Extending International Criminal Law beyond the Individual to ...

Extending International Criminal Law 909
the ICTY. It has been suggested that this indirect form of participation ‘may
cover acts that in the Yugoslavia Tribunal’s case law warranted liability for
participation in a joint criminal enterprise’. 33 The ICTY has explained its
approach in a number of cases with the general argument first being articulated
in the Tadic¤ case, where the Tribunal explained that criminal liability
extends in this way beyond those who physically commit the abuses:
‘Although only some members of the group may physically perpetrate the
criminal act (murder, extermination, wanton destruction of cities, towns or
villages, etc.), the participation and contribution of the other members of the
group is often vital in facilitating the commission of the offence in question. It
follows that the moral gravity of such participation is often no less ç or indeed
no different ç from that of those actually carrying out the acts in question.’ 34
The Appeals Chamber has more recently summarized the types of joint criminal
enterprise under three headings: all of the co-perpetrators possess the
same intent to effect the common purpose; a ‘systemic’ form where the perpetrators
have personal knowledge of the organized criminal system; and a third
‘extended’ form where crimes are committed beyond the common purpose, but
which are a natural and foreseeable consequence of this common purpose. 35
This type of participation in the crime requires one to identify two different
intentions. According to the ICC Statute we need: first an intentional contribution,
and second, knowledge of the intention of the group. The secondary
participant, or in our case, the complicit corporation, can either intend to
further the crime, or simply intentionally contribute with knowledge of the
others’ intention to commit the crime. The Statute is complex in this regard but
it does admit that one can be criminally liable even where one only has knowledge
of the crime rather than a shared purpose to commit that crime. The Pre-
Trial Chamber of the ICC has explained that this residual form of liability
presents a threshold for a different, seemingly less engaged state of mind, and
can be likened to joint criminal enterprise:
In this regard, the Chamber notes that, by moving away from the concept of co-perpetration
embodied in article 25(3)(a), article 25(3)(d) defines the concept of (i) contribution to the
commission or attempted commission of a crime by a group of persons acting with a
common purpose, (ii) with the aim of furthering the criminal activity of the group or in
the knowledge of the criminal activity of the group or in the knowledge of the criminal
purpose.
33 G. Werle,‘Individual Criminal Responsibility in Article 25 ICC Statute’, 5 Journal of International
Criminal Justice (2007) 953^975, at 974^975. See also E. van Sliedregt, The Criminal
Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C.
Asser Press, 2003), at 41^115; A. Eser, ‘Individual Criminal Responsibility’, in A. Cassese,
P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A
Commentary (Oxford: Oxford University Press, 2002), 767^822; W.A. Schabas, ‘Enforcing
International Humanitarian Law: Catching the Accomplices’, 83 International Review of the Red
Cross (2001) 439^459; K. Ambos, ‘Article 25’, in O. Triffterer (ed.), Commentary on the Rome
Statute of the International Criminal Court (Baden-Baden: Nomos, 1999), 475^493.
34 Judgment, Tadic¤ (IT-94-1-A), Appeals Chamber, 15 July 1999, x 191.
35 Judgment, Kvoc› ka (IT-98-30/1-A), Appeals Chamber, 28 February 2005, xx 81^83.