DAMODARAM SANJIVAYYA NATIONAL

LAW UNIVERSITY

INTERNATIONAL CRIMINAL LAW

PROJECT ON:

INDIVIDUAL CRIMINAL RESPONSIBILITY

SUBMITTED BY:

NAME: A. YOGAPRIYA

Roll no: 2014009

Semester: Tenth semester.

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 CERTIFICATE

I, Ms. Yogapriya, with registration number – 2014009, of X semester has prepared the project on
“Individual Criminal Responsibility”. In the partial fulfilment of my semester course in the subject
“International Criminal Law” during the academic year 2018-19 under supervision and guidance
of Mr. Arvind Nath Tripathi.

Name of the subject: International Criminal Law

Name of the Faculty: Mr. Arvind Nath Tripathi.

(SIGNATURE OF THE STUDENT)

Name: A. Yogapriya

Roll no: 2014009

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 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the
completion of the project.

My deepest thanks to Mr. Arvind Nath Tripathi. Guide of the project, for guiding and
correcting various documents with attention and care. He has taken pain to go through the
project and make necessary correction as and when needed. I would also thank my Institution
and faculty members without whom this project would have been a distant reality. I also
extend my heartfelt thanks to my family and well-wishers.

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 ABSTRACT

The Statute of International Criminal Court entered into force on July 1, 2002. ICC Statute
(Rome Statute) is legal document, containing whole effort of mankind against the abolishment
of dangerous crimes and for punishment the criminals that depreciate most important value
such as human life. It’s important to mention that the way to Rome Statute was really hard.
States for a long time were hesitating to create universal and permanent mechanism of
International Criminal Law. They used to create temporary criminal mechanisms; exactly ad
hoc tribunals due to concrete conflicts. Nuremberg, Tokyo, International Criminal Tribunal
for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) – are
all efforts made by mankind till 1998.

In this Article author reviews Individual Criminal Responsibility, that is determined by the
article 25 of ICC Statute. Since there are opposite opinions about individual criminal
responsibility above mentioned issue is very urgent. The considerations differ towards the
following issue: are individual criminal responsibility and its preconditions clearly determined
by ICC Statute; Is ICC statute is progressive in relation with individual criminal responsibility;
was codification of international criminal law and creation of general part in one legal
document necessary.

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OBJECTIVE OF STUDY:

The main objective of this project is to properly understand the Individual criminal
Responsibility determined by Article 25 of the ICC Statute under the International Criminal
Laws and to understand from where these principles have been adopted.

SCOPE OF STUDY:

The scope of this project is limited only to the individual criminal responsibility determined by
the Article 25 of the ICC Statute under international criminal law.

RESEARCH METHODOLOGY:
Doctrinal form of research methodology has been followed in this project.

RESEARCH QUESTIONS:

1. are individual criminal responsibility and its preconditions clearly determined by ICC
Statute?
2. Is ICC statute is progressive in relation with individual criminal responsibility?
3. was codification of international criminal law and creation of general part in one legal
document necessary?

HYPOTHESIS:

Besides State responsibility for violations of international law, individuals may be held
criminally responsible for international crimes (i.e., war crimes, crimes against humanity,
and genocide). Each member of the armed forces is directly responsible for breaches he or she
commits and can be held individually responsible before a criminal court for violations of the
laws of war.

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TABLE OF CONTENTS

1. INTRODUCTION
2. DEVELOPMENT OF INDIVIDUAL CRIMINAL
RESPONSIBILITY
3. CRIMES AGAINST HUMANITY
4. WAR CRIMES
5. TERRORISM
6. JURISDICTION TO PROSECUTE
7. IMPLEMENTING JUSTICE
8. ARTICLE 25 OF ICC STATUTE
9. CONCLUSION
10.BIBILIOGRAPHY

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INTRODUCTION:

Besides State responsibility for violations of international law, individuals may be held
criminally responsible for international crimes (i.e., war crimes, crimes against humanity,
and genocide). Each member of the armed forces is directly responsible for breaches he or she
commits and can be held individually responsible before a criminal court for violations of the
laws of war. The principle of individual criminal responsibility for war crimes can be dated
back to the Lieber Code and is a long-standing rule of customary international law. Not only is
it possible to hold accountable individuals who actually commit a war crime, but different
forms of individual criminal responsibility allow persons who attempt, assist, facilitate, aid,
abet, plan or instigate the commission of a war crime to face accountability for their actions.
Finally, the law of armed conflict assigns responsibility to military commanders who order
their subordinates to violate IHL or who fail to prevent or repress such violations.

THE DEVELOPMENT OF INDIVIDUAL CRIMINAL

RESPONSIBILITY:

The international legal provisions on war crimes and crimes against humanity have been
adopted and developed within the framework of international humanitarian law, or the law of
armed conflict, a special branch of international law which has gone through an intense period
of growth and evolution. The rules of humanitarian law concerning international crimes and
responsibility have not always appeared sufficiently clear. One of the biggest problems is that
relating to the legal nature of international crimes committed by individuals and considered as
serious violations of the rules of humanitarian law. Indeed, the world today is confronted by a
disturbing proliferation of conflicts which are no longer international in nature', as was
traditionally the case, and in which the basic problem regarding the classification of offences
seems to be that the borderline between war crimes and crimes against humanity appears
blurred. In any case, both types of crime, together with the crime of genocide, come under the
broader concept of criminal juris gentium. The category of crimes against peace has been left

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aside as its scope is more uncertain and the particular features it presents imply a close
connection with jus ad helium issues. While individual criminal responsibility under
international law is not a new phenomenon, in recent years a system of international justice,
with national and international components, has evolved from the experience of tackling
atrocities on the domestic and international levels. The work of the ad hoc International
Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), the expansion
by consensus of the International Criminal Court (ICC) statutes and annexes and innovations
in domestic law and practice have been the principal contributors.1 As a result, the international
community is now equipped with a detailed body of substantive and procedural international
criminal law and a range of jurisdictional options to implement the experience of, among
others, the ad hoc tribunals demonstrate the viability of prosecutions involving complex
criminal networks including against those in the highest echelons of power and in respect of
massive crimes.

CRIMES UNDER INTERNATIONAL AND NATIONAL LAW:

Crimes under international law are particularly serious violations of norms that are not only
prohibited by international law but also entail individual criminal responsibility. They can be
based on customary law or a binding treaty. Customary law is binding on all states and, so far
as criminal responsibility is concerned, on all individuals. Among the sources that can be
looked into for the purposes of identifying the content of customary law in this field are the
jurisprudence of international ad hoc tribunals, the ICC statute and draft annexes and national
court practices. Treaties are only binding on those states party to them. Although treaties bind
states, they may also, as in the case of treaties governing international criminal law, affect
individuals. Consistent with basic principles of legality in criminal law, care must be taken to
ascertain whether the treaty in question was 'binding' on the individuals alleged to have been
involved in criminal conduct. The principles of legality and nonretroactivity require that the
conduct was criminal, under treaty or customary law, at the time of its commission.2

1
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule102

2
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199560363.001.0001/acprof-
9780199560363

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In the Ordinance for the Government of the Army, published in 1386 by King Richard II of
England, limits were established to the conduct of hostilities and—on pain of death—acts of
violence against women and unarmed priests, the burning of houses and the desecration of
churches were prohibited. Provisions of the same nature were included in the codes issued by
Ferdinand of Hungary in 1526, by Emperor Maximilian II in 1570 and by King Gustavus II
Adolphus of Sweden in 1621. Article 100 of the Articles of War decreed by Gustavus II
Adolphus established that no man should "tyrannise over any Churchman, or aged people, Men
or Women, Maydes or Children". The earliest trial for war crimes seems to have been that of
Peter Von Hagen Bach, in the year 1474. Charles the Bold, Duke of Burgundy (1433-1477),
known to his enemies as Charles the Terrible, had placed Land Vogt Peter von Hagen Bach at
the helm of the government of the fortified city of Breisach, on the Upper Rhine. The governor,
overzealously following his master's instructions, introduced a regime of arbitrariness, brutality
and terror in order to reduce the population of Breisach to total submission. Murder, rape,
illegal taxation and the wanton confiscation of private property became generalized practices.
All these violent acts were also committed against inhabitants of the neighbouring territories.
When a large coalition (Austria, France, Bern and the towns and knights of the Upper Rhine)
put an end to the ambitious goals of the powerful Duke the siege of Breisach and a revolt by
both his German mercenaries and the local citizens led to Hagenbach's defeat. The Archduke
of Austria, under whose authority von Hagenbach was captured, had ordered the trial of the
bloody governor. Instead of remitting the case to an ordinary tribunal, an ad hoc court was set
up, consisting of 28 judges of the allied coalition of States and towns. In his capacity as
sovereign of the city of Breisach, the Archduke of Austria appointed the presiding judge.
Considering the state of Europe at the time — the Holy Roman Empire had degenerated to the
point where relations among its different entities had taken on a properly international nature,
and Switzerland had become independent (though not yet formally recognized) — it could be
concluded that the tribunal was a real international court. The tribunal found the accused guilty,
and, deprived him of his rank of knight and related privileges (because he had committed
crimes which he had the duty to prevent), and von Hagenbach was executed following the
Marshal's order. This case is particularly interesting as besides being the first; it also led to the
attempt to classify acts as war crimes, and can nevertheless be considered as early
manifestations of what are now known as "crimes against humanity". During the American
Civil War (1861-1865), President Abraham Lincoln issued the Lieber Code (Instructions for
the Government of Armies of the United States in the Field)'. Prepared by Francis Lieber,
professor of law at Columbia College in New York, and revised by a board of officers, this text

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represents the first attempt to codify the laws of war. Under Article 44, "all wanton violence
committed against persons in the invaded country, all destruction of property", "all robbery, all
pillage or sacking" and "all rape, wounding, maiming or killing of such inhabitants" are
punishable. In Article 47, "crimes punishable by all penal codes", like "arson, murder,
maiming, assaults, highway robbery, theft, burglary, fraud, forgery and rape", committed by
an American soldier on the territory of an enemy State, are considered as if they had taken
place "at home" and are severely punished. Even if only destined for American soldiers and
only binding on them, the Lieber Code had an important influence on military regulations of
other armies as well. A further leap was made in the twentieth century. After the First World
War, the Treaty of Versailles of 28 June 1919—in its Articles 228 and 229— established the
right of the Allied Powers to try and punish individuals responsible for 'violations of the laws
and customs of war. In particular, Article 228 declared that 'the German Government
recognizes the right of the Allied and Associated Powers to bring before military tribunals
persons accused of having committed acts in violation of the laws and customs of war. The
German government therefore had the duty to hand over 'all persons accused', in order to permit
them to be brought before an allied military tribunal3. In the case of an individual 'guilty of
criminal acts against the nationals of more than one of the Allied and Associated Powers', the
possibility of setting up an international tribunal was provided for. Moreover, Article 227 stated
that Kaiser Wilhelm II of Hohenzollern was responsible 'for a supreme offence against
international morality and the sanctity of treaties' and the Allied Powers agreed to establish 'a
special tribunal' composed of judges appointed by the United States, Great Britain, France,
Italy and Japan to try the accused. 'In its decision the tribunal will be guided by the highest
motives of international policy, with a view of vindicating the solemn obligations of
international undertakings and the validity of international morality'. The Powers also agreed
to submit a request to the government of the Netherlands for the Emperor's surrender, an
initiative that failed. As can be seen, the provisions of this article anticipated the category of
'crimes against peace, which was to emerge after the Second World War. The Hague
Conventions of 1899 and 1907 and the Geneva Convention of 1929 relating to the treatment of
prisoners of war had no provisions on the punishment of individuals who violated their rules.
Only the 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and

3
https://www.coursera.org/lecture/international-law-in-action-2/individual-criminal-responsibility-ScqKK

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Sick in Armies in the Field had a somewhat weak provision in Article 30. But these
Conventions were to be referred to later in the Nuremberg Judgement.4

CRIMES AGAINST HUMANITY:

Crimes against humanity consist of certain acts such as murder, torture or inhumane acts which
form part of a widespread or systematic attack directed against the civilian population.
Although 'crimes against humanity' first appeared as a concept in the Nuremburg Charter of
1945, their prohibition in international law long predates the Second World War. It is now well
established that crimes against humanity are crimes under customary international law, hence
prohibited by all persons ii-respective of nationality or national laws. Unlike many other
international crimes, such as war crimes or terrorism, this group of crimes has never been the
subject of a binding convention to which reference can be made to determine specific content5.
However, regard can be had to the ICC Statute, the first treaty to set out comprehensive
definitions of these crimes, other earlier international instruments, as well as ample
jurisprudence emanating from prosecutions for crimes against humanity. Key elements of the
definition of crimes against humanity are as follows:

1. Murder and inhumane acts: It is uncontroversial that murder and inhumane acts are
among the acts that may amount to crimes against humanity under customary law.
Murder is a familiar term in domestic laws, and has been held in an international context
to consist of killing with 'an intention on the part of the accused to kill or inflict serious
injury in reckless disregard of human life.' `Inhumane acts,' a broad term found in
various international and domestic laws, covers the infliction of severe bodily harm and
serious 'cruel treatment6.'

2. Widespread or systematic attack: The distinguishing feature of crimes against humanity

is that they must be 'widespread or systematic'. While this threshold has not always
been considered necessary for crimes against humanity, recent developments have

https://www.researchgate.net/publication/279203052_Individual_Criminal_Responsibility_According_to_Arti
cle_25_of_ICC_Statute
5
https://lib.ugent.be/fulltxt/RUG01/002/349/623/RUG01-002349623_2017_0001_AC.pdf

6
https://www.legal-tools.org/doc/f50d22/pdf/

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 confirmed that it is now a requirement, and the majority of writers appear to accept that
under current international law crimes against humanity must be widespread or
systematic. It should be noted that the conduct of the particular perpetrator need not be
'widespread or systematic.' Even a single act by a perpetrator may constitute a crime
against humanity, provided it forms part of a broader (widespread or systematic) attack
or campaign. Conversely, the acts in question may themselves constitute the attack;
there is no requirement of a separate or pre-existing attack.

3. Attack against the civilian population: The ICC statute imposes an additional threshold
not found elsewhere in international law. As such, it is unlikely that this definition
would be considered customary international law. If, however, the ICC formulation is
taken as the appropriate one, then the incidents would also have to be deemed to involve
a 'course of conduct', 'multiple acts' and be pursuant to a 'policy' behind the attacks, in
addition to being either widespread or systematic. Even according to this definition,
crimes of humanity do not depend on the acts being attributable to a State. If the ICC
standard is accepted, however, there must be a 'state or an organisation' with a policy
to commit an attack. Finally, it is well established that the attack must be directed
against the civilian, as opposed to a military, population. Different considerations may
therefore arise as between clearly civilian targets, such as the World Trade Centre in
New York, and those that may have a military role, such as the Pentagon.

4. Link to armed conflict: Crimes against humanity can be committed in times of armed
conflict or in times of 'peace'. While the crimes against humanity originated as an
extension of war crimes, the idea that such crimes can only be committed in times of
war has been unequivocally rejected through developments since Nuremberg.

Unlike genocide and war crimes, which have been widely recognized and prohibited in
international criminal law since the establishment of the Nuremberg principles, there has never
been a comprehensive convention on crimes against humanity, even though such crimes are
continuously perpetrated worldwide in numerous conflicts and crises. There are eleven
international texts defining crimes against humanity, but they all differ slightly as to their
definition of that crime and its legal elements. In 2008, the Crimes Against Humanity
Initiative was launched by Professor Leila Nadya Sadat at the Whitney R. Harris World Law

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Institute to address this gap in international law7. The Initiative represents the first concerted
effort to address the gap that exists in international criminal law by enumerating a
comprehensive international convention on crimes against humanity. On July 30, 2013, the
United Nations International Law Commission voted to include the topic of crimes against
humanity in its long-term program of work. In July 2014, the Commission moved this topic to
its active programme of work based largely on a report submitted by Sean D. Murphy.
Professor Sean D. Murphy, the United States’ Member on the United Nations’ International
Law Commission, has been named the Special Rapporteur for Crimes Against Humanity. Sean
D. Murphy attended the 2008 Experts' Meeting held by the Crimes Against Humanity Initiative
prior to this appointment. There is some debate on what the status of crimes against humanity
under customary international law is. M. Cherif Bassiouni argues that crimes against humanity
are part of jus cogens and as such constitute a non-derogable rule of international law.

WAR CRIMES:

As the name suggests, war crimes must take place in war or armed conflict. Prosecution of
those responsible for September 11 for war crimes, unlike for crimes against humanity, would
have to be premised on these events amounting to the initiation of armed conflict. The ICTY
definition of 'armed conflict' holds:

"An armed conflict exists whenever there is a resort to armed force between States or protracted
armed violence between governmental authorities and organized armed groups or between such
groups within a State. International humanitarian law applies from the initiation of such armed
conflicts" While this definition was thought to be broad-reaching, the events of September 1 I
do not fit readily into either category of conflict8. If a state is responsible for the resort to armed
force - which would have to be established according to the 'effective control' test- then
September 11 may amount to the initiation of international armed conflict between states. If
so, the acts of violence may amount to grave breaches of the Geneva Conventions, which
consist of certain very serious crimes, including 'wilful killing', committed in international
armed conflict against protected persons such as civilians, which any state may prosecute. If

7
https://www.legal-tools.org/doc/f50d22/pdf/
8
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199560363.001.0001/acprof-
9780199560363

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state control is not established, the question arises whether this is an `internal' conflict between
governmental authorities and groups within a state9. If, in the circumstances, the conflict is not
considered to emanate from groups within a state' (and not therefore to amount to an 'internal'
conflict), it may be that the events of September 11 highlight a new hybrid type of armed
conflict - between organised groups and foreign States. The law governing such a scenario is
unsettled. It is unclear, for example, whether such armed violence would have to be 'protracted'
- as set down by the ICTY to distinguish internal conflicts from civil unrest - in order to
distinguish conflict from isolated attack. As it has before, humanitarian law may evolve to
encompass this hybrid type of conflict10.

If there is an armed conflict, as opposed to a lesser level of sporadic violence, the basic
principles of international humanitarian law, including accountability, must apply. War crimes
are those serious violations of international humanitarian law which entail under customary or
conventional law the individual criminal responsibility of individuals. They include crimes
relating to the conduct of hostilities, such as deliberate attacks on civilians or the use of
weapons that cause unnecessary sufferings, and crimes against protected persons, such as
torture or cruel treatment carried out against person taking no part in hostilities. Navigating
these unchartered waters may, in any event, be unnecessary if other crimes were committed,
such as crimes against humanity (defined above) or crimes under domestic law, and an
appropriate forum has jurisdiction.

TERRORISM:

There is no accepted definition of 'terrorism.' The issue has long been the focus of international
attention, resulting in a proliferation of agreements relating to the issue11. However,
international consensus has never been achieved on a precise definition of what constitutes
'terrorism' and who can be responsible for it. As the Special Rapporteur on 'Terrorism and
Human Rights' has noted in her report of 27 June 2001, the dispute over what constitutes
terrorism reflects in part the hackneyed saying that one person's terrorist is another's freedom

9
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule102
10
https://www.coursera.org/lecture/international-law-in-action-2/individual-criminal-responsibility-ScqKK
11

https://www.researchgate.net/publication/279203052_Individual_Criminal_Responsibility_According_to_Arti
cle_25_of_ICC_Statute

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fighter, as well as the intractable question of which actors can be responsible for terrorism —
and specifically whether it can include state actors. Consistent with the cardinal principles of
legality and certainty in criminal matters, it is difficult to see how terrorism, as yet undefined,
could be said to constitute a crime of customary international law, justifying criminal
prosecution on that basis. However, certain commentators do assert that customary law
prohibits terrorism, despite differences as to definition, and confers universal jurisdiction to
penalise and prosecute the crime. Terrorism is defined as a crime in certain treaties that are
binding on the states party to them and which, in certain circumstances, oblige particular states
parties to exercise jurisdiction over the crimes covered. There are in fact no less than nineteen
international conventions dedicated to terrorism in various forms. Where a prosecution to
proceed solely on the basis of a treaty, complex issues may arise, including questions of how
that treaty became applicable to the individual12. However, where the treaty has been
incorporated into domestic law of a state jurisdiction, such as the state on whose territory a
crime is committed, this issue is avoided. The United States has enacted such legislation, for
example, the Anti-terrorism Act of 1990, where, it has been suggested, could provide a basis
for prosecution for 'terrorism' offences in the US. Finally, it is noted that terrorism was
eventually omitted from the ICC's jurisdiction on the basis of the lack of an accepted definition.
However, `terrorist' conduct may still amount to a crime against humanity or any other crime
in the statute, provided it meets the criteria set down for those crimes, as discussed above.

JURISDICTION TO PROSECUTE:

International law and practice point to numerous possible venues for the investigation and
prosecution of a potential case.

1. National Courts: International law recognises the right of certain states to exercise
criminal jurisdiction. These are principally the states where the crime occurred, the state
of nationality of suspects, the state of nationality of the victims and, for certain serious
international crimes, all states, based on universal jurisdiction. A growing number of
states have universal jurisdiction laws in place, to ensure that they can exercise this
form of jurisdiction13. National courts have increasingly relied on jurisdiction to

12
https://lib.ugent.be/fulltxt/RUG01/002/349/623/RUG01-002349623_2017_0001_AC.pdf
13
https://www.legal-tools.org/doc/f50d22/pdf/

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 prosecute a range of crimes under international law, including crimes against humanity
and genocide. Important developments in the practice of universal jurisdiction, of which
the Pinochet case is only one, indicate that universal jurisdiction is increasingly a real
international jurisdictional possibility, particularly where the territorial state cannot or
will not exercise jurisdiction.

2. International Alternatives: If however, national courts do not want or are not able to
assume the role of investigating and prosecuting, recent history provides several
alternative models for investigation or prosecution of international crimes. It should be
noted that the ICC is one such model though the ICC Statute has no retroactive
jurisdiction. The Security Council, under Chapter VII of the UN Charter has broad
powers to take measures for international peace and security. In 1994 it exercised those
powers to establish two International Criminal Tribunals for Rwanda and the former
Yugoslavia. In the unlikely event of this proving necessary, it would be possible for the
Security Council, which has expressed willingness to act in the current situation, to
establish a tribunal or, it has been suggested, to extend the jurisdiction of an existing
tribunal. International experience also points to several hybrid models of quasi
international justice that have emerged from negotiation and agreement. Recently, an
agreement between the UN and Sierra Leone lead to the Statute of the Special Court
for Sierra Leone, which combines elements of national law, procedure and personnel
with international components. The approach of the Nuremberg tribunal suggest that
several states can together establish an international tribunal by agreement, conferring
on it the power to do 'what any one of them might have done singly,' namely prosecute
on the basis of one of the grounds of jurisdiction mentioned above. While perhaps an
unlikely model, the Lockerbie case is also potentially relevant. The unusual model that
emerged from the diplomatic impasse over the refusal to extradite suspects in the 1988
bombing was of a national court sitting on foreign soil, applying mostly national law,
with the exception that there was no jury. This arose in response to the alleged inability
of the Scottish courts to dispense fair and impartial justice in the particular case. This
scenario could ultimately become relevant if, for example, a case were made as to the
inability of the US jury system to handle this matter, given the strength of national
sentiment.

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IMPLEMENTING JUSTICE:

The international criminal law enforcement model depends, naturally, on international

enforcement. International co-operation with any anticipated judicial forum is essential for the
purposes such as arresting suspects, freezing assets and securing evidence. A complex body of
bilateral and multilateral agreements governs co-operation between states in matters of
extradition and mutual assistance with criminal investigations. According to normal extradition
agreements and practice, a request for extradition would be accompanied by an indictment or
accusation and a showing of prima facie evidence. Absent such a procedure, a request for
extradition could not be said to have been made. Even under the ICC statute, while states are
clearly obliged to co-operate with the court by transferring suspects, it is anticipated that an
indictment and arrest warrant, containing 'a concise statement of the facts that are alleged to
constitute those crimes,' will be presented to the requested state. It has to be noted that
extradition regimes are complex, and often fraught with obstacles and delays. For example,
there are several grounds for refusing to extradite suspects and constitutional problems in
certain states that may limit the ability to co-operate. These procedures, some of which protect
important human rights, may in certain cases impede speedy justice but they are the ones
provided for inter-state cooperation in current international law. In certain circumstances, states
may consider that such 'co-operative' procedures are wholly inapplicable, for example where
the crimes are believed to be state sponsored (as addressed by the ICJ in Locke rbie), or where
the urgency of the situation demands swift action. If so, another method of enforcement can be
invoked by the Security Council14. The Council, whether or not it actually establishes the court
that would exercise jurisdiction. can circumvent obstacles to speedy transfer of suspects by
authorising enforcement action, where necessary through the use of force. Force employed
must always be no more than necessary to achieve the objective, in this case the apprehension
of suspects. The enforcement of arrests by the ICTY provides an example of Security Council
authorisation for NATO enforcement. The enforcement of international law is never perfect,
and international criminal law is no exception. However, the unprecedented international
consensus generated by the current situation, if directed towards the apprehension of suspects
in relation to September 11, may provide the basis for the effective collective enforcement of
international criminal law in this case. Criminal justice enforcement represents more than a

14
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199560363.001.0001/acprof-
9780199560363

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mechanism to address atrocities; it also reflects obligations under international law.
International criminal law grew from the obligation’s incumbent on states under human rights
law, requiring the investigation and prosecution of those responsible for serious crimes, with a
view to establishing the truth underlying atrocious events and to provide justice and reparation.

ARTICLE 25 OF ICC STATUTE:

Article 25 provides the various modes of individual liability within the jurisdiction of the ICC.
This is the core of a case, providing the legal theory which connects the accused to the crimes
charged. The Rome Statute provides a general framework for determining individual criminal
responsibility. However, the approach taken to individual criminal responsibility differed
greatly from that of previous international tribunals. As well the elements of each mode of
liability have evolved through case law with various ICC Pre-Trial and Trial Chambers
interpreting the diverse elements differently. The Appeals Chamber in the Lubanga case has
issued the only decision thus far that deals with Article 25 at the appeals level, essentially
confirming the approach taken at the Pre-Trial and Trial level of the case. Continued
jurisprudence from the Appeals Chamber will assist in providing certainty moving forward and
ending superfluous litigation over diverse opinions at the Pre-Trial and Trial level.
Compared with the previous laws on individual criminal responsibility, the provisions
contained within the Rome Statute mark a turning point in regulating modes of participation
under international criminal law. The ad hoc tribunals were in their early years during the
drafting and adopting of the Rome Statute in 1998, and the modes of liability were a key focus
of the development of the ad hoc jurisprudence during this time. In particular, and in contrast
to the ICC, the ad hoc tribunals developed their modes of liability in the absence of guidance
from their Statutes. Central to this was the concept of joint criminal enterprise (JCE), and the
extent to which this concept falls within the Rome Statute is debatable15.
The Rome Statute is much more precise than the ICTY/ICTR Statutes in that it adopts a
scheme that clearly differentiates between a four-tiered system of participation. In contrast to
both the ILC Draft Codes of Crimes against the Peace and Security of Mankind and the Statutes
of the ad hoc tribunals, paragraph 3 distinguishes between perpetration and other forms of

15
https://www.coursera.org/lecture/international-law-in-action-2/individual-criminal-responsibility-ScqKK

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participation16. In particular, perpetration corresponds to the most serious qualification of
individual criminal responsibility and it is expressly provided for under letter (a) in three
different forms: i) as an individual; ii) jointly with another person (co-perpetration) and iii)
through another person (indirect perpetration). Based on the new drafting of the Rome Statute
a new format of perpetration has emerged at the ICC based on the notion of ‘indirect
perpetration’. Pursuant to this new interpretation, commission of crimes encompasses the
concept of ‘control over the crime’, including control over an organized apparatus of power,
whereby indirect perpetration interacts with co-perpetration in such a way that the two forms
of participation complement each other. This new doctrine on perpetration serves to make
clearer the distinction between principal and accessorial liabilities within the context of the
collective and multi-level commission of crimes. The Pre Trial Chamber of the ICC has taken
this all one step further in a decision in the Katanga and Ngoudjo case, where the judges decided
that the ‘control over the crime’ amounted to ‘control over the organization’ (Prosecutor v.
Katanga and Ngoudjo, ICC PT. Ch. I, Confirmation of Charges Decision, ICC-01/04-01/07-
717, 30 September 2008, paragraph 500). Now, the requirements of indirect perpetration
include the existence of an organized apparatus of power, within which the direct and indirect
perpetrators operate, and which enables the indirect perpetrator to secure the commission of
the crimes (Prosecutor v. Katanga and Ngudjolo)

Article 25(1) of the Rome Statute reads: "The Court shall have jurisdiction over natural persons
pursuant to this statute". The decision regarding whether to include 'legal or 'juridical' persons
within the jurisdiction of the court was controversial. During the conference in Rome there was
a working paper circulated by the French delegation which articulated a proposal for ICC
jurisdiction over 'juridical persons'. There was considerable debate on this point with many
delegations concerned that the legal systems of their countries did not provide for such a
concept or that the concept would be difficult to apply in the context of an international criminal
court. The French delegation noted these concerns, but felt that the Statute should go at least
as far as the Nuremberg Charter, which had provided for the criminal responsibility of criminal
organizations. The debate was mainly based upon Romano-Germanic versus common law
system countries. Romano-Germanic countries generally do not have mechanisms under their
national systems to prosecute legal entities, effectively conferring automatic jurisdiction on the

16

https://www.researchgate.net/publication/279203052_Individual_Criminal_Responsibility_According_to_Arti
cle_25_of_ICC_Statute

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ICC in such circumstances. In the end, the concerns regarding the French proposal were too
great to overcome and the Rome Statute would not accept jurisdiction over legal persons.
(Report of the Preparatory Committee on the Establishment of an International Criminal Court,
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2).
Article 25(1) of the Rome Statute establishes the principle of ‘personal jurisdiction’, giving
the ICC jurisdiction over natural persons accused of crimes within its jurisdiction. This
provision and in particular paragraphs 1 and 2 of the Article confirm the universal acceptance
of the principle of individual criminal responsibility17. Subparagraphs (a) through (c) of
paragraph 3 establish the basic concepts of individual criminal attribution. Subparagraph (a)
refers to three forms of perpetration: on one’s own, as a co-perpetrator or through another
person. Subparagraph (b) contains different forms of participation; ordering, soliciting or
inducing commission. Subparagraph (c) establishes criminal responsibility for aiding and
abetting and subparagraphs (d), (e) and (f) provide for expansions of attribution: contributing
to the commission or attempted commission of a crime by a group, incitement to genocide and
attempt.

CONCLUSION:

The categories of war crimes, crimes against humanity and genocide, considered as part of the
broader category of crimina juris gentium, have developed in a significant and considerable
way since the Second World War.' A proliferation of treaties and constant work to expand the
scope of international law by creating new jurisdictions and by clarifying concepts both in legal
provisions and in judicial decisions are the salient features of the evolution. When Article 6 of
the Nuremberg Charter was adopted, its provisions on war crimes were already declaratory of
general international law of customary origin. War crimes were violations of existing
provisions of jus in hello. The Nuremberg Judgement stated in this regard that 'with respect to
war crimes, however, as has already been pointed out, the crimes defined by Article 6, Section
b, of the Charter were already recognised as war crimes under international law. They were
covered by Articles 46, 50, 52 and 56 of The Hague Convention of 1907, and Articles 2, 3, 4,
46 and 51 of the Geneva Convention of 1929. That violation of these provisions constituted
crimes for which the guilty individuals were punishable was too well settled to admit of

17
https://lib.ugent.be/fulltxt/RUG01/002/349/623/RUG01-002349623_2017_0001_AC.pdf

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argument. As we have seen, however, the customary origins of rules on war crimes go back
nearly half a millennium. The notion of crimes against humanity appears to have undergone
the greatest development. Under the Nuremberg Charter, crimes against humanity were linked
to war crimes (which in turn were connected to crimes against peace). The point of reference
was the Second World War, and crimes were considered only if committed before or during
that war. But the Judgement anticipated the autonomous character of such crimes: Julius
Streicher and Baldur von Schirach were convicted solely of crimes against humanity'''. For
Streicher, this led to the death sentence. Although explicitly recognized only after the Second
World War, crimes against humanity were taken into account already long before as they were
seen to be closely linked to the principle of humanity, which is a cornerstone of humanitarian
law. Von Hagenbach and others responsible for criminajuris gentium, in war, in peace and in
borderline situations, committed acts which could be termed crimes against humanity under
international law. After 1946, it appeared beyond any doubt that this category of crimes had
become part of customary international law. The judgement of the ICTY in the Tadic case
affirmed it openly. The Rwanda Statute considers crimes against humanity an autonomous
category. The connection with war crimes has disappeared: Article 1 of the 1968 Convention
on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against
Humanity, referring to crimes against humanity under Article 6 of the Nuremberg Charter,
completes the wording with 'whether committed in time of war or in time of peace' 18. If war
crimes and crimes against humanity are now two autonomous, self-sustained categories, it
cannot be denied that they are often closely linked in modern conflicts, especially in connection
with crimes against the civilian population. Murder, deportation and other acts in the long lists
that appear in recent instruments are clear examples of their connection and overlapping. The
four Geneva Conventions and Protocol I codify a significant range of acts and situations which
demonstrate that violations can be classified both as war crimes and crimes against humanity.
An important contribution to the evolution of the concept of individual criminal responsibility
has been made by the Draft Code of Offences against the Peace and Security of Mankind,
prepared by the International Law Commission. Already in the 1951 and 1954 drafts, Article
1 provided that `offences against the peace and security of mankind are crimes under
international law, for which the responsible individual shall be punished'. Article 1 of the 1996
text now states that 'crimes against the peace and security of mankind are crimes under
international law, and punishable as such, whether or not they are punishable under national
law. According to Article 2, 'a crime against the peace and security of mankind entails
individual responsibility'. As far as the list of acts is concerned, the Draft Code takes into

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account all the developments described above. The crime of genocide (Article 17) reflects the
1948 Convention, with the same wording as in Article 6 of the Rome Statute. For crimes against
humanity, the Code (Article 18) adds that acts are `instigated or directed by a Government or
by any organisation or group'. The list is, however, less detailed than that in Article 7 of the
Rome Statute. In particular, instead of mentioning the crime of apartheid, the Code includes it
in a general provision on 'institutional discrimination on racial, ethnic or religious grounds
involving the violation of fundamental human rights and freedoms and resulting in seriously
disadvantaging a part of the population'. War crimes are listed more or less in the same way as
that later chosen for Article 8 of the Statute, but in a less extensive formulation. However, all
the different categories of crime mention the acts as 'committed wilfully in violation of
international humanitarian law'. A new provision on the protection of the natural environment
is introduced which says that 'in the case of armed conflict, using methods or means of warfare
are not justified by military necessity with the intent to cause widespread, long-term and severe
damage to the natural environment and thereby gravely prejudice the health or survival of the
population'. Another important development should be mentioned here in relation to the
practice of codifying international law: there is a growing connection between humanitarian
law and human rights law. Indeed, some recently adopted provisions of humanitarian law
appear clearly influenced by human rights rules and standards of protection. The Rome Statute
refers to concepts like "personal dignity", the prohibition of "humiliating and degrading
treatment", "judicial guarantees", the prohibition of "persecution" (as intentional and severe
deprivation of fundamental rights contrary to international law by reason of the identity of the
group or collectivity), discrimination and apartheid. These concepts have all been established
in the main instruments adopted by the UN for the protection of the rights of the individual.
However, the principle of humanity is at the core of international humanitarian law and forms
the basis of all the developments discussed in this paper. Moreover, the principle of individual
responsibility has clearly been established by humanitarian law. Finally, there is a growing
reciprocal influence between treaty-based and the customary international law. Customary law
has come to play a role of paramount importance, since contemporary humanitarian law
applicable in armed conflicts is no longer limited to the Geneva Conventions and their
Additional Protocols. Customary law has accelerated the development of the law of armed
conflict, particularly in relation to crimes committed in internal conflicts. In this respect, the
case law established by the ad hoc Tribunal for the former Yugoslavia has made an important
contribution. We have come a long way since the Hagenbach case in 1474. But the basic idea
underlying the legal heritage whose foundations were laid many years ago and which has since

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been developed remains the same: the principle of humanity must be considered as the very
heart of a legal system aimed at providing protection against criminal acts committed by
individuals, both in war — whether internal or international — and in peace. This is not only
a moral duty, but a basic obligation under international customary law. The laws of humanity
and the 'dictates of public conscience', today as well as in the past, call for exceptional efforts
aimed at promoting principles and rules designed to ensure effective protection of the
individual, who is to an extent the victim of acts of generalized violence. The 'peace and
security of mankind', together with the protection of human rights and severe sanctions for
serious violations and grave breaches of humanitarian law applicable in armed conflicts, are
among the international community's major assets.

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 Article 25 Rome Statute.

 Article 66 Rome Statute.
 Article 55 of the Rome Statute
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 International Covenant on Civil and Political Rights (adopted on 16 December 1966,
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 Charter of the United Nations, 59 Stat. 1031 (adopted on 26 June 1945 entered into
force on 24 October 1945) TS 993.
 Kriangsak Kittichaisaree, International Criminal Law (OUP 2001) 3.
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