Monday, February 16, 2009

Mode of liability applied to al-Bashir

From Kevin Jon Heller of Opinio Juris:

Finally, it is important to point out that even if Article 25(3)(d) did embrace JCE III, it would still not be an appropriate vehicle for convicting Bashir of genocide: “contribution” is a form of accessory liability, not prinicipal liability — and a “residual” form of accessory liability at that, one that most ICL scholars agree should only be invoked where principal liability or liability for aiding-and-abetting cannot be proven. “Contribution” liability may thus be appropriate for lower-level government officials like Kushayb and Haroun, but it is not appropriate for a head-of-state such as Bashir, who needs to be charged as a principal.

The Prosecutor, of course, recognizes this. That is why the request for the arrest warrant relies on perpetration by means, which is a form of principal liability, and not on “contribution.” As I will explain in a later post, that was the correct decision: perpetration by means — not JCE III — provides the Prosecutor with the ideal vehicle for convicting Bashir of genocide.

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