Study On Joint Criminal Act In International Criminal Law

The doctrine of bearing criminal responsibility solely for ones is an universal principle in the modern domestic criminal law in the world. Anyone should be held criminally liable for their criminal acts committed without any pretext to escape legal punishment. An offender bears criminal responsibility only for his own crimes rather than those of others. The principle of individual criminal responsibility is laid on the Nuremberg Trials and Tokyo Trials after World Warâ…¡for the crime of genocide, crimes against humanity and war crimes which are different from ordinary crimes.To study, comb, transform and construct individual criminal responsibility for international crimes, in particular the criminal responsibility of the senior political and military leaders is the legal basis for effectively combating serious international crime. And if so, no impunity principle can be implemented; a global platform for interacting with each other on individual criminal responsibility for international crimes can be built, which can be used to compare theories and practices among different countries from horizontal point and theories and practices of different countries with international treaties, the Ad hoc Tribunal Statutes, the Rome Statute and international trials from vertical point.The important evolution of international criminal law experiences in the past few years is that the senior political and military leaders are held the principals and bear the heaviest criminal responsibility for large-scale and systematic international crimes. The Rome Statue has a different choice to the distinction between the principal and accessorial liability, the notion of joint criminal enterprise and the notion of control of crime for the principal role of senior political and military leadersin the large-scale and systematic international crimes to the ICTY and ICTR Case Law.The drafter of the Rome Statute, based on the ICC system, does not completely inherit the ICTY and ICTR Case Law in the evolution of international criminal law. Compared to the substantive provisions of ICTY and ICTR Statutes, Article 10, Article 21 and paragraph 3 of Article 22 of the Rome Statute provide a clearly unique system for the ICC.The thesis consists of five chapters. Chapter 1 emphasizes international crimes, the specific characters of individual criminal responsibility for international crimes and the central role of the senior political and military leadersin the large-scale and systematic international crimes. When the crimes occur, the senior political and military leaders are usually far away from the crime scene and have no direct contact with their subordinates who physically commit the crimes. If we apply the domestic traditional concepts of criminal responsibility, it seems hard to reflect the correspondingly grave criminal responsibility of the senior political and military leadersbecause of their lacking of direct criminal behaviors. In response to this problem, international criminal law focuses on the development of the specific concepts of crimes. Control of the crime and joint criminal enterprise are two concepts to reflect the central role of the senior political and military superiors. However, these concepts are not coined by the international criminal law, but are inherent in the domestic criminal law, which are developed and adjusted to certain circumstances of international crimes.Chapter 2 focuses the distinction between perpetrators bearing principal criminal responsibility and accessories bearing secondary criminal responsibility. Perpetrators are those whose criminal responsibility is independent of other accessories. Accessories are those whose criminal responsibility comes from perpetrators'criminal responsibility. The chapter firstly mentions the question whether international criminal law has adopted this distinction. After analyzing the evolution of international criminal law after World War II, the thesis obtains an affirmative answer and at the same time discusses the different actions respectively by perpetrators bearing principal criminal responsibility and accessories bearing secondary criminal responsibility.The notion of joint criminal enterprise distinguishes the different actions respectively by perpetrators bearing principal criminal responsibility and accessories bearing secondary criminal responsibility based on subjective approach, while the notion of control of crime distinguishes the different actions respectively by perpetrators bearing principal criminal responsibility and accessories bearing secondary criminal responsibility based on material-objective approach. Having discussed the usual positions of subjective approach and material-objective approach, the author obtains the conclusion that despite the Appeals Chamber Judgment on the Tadic Case by the ICTY and the present trend of widely accepting the notion of control of crime, customary international law has not yet formed agreement on the distinction of the different actions respectively by perpetrators bearing principal criminal responsibility and accessories bearing secondary criminal responsibility.Chapter 3 demonstrates the notions of direct and indirect perpetration. The notion of omission and distinction between the omission of this form and the omission under accessories'criminal responsibility or under the doctrine of superior responsibility are particularly emphasized.The chapter also demonstrates the notion of indirect perpetration, defined in article 25(3)a of the Rome Statute as the commission of a crime through another person. The chapter emphasizes the specific characters of organized structure of power which makes the notion of indirect perpetration applicable. The notion of indirect perpetration does not apply to small-scale paramilitary units or terrorist groups because the limited staff number makes the members of the small-scale groups irreplaceable, or it may be said that these groups have only horizontal but not vertical characters from the view of structure. Following these analyses, the chapter has the conclusion that the several other forms of action, such as ordering, instigation and planning, that bearing secondary criminal responsibility, can be available when the notion of indirect perpetration does not apply.The last two chapters demonstrate the notion of co-perpetration. The notion must be consistent with the general principle of joint crime for the distinction between the perpetrators bearing principal criminal responsibility and accessories bearing secondary criminal responsibility.Chapter 4 demonstrates in detail the doctrine of joint criminal enterprise, analyzes the three forms of joint criminal enterprise in the Appeals Chamber Judgment on the Tadic Case by the ICTY, and their relationship with the act form of aid and abet.The chapter emphasizes the principle developed from Radoslav Brdanin case and Momcilo Krajisnik case to the act of persons with high level position. The joint criminal enterprise in the thesis is divided into two modes. The first is the "traditional joint criminal enterprise" in which senior political and military leadersplot crimes and the low level persons commit crimes. They all belong to the same joint criminal enterprise. The second is "joint criminal enterprise at the leadership level", in which only senior political and military leaderswho plots and put the crimes into action are the members of the joint criminal enterprise, the low level persons who physically commit the crimes are the crime tool used by the senior political and military leadersto secure the crimes. ICTY distinguishes between perpetrators bearing principal criminal responsibility and accessories bearing secondary criminal responsibility according to subjective approach. It is a not good choice. The second mode is actually a not bad choice.Chapter 5 analyzes the notion of co-perpetration based on the notion of control of crime. If one of the co-perpetrators does finishes his task entrusted to him, the common criminal plan will fail. This chapter does also analyze the situation where the senior political and military leadersas co-perpetrators through organized structure of power finish their own essential tasks. The defects of the mode of "joint criminal enterprise at the leadership level" can be resolved through indirect perpetrators.