, TC and AC; Ademi/Norac, TC; Ljubicic, TC and AC; Kovacevic, TC and AC, and Trbic, TC, all to BiH except two to Croatia [Ademi/Norac] and one to Serbia [Kovacevic]).The ICTY has also transferred files to other jurisdictions of persons who were investigated but not indicted by the OTP (see http://www.icty.org/sid/103)13 Bagaragaza, TC and AC to the Netherlands (however, this transfer has been cancelled); Bucyibaruta, TC and Munyeshyaka, TC, to France; the ICTR has also transferred two persons to Rwanda, namely Uwinkindi and Munyagishari, as well as ordering the transfer of the cases of five other persons who are still at large, namely Kayishema, Sikubwabo, Ntaganzwa, Ryandikayo, Ndimbati and Munyarugarama and 55 files (as of August 1, 2014) to Rwanda, which had been investigated but not indicted by the ICTR for further investigation and possible future action by Rwanda (see http://www.unictr.org/tabid/155/Default.aspx?id=1138) the ICC (of which one has been released as ordered by the Pre-Trial Chamber, which was confirmed by the Appeals Chamber). 17he first trial (Lubanga) before the ICC was supposed to start on June 23, 2008 but the proceedings were stayed on June 13, 2008 due to irregularities in the prosecution case, a decision which was upheld by the Appeals Chamber on October 21, 2008.However, on November 18, 2008 the stay was lifted and the trial began on January 26, 2009.On July 8, 2010, the Trial Chamber imposed another stay of proceedings, due to the non-implemention of disclosure orders by the court, which was overturned by the Appeals Chamber on October 8, 2010.Lubanga was convicted on March 14, 2012 and sentenced to 14 years imprisonment on July 10, 2012.The conviction and sentence was upheld on December 1, 2014.The second trial (Katanga and Chui) started on November 24, 2009 and the third (Bemba) on November 22, 2010; the Katanga and Chui case was severed with Chui being acquitted on December 18, 2012 and Katanga convicted on March 7, 2014 and sentenced to 12 years on May 23, 2014.He discontinued his appeal on June 25, 2014. 18he United Nations has also been instrumental in establishing five hybrid tribunals for dealing with international crimes, 19 namely the Special Panel for Serious Crimes of the Dili District Court in East Timor (and its Court of Appeal), the Special Court for Sierra Leone, the Extraordinary Chambers of the Courts of Cambodia, the War Crimes Chamber of the state court of Bosnia and Herzegovina and the courts in Kosovo.These courts have (or had) a mixed membership of local and international judges (see Table 1 below for more details with respect to these institutions).There have been discussions to set up other internationalized tribunals, such as in Liberia, Burundi20 , Kenya21 and the Democratic Republic of the Congo 22 but these have not resulted in the establishment of any such institutions.17 Seenhttp://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspxas well as Ambos, Treatise on International Criminal Law, Volume I:  Foundations and General Part (OUP 2013) pp.35-40.18   For more details of the work of the court, see http://www.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-21-ENG.pdf.

19
The United Nations has also established a sixth tribunal based on an agreement with a national state with international aspects, namely the Special Tribunal for Lebanon, but this tribunal does not have the same jurisdiction as the other tribunals (See article 1 of the Agreement which is attached as an Annex to Security Council Resolution 1757 (2007), May 30, 2007); the Trial Chamber confirmed the indictment involving four persons on June 28, 2011 while on February 1, 2012 it allowed the trial of the four accused to proceed in absentia; on October 10, 2013 a fifth person was charged while the trial started on January 16, 2014.http://www.rnw.nl/international-justice/article/international-tribunal-congo-%E2%80%93-aroad-map.

Domestic trials of international crimes 24
There have been processes involving international crimes based on territorial or active nationality jurisdiction in 32 countries (including the three internationalized domestic courts in Bosnia and Herzegovina, Kosovo and East Timor), namely seven in Europe, eleven in Latin America, four in Asia and ten in Africa resulting in over 16,000 convictions since 1995.
In Europe, apart from the national courts in Bosnia and Herzegovina and Kosovo, both of which were discussed above because of their international aspects, there have been a number of other war crimes prosecutions in the former Yugoslavia, namely in Serbia, Croatia, Montenegro and Slovenia, as well as in Romania, Hungary and Lithuania, although in the latter three countries charges were laid for crimes committed in the fifties and sixties and only one of the four trials has resulted in a conviction so far, namely in Hungary.
In Central and South America, ten countries have started criminal investigations and prosecutions against persons involved in war crimes, crimes against humanity and genocide carried out under previous regimes, namely in Chile, Peru, Colombia, Argentina, Uruguay, Bolivia, Brazil, Guatemala, Haiti and Mexico while Paraguay has used the extradition approach for similar crimes. 25n Asia, Indonesia, Afghanistan and Bangladesh have initiated international crime trials, the latter pertaining to the time that Bangladesh become independent, namely 1971, while Israel has effected the extradition of a suspected war criminal to Bosnia.
In Africa, prosecutions have begun in eight countries, namely the Republic of the Congo, the Democratic Republic of the Congo, Ethiopia, Rwanda, Burundi, Uganda, Guinea and Ivory Coast while South Africa has started an investigation into internation-24 For more details of the trials referred below, see the website of TRIAL Watch at http://www.trialch.org/en/resources/trial-watch/trial-watch.html.

25
See http://www.icso.cl/wp-content/uploads/2013/07/Cifras_septiembre_2012_ENG.pdf; for a detailed discussion of the jurisprudence in this area, see Digest of Latin American Jurisprudence on International Crimes, Volumes I and II at http://www.dplf.org/sites/default/files/digesto_jurisprudencia_en_pdf_0.pdf; for a general overview, see Ambos 2013, op.cit., pp.114-117  al crimes and Kenya has established an International Crimes Division within its High Court, which has not begun operating yet. 26 27 28able 2 below provides more detail of completed trials and convictions in these countries (as a result of which the ongoing trials in Brazil, Haiti, Guinea, Uganda and Ivory Coast are not included while the acquittal of the persons charged in Mexico and the Republic of the Congo are not part of the table nor is the one conviction in Hungary).Between 1991 and 2006, there were an additional 611 convictions for war crimes and crimes against humanity in Croatian courts.However, the lawfulness of a significant number of these convictions has been called into question, and many of these trials were conducted in absentia.

Universal jurisdiction trials
In Europe 30 12 countries have initiated criminal prosecutions for international crimes 31 committed elsewhere between 1994 and 2014, resulting in 43 indictments (of which almost 90% since 2000 alone) with 40 persons convicted (in 32 cases) and three acquittals.
A number of countries (Austria, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland and the United Kingdom) have also extradited persons suspected for such crimes or are in the process of doing so, mostly to Rwanda or countries of the former Yugoslavia although in some cases also to international institutions.
In North America two countries, the United States 32 and Canada, have completed four criminal trials for international crimes, three in Canada (with one acquittal) and one in the United States; both countries have also extradited persons for involvement in genocide, crimes against humanity and war crimes.
Australia has been working on two extradition cases in respect of Croatia.
In Africa, South Africa has started two investigations against nationals of other African states, namely Madagascar and Zimbabwe while in Senegal a hybrid regional court was established to investigate and prosecute crimes against humanity committed in Chad. 3330 In addition to these investigative and prosecutorial efforts by individual countries, there have also been attempts at co-ordinating these activities by improving exchange of information pertaining to investigations and by establishing best practices.Interpol has convened four International Expert Meetings on Genocide, War Crimes, and Crimes Against Humanity since 2005; see in general http://www.interpol.int/Crime-areas/Fugitive-investigations/War-crimesand http://www.interpol.int/News-and-media/News-media-releases/2009/PR049,while three years earlier the European Union decided to establish an European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes, which meets on a regular basis, see the Official Journal of the European Communities L167/1 of 26/6/2002 and L118/2 of 14/5/2003.As well, the ICC has started to convene meetings with some of the specialized war crimes units in order to develop an efficient co-operation model between national states and the ICC based on the complementarity principle enshrined in article 17 of its Statute.On the non-governmental side, the International Association of Prosecutors (IAP) established in 2009 a Specialist War Crimes Forum (http://www.iap-association.org/FICJ/Home.aspx) while the International Bar Association had formed a War Crimes Committee a year earlier (http://www.ibanet.org/PPID/Constituent/War_Crimes_Committee/Default.aspx).

31
In most cases the international crimes considered in this section are war crimes and genocide although in some instances crimes against humanity were charged as well as torture, as defined by the 1984 Torture Convention.

32
The U.S. has also arrested a number of persons for involvement in atrocities in their homeland but these prosecutions are launched under its immigration legislation for immigration fraud, resulting in both criminal convictions as well as deportations to the country where the crimes were committed.

33
For more information re the court in Senegal, see Currie & Rikhof 2013, op.cit. at note 23, pp.224-225.For details of the completed criminal trials in the 14 countries mentioned above, see table 3. 34 35 36  As the accused was a Dutch national, it is not strictly correct to include this case as part of universal jurisdiction but it is relevant as the crimes occurred outside Netherlands.

35
This is the same case as the one mentioned before but with different charges.

36
As some of the offences occurred in the Netherlands it is not strictly correct to include this case as part of universal jurisdiction but it is relevant as war crimes, some of which were alleged to have occurred outside the Netherlands, were included in the indictment.

Country of trial
Country where crimes occurred

Crimes mentioned in judgment
Sentence Appeal As the accused was a Canadian national, it is not strictly correct to include this case as part of universal jurisdiction but it is relevant as the crimes occurred outside Canada.

Observations regarding international and domestic prosecutions
A number of comments can be made about the efforts in the last two decades to put perpetrators of international crimes on trial.The first important observation, which applies to both international and domestic practice, is the fact that 19 erstwhile 38 and two sitting 39 heads of state have been indicted, prosecuted or sentenced for international crimes. 40Of the five trials begun at the inter-

38
The case of Radovan Karadzic, who was the war-time president of the Republika Srpska in Bosnia and Herzegovina in the early nineties and who was indicted by the ICTY in 1995 and arrested on July 21, 2008, is not included in this number nor is the case of Jean-Claude "Baby Doc" Duvalier who was investigated for but not charged with crimes against humanity.

39
The ICC Pre-Trial Chamber issued a warrant for arrest for Al Bashir, the president of Sudan on March 4, 2009 for war crimes and crimes against humanity, which was extended to genocide on July 12, 2010 while an arrest warrant for crimes against humanity was issued for Gaddafi on June 27, 2011 in respect to the Libyan situation; the warrant for arrest for Gbagbo was issued on November October 23, 2011.Secondly, an encouraging trend is the fact that there have been some proceedings against corporate players, albeit some have not been successful in the end.While the prosecution of corporate executives is not a new phenomenon as there had already been prosecutions of this kind after the Second World War against German corporate officials, including by the International Military Tribunal in Nuremberg, 43 the international and hybrid tribunals have not ventured into this area so far.On the domestic front there have been two convictions in the Netherlands for corporate executives for providing weapons to the Charles Taylor regime in Liberia and for selling precursors for chemical weapons to the Saddam Hussein regime in Iraq.In the DRC, during the Kilwa trial both Congolese soldiers and three executives of the mining company Anvil were charged for war crimes but eventually acquitted in 2007; 44 this same incident is being investigated in Australia.In addition, two executives of the French oil company TotalFinaElf have been indicted in both France and Belgium in 2002 for involvement in crimes against humanity in Burma; the proceedings in Belgium came to an end in 2008.Although it might be difficult for international institutions to hold corporations themselves responsible for breaches of international criminal law (it is for instance explicitly forbidden in the Rome Statute), 45 it is clear that the human actors representing such corporations are not immune from the reaches of this area of the law.
Thirdly, there are differences between the number of trials held and their modalities.Four categories can be distinguished, namely the truly international institutions (ICC, ICTY and ICTR) together with the two tribunals established by an agreement between the United Nations and a domestic jurisdiction (the SLSC and ECCC); national tribunals with some international aspects (Bosnia, Kosovo, East Timor and Iraq); domestic courts exercising territorial jurisdiction; and domestic courts exercising universal jurisdiction.In terms of number of cases processed, the first and last categories have generally only be able to deal with a small numbers of situations while the second and third groups typically were able to put on trial much larger numbers of suspects.This is not entirely surprising given the fact that the ICC, ICTY, ICTR and universal jurisdiction courts had to carry out their investigations outside their jurisdiction or where their seat was established.This is combined with the fact that these institutions, as well as the SLSC and ECCC, because of finite resources and their limited mandate of investigating the persons most responsible, can only measure their success in some dozens of cases -with somewhat higher numbers for institutions which have been operating for a much longer time and with more resources, such as the ICTY and ICTR.On other hand, national courts operating on the basis of territorial jurisdiction (either purely domestic courts or such courts with some international dimensions) were able to bring to justice hundreds and sometimes thousands of perpetrators.Of the 46 countries that have become involved in the prosecutions of perpetrators of international crimes in the last twenty years, the vast majority of convictions occurred in the national courts with territorial jurisdiction.More than 16,000 perpetrators have been brought to justice in 32 such countries compared to 180 persons convicted by the five international(ized) institutions (138) and the 14 countries relying on universal jurisdiction (42) combined.

44
The trial has been severely and widely criticized.Two of the more poignant commentaries are that of the United Nations High Commissioner of Human Rights of July 4, 2007 and the detailed report by the NGO Global Witness of July 17, 2007 (http://www.globalwitness.org/library/victims-kilwa-massacre-denied-justice-congolese-military-court).
Article 25.1.In the United States this type of liability was denied under the Alien Tort Statute, see Kiobel v. Royal Dutch Petroleum, US Court of Appeal, 2 nd Circuit, September 17, 2010 with lengthy discussion of international law on this point.
The last observation is related to the above in that the level of responsibility of persons convicted in criminal trials varies.The five international institutions, as a result of their objective to only investigate those most responsible, have put on trial persons who had exercised powerful or high level functions within their governments or organizations while on the other side of the spectrum, the universal jurisdictions courts typically prosecuted lower level operators with direct personal involvement. 46Domestic courts exercising territorial jurisdiction ran the gamut of type of perpetrators, from high officials based on extended liability principles, through direct perpetrators, to persons on the ground committing crimes in an indirect fashion.It is likely that the prosecutors in universal jurisdiction countries had many more suspects given the fact that most criminal suspects had gone through refugee determination or immigration processes first 47 (while senior perpetrators often stayed away from these countries), which are often decided on indirect participation, but that because of resources limitations only the most serious of these cases were selected for criminal investigations.
The combination of taking action against both the leadership up to and including heads of state or leaders of non-governmental militia (as was done by the ICC in the cases of the LRA leadership in the Ugandan case and four indictments for the situation in the DRC), and down to the purveyors of the means to carry out international crimes, sends out the powerful message that the international community understands the complex forces involved in carrying out these crimes and it is willing to take action against both direct and indirect participants.

Introduction
Both international and domestic institutions have developed theories of liability in order to extend the circle of perpetrators beyond those who have been personally involved.
Since the foundation of international criminal law there have been a number of concepts to hold persons liable for the commission of international crimes 48 in addition to person- Some of the concepts set out above overlap in meaning; for instance, it has been said that the term 'inducing' in the ICC Statute is synonymous with 'incitement' while the terms 'solicit' and 'instigate' are similar. 50On the other hand, with respect to the ICC Statute, commentators have indicated that accessory after the fact is not part of this instrument. 51Some concepts, such as inducing, initiation and execution have not been subject to judicial interpretation as of yet.
As domestic courts have for the most part relied on the existing modes of liability in their own criminal codes, 52 this part of the article will be limited to a discussion of some of the forms of extended liability at the international level and then only those theories which have been used against persons with high levels of influence.These forms of liability are command responsibility, joint criminal enterprise and perpetration, which correspond chronologically with the prevalent types of accountability utilized by international 50 Schabas, The International Criminal Court: A Commentary of the Rome Statute (OUP 2010) pp.432-433.Cryer et.al., An Introduction to International Criminal Law and Procedure, 3rd Edition  (CUP 2014)   61-89, 89-91, 95-96, 102-104, 110, 112-119 and 131-133; Ambos 2013, op.cit., pp.114-117; Currie &  Rikhof 2013, op.cit., pp.272-278; Eldar, Exploring International Criminal  institutions, namely the post Second World War tribunals, the ICTY/ICTR/SLSC, and the ICC respectively. 53

Command Responsibility
A superior will be subject to individual criminal liability if the following elements exist: a superior-subordinate relationship; the superior knew or had reason to know that a criminal act was about to be, was being or had been committed, and failure to take necessary and reasonable measures to prevent or punish the conduct in question.A superior-subordinate relationship exists where a superior has effective control over a sub-ordinate, which means that the superior has the material ability to prevent or punish the sub-ordinate's criminal conduct. 55Superior responsibility can arise by virtue of the superior's de jure or de facto power over the relevant subordinate. 56The possession of de jure power may not suffice for the finding of superior responsibility if it does not manifest itself in effective control 57 or if it only amount to influence. 58A superior cannot incur responsibility for crimes committed by a subordinate before he assumed his position as superior. 59The superior-subordinate relationship need not be of a permanent nature, but instead could arise on an ad hoc or temporary basis. 60A superior may however incur superior responsibility no matter how far down the chain of authority the subordinate may be and even if the subordinate has participated in the crimes through intermediaries. 61 superior does not necessarily need to know the exact identity of the subordinates who perpetrated the crimes in order to incur liability. 62th respect to the second requirement, this element is fulfilled if a superior knew or had reason to know that a subordinate's criminal act had been carried out, was taking place or was about the happen. 63A superior had reason to know only if information was available to him, which would have put him on notice of offences committed by subordinates. 64The 'reason to know standard' is met if the superior possessed information sufficiently alarming to justify further inquiry. 65

Joint Criminal Enterprise
The ICTY jurisprudence has distinguished three types of JCE. 70In the first form of joint criminal enterprise, all of the co-perpetrators possess the same intent to effect the common purpose, namely the crime. 71The second form of joint criminal enterprise, the 'systemic' form, a variant of the first form, is characterized by the existence of an organized criminal system, in particular in the case of concentration or detention camps.This form of joint criminal enterprise requires personal knowledge of the organized system and intent to further the criminal purpose of that system.
The third, 'extended' form of joint criminal enterprise entails responsibility for crimes committed beyond the common purpose, but which are nevertheless a natural and foreseeable consequence of the common purpose.The requisite mens rea for the extended form is twofold.First, the accused must have the intention to participate in and contribute to the common criminal purpose.Second, in order to be held responsible for crimes which were not part of the common criminal purpose, but which were nevertheless a natural and foreseeable consequence of it, the accused must also know that such a crime might be perpetrated by a member of the group, and willingly take the risk that the crime might occur by joining or continuing to participate in the enterprise. 72he general requirements for this type of responsibility are as follows: • a plurality of persons, who do not need to be organized in a military, political or administrative structure; • the existence of a common plan, design or purpose which amounts to or involves the commission of a crime.There is no necessity for this plan, design or purpose to have been previously arranged or formulated.The common plan or purpose may materi-70 See: Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, § 227; Judgment, Vasiljević (IT-98-32-A), Appeals Chamber, 25 February 2004, § 100; Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, § 64.It is worth noting that in one of the first cases in which JCE was used, namely the Tadić case, the accused had been acquitted by the Trial Chamber since it could not be proven that he, as part of a larger group of five men, had played any part in the commission of murder.The Appeals Chamber found that there was criminal liability based on JCE even if there was no proof of the personal commission of any of the members in the JCE; see for more details, Darcy, Collective Responsibility and Accountability Under International Law (Transnational Publishers 2007) pp.227-228.For an subsequent detailed analysis that the Tadić case had correctly considered JCE to be part of customary international law, see Judgment, Đorđević (IT-05-87/1-A), Appeals Chamber, 27 January 2014, § § 32-58.alise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise; • participation of the accused in the common design involving the perpetration of one of the international crimes.This participation need not involve commission of a specific crime under one of those provisions but may take the form of assistance in, or contribution to, the execution of the common plan or purpose; the participation in the enterprise must be significant, meaning an act or omission that makes an enterprise efficient or effective; e.g. a participation that enables the system to run more smoothly or without disruption. 73ore recently, some refinements and clarifications have been made to these general principles. 74n general, the doctrine of joint criminal enterprise can be used against high level functionaries 75 and is not restricted to small-scale cases but can also apply to large criminal enterprises. 76Conversely, where the common purpose includes crimes committed over a wide geographical area, a person may be found criminally responsible for his participation in the enterprise, even if his contributions to the enterprise occurred only in a much smaller geographical area. 77ith respect to the first two categories, it has been made clear that mere membership in the group having a common criminal purpose is not sufficient, 78 although an omission can amount to JCE participation. 79However, it is not required that each member in the JCE is identified by name but it can be sufficient to refer to categories or groups of persons. 80he common criminal objective of the JCE may also evolve over time, as long as the members agreed on this expansion of means.It means that the crimes that make up the common purpose may evolve and change over time and as such the JCE may have different participants at different times. 81t is not necessary that the persons carrying out the actus reus of the crime forming part of the common purpose have been participants in or members of the JCE.Consequently, persons carrying out the crime need not share the intent of the crime with the participants in the common purpose.Nor is the mental state of persons carrying out the crime a determinative factor in finding the requisite intent for the participants in a JCE.But if a JCE member used a non-member to commit a crime, that crime must be traced back to the member of the JCE. 82For persons in a criminal enterprise to be liable it must be shown that they acted together, or in concert with each other, in the implementation of a common objective, 83 but is not a legal requirement that they acted in unison. 84ith respect to the contribution factor, the participation or contribution of an accused to the common purpose need not be substantive or criminal but it should at least be a significant contribution to the crimes committed. 85The fact that different persons might have different levels of involvement does not negate the existence of a JCE and a different level of involvement can be dealt with at the sentencing stage. 86A person's position of authority and silent approval militate in favour of a finding that his participation was significant, 87 which includes a failure to ensure the investigation and punishment of crimes committed. 88ith respect to the third category of JCE a person can only be held responsible for a crime outside the common purpose, if under the circumstances of the case: (i) it was foreseeable that such a crime might be perpetrated by one or othermembers of the group and (ii) the accused willingly took that risk (dolus eventualis).The crime must be shown to have been foreseeable to the accused in particular. 89llingly taking a risk means a decision to participate in a JCE with the awareness that crime was a possible (not probable) consequence of the implementation of that enterprise. 90For third category JCE liability, the accused does not need to possess the requisite intent for the crime falling outside the common purpose.This also applies to specific intent crimes.The mental state of the person or persons carrying out the extended crime is not relevant for the finding of the mental state of the accused, but is determinative to the finding of which extended crime was committed. 91 JCE can also be a basis for liability in genocide, including the third category. 92CE has been used outside the ICTY/ICTR context in the proceedings of the Sierra Leone Special Court 93 as well in the Extraordinary Chambers in the Court of Cambodia, although in the latter institution it was decided that the third category was not part of 89 customary international law nor was it included in the law of Cambodia during the time for which the Chambers had jurisdiction, in the seventies. 94

Perpetration 95
According to the ICC jurisprudence, there are three forms of committing a crime as a perpetrator, namely where a person: (a) physically carries out the objective elements of the offence (commission of the crime in person, or direct perpetration); (b) has, along with others, control over the offence by reason of the essential tasks assigned to him or her (commission of the crime jointly with others, or co-perpetration); or c) controls the will of those who carry out the objective elements of the offence (commission of the crime through another person, or indirect perpetration). 96 addition, the distinction between principals and accessories in a situation with a plurality of persons can also be made along a spectrum, in which different aspects of the involvement are emphasized.If the objective manifestation of the crime (in that all the elements are carried out by the same person) is the focal point of investigation this can be called an objective approach with a person liable as a principal.The subjective approach does not primarily examine the level of contribution but instead the shared intent to carry out a crime, which is done in the JCE or common purpose doctrine.Co-perpetration focuses on the degree of control carried out by a person who is removed from the scene of the crime but has control or is the mastermind behind the commission of the offences. 97he actus reus of co-perpetration is twofold: the existence of an agreement or common plan, 98 which for a time had been possibly replaced by the requirement of shared intent 99 between two or more persons; and the co-ordinated essential contribution 100 by each of these persons resulting in the commission of a crime.With respect to the first of these requirements, the agreement does not have to be explicit nor does the plan have to be specifically directed at committing a crime but only if its implementation embodies a sufficient risk that, in the ordinary course of events, a crime will be committed. 101As to essential contribution, there is no need to establish presence at the scene of the crime or that there was a direct and physical link between the contribution and the commission of the crime. 102The essential contribution appeared to have been replaced by a different element, namely direct contribution but the original approach was restored by the first appeal decision in thie area. 103he mens rea of this type of liability has three aspects, namely the subjective element of the co-perpetrators with respect to underlying crime, secondly the fact that the co-perpetrators are all mutually aware and mutually accept that implementing their common plan may result in the realization of the objective elements of the crime and thirdly that 99 the persons are aware of the factual circumstances enabling them to jointly control the crime. 104

Observations with respect to participation in international crimes
The three types of liability discussed above, all have some peculiarities, apart from (or maybe because of) built-in legal obstacles, which have limited their application in a more general sense across all the international institutions.
Command responsibility was a main-stay in the charges in both international and national military tribunals after the Second World War but its importance diminished in its application by the ICTY, ICTR or ICC.Two factors seem to have contributed to this lack of interest in this form of liability at the two tribunals and the international court.The first factor is related to the fact that after the Second World War, the notion of command responsibility was in its infancy and a broad notion of what constitutes knowledge was applied, resulting in a doctrine, which was considered too large a circle to be applied to such perpetrators. 105Secondly, the evidence available in especially German and Japanese military cases was primarily based on documents, which made it easier to impute the various aspects of commander liability, such as control, knowledge and measures to prevent or punish.
This situation changed when the ICTY and ICTR entered the picture of international justice.The law of command responsibility became the subject of more scrutiny by their judges with as a result that the some of the requirements became the subject of a higher or least more detailed threshold, especially for non-military cases.Combined with less availability of documentary evidence and necessarily more reliance on insider witnesses or technological evidence (which became more crucial but harder to obtain, especially for the knowledge aspect) some cases, which exclusively used this theory of the case, were not successful. 106For that reason, the JCE doctrine became more attractive to prosecutors.
While JCE had its origin in the concentration camp cases after the Second World War, it came in full bloom especially at the ICTY, followed by the ICTR and then the SLSC.Over time some manifestations to its application were adjusted by the judiciary of these institutions, most likely as a result of academic criticism and arguments by defence counsel; especially JCE III was seen as problematic in this context, which could account for the fact that it is not part of the ICC equivalent of JCE, namely common purpose in article 25.3(d). 107ith respect to perpetration, not only is this form of liability controversial in international criminal law in general, 108 its parameters are uncertain at the moment as a result of disagreement between ICC trial judges themselves.It is hoped that the ICC Appeals Chamber, which heard the appeal in the Lubanga case on May 19-20, 2014, will at least resolve the latter issue.

Conclusion
International criminal law as a pursuit of global justice has changed over the last 20 years.
Originally, the main actors in this arena were either an international or hybrid tribunals but the situation has changed.Now that a large number of domestic players have entered the international justice arena there is a risk of unbridled and uncontrolled diversity.In itself diversity at the local level is not problematic since international law can and should take into account local conditions and customs.In addition, given the fact that international law still finds a great deal of its sources in domestic practice 109 eventually these state practices will have an effect on international law and therefore international institutions, especially in international criminal law where little state practice is required to create a new custom. 110ut this strong relationship between individual state practice and international custom in international criminal law creates an equally strong responsibility for states, now that they are engaging in this area of law, to ensure that they adhere to the basic principles of international criminal law as developed by the international institutions while still retaining the ability to infuse such principles with local content.This process is beginning as some recent jurisprudence in Argentina111 and Canada has shown. 112n the other hand, there is an equally important responsibility on the part of the international institutions to provide consistent legal guidance to national institutions when they engage in international criminal prosecutions.This guidance, in so far as it pertains to the most relevant form of extended liability, has not been forthcoming as of yet at the international level although the possibility exists that some of the divergent practices can be reined in.
Finally, the present reality that most cases of both high and low level perpetrators have been successfully prosecuted in countries operating on the basis of territorial jurisdiction suggests that there could be a better division of labour between the various international and domestic institutions.Such a division of labour would be based on a dual complementarity approach.At the first level states with an ability to carry out meaningful prosecutions for war crimes, crimes against humanity and genocide should be responsible for doing so for crimes committed on their territory or by their nationals.Persons, who have fled such countries, should be returned there either by employing the means of extradition or immigration remedies such as deportation.If a prosecution in such a country is not possible and a perpetrator is present in another country the latter should rely on either passive or universal jurisdiction to take action against that perpetrator.At the highest level, i.e. when the other two avenues are not possible the ICC (being most likely the only institution at the international level after 2017) could step in.

109
This can be both in treaty law where a multi-lateral convention gains more strength if more countries ratify such treaties and in customary international law where states are still a very important direct source of law.
41ICTR97-23-S, September 4, 1998, upheld by the Appeals Chamber on October 19, 2000, ICTR 97-23-A.42 While international institutions can bring sitting heads of state to justice, national states can only do so against former heads of state according to the International Court of Justice in the Democratic Republic of the Congo versus Belgium case, decided February 14, 2003.For more information, see Currie & Rikhof 2013, op.cit., p. 3, footnote 9. 43 Gustav Krupp von Bohlen und Halbach was indicted but did not stand trial during the IMT proceedings due to mental illness.Other trials carried out against industrialists included the Krupp (Law Reports of Trials of War Criminals, Volume X, 69), Flick (Law Reports of Trials of War Criminals, Volume IX, 1), I.G.Farben (Law Reports of Trials of War Criminals, Volume X, 1), Zyklon B (Law Reports of Trials of War Criminals, Volume I, 93) and the Roechling (Law Reports of Trials of War Criminals, Volume X, 56-57) trials.
Law's Reluctance to Resort to Modalities of Group Responsibility: Five Challenges to International Prosecutions and their Impact on Broader Forms of Responsibility, 11 Journal of International Criminal Justice (2013) pp.331-349; Muñoz-Conde & Olásolo, The Application of the Notion of Indirect Perpetration through Organized Structures of Power in Latin America and Spain, 9 Journal of International Criminal Justice (2011) pp.113-135; Ambos, The Fujimori Judgment: A President's Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus, 9 Journal of international Criminal Justice (2011) pp.137-158.

110See
Van der Wilt, National Law: A Small but Neat Utensil in the Toolbox of International Criminal Tribunals, 10 (2) International Criminal Law Review (2010), pp.209-241.

14
Their work has been taken over in part by the United Nations Mechanism for International Criminal Tribunals, see http://www.unmict.org/.15TheStatute can be found in 37 International Legal Materials p. 999 and on the United Nations website at http://un.org/law/icc.The ICC's own website is http://www.icc-cpi.int/;122 countries have ratified the Statute.
16This was the result of the first review conference held in Kampala and contained in Resolution RC/Res.6.

Country where crimes occurred Crime(s) Number of convictions 26 Range of conviction dates Range of sentences 27
system called gacaca from 2005-2012; around 1.2 million people were processed through this system; in 2012, the Rwandan government established a specialized chamber in the High Court to hear cases involving international crimes.

40
While four others have been tried (Pol Pot in Cambodia), indicted (Bordaberry in Uruguay) or convicted (Ben Ali in Tunisia and Mubarak in Egypt) for regular (but similar in seriousness as opposed to a large number of corruption or property charges leveled in other cases) crimes by domestic courts; for more background see Olasolo, Criminal Responsibility of Political and Military Leaders for Genocide, Crimes against Humanity and War Crimes: with Special Reference to the Rome Statute and the Statute and Case Law of the Ad Hoc Tribunals (Hart Publishing 2008); Olasolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (Hart Publishing, 2009); and Lutz & Reiger (eds.),ProsecutingHeads of State,(CUP 2009), especially the Appendix at pages 295-304. of the cases of the two heads of state indicted by the ICC, Omar Al Bashir from Sudan and Muammar Gadaffi of Libya, the former is in the pre-trial phase and at large while the latter has died while another ex-head of State, Laurent Gbagbo of Ivory Coast, has also been indicted) the ICTR sentenced the prime minister of Rwanda during the 1994 genocide, Jean Kambanda, to life imprisonment in 1998.41PresidentSlobodanMilosevic of the former Yugoslavia was indicted by the ICTY in 1999 and 2001 and put on trial in 2002, which would have been completed if he had not died while in custody during the proceedings in 2006.The Sierra Leone Special Court indicted the former president of Liberia, Charles Taylor, in 2006 and his trial started in early 2008 ending with a conviction in 2012 in The Hague.Another hybrid tribunal, the Special Court of Iraq, completed proceedings against Saddam Hussein in 2006 resulting in his execution the same year.Khieu Samphan, the former president of Democratic Kampuchea, was investigated by the Extraordinary Chambers in the Courts of Cambodia (ECCC), his trial started in June 2011, and he was convicted and sentenced to life imprisonment on August 7, 2014.In addition, there have 13 attempts at the domestic level to take action against former heads of state since 1992.42

Table 4 : Modes of participation for completed offences 49
committing such crimes.49Table4setsoutthevarious forms of extended liability for completed offences.Personally committing has been defined as follows: 'the physical perpetration of a criminal act or the culpable omission of an act that was mandated by a rule of criminal law' while the person 'must have acted with the intent to commit the crime, or with an awareness of the substantial likelihood that the crime would occur as a consequence of his or her conduct' , see: Judgment, 48For a general overview of the principles in article 25.3 of the ICC Statute, including the notion of hierarchy of blameworthiness, see Judgment, Katanga (ICC-ICC-01/04-01/07), Trial Chamber, March 7, 2014, § § 1383-1387.ally 20 October 2010, § 219; Judgment, Kanyarukiga (ICTR-02-78), Trial Chamber, 1 November 2010, § 622; Judgment, Munyakazi (ICTR-97-36A-A), Appeals Chamber, 28 September 2011, § 135; Judgment, Karemera et al. (ICTR-98-44-T), Trial Chamber, 2 February 2012, § 1606.