Five Categories of Collective Criminality: Exhaustive Research on Collective Responsibility for Crimes Prosecuted by the International Courts and Tribunals

By Dubravka Polic

What is collective criminality in international crimes? Do individuals play different roles in pursuit of collective criminality? How do these international crimes vary from domestic ones, and to what purpose are the courts and tribunals which follow in their wake? This book presents an empirical examination of jurisprudence to answer these ques

• Language: English
• Publisher: FYFCB Press
• Release date: Mar 22, 2022
• ISBN: 9789493229914

Book preview

LIST OF FIGURES

Figure 1 - International crimes triangle

Figure 2 - Five categories of collective criminality working to achieve a common goal

Figure 3 - Five categories of collective criminality and the links among them

Figure 4 - Five categories of collective criminality presented as the international crimes triangle

Figure 5 - Bystanders – enablers or rescuers

Figure 6 - Bystanders as enablers

Figure 7 - Bystanders as rescuers

Figure 8 - Shifts in social norms before, during and after an armed conflict

Figure 9.1 - Systematic data analysis of international jurisprudence - six steps

Figure 9.2 - Systematic data analysis of international jurisprudence - six steps and re-evaluation

Figure 10 - Crimes committed v. insight into commission of crimes

LIST OF TABLES

Table 1 -  Five categories of collective criminality

Table 2 - Shifts in social norms before, during and after an armed conflict

Table 3 - Comparison of intelligence cycle steps, thematic analysis steps and systematic data analysis of international jurisprudence steps

Table 4 - Data corpus - statistics

LIST OF ABBREVIATIONS

INTRODUCTION

Overview

Collective criminality is demonstrated in the legal definitions of international crimes and the terminology used in international judgements. I embarked on this research with the goal of defining collective criminality in a way that encompasses the most important concepts, as well as to determine and group various types of participation in international crimes. I wanted to create a better understanding of international crimes, and this empirical study of collective criminality furthers that knowledge. This text explores collective criminality in modern armed conflicts through the prism of international criminology. It is exhaustive research of collective criminality during armed conflicts, as prosecuted in international trials, and the data collected from the international courts and tribunals relating to the prosecution of individuals playing various roles in international conflicts. The data used in this research refer to the later courts and tribunals from the past three decades.

Armed conflict is by its nature a collective activity, an organised group action that requires the involvement of various types of actors, such as planners, organisers, those who give orders, those who execute actions, and so on. The collective nature of participation in conflict was recognised decades ago in the definitions of war crimes, crimes against humanity and genocide, as well as in the Geneva Conventions and the trials in the International Military Tribunals in Nuremberg and Tokyo. The notion of collective criminality was further developed by the modern-day courts and tribunals, such as the Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the International Criminal Court. It has been over two decades since Waller noted:

The greatest catastrophes occur when the distinction between war and crime fade; when there is dissolution of the boundary between military and criminal conduct, between civility and barbarity; when political and social groups embrace mass killing and genocide as warfare. (2001, p. 6)

This research explores collective criminality in international crimes by using a unique data corpus consisting of the jurisprudence of these five modern international courts and tribunals namely the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, Special Court for Sierra Leone, Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court.. To do this, a newly derived method designed for this research was applied to analyse these international judgements for mentions of collective criminality. The aims of the research were to determine: what is collective criminality in international crimes?; are there different roles of collective criminality, and if so which ones?; and to prepare an empirical basis underpinning collective criminality. A definition of collective criminality is proposed as large-scale, widespread, systematic, or mass crimes that require a high level of organisation, preparation, and logistical support, as well as the concerted actions of multiple individuals playing various roles, which result in a large number of victims. The research shows that there are five distinct categories of collective criminality – commanders, offenders, facilitators, supporters, and bystanders. Their roles are clearly defined, and the findings are strongly supported by quotes from various judgements. The findings are considered through the prism of international criminology and firmly situated within the criminological theory. The main points which demonstrate the significance of this research are the definition of collective criminality, and the international crimes triangle, which visually presents the differences between the domestic and international crimes; and most importantly, the five categories of collective criminality, and the social norms diagram, explaining the shift in social norms before, during and after the conflict as well as the role of the tribunals in normalising the post-conflict societies. The text concludes with recommendations for further research and additional application of the concept.

The author

Iwas born in Zagreb , Croatia, which was a part of the former Yugoslavia until 1991, when the war broke out. At that time, I was finishing high school and planning to become a fashion designer. My academic interests did not include criminology, sociology, law, or criminal justice in any form. However, watching the night sky lit by bombs, lacking food and basic supplies, as well as living in a house overflowing with family having fled from areas even more affected by the conflict, changed my interests. The creation of the International Tribunal for the Former Yugoslavia (ICTY) also created opportunities for pursuing a different career path. In September 2000, I joined the ICTY and worked in different departments, from the evidence team to investigation and prosecution, and finally chambers. What impacted me most was working in the investigation team and taking part in witness interviews, hearing the stories of survivors of concentration camps, rape camps, massacres, and other devastations.

Following nine years at the ICTY, I moved to the Special Tribunal for Lebanon (STL), where I worked in an analysis team within the investigation and prosecution department. While in Chambers of the ICTY and the International Criminal Tribunal for Rwanda (ICTR), which also share the Appeals Chamber, I had the opportunity to be a part of the development and the evolution of international criminal law and to get to know the individuals responsible for its advancement. Additionally, while in Chambers, I had the opportunity to meet the individuals accused of war crimes, crimes against humanity and genocide.

Finally, I have been following academic developments in international criminology, as well as various advancements of international law, especially by the late judge Cassese, the creator of one of the concepts for the prosecution of collective criminality in international tribunals. My work in international criminal justice gave me the skills, and comprehensive knowledge of international law, which subsequently resulted in the development and execution of this research project.

The nature of this research

In order to discover how collective criminality is perceived and treated by the international criminal justice apparatus, as well as what roles the individuals who join collectively in international crimes play, I have embarked on a journey of reviewing all the judgements and decisions relating to collective criminality from five international courts and tribunals. Additionally, I wanted to find out whether there are different roles of collective criminality, and if so, which ones they are. The data corpus consists of jurisprudence from five modern international courts and tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); the Special Court for Sierra Leone (SCSL); the Extraordinary Chambers in the Courts of Cambodia (ECCC); and the International Criminal Court (ICC).

The research comprised of a detailed review of nearly 300 international judgements and decisions, which totalled in nearly 72,000 pages of material. All the material used is publicly available. However, this does mean that only those crimes prosecuted by these five courts and tribunals could be included in this research. Post-World War Two military tribunals and the hybrid courts were not feasible to include due to time and word limitations. The research required a newly derived thematic analysis based on the intelligence cycle which I term ‘the systematic data analysis of international jurisprudence.’ It contains six structured steps which make sure that the content is examined consistently and fairly as well as minimise any the possibility of any relevant data being overlooked. I devised this method based on my professional experience of analysing large volumes of data and the benefits this brings to this study are the gradual full immersion of the researcher in the data set, emergence of patterns and a prevention of the loss of data.

Structure of the book

The book consists of three main parts and the conclusion. Part 1 provides a general background on the topics drawn upon in this book, namely collective criminality, international crimes, international courts and tribunals, collective criminality in international law and the criminology of international crimes.

Part 2 focuses on the results of this research, and explores the additional knowledge and benefits for professional practice. This part contains the discussion of the main findings, namely the empirical definition of collective criminality, the five categories of collective criminality – as well as extending our understanding of shifts in social norms, as ordinary people adapt to the extraordinary situation of conflict

Part 3 provides the methodology developed for this research, as well as an extensive demonstration of the evidence which underpins these conclusions. In doing so, I aim to provide more insight into collective criminality, as it is demonstrated to have operated in these conflicts and the similarities and consistencies within the five categories.

PART 1

What is collective criminality

Collective criminality as a concept has been alluded to for decades. It is indicated in the definitions of crimes against humanity, genocide, and war crimes, and the concept is included in many international judgements and the academic literature. While international criminology aims to discern the reasons for its occurrence, international law struggles to prosecute the individuals they deem most responsible, due to imperfect legal tools and some dispute as to whether or how domestic legal concepts should be internationalised.

Although collective criminality was mentioned and acknowledged in the commission of international crimes during the Nuremberg and Tokyo trials, as well as Eichmann’s trial in Jerusalem, it wasn’t defined until the emergence of the modern international crimes and tribunals, namely the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). At the beginning of these institutions, the judges decided to define collective criminality. For example, ICTY Tadić Appeals Judgement (1999) defines collective criminality as when two or more persons act together to further a common criminal purpose while committing international crimes. In 2008, the ICC judges in Katanga and Ngudjolo Decision on the confirmation of charges refer to international crimes as crimes which will almost inevitably concern collective or mass criminality.

Admittedly, there had not been any international trials since Eichmann until then, however, it is regrettable that it took decades before collective criminality was considered as s concept once more, because the consistency and universality of the collective element has been present regardless. Arendt argued that violence causes individualism to disappear and replaces it with group coherence, and quotes the Eichmann judgement to emphasise the collectivity necessary for the commission of international crimes:

In such an enormous and complicated crime [...], wherein many people participated at various levels and in various modes of activity [...]. For these crimes were committed en masse, not only in regard to the number of the victims, but also in regard to the numbers of those who perpetrated the crime [...]. (1970, pp. 66-67)

Therefore, it is not surprising that one of the first tasks the ICTY judges embarked on was the definition. Unfortunately, although the existence of criminal collectivity and condemnation of commission of international crimes were almost unanimously accepted by the institutions and the judges that represented them, no universal definition, outside of the definitions of international crimes, was ever created. Hence, it was one of the tasks I decided to achieve with my research, and which is discussed in detail in Part 2 of this book.

What are international crimes

International crimes are listed and defined as war crimes, crimes against humanity, genocide and most recently aggression. Although the crime of aggression (also known as crime against peace, and prosecuted in the Nuremberg and Tokyo trials) has been a topic of many debates, and its inclusion in the body of international criminal law disputed for decades (Ferencz, 2017), it has been added to the Rome Statute (ICC, 2017) and is yet to be tested through the courts. These crimes are considered a threat to the international community and some of the definitions date back to the beginning of the 20 th century. Generally, there is extensive agreement that these actions constitute international crimes, though there remain disputes about the legitimacy of the international courts and tribunals by the parties being prosecuted for these crimes, and unlike the United Nations established courts, the ICC is still pending recognition by all countries.

War crimes are outlined as serious violations of customary rules, as laid out in international humanitarian law of armed conflict, that is as defined in The Hague Convention of 1907 (the Laws of War), the subsequent Geneva Conventions of 1949 and the Additional Protocols of 1977. They are criminalised acts perpetrated during either international or internal armed conflict and must have grave consequences for the victim, who is defined as a person not participating in the conflict (Cassese, 2008, p. 81). It is a situation of an armed conflict which is of concern to the international community that activates the application of law regulating war crimes, and even a single act can constitute a war crime. There is no requirement for the acts to be widespread or systematic. The customs regulating warfare have varied over time. For example, there was the creation of the International Committee of the Red Cross in 1863 and the First Geneva Convention (regulating the protection of wounded soldiers in the field) in 1964. The latter then prompted numerous subsequent treaties and conventions that developed international humanitarian law protecting civilians and other non-combatants during armed conflicts (Cryer et al., 2010, pp. 267-269).

Crimes against humanity are widespread or systematic, large-scale repetitive attacks on civilians. They include various serious offences, including murder, persecution, rape and other inhumane acts, in other words, serious breaches of international humanitarian law (Cassese, 2008, pp. 98-101). Crimes against humanity are as old as humanity itself (Graven, 1950, p. 433, quoted in Cryer et al, 2010, p. 230). However, the earliest official recognition was made in 1915, as a response to the massacre of Armenians by Turkey, by a Declaration made by France, Great Britain and Russia. Since the Declaration, the only significant developments relating to crimes against humanity occurred during the Nuremberg and Tokyo trials, until the creation of the modern-day international courts and tribunals. The last three decades of intensive application of international law have led to a more defined and coherent depiction of crimes against humanity, and further clarified some of the more vague parameters. Notably, the definitions of crimes against humanity can be found in the Statutes of the ICTY, ICTR, SCSL, ECCC, and Elements of Crimes of the ICC (Cryer et al, 2010, p. 233).

Genocide is defined as an intentional destruction of a national, ethnical, racial or religious group in whole or in part (Cassese, 2008, p. 127). These four groups are referred to as protected groups. The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United