Persephone Chung is the site-manager of a large coltan mine owned and run by a foreign mining corporation in the central African state of Mzungu. She oversees an operation involving around a thousand miners and fifty managerial and administrative staff.

Mzungu is the scene of a long-running civil war notorious for the countless acts of horrific cruelty perpetrated by both sides. The mine is located in territory held by rebel armed forces, who until now have contented themselves with a regular ‘tax in kind’ on the mine, demanding and receiving small amounts of raw coltan in exchange for leaving the corporation to conduct its operation unmolested.

Recently, however, relations between the rebels and the mine have become more fraught. One day a detachment of heavily-armed rebels descends on the mine and ‘requests’ the use of a dozen four-wheel-drive vehicles. The nervous drivers hand over the keys, and the rebels drive off, returning the cars a fortnight later.

Persephone subsequently issues a directive that, in the event that the rebels return with a similar ‘request’, drivers are to avoid risk to life and limb by promptly surrendering their vehicles. This is precisely what happens a week later. This time when the rebels return the cars, two of them are spattered with blood, with one sporting what looks like a severed human nose hanging from the rear-vision mirror. The rebels hand the twelve drivers a hundred US dollars each.

After several more incidents of this sort, the local rebel leader arrives at the mine unannounced and presents a palpably uncomfortable Persephone with a large uncut diamond as a ‘mark of his esteem’. Persephone has the diamond placed in the mine administration’s safe. It transpires that the rebels have used the mine’s vehicles to drive around the further-flung villages of the region torturing, maiming, raping and killing villagers, forcibly conscripting boys into the rebel army, forcing girls to ‘marry’ them, looting personal property and torching huts, all on a grand scale.

Persephone now seeks your advice on her plan to return to her home state of Kongee, which has empowered its courts to try anyone accused of having committed or otherwise incurred criminal responsibility under customary international law in respect of ‘any offence anywhere which, at the time of its commission, constituted a crime under customary international law’.

Advise Persephone, including on any measures she might yet take to improve her legal prospects

Answer:

In this case, war crimes under NIAC like intentionally directly attacks against civilian population, torture, pillage might have been committed; also, potentially, some crimes against humanity (eg. murder, torture, rape, etc.) might be physically committed by the rebel. This essay will consider whether and how PS might be responsible for the acts physically perpetrated by the rebels. This can be based on her direct relationship with the rebels, or indirect relationship with the rebels through her employees.

It is noted that various statutes of international criminal courts (ICTY, ICTR, SCSL and ICC) provide different modes of liability. It is questionable which one represents customary international law, possibly none of them could. This essay will address some modes of responsibility exclusively used in ad hoc tribunals (eg. JCE) and modes of liability provided in the Rome Statute (co-perpetration, indirect-perpetration, etc.) and some common ones such as order, aiding and abetting and command responsibility.

A. Whether Persephone (hereinafter ‘PS’) could be responsible for committing the crimes

PS does not physically commit the crimes but this does not rule out the possibility that she might be held responsible for committing the crimes. In terms of the mode of commission of crimes without physical perpetration, we have clear divergence between jurisprudence of ad hoc tribunals (JCE) and ICC (co-perpetration, indirect perpetration)

(1) Whether she could be held responsible for JCE and co-perpetration

JCE requires a plurality of person, common plan to which the accused is a party and significant contribution to the plan by the accused. (Tadic) In this case, PS is not a party to the plan of the rebels. Thus JCE is relevant her.

Same for co-perpetration, which also requires a plan (Lubanga), she could not be held responsible for co-perpetration. Thus there is no need to discuss other elements of this MoL.

Thus, she could not be held responsible for commission.

B. Whether PS could be found criminally responsible based on ordering the crimes

We can also consider whether the MoL of order could link PS to the commission of the crimes, as there is a case that PS ordered her employees to give support to the rebels.

When it comes to ordering, it requires a position of superiority, either de jure or de facto ( Kodic& Cerkez). Unlike superior responsibility, which requires effective control (Celibici), in the case of order, de jure position could suffice as long as the subordinate commit the crime upon the order of the accused. (Kordic & Cerkez) In this case, she has it, she is the boss.

It also requires the accused to order the commission of the crime. It is questionable whether commission involves other forms of MoL, like A&A suffices. For command and superior responsibility, the superior can be held responsible not just for commission of crimes by subordinates but also other modes of responsibility under which the subordinates is found responsibility (Oric) But this might not be the case for ordering. A person can be found responsible for ordering someone, the latter of which then order someone else (Kordic & Cerkez) But it is questionable the accused could be found responsible for ordering the subordinates to aid and abet commission of crimes.

As for mens rea, the accused has to intend to order the crime and was aware of the substantial likelihood that crimes will occur in execution of the common plan (Kordic & Cerkez ) Note, in the case of the ICC, what requires under Art. 30 of the Rome Statute is dolus directus (Bemba), and thus the standard of ‘substantial likelihood’ in ad hoc tribunals, which is close to dolus eventualis could not suffice. In this case, given the limited knowledge of PS on the commission of crimes by the rebels and the loose link between them, it is not likely that PS will be held responsible for ordering the crimes.

C. Whether PS could be held responsible for aiding and abetting commission of crimes

All the tribunals recognize aiding and abetting but the conditions are not necessarily the same (esp. mens rea). What is controversial in relation to A&A in recent years is whether it requires ‘specific direction’, but the element was finally ruled out in Sanovic case in the Appeal Chamber of the ICTY.

A&A requires acts or omission which assist, encourage or lend moral support to the commission of crimes (Tadic) and tacit support could suffice. (Sainovic) For causation, it requires that the A&A has a substantial effect on commission of crimes (Blaskic) but it does not require it to be a condition sine qua non (Blaskic)

The mens rea is a little complicated. As what is required by ad hoc tribunals is different from the ICC. The former only requires knowledge that the act will assist commission of crimes (Tadic) or the substantial likelihood that the act will assist commission of crimes (Sesay), but the latter also requires intent to facilitate commission of the crime (Mbarashimana). For the requirement of knowledge, it does not require the aider and abetter know the precise crime to be committed by the physical perpetrators, as long as he or she knows a number of crime will be committed and one of those crimes is in fact committed. (blaskic) while it quires that the aider and abettor must have knowledge of the essential elements of the crime committed by the principals. (Sainovic)

In this case, PS herself might not satisfy the mental elements required by A&A as she had no direct link with the rebels and might not be aware what crimes were committed. So she personally could not be found responsible for A&A the commission of crimes.

However, if we consider the criminal responsibility of the employees who lend the vehicles to the rebels. They might be found responsible for aidding and abetting. Although they did not personally see the commission of crimes, but the knowledge can be deduced from circumstantial evidence. They saw that some rebels returned with blood and even ears (also knowledge of existence of armed conflicts, and possibly widespread or systematic attacks against civilian population), thus they at least knew the substantial likelihood that they will assist commission of crimes， thus they could be found responsible for aiding and abetting. However, arguably, the standard of ‘substantial likelihood’ is only used in the SCSL, it is questionable whether this reflect customary international law. If the stricter standard , especially the one in the ICC is adopted, it is questionable whether the employees is aware of the virtual certainty of commission of crimes. In this regard, the employees might not be held responsible.

D. Whether PS could be held responsible under Art. 25(3)(d) of Rome Statute for contributing to a common plan

Art. 25(3)(d) provides an accessorial mode or responsibility for contributing to a common plan the implementation of which involves commission of crimes under the jurisdiction of the ICC. what it distinguishes between co-perpetration is that it does not require that the accused’s contribution need not be essential, and significant contribution – which means that the contribution has certain impact on the commission of the crime — suffices (Mbarashimana) . What it distinguishes between JCE is that it does not require the accused to be a member of the common plan. (Mbarashiman, Katanga) The mens rea requirement is that the accused has intent to contribute the commission of the crime; and intend to further the aim of the common plan, or knowledge of the intention to commit the specific crimes which the accused is charged. (Katanga)

In this case, PS was not a member to the rebel groups which committed the crimes; and she provide contribution through allowing her employees to lend vehicles to the rebels and had intend to make such contribution. Thus, to the extent that she could not be found responsibility under other modes of liability in Art. 25(3)(a)-(c), and to the extent that Art. 25(3)(d) represents customary international law, she might be held responsible for contributing to a crime committed by a group of persons with a common purpose as long as she has the requisite knowledge and intent. But based on the information provided, it is questionable she had knowledge of the intention of the rebel groups to commit the relevant crimes, as it is not she but her employees who knew that the rebels commit crimes. However, if we consider the responsibility of the employees of PS, the elements might be satisfied, provided the requisite mens rea can be proved; similar questions in aiding and abetting might also arise here.

Based on the above analysis, PS herself might not be found responsible based on her direct link with the rebel forces; but the employees might be responsible for aiding or abetting, if not, might be found responsible under the customary analogous of Art. 25(3)(d) of Rome Statute (but possibly this is not customary international law), provided the requisite mens rea could be proved. Thus, we can then consider whether PS can be held responsible based on superior responsibility for the criminal responsibility of her employees. As an accused can be held responsible for not only commission of crimes by subordinates, but also the responsibility based on other MoL by the subordinates. (Oric)

E. Whether PS could be held responsible for command responsibility.

All the statutes and tribunals have recognized this form of responsibility, and not only for commanders but also civilian superiors (eg. Akayesu, ICC Statute, Art. 28(2)). What it requires is de facto authority, possessing the effective control , i.e. the accused have the ability to prevent or punish the commission of crimes by subordinates. (Celebici). De jure authority is not defining element here, but it can nonetheless prove prima facie evidence of ‘de facto authority’ or ‘effective authority or control’ (Celibici) Also the standard of ‘effective control’ is different for military commanders and the civilian superiors (Baglishima). In this case, PM is the boss, it is possible that she has effective control.

It also requires that the accused fail to take necessary and reasonable measures within his or her power to prevent , punish and in the case of the ICC to report to competent authorities the commission of crimes by his or her subordinates. The obligation to prevent or punish is not a strict liability, it is based on the necessary and reasonable means available to the accused based on a case-by-case analysis. (bemba) Noteworthy, the measures need not necessarily be penal, disciplinary punishment can suffice. As a boss in a company, she could have the ability to take measures of punishment or request the employees to stop lending vehicles to the rebels; or report the crimes to the competent authorities, like the court.

The mens rea for command responsibility is inconsistent in different tribunals in relation to different accused. For ad hoc tribunals, it requires ‘knowledge’ or ‘have reason to know’, i.e. there exist information which would put the accused on notice of the commission of crime by his or her subordinates (Celibici), it disposes of the standards of negligence. While the negligence standard , i.e. should have known , is adopted for military commanders in Art. 28(1) of the Rome Statute. For civilian superiors under Art. 28（2）, the mens rea is much stricter, requiring ‘knowledge’ or ‘consciously disregard information which clearly indicated, that the subordinates were committing or about to commit such crimes’. It might be possible that she has the knowledge of the fact that her subordinates are aiding and abetting the crimes.

Thus, it is possible that she might be found responsible for command responsibility for her employee’s aiding and abetting of the crimes.

It is therefore suggested that she take measures of punishment or request the employees to stop lending vehicles to the rebels; or report the crimes to the competent authorities, like the court.

If she is really required to appear before the court, she should argue that she is not party of a plan and argue that she has no knowledge of the relevant crimes. Maybe the best solution is that she should not go back home.