International and Transnational

International and Transnational
LAW 503 International and Transnational Criminal Law and Procedure Assist. Prof. R. Murat ÖNOK and – XIII

CONTENTS GENERAL PRINCIPLES OF ICL
THE PRINCIPLE OF INDIVIDUAL CRIMINAL RESPONSIBILITY (CEZA SORUMLULUĞUNUN ŞAHSİLİĞİ) THE PRINCIPLE OF LEGALITY OF CRIMES 3.1 THE PRINCIPLE OF SPECIFICITY 3.2 THE PRINCIPLE OF NON-RETROACTIVITY 3.3 THE BAN ON ANALOGY (lex stricta) 3.4 THE PRINCIPLE OF LEGALITY OF PENALTIES (NULLUM POENA SİNE LEGE) 4. MODES OF CRIMINAL LIABILITY 4.1 PARTICIPATION – OVERVIEW 4.2 PARTICIPATION – ICL 4.3 MODALITIES OF LIABILITY UNDER ICL –General Assessment 4.4 PERPETRATION/COMMISSION 4.5 CO- PERPETRATION 4.6 COMMISSION THROUGH ANOTHER PERSON 4.7 AIDING AND ABETTING 4.8 ORDERING 4.9 SOLICITATION (TEŞVİK ETME)/ INDUCEMENT (İKNA ETME) 4.10 PLANNING AND PREPARATION 4.11 ATTEMPT

CONTENTS 5. JOINT CRIMINAL ENTERPRISE (JCE) 5.1 Idea Behind JCE
5.2 Historical Precedents 5.3 Recent Tribunals 5.4 General Principles of JCE 5.5 Actus Reus of JCE 5.5.1 JCE Type 1 – “Liability for a common intentional purpose” 5.5.2 JCE Type 2 – Systemic cases 5.5.3 JCE Type 3- “Extended JCE” 5.6 Problems with JCE 5.7 Differences between participating in a JCE as a co-perpetrator, and aiding and abetting 5.8 JCE and the Rome Statute COMMAND/SUPERIOR RESPONSIBILITY 6.1 Basics 6.2 Rationale behind the doctrine 6.3 Historical development of the concept 6.4 Requirements 6.4.1 Superior/subordinate relationship 6.4.2 Mental element 6.4.3 Failure to take measures 6.4.4 Causation 6.5 Nature of superior responsibility

CONTENTS 7. DEFENCES/GROUNDS FOR EXCLUDING CRIMINAL RESPONSIBILITY 7.1 Terminology 7.2 Defences in ICL 7.3 The Formulation in the Rome Statute 7.4 Self-defence 7.5 Necessity and duress Necessity and duress in the Rome Statute Self-induced necessity No excuse in cases of special duty to assume danger May duress be a defence to killing? 7.6 Insanity/Mental Disorder 7.7 Intoxication 7.8 Mistake Turkish Law Mistake of fact in ICL Mistake of fact in the Rome Statute Mistake of law

CONTENTS 7.9 Superior Orders Historical development The idea behind the rejection of the defence National and Int’l. Standards Mistake of law and superior orders Superior orders in the Rome Statute 8. IRRELEVANCE OF OFFICIAL CAPACITY AND IMMUNITIES 8.1 Irrelevance of Official Capacity 8.2 Immunities Various Classes of Immnutiy Immunities Deriving From International Law Functional (ratione materiae) Immunities Personal (ratione personae) Immunities Difference between functional and personal immunities Functional Immunities and International Crimes Personal Immunities and International Crimes Conclusion ICJ’s Arrest Warrant Case Executive Summary

1. GENERAL PRINCIPLES OF ICL
When we say “general principles of ICL” we refer to two different notions (Cassese at 32 et seq.): 1. “General principles” as to mean the concept expressed when lecturing the sources of ICL: The primary sources of PIL are: a) Int’l. treaties; b) International custom, as evidence of a general practice accepted as law; c) General principles of law recognised by civilised nations. The secondary sources are: a) Teachings of the most highly qualified publicists; b) Decisions of international courts. Within this classification, general principles of int’l. law (or ICL) refers to the unwritten principles that can be inferred from the general scope, purpose and function of int’l.law/ICL. These are principles inherent in the international legal system.

Every legal discipline has its own foundational principles which set out the overall orientation of that system. These principles provide sweeping guidelines for the proper interpretation of the rules belonging to that legal discipline. The principle of individual criminal responsibility is an example. In this sense, ICL shares many common principles with public. int’l law since it is a branch of that discipline. However, as explained early this year, ICL has many unique features of its own. That is why the general principles proper to ICL prove more helpful. On the other hand, ICL also comprises some principles which are not specific to this body of law. Such principles can be found in most national legal systems. An example is the principle of legality. However, the unique feature of the int’l. legal order and the specific needs of ICL have reshaped the content and scope of these principles. As a result, some of these principles ultimately bear little resemblance to those of municipal systems.

2. By ‘general principles’ of ICL we can also understand the theoretical foundation and normative scope of the institutions of ICL (“u.arası ceza hukukunun genel hükümleri”). Certain institutions of penal law exist in all national legal systems. Rules regarding the formal elements of a crime, justifications, excuses, attempt, participation, sentencing and so on. Obviously, these institutions differ from their counterparts under domestic law. The nature and needs of ICL can reshape, in part, an institution that also exists under national law and attribute to it a partly different meaning under ICL. So, the principle of legality or rules regarding the statute of limitations, or the superior orders defence show some specific features in the field of ICL.

In addition, there are certain institutions which do not exist under domestic penal law and are specific to the needs of ICL. Examples are the doctrine of superior responsibility, and the rules regarding the so-called joint criminal enterprise (JCE). There is no int’l. codification of the general principles of ICL. However, Arts of the Rome Statute constitute the first detailed formulation on this issue. Even so, it should be borne in mind that the Rome Statute does not purport to codify customary law, and is only binding upon states parties. Therefore, other int’l. instruments may have adopted different standards, and states parties may also enter into bilateral or multilateral treaties that adopt different norms.

2. THE PRINCIPLE OF INDIVIDUAL CRIMINAL RESPONSIBILITY (CEZA SORUMLULUĞUNUN ŞAHSİLİĞİ)
Since the Nuremberg trials it has been accepted that only natural persons may commit international crimes: “crimes against international law are committed by men and not by abstract entities and it is only by punishing individuals who commit such crimes” that international law can be upheld. Therefore, criminal responsibility is of an individual nature. The concept of “international crimes of states” has been debated. The term “state criminality” is debatable in itself because the notion of “criminality” refers to liability of a criminal nature, and liability is based on the attribution of a conduct of a criminal nature to a particular individual (Bantekas/Nash at 15). In ICL too, criminal responsibility is shaped by the concept of “guilt” which implies that only natural persons should be held responsible. Criminal liability in both national and international law is generally attributed exclusively to natural persons (Although it is argued that, theoretically, criminal responsibility of states is a possibility – I can not agree with this statement) Even so, it is well known that most int’l. crimes are committed by individuals acting for, or on behalf of, or with the consent or tacit approval of the state. Could in these cases the state itself be viewed to have committed a crime?

Art. 19 of the International Law Commission’s Draft Articles on State Responsibility described an int’l. crime as a breach committed by the state. This draft was replaced by the Artices on Responsibility of States for Internationally Wrongful Acts which would later be finalised in 2001. During the preparatory works, this article was deleted. It was replaced instead by Art. 40 regarding “serious breaches of obligations under peremptory norms of general international law” and “particular consequences” were attached to such violations. So, in positive int’l. law there is no reference to “state crimes”. The most that can be said is that States may be liable for acts breaching peremptory norms (jus cogens) and this would result in an aggravated responsibility regime. But this is not a liability of a criminal nature.

Returning to the meaning of individual criminal responsibility, this is to mean that no one may be held accountable for an act he has not performed or in the commission of which he has not in some way participated, or for an omission that cannot be attributed to him. This was confirmed by the ICTY AC in Tadic ( ): “The basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa)” (§ 186). The principle lays down two notions (Cassese at 33): - Nobody may be held accountable for criminal offences perpetrated BY OTHER PERSONS; - A person may only be held criminally liable if he is CULPABLE for any breach of criminal rules.

The rationale behind the first proposition is that modern penal law no longer recognizes as legitimate the notion of collective criminal responsibility: A group may not be held jointly responsible for crimes committed by a member of the group in his private capacity. Similarly, a member of the group may not be held criminally liable for offences perpetrated by the leaders or other members of the group and to the commission of which he is extraneous. The second proposition is based on the acceptance of individual autonomy whereby each person is endowed with free will and the capacity to choose his conduct. A person may be held criminally liable for the commission of a crime if he entertains a “guilty mind” (mens rea). This is to mean that the frame of mind of the accused expresses or implies his mental participation in the offence. Basically, objective/strict criminal liability is ruled out by ICL.

As expressed before, an exception to this rule was provided for in Articles 9 and 10 of the Statute of the IMT at Nuremberg: Article 9 (1): At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization. Article 10: In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.

As can be seen, mere membership in a criminal organization was regarded as criminal. This was confirmed by Art. II (1) (d) of Control Council Law no. 10, which criminalized ‘membership in categories of a criminal group or organization declared criminal by the International Military Tribunal’. In its judgment in Göring and others the IMT labelled the following organizations as criminal: the Leadership Corps of the Nazi Party, the Gestapo and the SD, the SS. However, the IMT refused the doctine of group responsibility and interpreted the provisions of the Statute in accordance with the established principles of criminal law. Thus, the Tribunal stressed out that “criminal guilt is personal” and “that mass punishments should be avoided”, and reduced the notion of “criminal organization” to that of “criminal conspiracy”. Therefore, liability was based on cooperation for criminal purposes. Thus, persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the state for membership, unless they were personally implicated in the commission of criminal acts, were excluded. As a result, members of criminal organizations were not in fact punished for the mere fact of belonging to the organization. Knowledge of the fact that the organization was being used for the commission of crimes, or personal implication in the commission of crimes was required.

3. THE PRINCIPLE OF LEGALITY OF CRIMES
National legal systems may base their criminal law on either the doctrine of substantive justice, or that of strict legality. Doctrine of substantive justice: the legal order must primarily aim at prohibiting and punishing any conduct that is socially harmful or causes danger to society, whether or not that conduct has already been criminalised at the moment it is taken. The basic concern is to defend society against any deviant behaviour likely to jeopardise the social and legal system. This doctrine favours society over the individual (favor societatis). (Cassese* at 36) This doctrine was applied in the Soviet legal system ( ) or in Nazi criminal law ( ). However, a variation of this doctrine was also applied in modern democratic Germany, based on the Radbruch formula, according to which, positive law must be regarded as contrary to justice and not applied where the inconsistency between statute law and justice is so intolerable that the former must give way to the latter. This formula is a reflection of the Natural Justice (doğal hukuk) view that an unjust law must be disregarded. Obviously, the modern positivist understanding of law would today reject such assertion, at least under Turkish law. * All references to Cassese are to the previous (2nd) edition.

The German Federal Constitutional Court’s judgment of 24. 10
The German Federal Constitutional Court’s judgment of in Streletz and Kessler was based on this (“materielle Gerechtigkeit”) understanding. The accused were former senior officials of the former German Democratic Republic (GDR – East Germany). They were charged with incitiment to commit intentional homicide for their responsibility in ordering the shooting and killing by border guards of persons trying to flee from the GDR. They invoked as a ground of justification the fact that their actions were legal under the law applicable at the time in the GDR. The defendants argued that holding them criminally responsible would amount to retrospective application of criminal law and would violate Art. 103 (2) of the German Constitution regarding the nullum crimen sine lege principle. The Court rejected this submission by noting that the prohibition on retroactive application derives its justification from the special trust reposed in criminal statutes enacted by a democratic legislature respecting fundamental rights. The ECtHR found this interpretation to be in compliance with the European Convention in Streletz, Kessler and Krenz v Germany ( ). The Court found that the German practice did not violate Art. 7.

Doctrine of strict legality: A person may only be held criminally liable if at the moment he commmitted the act it was regarded as a criminal offence under the applicable law (nullum crimen sine lege, a maxim credited to the German lawyer P.J.A.R. von Feuerbach). The NCSL principle basically establishes the ex post facto prohibition: conduct must be criminalized and penalties fixed in advance of any criminal prosecution (Slye/Van Schaack at 121). Strict legality is the understanding adopted by most democratic civil law countries, including Turkey, Germany, France, Austria, Italy, Spain, Greece... The principle serves two purposes (Slye/Van Schaack at 121-2): It ensures that individuals have fair notice of prescribed conduct so that they can rationally adjust their behaviour to avoid sanction; It protects citizens from arbitrary state action in the face of amibiguities and gaps in the law.

According to the understanding of strict legality, the doctrine articulates four basic notions (Cassese at 41 et seq.): 1. NULLUM CRİMEN SİNE LEGE SCRİPTA (criminal offences must be provided for in written legislation): Criminal offences may only be provided for in written statutes enacted by the legislative organ. Thus, criminal offences may not be created through customary rules or secondary legislation enacted by administrative bodies. 2. NULLUM CRİMEN SİNE LEGE CERTA (principle of specificity (belirlilik ilkesi) - criminal offences must be provided for through precise, clear legislation): Rules criminalizing human conduct must be as specific and clear as possible, so as to guide the behaviour of citizens. 3. NULLUM CRİMEN SİNE LEGE PRAEVİA (non-retroactive application of penal law): A person may only be punished for behaviour that was considered criminal at the time the conduct was undertaken, and may not be punished based on a law passed subsequently. 4. NULLUM CRİMEN SİNE LEGE STRİCTA (ban on analogy): Resort to analogy in applying criminal law is prohibited. An analysis of these four rules connected with the principle of strict legality show that the purpose is to safeguard citizens from arbitrary prosecution, by providing protection against both arbitrary government power and excessive judicial discretion. This doctrine favours the individual over the society (favor rei).

Obviously, common law systems can not strictly comply with the requirement that criminal rules be in written form. We had previously discussed whether a conduct could be proscribed and punished through customary law. According to one view, the basis of a criminal charge should be either in the national law of a State, or in a statute of an ICT. This excludes incriminations based exclusively on (unwritten) customary law. The textbook argues (at 18) that ‘there is no reason in principle why customary international law cannot be used to form the relevant criminal law” and adds that the settled case-law of the ICTY is also in this direction. The ECtHR accepts that criminalization is legitimate as long as the relevant rule is accessible and foreseeable, even if it is not written. In fact, Art. 7(2) of the European Convention provides that Art. 7 on “no punishment without law” “shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations” (Also see Art. 15 ICCPR in the same direction). An example is the inadmissibility decision of in Kolk and Kislyiy/Estonia, where two individuals were convicted in 2003 for crimes against humanity committed in 1949 despite the fact that the applicable law at the time did not lay down such crimes:

“The Court reiterates that Article 7 § 2 of the Convention expressly provides that this Article shall not prejudice the trial and punishment of a person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations. This is true of crimes against humanity, in respect of which the rule that they cannot be time-barred was laid down by the Charter of the Nuremberg International Tribunal (see Papon v. France (no. 2) (dec.), no. 54210/00, ECHR 2001‑XII, and Touvier v. France, no /95, Commission decision of 13 January 1997, Decisions and Reports 88-B, p. 161). The Court notes that even if the acts committed by the applicants could have been regarded as lawful under the Soviet law at the material time, they were nevertheless found by the Estonian courts to constitute crimes against humanity under international law at the time of their commission. The Court sees no reason to come to a different conclusion. It is noteworthy in this context that the Soviet Union was a party to the London Agreement of 8 August 1945 by which the Nuremberg Charter was enacted. Moreover, on 11 December 1946 the United Nations General Assembly affirmed the principles of international law recognised by the Charter. As the Soviet Union was a member State of the United Nations, it cannot be claimed that these principles were unknown to the Soviet authorities. The Court thus considers groundless the applicants’ allegations that their acts had not constituted crimes against humanity at the time of their commission and that they could not reasonably have been expected to be aware of that.”

A final example is the Scilingo case before the Spanish High Court (Audiencia Nacional, judgment of ). The defendant (Adolfo Scilingo) had been charged with terrorism, torture and genocide for his complicity in crimes committed during the reign of the Argentine military junta. The Audiencia Nacional convicted Scilingo of crimes against humanity, a crime that had only been incorporated into the Spanish Penal Code in 2004, well after the crimes imputed to the defendant had been committed. The Court argued that crimes against humanity were prohibited by customary int’l. law at the time of the events in question. The jus cogens and erga omnes nature of the prohibition in question made it directly applicable in the Spanish legal system. Analogous provisions existed in Argentine domestic law, making the customary prohibition part of national law. Therefore, this was sufficient to put the defendant on notice of potential penalties for his conduct (Slye/van Schaach at 134). The reasoning was later rejected on appeal by the Supreme Court ( ) which held that customary int’l. law was not directly applicable in the Spanish legal system. The conviction was upheld, but the charges were substituted for the domestic crimes of murder and illegal detention. Scilingo was sentenced to 640 years by the Audiencia Nacional (later increased to 1084 years by the Tribunal Supremo)! However, the statutory maximum limit for enforcement is 30 years in Spain.

Which is the system adopted by ICL?
Until recently, int’l. law had applied the doctrine of substantive justice. However, in recent years, especially after the creation of the ad hoc tribunals in 1993 and 1994, the doctine of strict legality is taking over. This tendency is clearly illustrated by the Rome Statute. The doctrine of substantive justice was initially favoured for reasons of expediency (Cassese at 39): - States were not ready to enter into criminal law treaties, and customary rules had not evolved in the field; - Thus, when new types of int’l. criminality appeared (crimes against peace, crimes against humanity), the int’l. community was forced to rely on this doctrine. The objections of ex post facto law advanced by German defence counsels were rejected by the IMT in Göring and others by relying on this doctrine, on the grounds that it was not contrary to justice to punish those crimes even if the relevant conduct was not expressly criminalized at the time of their commission (in fact, the textbook argues (at 18) that the following statement asserts that crimes against peace had been criminalized at the relevant time):

“In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished” (§ 219). (The textbook argues (at 18) that the Nuremberg Tribunal “may have been correct about the law on point” since the modern law of human rights did not yet exist at that time). (Slye/van Schaach (at 128) argue that the gist of this statement is the understanding that certain acts are malum in se (inherently bad or ‘wrong in itself’). Post WWII cases upheld this understanding. For example, in an early case it was held that (ICTY T.Ch. in Delalic, judgment of , para. 313) ‘[t]he purpose of this principle is to prevent the prosecution and punishment of an individual for acts which he reasonably believed to be lawful at the time of their commission. It strains credibility to contend that the accused would not recognize the criminal nature of the acts alleged in the Indictment’. (Slye/van Schaach (at 129) argue that these statements ‘elide the morally wrong and the legally criminal’, and invoke the natural law (doğal hukuk) tradition.

However, substantive justice was gradually replaced by strict legality
However, substantive justice was gradually replaced by strict legality. This is because: - Many states became parties to human rights treaties laying down the nullum crimen sine lege principle. ICCPR Art. 15, ECHR Art. 7, ACHR Art. 9, Third Geneva Convention Art. 99 (1), Fourth Geneva Convention Art. 67, Add.Prot.I (1977) Art. 75 (4) (c). - The network of ICL greatly expanded both through a number of int’l. treaties criminalizing certain conduct and by the accumulation of case-law.

Consequently, the ICTY and ICTR Statutes implicitly relied on the doctrine of strict legality, whereas Art. 22 of the Rome Statute explicitly provided for this principle: “1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute”. Therefore, the Rome Statute is the first ICT to expressly articulate the NCSL principle. In addition, Art. 24 (2) of the Rome Statute also provides for lex mitior (lehe kanun uygulaması – the rule of lenity): ‘In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.’

Objections based on NCSL have been regularly advanced by defendants before ICTs. This is a consequence of the general features of ICL (it is a relatively new branch, it is rudimentary and still developing, it is changing very quickly). In addition, we had also studied that ‘the aim of PIL is to reconcile, as far as possible, the conflicting interests and concerns of sovereign states. In order to accommodate the political concerns and prerogatives of states, and still be able to reach an agreement, many rules have to be loose and ambiguous.’ Therefore, many int’l. treaties are open-textured. In that framework, the crimes were rarely drafted in terms of the basic elements of the crimes, partly due to the fact that drafting was done by diplomats lacking technical drafting skills and acting in a politicized negotiating environment. In addition, at the time of adopting certain prohibitions, it was not ‘necessarily envisioned’ that such provisions would be applied directly to individuals for the purpose of establishing criminal responsibility. As explained by Slye/Van Schaack (at 125) ‘[R]ather it was expected that states would incorporate the general prohibitions contained in these treaties into their domestic penal codes and then apply these presumably more precise criminal definitions in their own courts...’

Therefore (Slye/Van Schaack at 123 et seq.):
Int’l. and national courts had to apply new ICL norms to past conduct, and in doing that, had to engage in a ‘full-scale...refashioning of ICL through their jurisprudence’. Courts therefore updated and expanded historical treaties and prohibitions. In doing that: + Courts upset arrangements carefully negotiated between states, rejecting political compromises made by states during the drafting of the related conventions; + Courts added content to vaguely worded provisions ‘that were conceived more as retrospective condemnations of past horrors than as codes for prospective penal enforcement’. Slye/van Schaach argue that while ICTs ‘may achieve substantive justice with these outcomes, they also risk undermining the legitimacy of ICL as a field of criminal law by violating the human rights of criminal defendants appearing before them’. In response to this objection, it might be argued that it is incorrect to regard ICL as merely ‘a field of criminal law’, and to evaluate it from a national criminal law perspective. ICL is primarily a branch of public int’l. law, and exigencies connected to the specific features of ICL have caused a change in the scope and meaning of institutions which also exist under national criminal law.

Indeed, it might be argued that the NCSL principle lacks ‘a rigorous manifestation’ in ICL because of the inherent differences between int’l. and national legal processes Slye/van Schaach at 127). One way to achieve a more relaxed application of NCSL under ICL would be to treat it as a ‘flexible principle of justice’. If that is the case, competing principles may override NCSL. So, it may be argued that if convicting a defendant in breach of this principle is a form of injustice, it is a larger injustice to allow loopholes in the law to save from punishment an accused who caused serious harm (Slye/van Schaach at 128). While this argument has some attraction, it is based on the understanding of “material justice” rather than the “strict legality” which is gaining prevalence in ICL. Further, it is hard to treat NCSL as merely a principle of justice, rather than a legal norm. Indeed, ICTs accept NCSL as a ‘general principle of law’, hence, as a rule that is common to all law systems. An understanding based on the natural law tradition would also justify a less strict application of NCSL: ‘certain moral rules are considered universally and intrinsically knowable in advance, prior articulation and actual notice are deemed unnecessary’ (Slye/van Schaach at 129). This might be true for many violations of ICL which represent acts of a heinous nature. However, it is hard to justify under the modern understanding of law the leap from contra bonos mores (“against good morals”) to prosecutable crime.

3.1 THE PRINCIPLE OF SPECIFICITY
Criminal rules must be as detailed, clear, unambiguous as possible, so as to openly indicate to their addressees the conduct prohibited. Both the objective elements of the crime and the requisite mental element must be clearly indicated. The idea is that all those who may fall under the prohibitions of the law know in advance which specific behaviour is allowed or prohibited. Thus, they may foresee the consequences of their action and freely choose the course of action to follow, either in the direction of complying with, or breaching legal standards of behaviour. This principle is strictly applied under the domestic penal law systems of civil law countries such as Turkey. However, it is far from being fully applicable in int’l. law due to the fact that many rules are still loose in their scope and purport. An example provided by Cassese is the provision incorporated into the London Charter and then restated in the ICTY, ICTR and Rome Statutes whereby crimes against humanity encompass “other inhumane acts”.

In addition, before the Rome Statute, many notions, such as rape, torture, persecution, enslavement had not been defined. Even today, the mental element of some crimes is not perfectly clear. Customary rules regarding defences are also not clear. The result is that case-law assumes vital importance in the field of ICL. Courts are expected to fill in possible blanks. However, some further problems emerge at this point (Cassese at 42-3): - There is no central criminal court having the authority to decide for the whole int’l. community on the interpretation of a given rule. The permanent ICC, and the ad hoc int’l. or semi-international tribunals judge over similar subject-matters. So, their case-law may be inconsistent. This is a result of the decentralized and fragmentated nature of int’l. criminal tribunals. - When it is a national court applying ICL, the problem is that each domestic court will make resort to general principles of criminal law proper to its own legal system. So, contradictory interpretation of ICL rules is a possibility. - The ICC marks a significant contribution. Even so, it should be remembered that the Rome Statute does not intend to codify customary int’l. law. So, some rules in the Statute may, in fact, go beyond existing law, whereas some other rules may be narrower in scope than current customary rules. Furthermore, the Statute only binds states parties to it.

Therefore, ICL rules require some major refinement at the level of definitions and general principles. This lack of legal precision creates uncertainty. To safeguard the rights of the accused against this background, some notions play a role that is far greater than in most national systems. The defence of mistake of law, the principle of strict interpretation, the principle of favor rei (imposing that in case of doubt a rule should be interpreted in such manner as to favour the accused) are all notions that in some way compensate for the present flaws of ICL.

3.2 THE PRINCIPLE OF NON-RETROACTIVITY
Rules criminalizing certain types of conduct may not cover acts performed prior to their enactment. Criminal rules are non retroactive, unless they favour the accused. This is to avoid arbitrary punishment of persons for actions which were allowed at the time they were carried out. Obviously, this principle will not apply in case of adopting the material justice approach. Indeed, the London Agreement of 1945 had retroactively penalized two new categories of crime: crime against peace and crimes against humanity. Therefore, ex post facto justice had been applied. In later years, with the emergence of the nullum crimen sine lege principle, the prohibition on retroactive application of criminal law gradually evolved and is now firmly embedded in ICL. Thus, courts may only apply substantive criminal rules that existed at the time of commission of the crime. This is confirmed by Art. 24 (1) of the Rome Statute: “No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.” This prohibition does not mean, however, that courts may not refine and elaborate upon existing rules. It is possible to do this by way of legal construction and interpretation.

A more complex issue is whether some legal ingredients of crimes laid down in int’l. rules may be adapted to new social conditions by way of expansive or evolutive interpretation (genişletici/geliştirmeci yorum). The case law of the ECtHR in CR v UK ( ) may provide guidance. This was a case regarding attempted marital forced sexual intercourse, which was until that time not considered to constitute rape by local courts, as British statute only prohibited “unlawful” forced intercourse and case law had so far regarded that a husband could not be convicted of raping his wife since the status of marriage involved that the woman had given consent to her husband having intercourse with her during the subsistence of marriage. This consent could not be withdrawn unilaterally and, thus, marital forced intercourse was not “unlawful”. However, in this case, the local court had ruled that the wife’s implied consent was a legal fiction and the real question was whether the wife had consented as a matter of fact. As a result, the husband was convicted. The European Commission and Court found this practice to be in compliance with Art. 7 of the ECHR, since that provision could not be read: “as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resulting development is consistent with the essence of the offence and could reasonably be foreseen (§ 34)”.

The ECtHR later determined that a criminal rule had to meet the requirements of accessibility and foreseeability. The latter notion means that the person concerned should be able to assess, by taking appropriate legal advice if necessary, to a degree that is reasonable in the circumstances the legal consequences which a given action may entail (Cantoni v France, , § 35). Therefore, interpretation and clarification of existing rules is always admissible, whereas adaptation of a rule by broadening its scope of application through an evolutive method of interpretation is only possible under the following conditions (Cassese at 46): - The extension of the legal elements of the crime must be in keeping with the rules defining the essence of the offence; - The extension must conform with, and implement and actualize fundamental principles of ICL or, at least, general principles of law; - The extension must be reasonably foreseeable by the addressees, in other words, the extension which is to the detriment of the accused should have been reasonably anticipated by him.

What is understood from these conditions is that courts may not create a new offence with new material or moral elements. They can only adapt existing provisions envisaging criminal offences to changing social conditions. Thus, broadening of the acts reus (e.g., including oral sex into the definition of rape) or lowering the threshold for the requisite mens rea (seeking recklessness instead of intent) would be possible. However, punishing a conduct which is not regulated by law through the application of a provision prohibiting a similar act would amount to analogy, and that is not permitted. Therefore, the difference between analogy and expansive interpretation is subtle. An example of adaptation may be found in the judgment delivered by the ICTY AC in Tadic where the AC held that some customary rules of int’l. law criminalized certain categories of conduct in internal armed conflicts. In other words, war crimes could now be committed in non-international armed conflicts too.

ECtHR, Jorgic v. Germany, judgment of 12.7.2007:
Mr Jorgic was accused of setting up a paramilitary group which had participated in the arrest, detention, assault, ill-treatment and killing of Muslim men from three villages in Bosnia in the beginning of May and June In June 1992, he had also shot 22 inhabitants of another village, including women, the elderly and disabled. Subsequently, Mr Jorgic with his paramilitary group had chased some 40 men from their village and had ordered them to be ill-treated and six of them to be shot. A seventh injured person had died from being burnt along with the corpses of those six people. In September 1992 he had killed a prisoner with a wooden truncheon in order to demonstrate a new method of ill-treatment and killing. In a judgment of 26 September 1997, Düsseldorf Court of Appeal, relying on Article 220a of the Criminal Code, convicted the applicant of those accusations. The court found that the applicant had acted with intent to commit genocide within the meaning of Article 220a. Referring to the views expressed by several legal writers, it stated that the “destruction of a group” within the meaning of Article 220a of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together; a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the North of Bosnia, or at least in the Doboj region.

ECtHR, Jorgic v. Germany, judgment of 12.7.2007:
The Court considered that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities which had interpreted the offence of genocide in a wider way, in common with the German courts. In those circumstances it found that the applicant, if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed. In that context the Court also noted that the applicant was found guilty of acts of a considerable severity and duration. Those requirements having been met, it was for the German courts to decide which interpretation of the crime of genocide under domestic law they wished to adopt. Accordingly, the applicant's conviction for genocide was not in breach of Article 7 § 1 of the Convention. This judgment is interesting as the national courts have expanded the notion of genocide to include so-called “cultural genocide”. Despite that, the ECtHR rejected the defendant’s argument that German courts had expansively construed the genocide prohibition beyond the contours of positive law (Slye/van Schaach at 137).

3.3 THE BAN ON ANALOGY (lex stricta)
Criminal courts may not apply ICL by analogy, in other words, they can not extend the scope and purport of a criminal rule to a matter that is unregulated by law (analogia legis). In ICL analogy is prohibited with regard to both treaty and customary law. For example, the Rome Statute prohibits the use of certain types of weapons either because they cause indiscriminate or superfluous damage. However, there is no provision regarding NBC weapons. The use of such means may not be punished under the Rome Statute. Although they cause unnecessary and indiscrimate harm too, there is no provision on this issue. Art. 22 of the Rome Statute: “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.” In fact, the Rome Statute also discards expansive interpretation, which would normally be allowed, by instructing the ICC to resort to strict interpretation. Therefore, the scope of rules criminalizing conduct may not be broadened so as to make them applicable to instances not specifically envisaged by those rules.

An example of strict construction can be found in Flick and others, handed down by a US Military Tribunal sitting at Nuremberg, where it was held that crimes against humanity only encompass offences against the person, and not offences against the property. In addition, the Rome Statute also provides for the principle of favouring the accused. When faced with conflicting interpretations of a rule, the Court must choose the construction that favours the accused. An example is provided by the ICTY TC in Akayesu ( ), where the word “killing” in the Genocide Convention and the ICTR Statute was construed as to express intentional killing only: “...the Chamber notes that the said paragraph states "meurtre" in the French version while the English version states "killing". The Trial Chamber is of the opinion that the term "killing" used in the English version is too general, since it could very well include both intentional and unintentional homicides, whereas the term "meurtre", used in the French version, is more precise. It is accepted that there is murder when death has been caused with the intention to do so... ". (§ 500)

Another example may be drawn from the ICTY TC judgment in Krstic (2. 8
Another example may be drawn from the ICTY TC judgment in Krstic ( ), where the TC had to establish the meaning of “extermination” as a crime against humanity. The problem was whether the targeting of a limited number of victims would be sufficient (as per the Rome Statute) or a large number of victims was required (as per customary law): “In this respect, the ICC definition of extermination indicates that it would be sufficient that the criminal acts be “calculated to bring about the destruction of part of the population.” The Trial Chamber notes that this definition was adopted after the time the offences in this case were committed. In accordance with the principle that where there is a plausible difference of interpretation or application, the position which most favours the accused should be adopted, the Chamber determines that, for the purpose of this case, the definition should be read as meaning the destruction of a numerically significant part of the population concerned” (§ 502).

3.4 THE PRINCIPLE OF LEGALITY OF PENALTIES (NULLUM POENA SİNE LEGE)
Under many domestic legal systems, and especially those based on the Romano-Germanic tradition, a tariff relating to sentences for each specific crime should be laid down in law. This is to (Cassese at 51): - Ensure the uniform application of criminal law by all courts of the State; - Make the addressee cognizant of the possible punishment that may be handed out in case of violating a specific provision. However, this principle is not applicable in ICL where such tariffs do not exist. This is because states have not yet agreed upon a scale of penalties applicable to each crime, mostly because of diverging views as to the gravity of the various crimes. In practice, the ICTY, ICTR and ICC Statutes provide for general rules regarding the maximum limit of the punishment to be imposed. However, this rule applies to all crimes within jurisdiction. Furthermore, the minimum sentence to be imposed is not determined. Consequently, courts enjoy much judicial discretion in punishing persons found guilty of int’l. crimes. To partly make up for this indeterminacy, Art. 24 (1) of the ICTY Statute provides that “In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.” (also see Art. 23 of the ICTR Statute). As for the Rome Statute, Art. 23 provides that “A person convicted by the Court may be punished only in accordance with this Statute.” Therefore, the ICC does not have to take into account the scale of penalties of the relevant territorial or national state. As can be seen, the ICC has an even larger margin of appreciation than the ad hoc tribunals.

4. MODES OF CRIMINAL LIABILITY
When a crime is committed with the contribution of more than one person, rules regarding participation (iştirak) shall apply. Under national criminal laws crimes are usually committed through the cooperation of various persons. This is almost always the case for int’l. crimes. The common denominator of national and ICL is that responsibility not only arises when a person materially commits the crime but also when one engages in other formalities or modes of criminal conduct. There is no problem when a crime involves more than one person, all performing the same act (e.g., three soldiers successively raping a detainee): they are all equally liable. However, in many cases, two or more persons participating to a crime perform different acts which all contribute in one way or another to the realization of a criminal plan. It is at this point that participation becomes important.

4.1 PARTICIPATION - OVERVIEW
It may be said that under national criminal laws there are three systems of participation (Cassese at 187 et seq.) - Some systems (USA, Austria, France, Australia) do not categorize participants according to their level of contribution to the crime, and provide for the same penalty to be applied to all participants (eşitlik sistemi - system of equality). Obviously, the judge may take into account the importance of the contribution to the commission of the crime in determining the appropriate sentence to be imposed on each person. - On the other hand, most national systems distinguish between perpetration (faillik, principals under Common Law, Täter in German) and accomplice liability (suç ortaklığı, accessories, participants under Common Law). Accomplice liability is further divided into aiding and abetting (maddi iştirak, Gehilfe in German) and instigation (manevi iştirak). However, many states do not provide for different applicable penalties to each category, the mode of participation will be taken into consideration by the judge in determining the sentence. - Finally, a third system, adopted by states such as Turkey, Germany and Spain draws a normative distinction between different modes of participation, and also provides for a different tariff of penalties applicable to each category.

The TPC adopts the system which is known as ‘duality’ (ikilik sistemi) with regard to the punishment of participants. Punishment is determined in view of the importance of their role (and the causal contribution) in the commission of the crime. Participation may be technically divided into two categories: perpetration (faillik) and complicity (suç ortaklığı/şeriklik). The perpetrator is the agent who realises the wrongful behaviour described in the legal definition of the crime. ‘Complicity’ includes instigation (azmettirme) and assistance (yardım etme). In the TPC, assistance refers to both material assistance (maddi yardım), and moral assistance (manevi yardım). Categories of participation that are subject to full punishment for the act (principals) are: perpetration (faillik) and instigation. Categories of participation that are subject to reduced punishment for the act (moral and material accessories – fer’i maddi ve manevi şerikler/ yardım edenler): material assistance, and moral assistance.

The first category of perpetration is ‘direct/individual perpetration’ (doğrudan/tek başına faillik), where more than one perpetrator fulfils all the required objective and subjective legal elements of the crime with their own conduct. A second category of perpetration is ‘joint perpetration’ (birlikte/müşterek faillik), where each person who jointly commits the act described in the legal definition of the offence shall be held responsible as a perpetrator (TPC Art. 37 (1)). This is the case when the participant has ‘(functional) command’ over the execution of the crime. For example, if (A) holds back (Z), and (B) takes away her bag, both (A) and (B) have committed robbery. This category also includes those acts which are not typical (they do not correspond to the act prohibited in the legal definition of the crime) but are indispensable for the commission of the typical act indicated in the statutory definition of the crime (eg, (A) holds (W) still while she is being raped by (B). They are both joint perpetrators). A third category is ‘indirect perpetration’ (mediated crime - dolaylı faillik), where any person who uses another as an instrument in the commission of an offence shall be held responsible as a perpetrator (TPC Art. 37 (2)). The purpose is to hold responsible the person (referred to as ‘longa manus’ in Latin) controlling the action of the physical perpetrator who does not have criminal capacity or who is acting without guilt. So, if (A) kidnaps the son of the manager of BigBank and, under the threat of killing the son, forces the manager to reveal some banking secrets, (A) will be held responsible for “Disclosure of Confidential Documents or Information Relating to Commerce, Banking or Private Customers” (Art. 239).

Under Turkish law, apart from the perpetrator, the other principal of a crime is the instigator. Instigation is the act by which the instigator convinces another person who had no criminal thought in mind to commit a specific crime (not to be confused with the Italian term ‘istigatore’ which refers to the participant that reinforces in another person an already existing criminal thought). Material assistance, and moral assistance not amounting to instigation are penalized under Art. 39. All instances falling under one of the two categories are regarded as ‘assistance’ (yardım etme) by the TPC. An assistant is an accomplice who: a) Provides the means used for the commission of the offence, or facilitates the execution of an offence by providing assistance before or after the commission of the offence (material assistance – maddi yardım); b) Encourages the commission of an offence, or reinforces the decision to commit an offence, or promises that he will assist after the commission of an act, or provides counsel as to how an offence is to be committed (moral assistance – manevi yardım). Encouragement and reinforcement differ from instigation in that the perpetrator already entertained, at the least, the idea to commit the crime.

4.2 PARTICIPATION – ICL As for ICL, it may be said that the above-mentioned distinctions are usually made for descriptive and classificatory purposes, or for ease of teaching (Cassese at 188). However, neither treaty nor customary law makes any legal distinction between different categories, or, at least, as far as the consequent penalties are concerned. Under ICL, it will be for the judges to decide in each case on the degree of culpability of a participant and assign the appropriate penalty accordingly. The Rome Statute also does not make a formal distinction between principals and accessories, although different types of participation are laid down under Art. 25. This is not to mean that the Statute adopts the system of equality. The reason is that the Statute does not provide for a tariff of penalties applicable for each crime. Applicable penalties are generally provided for in Art. 77, and Art. 78 lays down the factors to be taken in the determination of the sentence in a specific case, including the “individual circumstances” of the convicted person. However, Rule 145 (1) (c) of the RPE clearly indicates that in its determination of the sentence, the Court shall give consideration to “the degree of participation of the convicted person”.

4.3 MODALITIES OF LIABILITY UNDER ICL –General Assessment
An important feature peculiar to ICL is the distinction between aiding and abetting, and joint criminal enterprise (JCE). JCE does not exist under national criminal systems, and was created by way of case-law. Furthermore, the doctrine of superior/command responsibility is a separate category of criminal liability, which is different from participation, and is again a particular feature of ICL. On the other hand, certain forms of liability which exist under national criminal systems are applied subject to different requirements under ICL. Because of the pecularities of ICL, certain types of conduct are viewed as belonging to the category of principal perpetration, whereas they would be regarded traditionally as constituting accomplice liability under national laws.

Furthermore, it should be noted that principles of secondary liability play a comparatively larger role in ICL than in national criminal law. This is because, unlike in domestic law, where the traditional image of a criminal is the primary perpetrator, the paradigmatic offender in ICL is the person who orders, masterminds, or takes part in a plan at a high level (Cryer et al. at 361). In order to determine in a just manner the responsibility of such persons, many institutions have been created by ICL: planning, conspiracy, JCE, superior responsibility. These types of liability exist along with traditional modes of participation available under national laws. As a result, different categories may sometimes overlap. In this case, the judge has a discretion to choose which is the most appropriate head of responsibility under which to attach criminal responsibility to the accused (ICTY TC in Krnojelac, , § 173), and the Trial Chamber will enter “a conviction under the head of responsibility which better characterises the criminal conduct of the accused” (ICTY TC in Stakic, , § 463).

4.4 PERPETRATION/COMMISSION
Perpetration and commission are usually used interchangeably. Cryer et al. argue (at 362) that ‘in all likelihood’ they are synonomous. Perpetration would have to be translated into Turkish as “faillik”. However, the terms do not correspond exactly. For example, “joint criminal enterprise” is also counted as a form of “commission” whereas participants in a JCE would (in most cases) only be qualified as accomplices under national law. Perpetration refers to the physical commission of a crime, either alone or jointly with other persons. The culpable omission of an act that was mandated by a rule of criminal law may also constitute perpetration. Indeed, perpetration can also occur by omission, provided that the accused fails to live up to a duty to act, and has the requisite mental element (in case the mental element is missing, liability may be based on the doctine of superior/command responsibility). In other words, omissive conduct (ihmali davranış) may also lead to int’l. individual criminal responsibility. Although it is not beyond controversy, the same holds true with regard to the Rome Statute (Cryer et al. at 363).

A perpetrator is, primarily, the person who realizes the material elements of the crime through his own conduct. Therefore, perpetration is physically carrying out the prohibited conduct in the legal definition of the crime, accompanied by the requisite mental element. We had mentioned that perpetration may occur in three ways under Turkish law. The Rome Statute also adopts a similar approach in Art. 25 (3) (a) by stating that a person shall be criminally responsible if that person: “Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”. However, the scope of the categories of perpetration do not match exactly, but only in part.

4.5 CO- PERPETRATION When more than one person materially takes part in the actual perpetration of the crime by performing the same act, co-perpetration exists (eg., members of an execution squad shooting the detainees). Many authors would name this category “joint perpetration”. It must be noted that the concept of müşterek faillik (which I have translated as joint perpetration, that is why I use “co-” perpetration here) has a wider meaning under Turkish and German penal law than the simple “co-perpetration” explained in the above paragraph, and it also includes the situation of the person who has ‘(functional) command’ over the act (think of the above rape example). The Rome Statute explicitly provides for co- perpetration (“Commits such a crime... jointly with another”). However, as we shall discuss below, “joint criminal enterprise” could also be analyzed under this sentence for the purposes of the ICC. In Katanga and Ngudjolo (ICC Pre-T.Ch.I, , para. 488), the ICC determined that “commission of the crime jointly with others” refers to a principal who has, together with others, control over the offence by reason of the essential tasks assigned to him. Therefore, we might conclude that instances of müşterek faillik under Turkish law could be qualified as co-perpetration under the Rome Statute.

4.6 COMMISSION THROUGH ANOTHER PERSON
The ICTY AC in Stakic ( ) had dismissed co-perpetratorship by deeming it inconsistent with ICTY case-law and outside the ambit of customary law. In that case (paras. 62-3), the AC had relied on JCE instead. However, the Rome Statute provides for an explicit rule. Art. 25 (3) (a) of the Rome Statute refers to a person who “Commits such a crime... through another person, regardless of whether that other person is criminally responsible”. Therefore, “commission through another person” forms another type of joint perpetration under the Rome Statute. Under Turkish law, it would correspond to indirect perpetration (dolaylı faillik). In Katanga and Ngudjolo (ICC Pre-T.Ch.I, , para. 488), the ICC regarded this category to cover a person who “has control over the will of those who carry out the objective elements of the offence”. “...The principal (the 'perpetrator-by-means') uses the executor (the direct perpetrator) as a tool or an instrument for the commission of the crime. Typically, the executor who is being used as a mere instrument will not be fully criminally responsible for his actions...” (para. 495). This is the classic instance of “indirect perpetration” where the direct perpetrator is not culpable (because he is acting under duress or he does not have criminal capacity or is not acting unlawfully).

However: “A concept has developed in legal doctrine that acknowledges the possibility that a person who acts through another may be individually criminally responsible, regardless of whether the executor (the direct perpetrator) is also responsible. This doctrine is based on the early works of Claus Roxin and is identified by the term: 'perpetrator behind the perpetrator' (Täter hinter dem Täter)” (para. 496). This new concept developed by Roxin is very important as it allows for the (full) punishment of the indirect perpetrator puppeting the physical perpetrator, even if the latter is criminally responsible himself (which would not be the case in the classic understanding of indirect perpetration). (Öztürk/Erdem, Ceza Hukuku, 10 Bası, s. 324: “Kendi fiilinden dolayı sorumlu olan kişi, aynı zamanda bir başkasının aracı olarak kabul edilemez (sorumluluk ilkesi). Ne var ki, bazı istisnai durumlarda “fail arkasındaki fail” (Taeter hinter dem Taeter) bu kişi üzerinde de arka plandaki kişinin egemenliğini kurabileceğini kabul etmektedir. “Masa başı fail” olarak da adlandırılan asıl fiili işleyen kişilerin arkasındaki bu kişinin özellikle organizasyona egemenliği durumunda doğrudan faillik gündeme gelir”. “The underlying rationale of this model of criminal responsibility is that the perpetrator behind the perpetrator is responsible because he controls the will of the direct perpetrator. As such, in some scenarios it is possible for both perpetrators to be criminally liable as principals: the direct perpetrator for his fulfilment of the subjective and objective elements of the crime, and the perpetrator behind the perpetrator for his control over the crime via his control over the will of the direct perpetrator.” (para. 497).

“Several groups of cases have been presented as examples for the perpetrator behind the perpetrator's being assigned principal responsibility despite the existence of a responsible, direct perpetrator (i.e., one whose actions are not exculpated by mistake, duress, or the lack of capacity for blame-worthiness). This notwithstanding, the cases most relevant to international criminal law are those in which the perpetrator behind the perpetrator commits the crime through another by means of "control over an organisation" (Organisationsherrschaft)” (para. 498). Therefore, this mode of commission in article 25(3)(a) of the Statute encompasses the commission of a crime through a non-innocent individual (i.e. responsible) acting as an instrument. Both the direct perpetrator and the “perpetrator behind him” will be held responsible. In the organizational control theory, there is an organized and hierarchical apparatus of power in which crimes are automatically committed due to strict compliance (Katanga and Chui, decision on confirmation of charges, paras. 496 ff). Within this system, ‘automatic compliance’ is secured ‘through intensive, strict and violent training regimes’ or through mechanisms of payment and punishment for the (non-)execution of crimes (cited by Ambos at 157). Persons exercising control over such an organization are considered ‘perpetrators through another person’ provided: a) there is a hierarchical relationship/ hierarchically organized group, b) they have the final say as to policies and practices of the group, and c) they are aware of their ‘unique role’. (Lubanga arrest warrant decision, paras. 94-6).

4.7 AIDING AND ABETTING A person may participate to a crime without actually committing the act prohibited in the legal definition of the crime by merely assisting the principal in the commission of such act. Therefore, aiding and abetting will exist when (Prosecutor v Vasiljevic, ICTY AC, , para. 102): 1. The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (objective element), e.g., supplying poison gas to the SS for use in concentration camps. As can be seen, assistance may be material or psychological. Therefore, aiding and abetting also includes moral support for the purposes of ICL. Furthermore, assistance may be provided before, during or after the perpetration of the crime. 2. This has a substantial effect on the perpetration of the crime. However, the assistance does not have to be indispensable for the commission of the crime. This condition exists if there is a causal link between the contribution of the accessory, and the commission of the crime. - Acts such as standing near victims whilst armed to prevent them escaping, providing weapons to the principal, taking principals to the scene of a crime and pointing at people to be killed has been interpreted by the ICTY and ICTR as aiding and abetting (note that under Turkish law some of these acts, if not all, would be considered under joint perpetration).

3. The requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. In fact, awareness of the risk for the perpetrator to engage in criminal conduct is considered to be sufficient (SCSL in Brima and others, , § 776). The purpose to assist is not required. Awareness of the essential elements of the crime committed by the principal will suffice. It is not necessary to know the precise crime that was intended. It suffices to be aware of the fact that one of a number of crimes will probably be committed. Some recent judgments (ICTY TC in Oric, , § 288, ICTY TC in Halilovic, , § 286) also demand some sort of acceptance of the final result. Thus, “the aidor and abettor may be considered as accepting the result of his conduct if he is aware that in consequence to his contribution, the commission is more likely than not”), eg., China- Sudan example in class. In any case, the ad hoc tribunals have adopted a knowledge-based approach. So, it does not matter if the purpose is not to assist (e.g., selling weapons for solely commerical purposes). As a result, it is possible to be held liable for aiding and abetting the commission of a crime requiring specific intent even if the aider and abettor does not entertain such specific intent.

However, the Rome Statute provides for the following (Art
However, the Rome Statute provides for the following (Art. 25 (3) (c)): “For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”. So, the mens rea of aiding and abetting as laid down in the Rome Statute takes into account the purpose of the accused. It is not sufficient to be aware of the consequences of aiding/abetting/otherwise assisting. These acts must be enteted into for the purpose of facilitating the commission of the crime in question. However, there is no explicit requirement as to the fact that the contribution is “substantial”.

4.8 ORDERING Many int’l. crimes are committed under the request of a superior authority. Under national criminal law, ordering the commission of crimes would be qualified as instigation (azmettirme). However, the Rome Statute does not provide for “instigation” as such. Alternatively, it may be said that those giving such orders are in reality committing crimes by instrumentalizing, and acting through other persons. In other words, indirect perpetration (dolaylı faillik) / commission through another would apply. Even so, ICL treats ordering as a separate form of liability (ICC Statute Art. 25 (3) (b), ICTY Statute Art. 7 (1), ICTR and SCSL Statutes Art. 6 (1)). The main feature of ordering is that “a person in a position of authority uses it to convince another to commit an offence”. Thus, the different point from incitement is the existence of a relationship of authority, in other words, a superior/subordinate relationship between the person giving orders, and the addressee. This relationship may be de jure or de facto, it suffices that there is factually ‘some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order’ (ICTR A.Ch. in Semanza, , para. 361).

The person issuing the order, as well as those passing it down the chain of command may be held responsible under this head. The mental element is the “awareness of the substantial likelihood that a crime will be committed in the execution of that order” (ICTY AC in Blaskic, , § 42). The ICTR and ICTY have determined that ordering is to be punished if it has actually led to the commission, or, at least, the attempt of the crime in question. Art. 25 (3) (b) of the Rome Statute adopts the same approach. However, many national courts had decided elsewise after WWII. This latter interpretation would better serve the interests of ICL, since an executed order will anyway give rise to the responsibility of the superior as a co-perpetrator or due to instigation. Finally, ordering is different from superior responsibility, because the latter form of liability is based on an omission to act, whereas ordering requires an active action.

4.9 SOLICITATION (TEŞVİK ETME)/ INDUCEMENT (İKNA ETME)
Solicitation and inducement (Art. 25 (3) (b) of the Rome Statute) are called “prompting” by the ICTY, and generally referred to as “instigation” by academicians. However, note that we have used the term ‘instigation’ as a counterpart of “azmettirme” in Turkish. It may be said that solicitation and inducement encompass both the categories known as instigation (azmettirme) and encouragement (teşvik) under Turkish penal law, although it is somewhere inbetween. As explained by the ICTY TC in Blaskic ( , § 270): “The essence of instigating is that the accused causes another person to commit a crime. Although it must be proved that the instigation was a clear contributing factor to the commission of the crime, it need not be a conditio sine qua non. Instigation can take many different forms; it can be express or implied, and entail both acts and omissions”. Therefore, the term instigation, as we have used it for Turkish law, and instigation under ICL do not refer to the exact same concepts.

ICTY TC in Oric (30.6.2006) with regard to instigation:
“On the one hand, this has to be more than merely facilitating the commission of the principal offence, as it may suffice for aiding and abetting. It requires some kind of influencing the principal perpetrator by way of inciting, soliciting or otherwise inducing him or her to commit the crime. This does not necessarily presuppose that the original idea or plan to commit the crime was generated by the instigator. Even if the principal perpetrator was already pondering on committing a crime, the final determination to do so can still be brought about by persuasion or strong encouragement of the instigator. However, if the principal perpetrator is an ‘omnimodo facturus’ meaning that he has definitely decided to commit the crime, further encouragement or moral support may merely, though still, qualify as aiding and abetting” (§ 271). So, “suç işleme kararını kuvvetlendirmek” under Turkish Law (TPC Art. 39 (2) (a)) would not fall within solicitation and inducement.

The mental element with regard to instigation is “awareness of the substantial likelihood that a crime will be committed in the execution of that instigation” (ICTY AC in Kordic and Cerkez, , § 32). Direct and public incitement (to commit genocide) is different in that it is not necessary to prove that anyone has even attempted to commit genocide. We had explained this before (you may also read textbook at 380-1). The Rome Statute only penalizes solicitation or inducement when the solicited/induced crime is in fact committed or attempted. Had it not been for this requirement, the giving of orders which are not carried out could have been treated as a form of inducement/solicitation.

4.10 PLANNING AND PREPARATION
Planning and preparation are examples of “inchoate crimes”. The latter term refers to (Cassese at 219): - Acts that are preparatory to prohibited offences (hazırlık hareketleri); - Crimes that have not been completed, therefore have not yet caused any harm (netice suçlarında teşebbüs); - Preliminary criminal wrongdoings punished on their own (incitement, conspiracy to commit genocide, ordering). Under common law systems three categories of inchoate crimes exist: attempt, conspiracy, and incitement. With regard to ICL, planning implies that “one or several persons contemplate designing the commission of a crime at both the preparatory or executory phases” (ICTY TC in Blaskic, § 279).

Under national penal law systems based on the Romano-Germanic (Continental European/civil law) tradition, the planning of, or preparation to the commission of a crime is not punishable by itself. In fact, provisions regarding attempt may only be applied if the execution of the crime has commenced (icra hareketlerine başlanması). Unless “criminal thought” has been manifested through a conduct, it can not be punished. Exceptionally, certain actions which are in reality preparatory acts to the eventual commission of a crime (hazırlık hareketleri) may be punished separately. See for example TPC Art. 227 (1): “Any person who encourages a child to become a prostitute, facilitates a child becoming such or supplies or accommodates a child for such purpose, or acts as an intermediary for the prostitution of a child, shall be sentenced...”; TPC Art. 314: “Any person who establishes or commands an armed organisation with the purpose of committing the offences listed in parts four and five of this chapter, shall be sentenced...”. The planning or preparation of an int’l. crime are criminalized by the ICTR, ICTY and SCSL Statutes. The Nuremberg and Tokyo IMT Statutes also criminalized the planning of a war of aggression. The Rome Statute makes no reference to planning.

The question in ICL is whether a preparatory act, in the shape of planning, to the actual commission of the crime may be punished independently. In its judgments in Akayesu, Rutaganda and Musema the ICTR has held that unless the crime in question has actually been attempted, planning may not be punished per se. The ICTY is also of the same view (Prosecutor v Kordic and Cerkez, ICTY AC, , para. 26). Indeed, if a plan not put into effect was to be punished by itself, it would come very close to conspiracy, which may only be punished with regard to genocide. In that line, the actus reus of planning requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated. However, Cryer et al.(at 382) argue that the way they are formulated, the ICTR-ICTY-SCSL Statutes imply that planning and preparation are in themselves enough to be punished. The mental element for planning is fulfilled by ‘a person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan ... Planning with such awareness has to be regarded as accepting that crime’ (para. 31 of the above-mentioned judgment). There is no case-law regarding “preparing” as a separate crime. But it can be said that unless the execution of the crime has commenced, planning and preparing may not be punished.

However, Cassese (at 226) is of the view that planning an int’l
However, Cassese (at 226) is of the view that planning an int’l. crime is punishable per se as a distinct form of criminal responsibility, subject to the following conditions: - Only the planning of serious or large-scale int’l. crimes constitutes a discrete offence; - If planning is followed up by the execution of the crime by the same person, planning is no longer punishable as a crime distinct from that resulting from its execution; - The author must intend the planned crime to be committed, or must be aware of the risk that the planned crime would be perpetrated by him or by someone else. Casseses defends that planning should be a discrete crime, despite the lack of supporting case-law (apart for a TC of the ICTY which was later reversed by the AC), by deriving from the general system of ICL, and because “in case of doubt criminal rules must be interpreted as being also designed as far as possible to prevent offences” (at 226). Obviously, there is no such principle! On the contrary, the principle known as “favor rei” applies. Thus, in case of doubt, the interpretation favourable to the accused must be preferred. So, if it is doubtful whether planning may be punished by itself (the case law of ad hoc tribunals and the Rome Statute rejects such view), one must conclude that an accused may not be punished solely for planning.

4.11 ATTEMPT Read Cryer et al. at

5. JOINT CRIMINAL ENTERPRISE (JCE)
We have studied the meaning of co-perpetration, which refers to “more than one person materially taking part in the actual perpetration of the crime by performing the same act”. Joint perpetration involves a common purpose or common design. In this case, a common purpose has been established and roles have been allocated therein. However, different persons participate in different ways and degrees to the realization of this common purpose. This “common plan, design or purpose” is the key to responsibility based on the concept of joint criminal enterprise (JCE). The plan/design/purpose is aimed at committing one or more crimes under int’l. law. As a result, each member of the common purpose (JCE) is liable regardless of the nature and gravity of his participation and role.

5.1 Idea behind JCE Because of the pecularities of ICL, certain types of conduct are viewed as belonging to the category of principal perpetration, whereas they would be regarded traditionally as constituting accomplice liability. Int’l. crimes are perpetrated by a multitude of persons acting in unison (military, paramilitary units, gov’t officials...). When such crimes are committed it is very difficult to determine the specific contribution made by each participant, both because different roles and types of conduct are involved, and because evidence relating to each individual conduct will be very hard to find (Cassese at 189). Think of int’l. crimes institutionally committed within organized and hierarchical units such as internment, detention, concentration camps, where it is difficult to determine the gradations of culpability of every single person working within the structure.

As stated in Ponzano (a post WW-II trial by British courts of German war criminals): “...To be concerned in the commission of a criminal offence... Does not only mean that you are the person who in fact inflicted the fatal injury and directly caused death, be it by shooting or by any other violent means; it also means an indirect degree of participation [...I]n other words, he must be the cog in the wheel of events leading up to the result which in fact occurred. He can further that object not only by giving orders for a criminal offence to be committed, but he can further that object by a variety of other means”.

The idea behind JCE is simple (Cassese at 191): If all those who take part in a common criminal action are aware of the purpose and character of such action, and share the requisite criminal intent, they should also share criminal liability. This is because each of them was indispensable (? – I doubt this proposition, it would more correct to say that each of them is instrumental) for the achievement of the final result, whatever the role and position they might have played in the commission of the crime. In ICL all participants in a common criminal action will be held equally responsible if they: Participate in the action, whatever their position and the extent of their contribution; and Intend to engage in the common criminal action. Thus, all participants will be treated as principals. Obviously, the varying degree of culpability may be taken into account when determining the appropriate sentence.

5.2 Historical precedents
The Nuremberg and Tokyo IMT Statutes both provided that those who participated in a “common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in the execution of such a plan.” The Tribunals only applied this rule with regard to crimes against peace. This provision was called “conspiracy” by the Tribunals. However, it was applied differently from the separate common law offence of conspiracy, which only requires the existence of an agreement to commit an offence, and does not require any further action to be taken in pursuance of that agreement (Cryer et al. at 368). Indeed, in ICL the separate crime of conspiracy only exists with regard to the crime of genocide. The Nuremberg and Tokyo IMTs were dealing with situations in which the plans had been put into effect. Hence, there is difference between the common law understanding of conspiracy and the concept as applied by the military tribunals.

5.3 Recent Tribunals There is no explicit provision regarding JCE in the ICTY/ICTR/SCSL Statutes. However, the ICTY AC in the Tadic case ( ) pronounced that criminal responsibility based on this concept was part of customary law (which was debatable at the time, although later judgments have relied on this assumption without any further questioning). The AC determined that the Statute “does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons”. According to the AC, a JCE consists of a common plan, design or purpose, and the participation of a plurality of persons therein, all of which are acting with the aim of committing one or more int’l. crimes. The ICTY confirmed that participation in a JCE is a mode of “commission” of the crime, just like physical perpetration, aiding and abetting, planning, etc. This is important because if JCE is considered a primary form of liability, participants in the enterprise can be aided and abetted by those outside it (Cassese argues that in such cases it would be correct to hold that person liable for participation in the JCE). Furthermore, it does not seem fair to label the acts of those who are far closer to aiders and abettors as “committing” (Cryer et al. at 372).

5.4 General Principles of JCE
As we shall see, there are three types of JCE. The common feature is that all three types share a common actus reus, namely that there was (ICTY AC in Tadic, para. 227): - A plurality of persons; - The existence of a common plan, design, or purpose which amounts to or involves the commission of a crime provided for in the Statute; - Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. However, the requisite mental elements are different with regard to different types of JCE-based liability.

The ICTY has made extensive recourse to this type of liability.
The ICTR has hardly applied JCE, mainly because its Statute provides for conspiracy to commit genocide. Thus, in most cases, there was no need to rely on an alternative modality of responsibility. However, after the Simba TC judgment of the ICTR also relied on this doctrine. The SCSL and the Special Tribunal for Lebanon also recognize the application of JCE. “All of the participants in a joint criminal enterprise are equally guilty of the committed crime regardless of the part played by each in its commission”, (ICTY TC in Vasiljevic, , para. 67). National courts judging over int’l.crimes have also applied the doctrine (eg., the War Crimes Chamber of the Court of Bosnia and Herzegovina, the Special Panel for Serious Crimes in East Timor, the Extraordinary Chambers in the Courts of Cambodia).

5.5 Actus Reus of JCE The below explanations concerning the material element of JCE apply to all three types. The plurality of persons does not have to be organized in a military, political or administrative unit. The criminal plan does not have to be organized under a formal structure. The criminal plan does not have to be conceived before the crime is committed. Participation in a JCE may be a spontaneous event (“may materialize extemporaneously”) and the existence of such plan may be inferred from the fact that a plurality of persons act in unison to put into effect a criminal undertaking. It does not matter if JCE members seek to carry out the plan for different reasons. The contribution can consist of any kind of assistance, either direct or indirect. Participation in the common design may be merely in the form of assistance in, or contribution to, the execution of the common plan or purpose (physical perpetration of the material element is not required).

However, mere membership to the JCE does not suffice for responsibility (this is the difference from conspiracy). It is disputed whether there is a requirement that the participant to a JCE contributes significantly or substantially to the execution of the crime. (Bantekas/Nash: no; G. Werle: no, does not have to be indispensable or even substantial, but it should be significant; Cassese: yes). If the answer is in the negative, this would mark a difference from complicity. The ICTY AC in Brđanin and Talić ( ) has decided that the contribution needs to be significant. ‘Substantially’ would require a higher level of contribution. Another question is whether those who physically commit the crime need to be a party to the JCE for participants in that enterprise to be held liable through this principle? In other words, what happens when persons not part to the JCE carry out crimes in execution of that common design? Example: The criminal plan is agreed upon between members of a political or military group. One of these members carries out the common criminal purpose by ordering or instigating subordinate military units outside the JCE to commit some of the crimes envisaged by the JCE. There is no problem with regard to the subordinate military units, they obviously are not part of the JCE. However, they are liable for the individual perpetration of the crimes at issue.

There is also little problem concerning the member of the JCE who orders/instigates outsiders: he/she will be responsible under those heads of liability (e.g., instigation or joint commission through another) for the crimes in question. What about the other members of the JCE? The ICTY’s case law was inconsistent on this issue. However, the ICTY AC in Brđanin and Talić decided that the direct perpetrators do not have to be a part of the enterprise, so long as the crimes can be imputed to one member of the enterprise, who is acting pursuant to the common plan when he or she uses those direct perpetrators to commit crimes. Cassese argues (at 210) that the other members of the JCE can only be held responsible for the crimes committed by outsiders if: - When concerting the crime to be perpetrated in execution of the JCE they had agreed to the physical perpetration of crimes by persons outside the JCE but acting upon the orders of a member of the JCE (JCE type-one would apply); They anticipated the risk that another member of the JCE might order or instigate persons outside the JCE to perpetrate crimes and willingly took that risk (JCE type-three would apply). Finally, if the common plan or purpose is fundamentally altered, this is a new plan which may not be deemed the continuation or mutation of the old one. Thus, a person is only responsible for crimes which relate to the plan he has subscribed to (except for type-3 JCE).

5.5.1 JCE Type 1 – “Liability for a common intentional purpose”
This is the basic form of JCE. A group of persons possesses a shared intent to commit an int’l. crime and the crime is carried out according to a common design. Participants in the common design will assume differing roles and levels of responsibility, some will contribute to the planning and intermediary stages of the crimes, others will take part directly in the execution of the material elements. Thus, the material element will be perpetrated by only some members of the JCE, however all members are liable for the crime due to the shared criminal intent. As for the mental element, “what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators)”, ICTY AC in Tadic, para. 228. As can be seen, this category comes close to co-perpetration. The mental element distinguishes JCE from mere participation: in the latter case, there is no shared intent to commit a crime, and there is no common design/purpose.

With regard to cases where the crime is physically perpetrated by persons not part to the JCE, do these outsiders need to share the joint criminal purpose for the members of the JCE to be held liable for those crimes? The ICTY AC in Brdanin ( ) had answered in the positive. However, the AC in Krajišnik and Plavšić ( ) held that “it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that he knew the existence of the JCE...” (para. 226). Cryer et al. argue (at 370) that there is sense in this approach as the collective nature of int’l. crimes would make it practically impossible to prove the mens rea of all of the direct (physical) perpetrators when trying high level participants.

5.5.2 JCE Type 2 – Systemic cases
“Concentration camp-type JCE”: This regards “systemic” cases “relating to an organised system with a common criminal purpose perpetrated against the detainees”. Cassese treats the issue under “liability for participation in a common criminal plan within an institutional framework”. Werle et al. calls it the “systemic form”. It consists of a common design in which multiple persons participate in a system of ill-treatment of detainees. By fulfilling their administrative or other operational tasks, they contribute to the commission of crimes. An executive, administrative or protective role in a camp may constitute general participation in the crimes committed therein (ICTY AC in Kvocka and others, ) This participation may be deduced from the defendant’s position and specific tasks within the camp. No previous plan, design or agreement is required (it may be manifested spontaneously).

As for the mental element, the accused must be aware of the character of the system and act with intent to further the system of mistreatment. Therefore, differently from type-one JCE, the intent to commit a specific crime is no longer necessary, intentionally contributing to the system in the knowledge of its character is sufficient. This is why it is a variation of the standard (type-1) JCE. (However, in practice, wilfully contributing to such system will also show that the accused shares the criminal intent). As a result of the intention to contribute to the system, each participant is held responsible for the crimes that form part of the common plan. The requisite mental element may be inferred from knowledge of the crimes being perpetrated in the camp and continued participation which enables the camp’s functioning. Inference of mens rea may be taken from the position of the accused in the camp, the amount of time spent there, his function, movement throughout the camp, any contact with detainees, staff personnel or outsiders visiting the camp, as well as through ordinary senses (ICTY AC in Kvocka, paras ).

The accused must actively participate in the implementation of this system (Cassese speaks of “important/substantial contribution”). The ICTY TC in Kvocka and others held that the participation needed to be significant, that is, through “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” (para. 309). However, the AC in the same case held that “in general, there is no specific legal requirement that the accused make a substantial contribution to the JCE” (para. 97). The Chamber also subsequently held that in some exceptional cases the substantial character of the contribution is indeed necessary (para. 599). I am in favour of seeking a significant, if not substantial, contribution.

An excellent example to type-2 JCE is the Alfons Klein and others case (the Hadamar trial) heard by a US Military Commission sitting at Wiesbaden. See textbook (3rd edition) at

5.5.3 JCE Type 3- “Extended JCE”
(“Incidental criminal liability based on foresight and voluntary assumption of risk”): It refers to common plans or designs in which the actions of one or more participants exceed the aim of the original design, thus the excessive action no longer coincides with the intention of all participants. In simpler terms, one participant in the JCE commits excesses that go beyond the framework of the common plan. The participants agree to the main goal of the common criminal design but do not share the intent that one or more members of the group entertain to also commit other crimes incidental to the main concerted crime.

The mental element here is the “intention to participate in and further the criminal activity or the criminal purpose of the group”. Participants in the JCE will be held liable for the excessive actions of other individuals if: - It was foreseeable that such a crime might be perpetrated by other members of the group; and - The accused willingly took that risk. This is the broadest type of JCE as it holds the accused liable in case of recklessness / dolus eventualis (olası kast). However, the participant who did not materially perpetrate the “extra/additional crime” should receive a lighter sentence on account of his lesser culpability.

The debate here regards the mental element as to the excessive result
The debate here regards the mental element as to the excessive result. The ICTY AC in Tadic required that “It was foreseeable that such a crime might be perpetrated by other members of the group”. This seems to indicate to a level of culpability that would only correspond to negligence. (The AC uses the term “foreseeable” (objective – “ought to have” test) rather than “foreseen” (subjective foresight – it was actually foreseen that the incidental crime would be committed). However, the second limb of the test also requires that “The accused willingly took that risk”. Thus, mere negligence (even if advertant/conscious – bilinçli taksir) will not suffice. On the other hand, direct intent is not required. Foreseeability will have to be assessed by taking into consideration the circumstances of the case and the information available to the suspect.

5.6 Problems with JCE 1) To treat all three types of JCE as “commission” of a crime does not seem to lead to a fair labeling of the act in question, and disregards the personal level of culpability of different persons involved in the crime. It is particularly unconceivable to characterize JCE-3 as ‘commission’ of the excessive crime in question. 2) It is argued that the ICTY AC in Tadic has come up with a new legal construction (in the shape of JCE) which is unfavourable to the suspect, especially when it was not explicitly provided in its Statute. The ICTY AC allegedly relied on customary law. However, the evidence of such rule was based on scattered post WW-II case law that had no follow up until 1999. 3) The doctrine is too broad, and thus relies on prosecutorial discretion rather than law to keep it in check (Cryer et al. at 373). 4) It is generally accepted that the third type of JCE and the crime of genocide are compatible (ICTY AC in Stakic, ). In other words, if the excessive crimes amount to genocide, JCE participants without the requisite specific intent may still be held liable. Cassese rightly argues that this should not be the case. The participant not having the required specific intent should only be held liable for “aiding and abetting”. 5) Prosecutors might be encouraged to prepare indictments that assert the existence of a JCE in a very general manner, making preparation difficult for the defence.

5.7 Differences between participating in a JCE as a co-perpetrator, and aiding and abetting
Prosecutor v Vasiljevic, ICTY AC, , para. 102: “Participation in a joint criminal enterprise is a form of “commission” under Article 7(1) of the Statute. The participant therein is liable as a co-perpetrator of the crime(s). Aiding and abetting the commission of a crime is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime. In the context of a crime committed by several co-perpetrators in a joint criminal enterprise, the aider and abettor is always an accessory to these co-perpetrators, although the coperpetrators may not even know of the aider and abettor’s contribution. Differences exist in relation to the actus reus as well as to the mens rea requirements between both forms of individual criminalresponsibility: (i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design. (ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.”

ICTY AC in Tadic, para. 229: (i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal. (ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. (iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime, and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose. (iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above.

The main difference between mere participation (as an accessory/ accomplice) and participation in a JCE lies in the mental element. The aidor and abettor does not need to share the criminal intent of the perpetrator. He only intends to assist the perpetrator in the commission of the crime. This is why, in principle, aiding and abetting “generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise” (ICTY AC in the Krnojelac, Vasiljevic, and Kvocka and others cases). On the other hand, JCE applies when there exists a “common plan, design, or purpose” aiming at the commission of int’l. crimes. Another difference is that an aider and abettor is only responsible for crimes known about, whereas foresight by the defendant suffices for liability for crimes committed pursuant to a JCE (at least, in types 2 and 3). The actus reus would also be different if it were to be accepted that no substantial contribution is required on part of the members of the JCE to be held responsible (note: the ICTY AC has seeked “significant” contribution, which might require less than the ‘substantial’ criterion adopted for aiding and abetting). The ICTY argues that where people have participated in a JCE, convicting them only as an aider and abettor “might understate the degree of their criminal responsibility”. Therefore, being held responsible as a member of a JCE would require a harsher sentence (although the specific circumstances of the case might exceptionally warrant a different conclusion).

5.8 JCE and the Rome Statute
Art. 25 (3): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (.....) (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;

Cryer et al. opines that Art
Cryer et al. opines that Art. 25 (3) (d) seems to describe the first two types of JCE, whereas excluding responsibility based on “extended JCE” (at 374). However, Cassese argues (at 213) that this provision does not really regulate JCE, but a different mode of responsibility (external participation – concorso esterno in associazione criminale). Cassese argues (at 212) that criminal liability based on JCE may nonetheless be permitted under Art. 25 (3). Werle also argues that the case-law of the ICTY concerning JCE may be transferred to the ICC under Art. 25 (3) (a): ‘...Commits such a crime, jointly with another...’. However, he is of the opinion that, for the purposes of the Rome Statute, JCE – as is understood by the ICTY - should not be applied: ‘it makes little sense for any contribution at all to a common plan to be sufficient to establish joint perpetration’ (at 176). He argues that ‘responsibility for joint commission can only be attributed to someone who renders an essential contribution to the commission of the crime’. Acts of lesser weight may qualify as ‘assistance’ under Art. 25 (3) (c) As can be seen, the suggestion by Werle et al. echoes the Turkish understanding of joint perpetration (müşterek faillik): an essential contribution is required, other perpetrators should not be able to execute the common plan without such contribution.

ICC’s early case-law is also in this direction: the key concept is that of ‘control’ (over the conduct), could the co-perpetrator frustrate the joint commission of the crime by not carrying out his or her task? If the answer is in the affirmative, there is co-perpetration. Rather than relying on JCE, the ICC has so far utilized the organizational control theory within the framework of ‘perpetration through another person’. Responsibility for genocide under JCE type-3 would also not apply to the Rome Statute: responsibility as a co-perpetrator of the crime of genocide cannot be established if a participant lacks the requisite genocidal intent (Werle et al. at 178). As for Art. 25 (3) (d), Cassese explains that this provision regards the person outside the criminal group who contributes to the perpetration of a crime by the group in question without being a member to it. The wording of the article draws upon the 1997 International Convention for the Suppression of Terrorist Bombings. It sets a low level of participation (“In any other way contributes”). On the other hand, the mental element requirement is strict as the accused must know that the intention of the group is to commit crimes. This article is different from aiding and abetting as the outside contributor in this case either intends to further the criminal action (so he shares the criminal intent of the group but is not a member to it), or is aware of the criminal intent of the group (so he aids an abets a whole criminal group, and not a single perpetrator).

6. Command/Superior Responsibility
“The honor of a general consists ... in keeping subalterns under his orders on the honest path, in maintaining good discipline....”, Napoleon Bonaparte, ; “For the common soldier, at least, war has the feel, the spiritual texture, of a great ghostly fog, thick and permanent. There is no clarity. Everything swirls. The old rules are no longer binding, the old truths no longer true. Right spills over into wrong. Order blends into chaos, love into hate, ugliness into beauty, law into anarchy, civility into savagery. The vapor sucks you in. You can’t tell where you are, or why you’re there, and the only certainty is overwhelming ambiguity .... You lose your sense of the definite, hence your sense of truth itself” (Tim O’Brien, The Things They Carried, 1990, p. 88).

6.1 Basics This is an inculpatory doctrine specific to ICL. It does not have a counterpart under domestic laws. Under this doctrine, military commanders or civilian superiors who culpably violate the duties of control assigned to them can be held criminally liable for int’l. crimes committed by their subordinates. It is a form of liability based on omission, that is, the failure to act. Thus, actively participating in crimes committed by subordinates, or ordering the commission of such crimes does not fall within this concept. It is a broad and expansive form of liability, which is justified by the privileges and responsibilities that command entails (Cryer et al. at 387).

It is an indirect type of responsibility.
It applies in both internal and international armed conflicts. It only applies to all int’l. crimes. It applies to both military and civilian superiors. It applies to multiple superiors within the chain of command. This form of liability has become part of int’l. customary law.

6.2 Rationale behind the doctrine
Int’l. crimes are committed within a hierarchical organizational structure within which it is difficult to prove direct involvement in the crime by higher ranked officials. In truth, the degree of responsibility for such crimes often increases in inverse proportion to the person’s distance from the actual commission of the crime. This doctrine provides the chance to punish those higher ranked officials who bear responsibility even if evidence of direct participation is missing. In addition, it punishes those superiors who were in a position to prevent such crimes but preferred “looking the other way” and did nothing about it. The expansion of criminal liability to superiors will encourage them to push subordinates to pay greater attention to the needs of IHL.

6.3 Historical development of the concept
The foundation of the modern law of command responsibility may be found in the Report of the Commission of Inquiry on the Responsibility of the Authors of the War in 1919, which opined that superiors could be held responsible for crimes of their subordinates where they knew of them but did not intervene. The first judicial application of the principle was in the Yamashita case judged by a US Military Tribunal in Manila. However, academics seem to agree on the fact that the doctrine was applied incorrectly in the case in issue as Yamashita was convicted absent any proof of personal culpability. Post WW-II military tribunals relied on the doctine in various cases (see the judgments of US Military Tribunals in Nuremberg in Brandt and others (Medical Trial, ), List and others (Hostages Trial, ), von Leeb and others (High Command Trial, ). The Tokyo IMT extensively (and probably, abusively) relied on this principle although the Statute is silent on the issue. Post WW-II military manuals included the concept (see, for ex., US Department of the Army Field Manual, The Law of Land Warfare, 1956 (FM 27-10)). The first int’l. codification is to be found in Arts of the First Add. Prot. (1977) to the Geneva Conventions of 1949: “The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.” (Art. 86 (2)).

ICTY Statute Art. 7 (3): “The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” ICTR Statute Art. 6 (3) includes the same rule.

Rome Statute Art. 28 (Responsibility of commanders and other superiors):
“In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

6.4 Requirements The obvious pre-condition is that int’l. crimes be committed by subordinates. This does not only refer to physical perpetration, it includes any head of liability. In addition, the following requirements must be met (Cryer et al. at 389): 1. Existence of a superior/subordinate relationship; 2. Mental element (the superior must know or negligently fail to know that the subordinate is about to commit or has committed a crime); 3. Failure to take necessary and reasonable measures to prevent or punish violations of ICL; 4. (Only for the Rome Statute): causation.

6.4.1 Superior/subordinate relationship
A formal hierarchical structure is not required. The important thing is whether the superior has “effective control” over subordinates. This applies to both military and civilian superiors. This refers to “a material ability to prevent or punish criminal conduct”. Thus, de facto control suffices. A lack of formal/legal grant of authority does not preclude responsibility. If there is a degree of stable command and control independent of the concrete situation, a superior/subordinate relationship may be said to exist. As agreed by the ICC (in Bemba Gombo, para. 417), having substantial influence over certain persons does not suffice. ‘The accused has to be, by virtue of his position, senior in some sort of formal or informal hierarchy to the perpetrator’ (ICTY A.Ch.in Halilović, , para. 59).

The de jure position of the superior will be an important evidence of effective control, but it is not determinative. The factual ability to prevent/punish crimes is the key. For example, the competence to issue orders will demonstrate de jure superiority, however if these orders are not obeyed and the person issuing the orders is unable to attain respect for his orders, this will show that factual ability does not exist. Since there are several layers of command within a chain of command, multiple commanders within that chain may be held responsible under this doctrine. In case of crimes perpetrated by irregular armies or rebel groups, the traditional indications of effective control (e.g., power to issue orders and take disciplinary action) may have to be supplemented with the following criteria (SCSL, Brima and others, , para. 788):

As a furher requirement in the Rome Statute, in case of civilian superior responsibility, the crimes must concern activities that were within the effective responsibility and control of the superior. So, the liability of the civilian superior is restricted in place and time to his official function. If the subordinate commits a crime outside the scope of his duties, civilian superior responsibility will not arise under Art. 28 of the Rome Statute.

According to a decision of the ICTY AC in Hadžihasanović (16. 7
According to a decision of the ICTY AC in Hadžihasanović ( ), for superior responsibility to arise, the crimes must be committed whilst the superior had effective control over the offenders. According to the ICTY TC judgment in Oric ( , para. 335): “Consequently, for a superior’s duty to punish, it should be immaterial whether he or she had assumed control over the relevant subordinates prior to their committing the crime. Since the Appeals Chamber, however, has taken a different view for reasons which will not be questioned here, the Trial Chamber finds itself bound to require that with regard to the duty to punish, the superior must have had control over the perpetrators of a relevant crime both at the time of its commission and at the time that measures to punish were to be taken.” Cassese rightly opines that the AC’s interpretation is not correct. It should be sufficient that the superior failed to punish the crimes, even if they were committed under the effective control of the prior commander. However, Cryer et al. argues (at 392) that the wording of the Rome Statute leads to the same result. Whether this is reflective of customary law, it is doubtful.

6.4.2 Mental element This doctrine is not an example of strict/ objective/ vicarious liability. The personal culpability of the superior must be proved (Cassese at 249). The superior must know or “should have known” of the crimes about to be committed or committed by the subordinates. According to the ICTY AC in Delalic and others (Celebici Case, , para. 223 and 241): A superior “[…] may possess the mens rea for command responsibility where: (1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Articles 2 through 5 of the Statute, or (2) where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates”.

Actual knowledge can be determined by direct proof, or with reference to circumstantial evidence such as: The number, type and scope of illegal acts; Time during which the illegal acts occurred; Number and types of troops and logistic involved; Geographical location; Whether the occurrence is widespread; Tactical tempo of operations; Modus operandi of similar illegal acts; Officers and staff involved; Location of the commander at the time. Thus, constructive knowledge (which may be inferred from or implied by the conduct of the persons involved, the surrounding circumstances...) suffices.

Meaning of “had reason to know” (ICTY/ICTR Statute)- ICTY TC in Blaskic (3.3.2000, para. 332):
“...if a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute”. However, this standard based on mere negligence has been rejected by later AC judgments. The standard set down in Celebici (possession of information of a nature, which at the least, would put the superior on notice of the risk of such offences) has become established. So, if the superior negligently fails to obtain information about the crimes no responsibility will arise! This approach is not acceptable nor reasonable. In any case, exact knowledge is not required, the superior does not have to know the exact identity of the criminal subordinates and the details of the crimes in question. However, he needs to know about the type of crime committed or about to be committed, being aware of some general form of criminality is not sufficient.

ROME STATUTE - Military commanders: “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”. Civilians: “The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes”. So, the Rome Statute adopts a higher standard of mens rea for civilian superiors. This approach does not conform with customary law. However, it will be sufficient (differently from the ICTY AC view) that the military superior, in the proper exercise of his duties, would have gained knowledge of the commission of crimes. Indeed, the ICC argued that ‘should have known’ (as opposed to ‘had reason to know’) is a negligence standard, and that failure to seek information could lead to liability. So, negligence suffices to hold military commanders responsible, whereas advertant negligence (bilinçli taksir) is required for civilian superiors to be held responsible.

6.4.3 Failure to take measures
ICTY TC in Oric, ,para.326: “As a mode of liability based on omission, superior criminal responsibility presupposes a duty of the superior the purpose of which is, first and foremost, the prevention of crimes of subordinates that are about to be committed, and in the second place, the punishment of subordinates who have already committed crimes. This duty does not, in terms of an alternative, permit a superior to choose, i.e., to either prevent the crimes or to await their commission and then punish. The superior’s obligations are instead consecutive: it is his primary duty to intervene as soon as he becomes aware of crimes about to be committed, while taking measures to punish may only suffice, as substitute, if the superior became aware of these crimes only after their commission. Consequently, a superior’s failure to prevent the commission of the crime by a subordinate, where he had the ability to do so, cannot simply be remedied by subsequently punishing the subordinate for the crime. Therefore, the failure to prevent or to punish constitutes two distinct, but related, aspects of superior responsibility which correlate to the timing of a subordinate’s commission of a crime. Hence, the duty to prevent concerns future crimes whereas the duty to punish concerns past crimes of subordinates.”

Necessary and reasonable measures have to be taken to prevent or punish the offences the superior knew or ought to have known. Failure to do either one suffices for liability. If a crime has not been committed , measures must be taken to prevent its commission. If a crime has already been committed, but the superior can not be accused of negligence in preventing it, he is obliged to either punish those responsible himself or to report the matter to the responsible authorities. Therefore, the superior has the duty to punish the crimes he has learned of after their commission. Remember, however, the opinion of the ICTY AC in Hadžihasanović ( ).

If a superior knew or ought to have known of impending crimes but took no adequate measures to prevent them, it is no defence that he later punished them. The measures that can be expected to be taken depend on the degree of effective control wielded over subordinates and the circumstances of the case. Werle: The superior should take those measures that “would have served, from an objective ex ante point of view, to prevent the commission of the crime by the subordinate or to initate prosecutorial measures”. Examples: Instruction in the principles of IHL, creation of systems of reporting, supervision and threat of sanction. The superior can not be held liable if he was unable to take such measures or did so but they failed.

ICTY TC in Oric, para. 329: “Therefore any attempt to formulate a general standard in abstracto may not be meaningful. This cannot mean, however, that the necessary and reasonable measures a superior is expected to take may be determined without reference to a normative yardstick. Such guidance can be drawn from four criteria: first, as a superior cannot be asked for more than what is in his or her power, the kind and extent of measures to be taken ultimately depend on the degree of effective control over the conduct of subordinates at the time a superior is expected to act; second, in order to be efficient, a superior must undertake all measures which are necessary and reasonable to prevent subordinates from planning, preparing or executing the prospective crime; third, the more grievous and/or imminent the potential crimes of subordinates appear to be, the more attentive and quicker the superior is expected to react; and fourth, since a superior is duty bound only to undertake what appears appropriate under the given conditions, he or she is not obliged to do the impossible.” What can be done (para. 331)? First, beyond issuing mere routine instructions, a superior may have to give special orders aimed at bringing unlawful practices of subordinates in compliance with the rules of war and to secure the implementation of these orders. Second, where information indicates, a superior may be required to investigate whether crimes are about to be committed, to protest against or criticise criminal action, to take disciplinary measures against the commission of atrocities, or to report to and/or to insist before a superior authority that immediate action be taken. Also read Cryer et al. at 396, first para. for the ICC case-law.

ICTY TC in Oric, para. 336: “In principle, the same criteria required for the duty to prevent, apply with respect to the duty to punish, with the following qualification: whereas measures to prevent must be taken as soon as the superior becomes aware of the risk of potential illegal acts about to be committed by subordinates, the duty to punish commences only if, and when, the commission of a crime by a subordinate can be reasonably suspected. Under these conditions, the superior has to order or execute appropriate sanctions or, if not yet able to do so, he or she must at least conduct an investigation and establish the facts in order to ensure that offenders under his or her effective control are brought to justice. The superior need not conduct the investigation or dispense the punishment in person, but he or she must at least ensure that the matter is investigated and transmit a report to the competent authorities for further investigation or sanction. As in the case of preventing crimes, the superior’s own lack of legal competence does not relieve him from pursuing what his or her material ability enables him or her to do.”

6.4.4 Causation This requirement is problematic because causation is very difficult to establish with regard to results originating from omissive conduct (Cryer et al. at 396). With regard to the duty to punish, causality can not be a requirement. However with regard to the duty to prevent, do the crimes need to have been committed as a result of the failure to fulfil the duty to supervise the subordinates? The case law on the issue is not firmly established. However, the ICTY AC in Hadžihasanović (judgment of be careful, there is also an AC decision of 2003 in this case) reaffirmed its view that causation is not a requirement.

On the other hand, the Rome Statute does require causation: “A military commander... shall be criminally responsible for crimes... committed by forces under his... control..., as a result of his or her failure to exercise control properly over such forces...”. However, it is also argued that this wording is misleading. It is submitted that if a crime has been committed, this automatically entails a failure to exercise proper control. Therefore, it is not necessary to also establish an additional violation of the duty of control. This view propounded by Werle regards as doubtful whether this is a causality requirement. In its early case-law the ICC (in Bemba Gombo) seeked the existence of causality but adopted a relaxed standard: there is no direct causal link that needs to be established, ‘it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged...’ (ICC Pre-T. Ch.II, , paras ). The Pre-T.Ch. also confirmed that the causation requirement only applies to failure to prevent crimes.

6.5 Nature of superior responsibility
Some domestic legislation regarding ICL criminalizes it as a form of complicity (UK). According to this view, the superior would become a participant to the crime committed by others. Other states seem to regard it as a separate form of liability (Germany, Canada). I agree with the latter view. Superior responsibility is a specific and more serious type of “dereliction of duty” (görevi ihmal). The superior is not responsible for the acts committed by others, he does not become an accomplice to the crime committed by another (that would be vicarious liability – objektif sorumluluk). The superior is liable due to acts committed by subordinates, but only as a result of his own conduct (failure to act).

ICTY TC in Halilovic (16.11.2005, para. 54):
“The Trial Chamber finds that under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus “for the acts of his subordinates” as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act. The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed.”

However, the Rome Statute seems to treat it as a form of complicity: “A military commander... shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control”. Therefore, the crimes of the subordinate are imputed to the superior. In reality, the distinction made by the German law relating to the subject seems corrrect.

According to the German Code of Crimes Against International Law, a three-fold distinction is made:
Failure to know of offences in dereliction of duty; Failure to report an offence (that has been committed in the absence of his knowledge); Knowing tolerance of an offence when there is a duty and ability to intervene to prevent it. In case of the third alternative it should be concluded that the superior has participated to the crime. Cryer et al.(at 399) also argues that this case should be treated as aiding and abetting. The German Code is also in this direction. (Remember that in Turkish penal law too, a person may participate to a crime through an omissive conduct, provided he carries the required mens rea). However the prevailing case law so far is not in that sense. The third option would also be treated under command/superior responsibility. Finally, if a superior participates in the crimes of a subordinate, liability based on direct participation will take precedence over liability based on superior responsibility (ICTY TC in Naletilic and Martinovic, ).

1. Defences/Grounds for Excluding Criminal Responsibility

1. 1 Terminology Justifications (hukuka uygunluk sebepleri): When the law provides for a justification, an action that would normally be considered contrary to law is regarded instead as lawful (eg., in case of acting in self-defence, a killing becomes lawful). Excuses (kusurluluğu kaldıran sebepler): Although the law regards an action as unlawful and contrary to a criminal norm, the perpetrator is nevertheless not punished. This is because the conduct is not blameworthy or the perpetrator does not deserve to be punished (example: when person (P) acting under duress shoots a third person the act is not lawful, however (P) will be excused from criminal responsibility.) A “defence” may comprise any of the two (justification/excuse). A defence represents a claim submitted by the accused by which he seeks to be acquitted* of a criminal charge. Therefore, it is a broad concept which would encompass the following: - The existence of grounds for justification which render the act lawful; - The existence of an excuse which excludes the culpability of the accused; - The submission that the prosecutor has not proved a fundamental element of the offence (failure of proof defences). * N.B: Under Turkish penal law, in case of lack of culpability (kusur bulunmaması), the defendant is not, technically, “acquitted” (beraat) but it is decided that “there is no need to inflict punishment” (ceza verilmesine yer olmadığı kararı – CMK 223/3)

According to a view, procedural defences (abuse of process, ne bis in idem, principle of legality, immunities, passing of statute of limitations) can also fall within the scope of defences. The better view is that such arguments do not constitute defences, but pleas as to the jurisdiction or right of a court to try a person (see in this direction Cryer et al. at 402). Under Common Law, there is no distinction between justifications (hukuka uygunluk nedenleri) and excuses (kusurluluğu ortadan kaldıran nedenler ). They are all categorized under “defences”. This approach does not draw a distinction between the two categories because all these submissions aim at preventing the prosecution or punishment of an alleged crime. However, as defences encompass all submissions made against a criminal charge, including the principle of in dubio pro reo, the term “defence” should be used as an umbrella, comprising justifications, excuses, and other submissions. In addition, mitigating factors (hafifletici sebepler), such as inexperience or pressure not amounting to duress are certainly not “defences” as they do not render the act lawful nor justify the crime, but merely influence sentencing.

The approach of Civil Law systems adopts a strict distinction between justifications and excuses. Although the boundary between different types of excuses is not always clear (eg., is state of necessity a justification or an excuse?), the distinction is important for the following reasons (Cassese at 256-7): In case of the defendant successfully pleading an excuse, an aider and abettor may still be held responsible for the excused crime (e.g., Execution squad shooting persons that had, in fact, not been convicted following a trial). When a justification is pleaded, no participant to the act may be punished since the conduct at issue is not unlawful. An action in self-defence by the victim of a criminal conduct is allowed even if such criminal conduct may be excused (e.g., having to kill an insane/involuntarily intoxicated man intending to kill you). However, self-defence may not be urged against an action that is made lawful by another justification (e.g., killing the executioner lawfully executing the death sentence). In case of pleading an excuse, the defendant may still be liable to pay compensation for any damage resulting from his misconduct. On the other hand, if the behaviour is legally justified, no such obligation would arise.

In Turkish penal law doctrine a distinction is made between justifications (hukuka uygunluk sebepleri) and grounds precluding culpability (kusurluluğu kaldıran sebepler). In the former case, the act is no longer unlawful, in the latter case, it is unlawful (and it constitutes a crime), but the perpetrator does not deserve to be punished. The new TPC lays down those grounds under the same section (entitled ‘grounds for excluding or reducing criminal responsibility’ – ceza sorumluluğunu kaldıran veya azaltan nedenler, Arts ), but it is unanimously accepted that the distinction between justifications and excuses still exists. Justifications include (1): carrying out a duty (carrying out the provisions of a statute or carrying out an order given by the competent body), legitimate self-defence or defence of another, state of necessity, use of a right, the consent of the victim. Grounds precluding culpability (2) include: acting under the use of force and violence, menace and threat, mistake of fact, and force majeure. A ground for reducing criminal responsibility is unjust provocation. Grounds affecting criminal capacity include: minority of age, mental disorder, deafness and muteness, transitory reasons, and being under the influence of alcohol or drugs. (1) However, Art. 223 of the Penal Procedure Code adopts the view that the execution of superior orders defence, and the existence of state of necessity constitute grounds for excluding culpability, and not a justification. (2) A distinction may be made between grounds excluding culpability, and excuses. In the latter case culpability is not precluded altogether, but the guilt of the perpetrator is diminished, thus rendering punishment unnecessary (Kangal, Zorunluluk, pp ). However, this issue has not yet been dealt with in Turkish academic writings.

1.2 Defences in ICL For a long time defences had little role in the practice of ICL, the main concern was to find a legal basis for individual criminal responsibility (Werle at 198). The lack of sympathy for defendants in int’l. criminal proceedings was one factor explaining this, and, at the same time, accounting fot the lack of scholarly interest. Another reason is that the Prosecutor’s choice of persons to be charged rarely includes those who may be able to invoke defences, hence the lack of case-law on the issue (Cryer et al. at 402). The Nuremberg, Tokyo IMT Charters, and ICTY/ICTR Statutes contain no provisions on the issue, although the latter two tribunals had to deal quite often with the matter. In practice, the superior orders and duress defences have been invoked more often. It may be said that defences play an important role for war crimes only (Werle at 198). ICL accepts the existence of both excuses and justifications, however it is unclear if a legal distinction is drawn between the two. Furthermore, the case law has so far not made reference to the aforementioned practical results of the distinction.

It may be said that ICL accepts the existence of the following justifications (Cassese at 258):
a) Lawful punishment of enemy civilians or combatants guilty of int’l. crimes; b) Lawful belligerent reprisals against war crimes (Savaş sırasında icra edilen zararla karşılık verme hareketleri); c) Self-defence (meşru savunma); d) Consent of the victim, with exception of crimes committed against the life, limb or personal dignity of the victim.

It may be said that ICL accepts the existence of the following excuses (Cassese at 258):
a) State of necessity/duress and physical compulsion (zorunluluk hali/tehdit ve cebir); b) Insanity/mental incapacitation (disorder/disease) (akıl hastalığı); c) State of (involuntary) intoxication (Alkol/uyuşturucu madde etkisi); d) Mistake of fact (fiili yanılma); e) Mistake of law (hukuki yanılma); f) Force majeure (mücbir sebep) – this is the existence of an irresistible force or an unforeseen external event beyond the control of a belligerent which makes it absolutely and materially impossible to comply with a rule of IHL (e.g., non-compliance with some rules on the treatment of prisoners of war on account of a famine not caused by the belligerent).

On the contrary, it is certain that customary ICL does not recognize the following defences: superior orders (yetkili merciin emrini ifa), immunity for acting as a state official (act of state doctrine), tu quoque (a plea that others (in particular, prosecuting states) have committed similar offences). Furthermore, there is no customary rule regarding minors. In other words, there is no minimum age of criminal responsibility. However, Art. 26 of the Rome Statute provides that “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.” Obviously, this provision only restricts the jurisdiction of the ICC. Below, we shall only study defences provided by the Rome Statute. With regard to other possible defences you may refer to Cryer et al. (at 420-3).

1.3 The Formulation in the Rome Statute
The Rome Statute does not draw a distinction between justifications and excuses. A neutral terminology is used, and both categories are considered under the title of “grounds for excluding criminal responsibility”. Although the Statute does not aim at codifying customary law, it represents an important development in ICL since it is the first treaty that deals with defences in a systematic way (Cryer et al. at 404). Art. 31 of the Statute lays down some justifications, excuses and grounds affecting mental (criminal) capacity (mental disease/defect, intoxication, self-defence, duress and necessity). The list is not exhaustive. Art. 32 regards mistake (of fact and of law), and Art. 33 regards superior orders. Not every ground for excluding responsibility is laid down in the Statute. However, by virtue of Art. 31 (3) other such grounds (eg., Military necessity, reprisals*, collision of duties) can also be taken into account: “At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.” * A reprisal (zararla karşılık) is a conduct that violates int’l. law and is used by a subject of IL as a coercive measure in response to a conduct by another subject of IL that also violates IL, eg., the use of prohibited weapons in response to killing of civilians by the opposing side with a view to forcing them to stop such crimes. Today this defence seems to have a very narrow scope of application.

1.4 Self-defence Self-defence may be pleaded when a person commits an int’l. crime in order to prevent, or put an end to, a crime by another person against the agent or a third person (e.g., the killing by a prison guard of an enemy prisoner who was about to murder the guard himself; e.g.,the wounding of an enemy serviceman by a civilian in his hands, for the purpose of preventing being raped). This is different from self-defence under Art.51 of the UN Charter, which concerns the use of force by state or state-like entities. Self-defence for the purpose of ICL is a justification applying to the personal act of an individual. Rome Statute Art. 31 (1) (c): “...The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph”. Therefore, the fact that a state resorts to the use of force in self-defence does not automatically mean that every act committed by state agents participating to the military operation will also be qualified as lawful (or not culpable) for the purposes of the Rome Statute.

Rome Statute Art. 31 (1) (c):
“ The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph”. Apart for the sentence regarding the defence of property, this provision is illustrative of customary law (ICTY TC in Kordic and Cerkez, , para. 451).

Self-defence (meşru savunma) under Turkish penal law: TPC Art
Self-defence (meşru savunma) under Turkish penal law: TPC Art. 25 (1) provides that an act committed in self-defence shall not be punished subject to certain conditions. - There must be unlawful attack (an ‘attack’ is an assault which is prejudicial to any legitimate interest protected by law. It does not have to constitute a criminal offence). - The attack must be directed against a right to which the person acting in self-defence or a third person was entitled. The is entitles to self-defence for the protection of property. In addition, defence of a third person is also covered by the provision. - The attack must be continuing. A view defended in academic writings was that if an attack that has not yet been launched is certain to be carried out, or an attack which has terminated is certain to be repeated, this requirement is satisfied. This view has now been incorporated into the new provision. - Resort to the action which constitutes self-defence must be indispensable; in other words, there should be no other option for repelling the attack than to act in such way. However, the generally accepted view is that if an agent who is in a position to escape in order to avoid the attack does not do so but prefers to confront the attack, he may still rely, in principle, on self-defence. - The act of self-defence must be proportionate to the assault (both in terms of the means used and the legal interests at stake), taking into account the situation and circumstances prevailing at the time.

Under ICL, this justification is subject to the following conditions:
The action in self-defence is taken in response to an imminent or actual attack (the Rome Statute refers to ‘use of force’ instead of attack): The attack is imminent if it is immediately impending or has already begun and is ongoing (Werle at 201); A person does not have to wait for someone else to strike the first blow. With regard to the Rome Statute, the attack must in fact be present. If the perpetrator mistakenly believes that he is being attacked, self-defence will not apply even if this belief was reasonable (Werle at 201, also see the explanations concerning mistake of fact in the Rome Statute). b) The attack in question must be unlawful (therefore, it is possible to act in self-defence against the insane or intoxicated (in the same direction, textbook at 409, compare Werle who argues (at 201) that the use of force ‘may not be covered by grounds for excluding responsibility’); c) The attack must be directed against the life or limb or freedom of movement of the defender or a third person (with regard to the Rome Statute, and for war crimes only, the attack may also be directed against certain property); d) There must be no other way of preventing or stopping the attack;

e) The unlawful conduct should not have been caused by the person acting in self-defence;
The conduct in self-defence is proportionate to the offence to which the person reacts: The Rome Statute speaks of “reasonable” measures that must be “proportionate” to the degree of danger; There is no duty to retreat though; This is a test that will to be assessed on a case-by-case basis, however an exact assessment may not be expected of the person. g) With regard to the Rome Statute: (arguably) the defensive act must be committed with intent to defend himself or another person or, in the case of war crimes, property (in this direction, textbook at 410).

“... in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission”: The first part of the sentence (property which is essential for the survival of the person or another person) is not problematic since it is just a manifestation of self-defence in the typical sense. However, the second part of the sentence in particular is a deviation from customary law. The provision only applies in case of war crimes (e.g., ordering the use of prohibited weapons against enemy combatants that are about to unlawfully attack a weapons depot). This extension of the customary rule was promoted by the USA and Israel. It causes some major doctrinal objections (Cassese at 261-2): - First objection: It is an unjustifiable departure from customary law. - Second objection: There is no rule of IHL prohibiting attacks against property which is essential for accomplishing a military mission or indispensable for the survival of combatants (only objects indispensable to the survival of civilian populations are protected). + The problem is that for self-defence to arise, an attack must be unlawful (Art. 54 of the I.Add.Prot. (1977)). Attacking property which is essential for accomplishing a military mission (or indispensable for the survival of combatants) is not unlawful! So, the Rome Statute must be referring to an enemy attack that is unlawful either because it involves the use of prohibited weapons, or because it will cause disproportionate casualties among civilians.

+ In both cases, it is unrealistic to envisage the possibility for a belligerent to anticipate that one of these options will materialize. Thus, this extension of the right to self-defence is either unworkable or likely to lead to serious abuses. - Third objection: This extension serves to justify war crimes committed solely to pursue military objectives. This is contrary to the spirit of ICL. - Fourth objection: The extension is unsustainable because it tries to introduce, through a criminal rule, a new substantive legal standard into IHL, that is, to protect a property that is traditionally a legitimate military target. In any case, this provision of the Rome Statute only applies for the purposes of the ICC. Therefore, the introduction of this extension into IHL (or ICL) may only occur through a possible gradual turning of the provision into customary law (Cassese at 262).

1.5 Necessity and duress Under national criminal law, the two concepts are treated separately. They refer to the defence that a person has perpetrated a crime acting under a threat of severe and irreparable harm to his (or another person’s) life or limb. The difference between duress (manevi cebir) and necessity (zorunluluk) is that necessity refers to threats to life and limb emanating from objective circumstances,in particular forces of nature (Werle at 204) (1). So, threats (tehdit) or compulsion (maddi zorlama) of a third party do not constitute necessity proper (Cassese at 280). Duress (tehdit/manevi cebir), always involves threat or psychological compulsion by one or more persons. However, ICL does not distinguish between the two. (1) Remember that under national law the threat may also be caused by the requirements of human psychology or biology (hunger, thirst, pregnancy, illness), animals (eg., a dog attack) or human conduct (eg., breaking into a house in order to escape murder). In ICL, the more likely scenario would be a threat caused by forces of nature.

Necessity is different from self-defence in that the act constituting self-defence is perpetrated against the attacker himself, whereas in case of necessity, a third person who has nothing to do with the danger that is trying to be avoided is harmed by the person acting under the state of necessity. So, the difference from necessity is that the act in self-defence is committed against the person causing the unlawful attack to be avoided. In the case of necessity, the basis for excluding criminal responsibility is a choice of evils: the defendant is faced with a threat, and in order to avert it he commits a crime that harms a lesser or an equal legal interest (committing an ‘evil’ to be safe from an equal or bigger ‘evil’).

1.5.1 Necessity and duress in the Rome Statute
Rome Statute Art. 31 (1) (d): “The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control.” The Rome Statute merges necessity and duress into one common ground for excluding responsibility.

State of necessity (zorunluluk durumu – ıztırar/zaruret hali) under Turkish law is provided for in TPC Art. 25 (2), and it prevents any punishment from being imposed upon the offender. Art. 25 (2) applies under the following conditions: - There must be a serious and imminent danger (‘danger’ refers to a situation that may give rise to a major harm). - The danger must be directed at a right to which the perpetrator, or a third person, is entitled. - The danger must not have been knowingly caused by the perpetrator himself (if the danger is caused intentionally or with advertant negligence, the agent may not rely on state of necessity to justify an act committed with a view to avoiding the danger in question). - The perpetrator should not be under a legal obligation to confront the danger (tehlikeye karşı koyma yükümlülüğünün bulunmaması). Certain professions impose on the person practising it the duty to face the danger (e.g., a doctor may not refuse to treat the patients and abandon the hospital because of the risk of an infectious disease). - There should be no other means of protection, in other words, it should be impossible to escape the danger without having to harm a third person. The means used must be proportionate to the gravity and object of the danger.

Some writers (Özgenç, Ceza Hukuku (5th ed
Some writers (Özgenç, Ceza Hukuku (5th ed.) at 367, Artuk/Gökcen/Yenidünya at 520, Koca/Üzülmez at 292, Hakeri, Ceza Hukuku at 290, Gülşen, Recep, Ceza Hukukunda Sorumluluğu Kaldıran Nedenlerden Kaza, Mücbir Sebep, Cebir ve Tehdit, Ankara, 2007 at 206; further see Kangal, Zorunluluk, p. 36, fn. 27 for references) argue that TPC Art. 25 (2) does not provide for a justification but a ground affecting culpability. According to this view, the existence of state of necessity is a ground for precluding culpability. Indeed, in German doctrine there is a distinction between necessity as a justification, and necessity as a ground for excluding culpability. The Code of Penal Procedure Art. 223 (3) (b) refers to necessity as a ground for excluding culpability. Thus, if a person acts under a state of necessity, he is not acquitted, but the judge shall decide that there is ‘no need to inflict punishment because there is no guilt’. In line with this provision, the Court of Cassation has also held that state of necessity no longer constitutes a justification (Grand Chamber, Judgment of 26/02/2008, no /37, see Özbek, TCK İzmir Şerhi, p. 409). However, the majority opinion (see Kangal, Zorunluluk, p. 34, fn. 22 for references) is of the view that the way it has been articulated (or due to its intrinsic nature) a state of necessity constitutes a justification (Toroslu, Ceza Hukuku, p. 149; Toroslu/Ersoy, pp. 10-1; İçel/Evik, p. 132; Öztürk/Erdem, Ceza Hukuku, p. 206, Demirbaş, Ceza Hukuku, p. 276, Centel/Zafer/Çakmut, p. 311; Soyaslan, pp. 379 et seq.; Hafızoğulları, Ceza Genel, p. 233; Şen, p. 70; Ünver, Yener, YTCK’da Kusurluluk, in: Ceza Hukuku Dergisi, Sayı 1, 2006, p. 59; Yıldız, p. 51; Güngör, Hata, p. 66), or at least, it includes certain features from both institutions (Özbek et al., p. 376). With regard to the provision of the new PC, it is also argued that, depending upon the circumstances of the case, it may constitute either a justification or an excuse (Kangal, Zorunluluk, p. 48). Thus, there is a justification if the legal value confronted with the danger that is trying to be avoided is significantly superior to the legal value harmed by the protective act, there is an excuse if the protected legal value is equal to or not significantly superior to the harmed legal value belonging to a third person. In line with this view, the person acting under state of necessity should be acquitted in the former case, and it shall be decided that there is ‘no need to inflict punishment’ in the latter case.

As regards ICL, the same requirements are seeked for both duress and necessity (Cassese at 281):
The act charged is done under an immediate threat of severe and irreparable harm (Rome Statute: threat of imminent death or of continuing or imminent serious bodily harm). The threat must concern imminent serious violence directed against life or bodily integrity, it may be a threat of danger directed to the accused or to others (Cryer et al. at 412, Werle at 206). Threat directed against property is not sufficient to rely on this ground. b) There is no other adequate means of averting the threat. c) The crime committed is not disproportionate to the evil threatened (“Balancing of interests”: the crime committed under duress/necessity must be, on balance, equal to or lesser than the avoided evil); - Rome Statute in relation to conditions b) and c) : the person acts necessarily and reasonably to avoid this threat. + An action is necessary if it is the only possibility of immediately eliminating the danger. It is reasonable if it is generally appropriate to avert the danger, and causes no disproportionate consequences (Werle at 206). + Cryer et al.(at 413) argue that what is necessary and reasonable should be assessed with regard to ‘a servicemember of the experience and rank of the defendant’.

The situation leading to duress or necessity must not have been voluntarily brought about. It is not possible to rely on this defence if the perpetrator caused the danger himself (self-induced necessity) (Werle at 208). The Rome Statute also requires the perpetrator to act with the intention of averting a threat. - However, the Rome Statute also seeks a balancing of interests by requiring that “the person does not intend to cause a greater harm than the one sought to be avoided”. + both an objective and a subjective test seems to apply to this criterion (in this direction Werle at 208). + The harm caused must not be greater than the one sought to be avoided (objectively), and this must be the intention of the accused (subjectively). + Cryer et al. (at 413) that this is not clear: it may be that the only criterion is the subjective one, so ‘unintended excessive consequences’ are not to be taken into account. In other words, it may be argued that if the intention is not to cause a greater harm than the one sought to be avoided, but that is the objective consequence of the action, the defendant will still benefit from the excuse.

1.5.2 Self-induced necessity
As explained above, it is not possible to rely on this defence if the perpetrator caused the danger himself. This is also confirmed by the wording of the Rome Statute in Art. 31 (1) (d) (ii) which states that the threat may be ‘Constituted by other circumstances beyond that person's control.’ Therefore, the defence is not available if the perpetrator was responsible for bringing about the danger (Werle at 208). Necessity can not excuse from criminal responsibility a person who has freely and knowingly chosen to become a member of a unit, organization, or group institutionally intent upon actions contrary to IHL (Cassese at 284). So, if a person has voluntarily joined a military or paramilitary unit whose main purpose is to engage in criminal action, he is not allowed to rely on this excuse (see Cassese (3rd ed.) at 216, fn. 24).

1.5.3 No excuse in cases of special duty to assume danger
The perpetrator’s position or function sometimes entrusts him with the duty to confront the threat in question (tehlikeye göğüs germe/karşı koyma yükümlülüğünün bulunması - example: a soldier in the battlefield can not shoot his commander for the purposes of escaping from the battlefield). In specific dangerous situations, a higher degree of risk-taking is expected of soldiers who have been trained for such situations. In determining the extent of the duty to assume danger, the defendant’s position in the military hierarchy must be taken into account (Werle at 209).

1.5.4 May duress be a defence to killing?
A separate issue is whether a person who has not voluntarily joined a group whose main purpose is to commit int’l. crimes may be relieved from punishment in case of committing intentional killing under duress. Under the influence of English criminal law, in some cases it was concluded that for crimes involving killing duress can not be admitted as a defence, but may only be urged in mitigation. See in this direction Hölzer and others, Canadian Military Court sitting at Aurich, (the court applied national law); ICTY AC in Erdemovic, There is, however, case law in the opposite direction, see Ohlendorf and others (Einsatzgruppen case, US Military Tribunal sitting at Nuremberg, : the defence of duress was upheld in principle, but rejected on the facts), Gustav Alfred Jepsen and others, Many national courts have also accepted that duress may be an excuse to killing. Read the cases in Cassese (3rd ed.) at

In conclusion, despite conflicting case law, it may be concluded that customary ICL does not exclude the applicability of this defence to war crimes and crimes against humanity whose underlying offence is murder or unlawful killing (Cassese at 288). Cryer et al. (at 411) also finds the ICTY AC view in Erdemović ‘controversial’. In practice, this defence has mostly failed. This is because of the reluctance of courts to make duress available as a defence for offences involving killing. Cassese argues (at 289) that the following criterion gains importance: whether a crime would have been committed in any case by a person other than the one acting under duress. He argues that where the accused has been charged with participation in a collective killing which would have proceeded irrespective of whether the accused was a participant, the defence has, in principle, been allowed. If an individual member of an execution squad first refuses to obey but has then to comply with the order ar a result of duress, he may be excused if the crime would have been committed anyway. In my opinion, duress can always be a defence, regardless of the underlying crime. The Rome Statute also does not exclude this possibility (Werle at 207).

1.6 Insanity/Mental Disorder-Incapacity
This defence is available when a person is deprived of the mental capability necessary for deciding whether an act is wrong or right. The plea may be urged when at the time of commission of the crime the accused was unaware of what he was doing, and hence of forming a rational judgment about his conduct. Rome Statute Art. 31 (1) (a): “The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law”. The article covers three situations (textbook at 405): Where the person is unable to understand the nature of his conduct (eg., not being aware that he is killing someone); Where the person is uncapable of understanding the unlawfulness of his conduct (eg., being aware of killing someone without understanding that this is unlawful/wrongful); ‘Irresistible impulse’, where a person understands the nature and unlawfulness of the conduct, but is unable, due to mental illness, to stop from acting as he did.

The defence trying to make a plea of mental insanity will bear the burden of proof. In the ICTY practice the standard of proof was on the balance of probabilities (textbook at 406, fn. 22). The Rome Statute , by saying “that destroys...”, seems to point to a higher standard than, for example, the one adopted by the TPC (Art. 32 (1)). Indeed, the TCP provides that no punishment may be imposed if a person cannot comprehend the legal meaning and consequences of the act he has committed, or if, in respect of such act, his ability to control his own behavior was significantly diminished. Compare Werle (at 159), who understands mental incapacity as “Any mental defect that achieves a degree of severity and permanence (RMÖ: this is debatable – permanence is not required) and can disrupt the perpetrator’s ability to appreciate or control his conduct”. “Disrupt” may also include significant diminishment whereas the Rome Statute seems to exclude this hypothesis from the scope of the excuse. So, with regard to the ICC, the provision will not apply if mental capacity is not destroyed but only diminished/impaired. The case law of the ad hoc tribunals has also developed in that direction. What happens then? Under common law systems, the gravity of the offence is sometimes reduced. For example, the charge is reduced from murder to manslaughter, if there is a mandatory sentence (death or life time imprisonment) for murder.

Under civil law systems, usually, the accused qualifies for mitigation of the sentence (an example is Art. 32 (2) TPC). The same (mitigation) may be done in the framework of Art. 78 of the Rome Statute and RPE r. 145 (2) which states that, in its determination of the sentence, the Court shall take into account, as appropriate, ‘circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress’. On the other hand, it seems that uncontrollable fits of temper (transitory reasons – arızi sebep) will not constitute an excuse under ICL, but such reasons may be taken into account as extenuating circumstances. (Werle argues that a crime in the heat of passion (cinnet) can be considered under this defence). Finally, ICL accepts mental incapacity as a defence, but does not regulate what to do with such persons. For example, the Rome Statute does not provide for a means for committing them to treatment facilities.

1.7 Intoxication This issue is pretty important because many int’l. crimes are perpetrated by persons under the influence of alcohol and drugs (though, those “most responsible” are not in that condition). Rome Statute Art. 31 (1) (b): “The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court”. Again, impairment/diminishment of mental capacities does not suffice. However, when the requirements are met, a plea of intoxication is a complete defence (no criminal responsibility will arise at all).

This provision only applies in case of involuntary intoxication (unawareness of the nature of the substance or being forced to have it) or in case of inadvertant negligence (bilinçsiz taksir – not foreseeing that a crime might be committed under those conditions). So in case of conscious/advertant negligence (e.g., taking drugs or alcohol in the knowledge that he may commit a crime when intoxicated), the defendant may not rely on this excuse. (Compare the textbook (at 407), which reaches the same conclusion from a different perspective: ‘voluntary intoxication is only a defence when a person did not realize that he or she might engage in conduct prohibited by the Statute, and was not at fault by disregarding such a risk’.) Intentional intoxication for the purposes of committing crimes (eg., taking drinks or drugs to gain courage or to become more ferocious) is obviously excluded. In fact, the ICTY TC in Kvocka ( ) considered it an aggravating factor. Furthermore, chronic alcoholism or addiction to drugs may rather fall within subparagraph (a) (mental insanity), although it is argued that it may be considered under this excuse too.

1.8 Mistake

1.8.1 Turkish Law Mistake may be divided into four categories under Art. 30 of the TPC: 1. Mistake in the legal element of the offence (Tipiklikte Yanılma – Art. 30 (1)); 2. Mistake regarding the qualifying* circumstances of the crime (Suçun Nitelikli Hallerinde Yanılma – Art. 30 (2)); 3. Mistake regarding the grounds for excluding or reducing criminal responsibility (Ceza Sorumluluğunu Ortadan Kaldıran/Azaltan Sebeplerde Yanılma - Art. 30 (3)); 4.- Mistake regarding the wrongful nature of the act (Haksızlık Yanılgısı/Yasak Hatası, Verbotsirrtum in German – Art. 30 (4)). * The previous penal code made a distinction between aggravating circumstances (ağırlatıcı sebepler) and mitigating circumstances (hafifletici sebepler). The new PC has eliminated this terminological difference. When a basic offence (suçun temel hali) is supplemented by variations that either aggravate (qualifying offence) or mitigate (privileging offence) the punishment, the qualified circumstance of the crime (suçun nitelikli hali) arises.

Mistake in the legal elements: According to Art
Mistake in the legal elements: According to Art. 30 (1) of the TPC, ‘Any person who, in the execution of the act, does not have knowledge of the material elements in the legal definition of the crime, is not deemed to have acted with intent’. The material elements include the conduct, its result and the causal link between the two, as well as the object of the crime, the perpetrator and the victim. For example, if the perpetrator does not know that the property he is taking belongs to another person, the crime of theft will not occur, because Art. 141 requires the object of the crime be a movable property ‘belonging to another person’. Similarly, if the perpetrator does not know that his sexual partner is a minor, he will not have committed the crime laid down in Art. 104 because the age of the victim is a material element of the crime: ‘Any person who enters, without the use force, threat or deceit, into sexual intercourse with a minor who has completed fifteen years of age shall be sentenced...’.

However, if the person is mistaken due to his own negligence, and the type of crime in question may be committed negligently, responsibility will arise. For instance, hunter (H), who knows that there are other hunters in the zone, hears a noise coming from the bushes. In response, he fires shots towards that direction in the belief that it is an animal, however he shoots another hunter. In this example, (H) has not acted with intent, because the material element of the crime of intentional killing requires knowledge of the fact that the object of the crime is a living person, therefore no intentional crime has been committed. However, (H) has confused a fellow hunter with an animal due to his own negligence (1), thus, he may be prosecuted under Art. 85 regarding negligent homicide. According to the classic doctrine, the above example would constitute a ‘material mistake (maddi hata)’. Consequently, the perpetrator would benefit from his mistake regarding the elements of the crime if the mistake is essential (esaslı yanılma – which means that had the real situation been as envisaged by the perpetrator, his conduct would have been lawful) and irreproachable (without guilt/ kusursuz). So, in the above example, the classic doctrine would also hold the hunter responsible for negligent homicide. That is because the hunter was culpable in not trying to determine if the being behind the bushes was a human being or not, despite knowing that other hunters were present in the zone. Because, under the circumstances of the case, he would have been expected to exercise an objective duty of care and attention with a view to making sure that he was not shooting at a fellow hunter.

Mistake regarding the qualified circumstances of the crime (Suçun Nitelikli Hallerinde Yanılma – TPC Art. 30 (2)): The qualified circumstances of the crime indicate the presence of aggravating or mitigating (attenuating) circumstances specific to a certain crime. According to TPC Art. 30 (2), the perpetrator shall benefit from his own mistake regarding the existence of such circumstances. For example, (A) steals an original painting thinking that it is an imitation. (A) shall benefit from the provision of Art. 145 which indicates that the punishment to be imposed may be reduced if the value of the property concerned is minimal. To give another example, suppose that (A) fires various shots towards the car of his brother, but it turns out that the car had been just loaned to a friend who was driving it. Art. 82 (1) (d) which provides an aggravating circumstance in case of intentional killing perpetrated against siblings will not apply. On the other side, certain aggravating circumstances are attached to a crime in relation to its results. For example, if intentional wounding causes an incurable illness or a vegetative state in the victim, the punishment is increased. As explained above, where an offence is aggravated due to its consequences, negligence (and thus, foreseeability) will suffice to hold the perpetrator responsible for the result. Thus, it is only with regard to those aggravating circumstances which require the intent of the perpetrator (e.g., sexual assault committed against a person who is physically or mentally incapable of defending himself – Art. 102 (3) (a)) that the perpetrator will benefit from his own mistake.

Mistake regarding the grounds for excluding or reducing criminal responsibility (Ceza Sorumluluğunu Ortadan Kaldıran/Azaltan Sebeplerde Yanılma ): According to Art. 30 (3) ‘Any person who is inevitably mistaken about the circumstances which lead to excluding or reducing criminal responsibility shall benefit from such mistake.’ The first alternative falling under this provision is mistake concerning the existence of the material conditions of a justification. In this case, the actual situation is not what the perpetrator thinks, e.g., as he runs at night through the woods, (A) comes across a bleeding man, and notices another man, (M), holding a gun in his hand. (A) immediately grabs his own gun and shoots (M). However, it turns out that a movie was being shot. According to the classic doctrine, as explained above, the perpetrator will benefit from his mistake (and rely on legitimate defence of a third person) if his mistake is essential, and if the perpetrator is not guilty in being mistaken. As for the German-oriented approach, if the mistake is inevitable, no criminal responsibility arises.

If the mistake was evitable, there are different views
If the mistake was evitable, there are different views. According to one view (theory on negative elements of typicity), this mistake negates intent, thus the first paragraph of the article shall apply, and the perpetrator may only be held responsible if the act amounts to a crime which can be punished when committed negligently. According to another view (strict guilt theory), this mistake precludes culpability, but the conduct is still intentional and unlawful, therefore the perpetrator shall be held responsible for the crime, but the mistake shall be taken into account, according to Art. 61 of the PC, in the determination of the sentence. The second alternative falling under Art. 30 (3) is mistake concerning the material conditions of a ground reducing or excluding culpability. A typical example is a mistake regarding the existence of unjust provocation, e.g., (A) mistakenly believes that (B) has insulted him before other persons, and, under the influence of a state of anger caused by the alleged insult, he stabs (B). In this case, if the mistake is inevitable, (A) shall benefit from the provisions of unfair provocation. If it is not, he shall be punished for the intentional crime he has committed without benefitting from the provisions of unfair provocation, but this mistake will be taken into consideration in the determination of the punishment.

1.8.2 Mistake of fact in ICL This is an excuse which may be invoked when, although there is a conduct that violates a criminal norm, the person is mistakingly acting in the honest and reasonable belief that there exist factual circumstances making the conduct lawful. So, a mistaken perception affects the material elements and thereby negates the mental element. Example from the US Manual Air Forces: “A pilot attacks, admittedly in a negligent manner, and consequently misses his target, a military objective by several miles. The bombs fall on civilian objects unknown to the pilot. No deliberate violation of international law has occurred... He could not be charged with a violation of the law of armed conflict”. Read handout (Cassese at “Michael A. Schwarz case”).

Mistake of fact constitutes an excuse because it “negatives” or eliminates the requisite mental element. Example: If a person bombs a civilian bunker believing it was a military command center, there would be no liability. If we think of our law, according to TPC Art. 21 (1) TPC: “Intent is defined as knowingly and willingly conducting the elements in the legal definition of an offence.” According to the Turkish and German doctrine, intent should include all the objective elements in the legal definition of the crime. So, returning to the example, if the perpetrator does not know that the target is a civilian facility, he can not have intent to attack a civilian target. Example: The defendant shoots at a Red Crescent vehicle because he thinks, due to poor visibility conditions, that it is an enemy tank. As can be seen, the perpetrator’s mistaken perception must relate to the facts underlying the material elements of the crime. On the contrary, if the mistaken perception concerns normative elements of the definition of the crime, the determination of which would require a legal judgment (e.g. which are the targets that may be attacked?), the provision on mistake of law will apply instead.

1.8.3 Mistake of fact in the Rome Statute
Rome Statute (Art. 32 (1)): “A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” Thus, the Rome Statute mirrors the understanding just explained above. There is no explicit requirement in this article that the mistake be a reasonable one, but Cassese argues (at 290) that this should be the case. It may be said that when the mistake is not a reasonable one, it will be hard to prove that the person was honestly (really) mistaken (textbook at 414). One problem is that mistakes of fact which, if they were true, would provide the basis of a defence do not fall under this article (textbook at 415), e.g., the defendant erroneously thinks that a POW is reaching into his pocket to pull a weapon, and he shoots him. In other words, a mistake concerning the factual requirements of the grounds for excluding responsibility (“Erlaubnistatbestandsirrtum”) (cases that would fall under TPC Art. 30 (3)), are not covered by this provision (Werle at 211).

This is because such mistakes do not relate to the mental element (the perpetrator knows that the victim is a POW, and intentionally shoots him). Thus, such mistake would not relieve the defendant of criminal responsibility (with regard to self-defence, see in the same direction textbook at 410: ‘there does not appear to be any acceptance in this provision for a defence when a person reasonably (but wrongly) believes that there is such an attack’. However, the textbook approaches the issue in the framework of the formulation of Art. 31 (1) (c) concerning self-defence). Werle argues (at 211-2) that this result is unsatisfactory and should be corrected because national legal systems would uniformly not punish the defendant under such circumstances. So, a general principle of law might be presumed to this extent. Therefore, he argues that, ideally, the ICC should not punish the defendant by relying on general principles of law (which is also an applicable source of law).

As we shall see later on, obedience to superior orders is no defence
As we shall see later on, obedience to superior orders is no defence. However, the defendant may claim that he was not aware that the order was unlawful in point of fact. So, it may be possible for the defendant to rely on mistake of fact. Example from the 2004 UK Manual: “if an artillery commander is ordered to fire at an enemy command post in a particular building and he does so believing that it is a command post but it later turns out that, unbeknown to him, it was a school, he would not be guilty of a war crime because he did not intend to attack a school”. Example: Executing enemy persons in the reasonable belief that the victims had been duly tried and sentenced to death (read handout, Cassese at 293-4, fn. 56 included, “Polish prisoner of war case”).

1.8.4 Mistake of law Under most national legal systems ignorance of law is no excuse (ignorantia legis non excusat). This is because legal rules are accesible to everybody (thanks to the principle of legality), thus all those living under a legal system are bound to know the law. This is an absolute presumption (mutlak karine). If it was otherwise, the applicability of criminal norms would differ from person to person, and it would provide an incentive for persons to break the law.

In principle, mistake of law is no excuse under ICL neither
In principle, mistake of law is no excuse under ICL neither. However, there are exceptions. This is because some rules of IHL/ICL are not clear, unambiguous, and universally recognized. This lack of legal certainty causes ICL to adopt a more lenient approach towards this defence. This was concisely explained in Peleus (British Military Court sitting at Hamburg, ): “It is quite obvious that no sailor and no soldier can carry with him a library of international law, or have immediate access to a professor in that subject who can tell him whether or not a particular command is a lawful one” (at 129).

As a result, mistake of law may be an excuse when (Cassese at 295):
The defendant had no knowledge of an essential element of law referred to in the int’l. prohibition of a certain conduct; This lack of knowledge did not result from negligence; Consequently, the defendant was lacking the requisite mental element to commit the crime. This is the approach adopted by the Rome Statute (Art. 32 (2)): “A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may(1), however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.” (1) “May” does not mean that the defendant can still be punished in case of mistake of law negating the mental element, the ICC would not have the discretion to punish the defendant nonetheless.

So, mistakes about whether conduct is criminalized by the ICC Statute, or whether a defence exists in law are not excuses, even if such mistake was unavoidable (textbook at 415). The key element is that the defendant should lack the requisite mental element due to the mistake. The defendant must fail the recognize the significance of the normative element (Werle at 213). Example: A person is ignorant of the rules on flags of truce and does not know the meaning of the use of a white flag.

The first application of the concept was by the Leipzig Supreme Court in 1921 in Llandovery Castle (read handout, Cassese at 295). The defence was rejected because the prohibition in question (killing of defenceless persons) was simple and universally known. In assessing whether the defendant can be excused for failing to know the law, the following factors may be taken into account (Cassese at 298-9): Whether the int’l. rule in question is universally admitted and recognized or laid down in written rules of which the defendant is apprised (read handout, Cassese at 298, fn. 61), or is instead controversial, or obscure, or open to glaringly different interpretations; The intellectual status including the education and training of the person in question; The position within the military hierarchy (as you go up in ranks, the expected level of knowledge would increase); The importance of the value protected by the breached rules (values such as life and human dignity are universally protected, one may be more demanding when it comes to these values).

As we shall see, obedience to superior orders is no defence
As we shall see, obedience to superior orders is no defence. However, the defendant fulfilling superior orders may be relieved of criminal responsibility based on ignorance of law meeting the above-mentioned requirements. Such mistake may negate the mens rea of the defendant (read handout, Cassese at 300, fn. 64, “Scuttled U-Boats case”). Case law shows that this defence is upheld when it is proved that the subordinate acted under the honest and reasonable belief that the law allowed the execution of the order. This would only be the case when the law on the matter is not clear and accesible (Cassese at 301).

1.9 Superior Orders Int’l. crimes are usually committed pursuant the orders of a superior, by perpetrators integrated into a hierarchically organized structure. The basic dilemma faced by a subordinate is (Cassese at 268-9): To respect military hierarchy by executing whatever order he is given, whether or not lawful; To refuse to carry out a manisfestly unlawful order in order to comply with the moral demand not to breach the law. In the first option, the subordinate may be hanged by a court for obeying the order; in the second option, he may be shot by a court-martial for disobeying it! The duty of ‘absolute obedience’ (mutlak itaat) in the military complicates matters further. Organizations based on strict hierarchy require a system of orders and obedience to be able to function. Within such systems, subordinates must be able to trust the binding character of the orders they are given, and must enjoy some protection from personal responsibility in carrying out orders. The question concerning ICL is whether this protection can also create grounds for excluding the individual criminal responsibility of subordinates in case of int’l crimes (Werle at 214).

1.9.1 Historical development
Until WWII (although Cryer et al. argue that after WWI things had already changed) it would seem that the principle of obedience tended to prevail (Werle at 214): the subordinate could not refuse to carry out the order, and only the superior could be held accountable (respondeat superior – see for example the British and US Military manuals of the time) (Cassese at ). There were, however, some exceptions to this understanding. See, for example, the Wirz case (US Military Commission, 1865) where the Swiss doctor Captain Henry Wirz was held accountable for ill-treating POW despite having acted under superior orders. (Cassese (3rd ed) at 228, fn. 1). Another exception was the 1872 German Military Penal Code which provided that the subordinate obeying an order was liable to punishment, if it was known to him that superior orders involved the violation of the law (Art. 47). See in this regard the Llandovery Castle case (Cassese (3rd ed) at 229, fn. 2).

The law changed after WWII, when the Charter of the Nuremberg and Tokyo IMTs, and Control Council Law no. 10 laid down that superior orders could not be invoked as a defence for int’l. crimes, although it may constitute a mitigating circumstance (but the Nuremberg IMT never utilized it so). The UN GA later “reaffirmed” (Nuremberg Principles) the “absolute liability” approach under Principle IV: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him” (remember though, that this principle is different from what was provided in the IMT Charters: no mitigation, but complete defence if “no moral choice” is available). Subsequent case law and practice has confirmed the absolute liability trend (albeit with some exceptions, for example, the Genocide and Geneva Conventions contain no provision on the issue).

The statutes of the ICTY, ICTR, ICC, SCSL, as well as the 1984 UN Torture Convention, also refuse the superior orders defence. So, under customary law, the general principle is that acting under orders cannot relieve a person from criminal liability for int’l. crimes. However, the Statutes of the ICTY, ICTR and SCSL provide that it may be considered in mitigation of punishment if the Court determines that justice so requires. Werle argues (at 215) that this understanding has become part of customary ICL. As you study the rules provided below, bear in mind that there are three basic positions on the question of the responsibility of the perpetrator acting upon superior orders (Werle at 214): Respondeat superior (only the superior will be liable); The absolute liability principle (the subordinate can not be relieved of criminal responsibility); The manifest illegality principle (obedience to superior orders excludes, in principle, criminal responsibility, but not if the perpetrator acting pursuant the orderknew the order was illegal or if it was manifestly illegal.

1.9.2 The idea behind the rejection of the defence
Modern int’l. crimes are committed in large-scale, involve many perpetrators, and tend to be organized. To absolve subordinates would mean to (Cassese at 270): Disregard the moral involvement (culpable participation) of numerous subordinates in the commission of such crimes; Leave unpunished many persons who have physically perpetrated horrible crimes; - Concentrate criminal responsibility at the top of the chain of command, in extreme cases (Werle at 215: ‘it was all Hitler’s fault’ argument).

Therefore, military and civilian authorities may not, in principle, escape punishment by relying on this defence when the order involves the perpetration of int’l. crimes, even when the subordinate (Cassese at 271): Is under a legal obligation to obey orders; and The authority issuing the order wields formal and substantial control over the subordinate. Obviously, if these two conditions are not met, there would be no “superior order” at all. So, the following arguments apply to cases where these two conditions exist. In addition, the rules of ICL on superior orders apply to orders of both military and civilian authorities, and whatever the rank of the superior authority (Cassese at 271).

1.9.3 National and Int’l. Standards
National legislations usually provide for a more cumbersome test when it comes to determining the inapplicability of the superior orders defence. Indeed, the national law of many states (e.g. France, Sweden, Spain) and some military manuals (e.g. US, Canada) hold the subordinate responsible only when the order is manifestly unlawful (“manifest illegality principle”: superior orders may, in principle constitute a defence, but not if the order is manifestly unlawful). On the contrary, customary ICL accepts that the subordinate will be held responsible whenever the order involves the commission of int’l. crimes.

Therefore, when applying the respective test, national courts will also have to determine that (Cassese at 272): The order concerned the performance of an act that was undisputedly unlawful; and The person executing the order knew or should have known the order to be manifestly unlawful. This last condition would be met if “a man of ordinary sense and understanding would, under the circumstances, know [the order] to be unlawful”. Int’l. courts will only have to satisfy themselves that the order involved the commission of an act that amounts to an int’l. crime.

Turkish Constitution Art. 137:
(2) An order which in itself constitutes an offence shall under no circumstances be executed; the person who executes such an order shall not evade responsibility. (3) Exceptions designated by law relating to the execution of military duties and the protection of public order or public security in urgent situations are reserved. Turkish Military Penal Code Art. 41: (2) Hizmete mütaallik hususlarda verilen emir bir suç teşkil ederse bu suçun işlenmesinden emir veren mesuldur. (3) Aşağıdaki hallerde maduna da faili müşterek cezası verilir : A : Kendisine verilen emrin hudutlarını aşmış ise, B : Amirin emrinin adli ve askeri bir suç maksadını ihtiva eden bir fiile mütaallik olduğu kendisince malüm ise. Therefore, according to Art. 41 (2), in principle, if an order concerning the official duty of the subordinate involves the commission of a crime, criminal responsibility will fall on the person giving the order. However, according to Art. 41 (3) (b) of the TMPC, if the subordinate exceeds the scope of the order or if he knows that the order of the commander regards an act which involves a criminal purpose, he shall not be relieved of responsibility.

Returning to the different tests employed at national and international level, at first sight, standards seem to be conflicting, because national courts also seek the order to be “manifestly unlawful”. This difference is due to the fact that national rules regarding superior orders cover any violation of military or civilian laws, and not only int’l. crimes (Cassese at 271). That is why a further test has to be adopted in order to avoid the unfair punishment of subordinates not entertaining a guilty mind. Int’l. rules on the matter, on the contrary, only cover the more limited question of int’l. crimes, and take it for granted that the ordering of any act amounting to such crimes is manifestly unlawful. In practice, the national and int’l. tests will almost certainly lead to the same conclusion when it comes to int’l. crimes (Cassese at 273). The only exception may be in cases where the law on an issue is obscure or highly controversial, in which case, the rules regarding mistake of law shall apply.

In practice (Cassese at 273), national and int’l
In practice (Cassese at 273), national and int’l. organs have rejected this defence in cases concerning the: - Killing or ill-treatment of: (a) defenceless shipwrecked persons; (b) innocent civilians in occupied territory; (c) prisoners of war; (d) non-combatants detained in the combat area; Taking of illegitimate reprisals against civilians; Unlawful punishment of civilians acting on behalf of, or collaborating with, the enemy; Refusal of quarter. For examples read Cassese (3rd ed) at

1.9.4 Mistake of law and superior orders
As we explained before, the defendant acting upon superior orders may be relieved of criminal responsibility based on ignorance of law. Such mistake may negate the mens rea of the defendant (read “Scuttled U-Boats case”). Case law shows that this defence is upheld when it is proved that the subordinate acted under the honest and reasonable belief that the law allowed the execution of the order. This would only be the case when the law on the matter is not clear and accessible (for an example see Wilhelm von Leeb and others (High Command) case before a US Military Tribunal sitting at Nuremberg).

1.9.5 Superior orders in the Rome Statute
Article 33 (Superior orders and prescription of law): “1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.”

As can be seen, the national approach, based on the “manifestly unlawful order” standard has been combined with the absolute int’l. approach. The execution of superior orders may not constitute a defence in case of genocide and crimes against humanity. On the contrary, the defence may be pleaded in case of war crimes (and aggression), provided that the three cumulative conditions (obligation to obey + no knowledge of unlawfulness + no manifest unlawfulness) are fulfilled. Although it only applies to war crimes, it will be a complete defence (relieving the subordinate of all criminal responsibility) when the required conditions are met. This is a deviation from customary ICL (Cassese at 279). The Rome Statute does not explicitly provide for a mitigating circumstance in case of compliance with superior orders, however, Art. 78 (1) shall apply: “In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.”

For the defendant to be able to succesfully rely on this defence (with regard to war crimes), three conditions must be met. 1) First, the person acting under orders must be under a legal obligation to obey orders under domestic law. Thus, in case of orders emanating from rebel authorities and commanders, it would seem that such orders can not form the basis of this defence. 2) Secondly, the person must not know that the order was unlawful. Thus, this is an expanded form of a mistake of law defence. - What happens if the subordinate should have known of the unlawfulness, but did not? 3) This is where the third condition comes into play: that the order must not be manifestly unlawful. - Art. 33 (2): “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” This seems to be an unrebuttable presumption.

If the order was “criminal on its face” (High Command case), “so outrageous as to be manifestly unlawful” (Finta case, Canadian Supreme Court, ), “a flagrant and manifest breach of the law” (flying “like a black flag above the order given”, Attorney-General of Israel v Eichmann, 1968), then it is manifestly unlawful. Even so, with regard to assessing manifest unlawfulness, different standards may be expected from subordinates in different positions, depending on the rank, education, military training and experience of the person. The role of culture, propaganda and “common knowledge” may also be relevant. So, it may be said that the second and third conditions are related: ignorance of the unlawfulness of the order must not be due to the fault of the subordinate. Indeed, the subordinate can be accepted to be culpably ignorant when the order was openly illegal. In such case, the defendant can not rely on this defence.

In practice, the deviation from customary ICL with regard to war crimes may not be that important because (Cassese at 279): The Rome Statute and the Elements of Crimes lay down in detail the war crimes falling within the jurisdiction of the ICC. Thus, all servicemen would be expected to know such prohibitions. It would be hard to say that orders involving the commission of such crimes are not manifestly unlawful. Therefore, Cassese argues (at 280) that when a crime within the jurisdiction of the Court is committed, the Court should start from the assumption that the order was “manifestly unlawful” by definition, unless the exceptional probability that the substantive law on the matter is unclear, in which case, the defence of mistake of law may be pleaded.

2. IRRELEVANCE OF OFFICIAL CAPACITY AND IMMUNITIES

2.1 IRRELEVANCE OF OFFICIAL CAPACITY
Art. 27 (1) of the Rome Statute: “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.” ICTY St. Art. 7 (2), ICTR and SCSL Statutes Art. 6 (2): “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” Also see in the same direction Art. 7 of the Nuremberg IMT Statute (with a slightly different wording).

The fact that the position of the perpetrator does not relieve him of criminal responsibility does not mean that there may be no procedural bars to his trial. Think of the members of the Turkish parliament. The TPC applies equally to everyone within Turkish territory, so these people will also incur into criminal responsibility for violating any provision of the PC. However, this does not mean that they can be arrested and tried like everyone else. They will enjoy certain immunities deriving from national law that will constitute an obstacle to prosecution. In the same vein, although the official capacity of the perpetrator does not exclude criminal responsibility under ICL, there may be certain immunities origininating from int’l law.

2.2 IMMUNITIES There are two fundamental reasons for granting certain immunities under int’l.law: 1) The principle of the sovereign equality of states dictates that no state sit in judgment over another (par in parem non habet iudicium). 2) A minimum amount of transborder movement and action is required for the effective functioning of interstate relations. Thus, the purpose is not to benefit the individual, but to protect official acts or to facilitate int’l. relations. Therefore, the real beneficiary of the immunity is the State. That is why only that State, and not the individual, may decide to waive it.

2.2.1 VARIOUS CLASSES OF IMMUNITIES
Immunities may derive from int’l. law or be provided for under national law. An example to the latter are parliamentary immunities (Art. 83 of the Turkish Constitution) or the position of the President of the Republic, who may only be held responsible for high treason with regard to crimes committed in official capacity (Art. 105 of the Constitution). We shall only examine immunities deriving from int’l. law.

2.2.2 IMMUNITIES DERIVING FROM INTERNATIONAL LAW
Two types of immunity have to be distinguished: Functional (subject matter/ ratione materiae/ organic) immunities: It relates to the CONDUCT of state agents acting in their official capacity. Personal (ratione personae / procedural) immunities: It applies to the PERSON of certain state officials. This distinction is vital because the purpose and scope of the two categories are different. These immunities may be invoked by a state official before foreign courts or organs. These immunities normally apply to ordinary crimes. We shall see if they also equally apply to int’l. crimes.

2.2.2.1 Functional (ratione materiae) Immunities
It applies to ALL state agents discharging official duties. It protects certain CONDUCT carried out on behalf of the state. No state agent is accountable to other states for acts undertaken in official capacity because such acts have to be attributed to the state in question. Thus, an individual performing acts on behalf of a sovereign state may not be held personally accountable for violations of PIL committed while acting in an official function. Only the state may be held accountable at the int’l level for such act. Functional immunity is limited to certain types of conduct.

2.2.2.2 Personal (ratione personae) Immunities
It is granted to certain state officials on account of their functions (their position/office). It is not linked to the nature of the conduct, it provides complete immunity of the PERSON of certain office-holders. This is to protect the private and public life of such persons in order to render them inviolable while in office. The purpose is to allow them to discharge their official mission free from any impairment or external interference. Thus, other states will not be able to interfere with the official function of a state agent under certain pretexts. Such state officials comprise Heads of State, heads of gov’t., foreign ministers (other ministers? It is unclear), diplomatic agents, high-ranking agents of int’l. organizations. Personal immunity does not prevent criminal liability, but only creates an obstacle to prosecution.

2.2.2.3 Difference between functional and personal immunities
FUNCTIONAL IMMUNITIES PERSONAL IMMUNITIES Constitute a substantive defence, the agent still has to comply with relevant rules, but in case of violation he may not incur personal responsibility. Relate to procedural law, they render the state official immune from foreign civil/criminal jurisdiction during duty. Cover OFFICIAL acts of ANY de jure/de facto state agent. So only certain acts are covered (it may be enquired whether the impugned acts were official or not). Cover official AND private acts carried out by the state agent while in office AND and performed prior to taking office (total inviolability). Do not cease at the end of the discharge of official functions (the immunity is permanent). Only protects some categories of state officials, and come to an end after cessation of the official functions. Can be invoked towards any other state (are erga omnes). Can not always ben invoked erga omnes, for example, in case of diplomatic agents it may be invoked against the receiving state.

Therefore, these two categories may sometimes overlap
Therefore, these two categories may sometimes overlap. If the state agent invoking functional immunity is still in office, he may also be protected by personal immunity. Personal immunity grants total protection while in office. However, if the act in question is not covered by functional immunity, and the agent no longer enjoys personal immunity, he may be tried by foreign courts.

2.2.3 FUNCTIONAL IMMUNITIES AND INT’L. CRIMES
Since WWII int’l documents and case-law has made it clear that functional immunities no longer apply to state officials accused of int’l crimes. This is what we refer to by “irrelevance of official capacity”: functional immunity does not affect criminal responsibility arising from the commission of int’l. crimes. Cassese thinks that the customary nature of this rule is now “indisputable” (I agree). ICTY and SCSL case-law also confirms this understanding. Consistent national case law confirms this understanding. Not a defendant has so far successfully pleaded functional immunity for int’l. crimes. Examples: Eichmann in Israel, Barbie in France, Priebke in Italy, Bouterse in the Netherlands, Pinochet in the UK, Scilingo in Spain, Miguel Cavallo in Mexico. Also in the same direction the 1956 US, and 2004 UK Military Manuals.

ICTY AC in Blaskic (Judgment on the Request of The Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 ( , para. 41)): “The general rule under discussion [that the individual may not be held accountable for acts performed in official capacity] is well established in international law and is based on the sovereign equality of States (par in parem non habet imperium). The few exceptions relate to one particular consequence of the rule. These exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity.”

Judgment of the IMT (Nuremberg):
“The principle of international law which under certain circumstances protects the representative of a state cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.” In sum, functional immunity may not be pleaded in order to prevent trial before foreign (or int’l.) courts with regard to the alleged commission of int’l crimes.

2.2.4 PERSONAL IMMUNITIES AND INT’L. CRIMES
Suppose that an incumbent president/prime minister is accused of having committed int’l. crimes: Can he be tried in his own country? There is no definitive rule under customary IL, so the answer depends on national legislation. We shall not analyze this. Can he be tried by an int’l. criminal court? We’ll return to this later. Can he be arrested and tried (or extradited) by another state when he is abroad? We’ll answer this question first.

According to int’l. law, even when accused of int’l
According to int’l. law, even when accused of int’l. crimes, the state agent entitled to personal immunities is inviolable and immune from prosecution by foreign courts. State practice is also consistent on this issue. This view is also supported by national case law (Pinochet case in UK (R v Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte, ), Fidel Castro in Spain (Audiencia Nacional, ), Kaddafi in France (Cour de cassation, 2001). This is because personal immunity serves a different purpose than functional immunity. The nature of the act is not relevant. The ICJ’s judgment of in the “Case Concerning the Arrest Warrant of 11 April 2000 (D.R.Congo v Belgium)” confirms this view. The ICJ opined that an incumbent senior state agent is immune from foreign jurisdiction, even when he is on a private visit or acts in a private capacity while holding office.

Therefore, if an incumbent senior state official accused of int’l
Therefore, if an incumbent senior state official accused of int’l. crimes is about to enter a foreign territory, the territorial state may ask him to refrain from doing so, of if the accusations surface after he has done so, he may be declared persona non grata (istenmeyen kişi). An exception to personal immunity exists in cases where the States in question are parties to int’l. treaties that set aside personal immunities. Examples: 1984 UN Torture Convention, 1948 UN Genocide Convention. As we shall see, this is also the case with the Rome Statute, by virtue of Art. 27 (2) which provides that: “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”

We may now return to the question whether personal immunities may be invoked before INTERNATIONAL criminal courts. Certain writers (for example, Cassese, and Werle and others) argue that a customary rule has evolved in the int’l. community removing personal immunities for int’l. crimes when jurisdiction over such crimes is granted to ICTs. The ICJ judgment in the Arrest Warrant case leaves the question unanswered (para. 61): “Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention”.

As can be seen, this parapraph does not exclude that such rule may have evolved, but does not confirm it neither. It would seem that rather than suggesting that, as a general rule, personal immunities may not be invoked before ICTs, it simply states that there currently exist certain int’l. tribunals before which such immunity may not be invoked due to their own statutes (this is the view of Cryer and others). However, the SCLS AC in Taylor (Decision on Immunity from Jurisdiction, ) partly relied on this paragraph in deciding that it was an int’l. court and as such not barred from prosecuting serving heads of state. Cryer argues that it would have been a better idea to declare that Taylor had stepped down at the time of the decision, and, therefore, no longer enjoyed personal immunities.

Even if no general rule lifting personal immunities before ICTs may be said to exist, in practice, personal immunity could not be invoked before the ad hoc tribunals. This was the case with regard to the IMTs at Nuremberg and Tokyo because the vanquished states had waived such immunities by virtue of the London Agreement. Personal immunity can not be invoked before the ICTY and ICTR by virtue of the respective provisions of their Statutes, which have been adopted through UN SC Resolutions. Thus, obligations arising out of the Statutes are binding on all member states to the UN. Art. 27 (2) of the Rome Statute means that party states have waived personal immunities with regard to their own nationals. But, in conclusion, it seems hard to say that a general customary rule has evolved in this regard.

2.2.5 Conclusion Immunities under IL do not prevent liability for and prosecution of int’l. crimes (no functional immunity). The only exception is prosecution of certain senior state officials (Heads of State, prime ministers, foreign ministers, diplomats) WHILE they are in office (personal immunity applies). In fact, according to one view, even this exception only applies for prosecution by other states, but not for int’l. tribunals. However, this view based on the emergence of a customary rule on the matter is probably too ambitious for the moment being. Personal immunity could not be claimed before past ICTs (and can not be claimed before the ICC) for other reasons we have explained above.

2.2.6 ICJ’s Arrest Warrant Case
The case originated from an int’l. arrest warrant issued in absentia by a Belgian judge against the serving minister for foreign affairs of the DRC, Abdulaye Yerodia Ndombasi. The DRC took the case before the ICJ arguing that Belgium had failed to recognize the immunity of a serving foreign minister. Unsurprisingly, the ICJ decided by 13 to 2 that personal immunities enjoyed by a foreign minister could not be set aside by a national court, even in case of alleged commission of int’l crimes. In trying to emphasise that personal immunities do not mean impunity for int’l. crimes, the Court made the following determinations in para. 61: “Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.

First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries‘ courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.....” It is this last passage in para. 61 that is very confusing: “Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity”.

So, does it imply that a FORMER senior state official can not be tried for acts committed in his OFFICIAL capacity?! Would he still enjoy functional immunity for any act committed in that capacity? Could he only be tried for “private acts”? If this is the case, such persons may not be tried for int’l. crimes they have committed, even after cessation of their official duties! This is because, by their nature, there is a typical level of state involvement in the commission of such crimes. That is why, especially after the Pinochet judgment of the House of Lords, it seemed established that the commission of int’l. crimes should either be considered as a private act (because acts prohibited and penalized by ICL can not be part of “official function”), or be regarded as a subject matter exception to functional immunity. However, ICJ’s judgment seems to cast doubt on this proposition. Shockingly, the judgment omits to mention the established principle that former officials can be tried for any acts that constitute int’l. crimes.

This is even more problematic because the judgment seems to have extended personal immunity to a wide range of ministers. The finding that personal immunity must also be recognized on private visits has also raised objections. Werle thinks that this obiter dictum para. 61 of the judgment is misleading, and must be brought into conformity with the general principle, by either: Accepting that int’l. crimes are always to be considered “private acts” (which is, however, not realistic), or Considering the evaluations in this passage to be “by way of example”, so that there may be other instances in which former senior state officials may also be tried (Cryer and others regard the omission as an oversight). Whatever the right interpretation, it should be borne in mind that this determination made by the ICJ only concerns prosecution before national courts of a foreign state.

2.2.7 EXECUTIVE SUMMARY Immunities under int’l. law do not prevent liability for and prosecution of int’l. crimes with regard to individuals as functional immunity does not apply. However, certain senior state officials (Heads of State, prime ministers, foreign ministers, diplomats) may not be prosecuted WHILE they are in office. This is because of personal immunity. However, personal immunities only prevent prosecution by courts of foreign states, not prosecutions before int’l. tribunals established so far. In any case, personal immunities will only apply until the term of office expires. After that, senior state officials may be tried by foreign courts for int’l. crimes. The ICJ Arrest Warrant seems to be at odds with this last determination. However, a proper interpretation of this judgment should lead to the conclusion that para. 61 does not contradict the prevailing view. In other words, functional immunities may not apply to int’l. crimes. The ICJ judgment should not be taken as suggesting otherwise.

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