Political and Military Leaders’ Criminal Responsibility before International Criminal Courts and Tribunals

Abstract

It is well known that international crimes—such as war crimes, crimes against humanity and genocide—are mainly committed against a large number of victims and extend across wide geographical areas. Their perpetration is usually based upon the existence of a collective criminal plan which is implemented by individuals acting at different levels and in different capacities. Faced with these actual features of the crimes falling within its jurisdiction, the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) relies on the notion of joint criminal enterprise (JCE) as the best means to frame the role played by the real orchestrators of the common criminal design. On the other hand, the Rome Statute of the International Criminal Court (ICC) explicitly regulates criminal responsibility deriving from the collective commission of international crimes. On several occasions the Court has thus affirmed its autonomy from the ICTY jurisprudence on JCE. While recalling some concepts of that theory, the ICC seems to have adopted other definitional criteria for individual responsibility deriving from the joint perpetration of the crimes falling within its jurisdiction. The present contribution aims to analyze the different approaches to so-called leadership cases at the ICTY and at the ICC. To do so, it will firstly focus on the initial ICTY pronouncements on joint criminal enterprise (JCE) as well as on the leading case law applying the doctrine to large-scale criminal endeavours; it will then examine the detailed Rome Statute’s provisions on criminal responsibility for the joint commission of criminal offences as well as the few pronouncements rendered so far, in order to verify whether they introduce new concepts to address the issues deriving from the collective nature of international crimes.