Prosecuting International Crimes in Africa - PULP - University of ...

116 Chapter 4
Essentially, there must be a plurality of persons and the accused must
voluntarily participate in one aspect of the common design, for example,
by formulating a plan together with co-perpetrators to commit a crime in
effecting the common plan. The accused must also have intended the final
result of his participation in the crime, regardless of his or her noncommission
of the crime personally. There must be a common plan
between accused persons; an intention to participate in a joint criminal
enterprise and to further that desire either individually and jointly; a
common criminal plan within the criminal enterprise or group; and a
purpose of a criminal plan. Further, crimes committed must constitute the
purpose of the common plan; the intent of the accused must be to
participate in the criminal enterprise; and finally, crimes committed must
have been intended and included in the criminal enterprise by accused
persons. 113 This form of criminal responsibility is a form of commission
but not a form of accomplice. This form of liability is reflected in the
indictment against Charles Taylor. 114
2.7.3 Superior criminal responsibility
Superior criminal responsibility is addressed in article 6(3) of the Statute of
the SCSL. Superiors are held responsible for acts of their subordinates,
‘where a superior has knowledge or reason to know that subordinates are
about to or have committed an offence and that superior fails to take the
necessary and reasonable measures to prevent or to punish the perpetrators
thereof’. 115 The SCSL has set legal requirements for superior
responsibility. 116 In general, the prosecutor must prove the following
conditions: the accused held a superior position in relation to subordinates
sufficiently identified; and had effective control over the said subordinates.
The accused must bear responsibility for their criminal acts and knew or
had reason to know that the crimes were about to be or had been
committed by his subordinates. There must be a related conduct of those
subordinates for whom the accused is alleged to be responsible. Finally,
‘the accused failed to take the necessary and reasonable means to prevent
such crimes or to punish the persons who committed them’. 117 Superior
responsibility may arise for military and civilian leaders alike provided that
such leaders have and exercise effective control over their subordinates.
113 Bhoke (n 6 above) 180; Piacente (109 above) 449.
114 Prosecutor v Taylor paras 1-6, 22, 31-34 and 59
115 Prosecutor v Norman, Fofana and Kondewa (as above).
116 Prosecutor v Fofana and Kondewa (n 45 above) paras 232-251.
117 Prosecutor v Sesay (Case SCSL-03-5-PT) Decision and order on defence preliminary
motion for defects in the form of the indictment 13 October paras 7, 12-14.