Page |1

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

INTERNATIONAL CRIMINAL LAW

RESEARCH PAPER

TOPIC - “Critical Analysis on Individual Criminal Responsibility and

categories of International Crimes”

SUBMITTED BY: SUBMITTED TO:

Name: Prachi T0pp0 Dr. Shreemanshu Dash

R0ll N0: 1007 Assistant Pr0fess0r, Law
Semester: VIII
Secti0n: ‘A’
 Page |2

CONTENT
S.no Title Page no.

1 Ackn0wledgement 3

2 Intr0ducti0n 4

3 The development of Individual Criminal Responsibility 4

4 Crimes under International and National law 5

5 Crimes against humanity 7

6 War Crimes 9

7 Terrorism 10

8 Jurisdiction to prosecute 11

9 Implementing Justice 13

10 Article 25 of ICC Statute 14

11 Conclusion 17

12 Bibliography 19
 Page |3

ACKNOWLEDGEMENT

I w0uld like t0 express my deep and sincere gratitude t0 my research supervis0r Dr.
Shreemanshu Das, f0r giving me this 0pp0rtunity t0 d0 this research and t0 pr0viding invaluable
guidance thr0ugh0ut this research. His dynamism, visi0n, sincerity and m0tivati0n have deeply
inspired me. He has taught me the meth 0d0l0gy t0 carry 0ut the research and t0 present the
research w0rk as clear as p0ssible. It was a great privilege and h0n0r t0 w0rk and study under his
guidance. It is extremely grateful f0r what he has 0ffered me.
At last, I w0uld like t0 thank my friends, wh0 helped me incalculably with s0urce 0f research
material thr0ugh0ut the pr0ject, jk I don’t have any friends.
 Page |4

INTRODUCTION

The term ‘criminal responsibility’ can be referred as a person’s ability to understand his or her
conduct at the time a crime is committed. To further explain, what a person has in mind when he
commits a crime, or what result is anticipated when a crime is committed. Laws define crimes in
terms of an act or omission actus rea and a mental state mens rea. Criminal responsibility relates
to the mental state element of a crime.

INDIVIDUAL CRIMINAL RESPONSIBILITY

Committing crimes under international law typically entails the cooperation of a large number of
persons. This generally occurs by way of a more or less established network, which is often part
of the state or the military, but is in any case organized. However, the collective nature of crimes
under international law does not absolve us of the need to determine individual responsibility. In
fact, in all cases, specific individuals have worked together. They have determined the victims,
and they have planned, organized and implemented the use of force against their victims. When
allocating individual responsibility within networks of collective action, it must be kept in mind
that the degree of criminal responsibility does not diminish as distance from the actual act
increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their
deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann
organized the extermination of European Jews from his office in the Berlin headquarters of the
‘Reichssicherheitshauptamt’ of the SS. The Yugoslavia Tribunal vividly summarized the
problem:

Most of these crimes do not result from the criminal propensity of single individuals but
constitute manifestations of collective criminality: The crimes are often carried out by groups of
individuals acting in pursuance of a common criminal design. Although some members of the
group may physically perpetrate the criminal act (murder...), the participation and contribution
of the other members of the group is often vital in facilitating the commission of the offence in
question. It follows that the moral gravity of such participation is often no less- or indeed no
different- from that of those actually carrying out the acts in question.1

1
Judgment, Tadic (IT-94^1-A), Appeals Chamber, 15 July 1999, x191 (hereinafter: ‘Tadic Appeals Judgment’).
 Page |5

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 commits 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 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
 Page |6

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.2 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.3

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), this text represents
the first attempt to codify the laws of war. Under Article 44, "all wanton violence committed

2
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule102
3
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199560363.001.0001/acprof-9780199560363
 Page |7

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.
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
tribunal.4

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.
4
https://www.coursera.org/lecture/international-law-in-action-2/individual-criminal-responsibility-ScqKK
 Page |8

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 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.5

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 irrespective 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 content.6

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 treatment.'7
5
https://www.researchgate.net/publication/
279203052_Individual_Criminal_Responsibility_According_to_Article_25_of_ICC_Statute
6
https://lib.ugent.be/fulltxt/RUG01/002/349/623/RUG01-002349623_2017_0001_AC.pdf
7
https://www.legal-tools.org/doc/f50d22/pdf/
 Page |9

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

humanity is that they 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. 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
 P a g e | 10

Institute to address this gap in international law 8. 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. 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 conflict. 9 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 'willful killing', committed in international armed conflict
against protected persons such as civilians, which any state may prosecute. If state control is not
established, the question arises whether this is an `internal' conflict between governmental
authorities and groups within a state. 10 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
8
https://www.legal-tools.org/doc/f50d22/pdf/
9
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199560363.001.0001/acprof-9780199560363
10
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule102
 P a g e | 11

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 conflict.11

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 issue 12. 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 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

11
https://www.coursera.org/lecture/international-law-in-action-2/individual-criminal-responsibility-ScqKK
12
https://www.researchgate.net/publication/
279203052_Individual_Criminal_Responsibility_According_to_Article_25_of_ICC_Statute
 P a g e | 12

to see how terrorism, 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 individual13.

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 recognizes 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
13
https://lib.ugent.be/fulltxt/RUG01/002/349/623/RUG01-002349623_2017_0001_AC.pdf
 P a g e | 13

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
jurisdiction14. National courts have increasingly relied on jurisdiction to 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. 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.

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

14
https://www.legal-tools.org/doc/f50d22/pdf/
 P a g e | 14

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.

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 Lockerbie), or where the urgency of the situation demands swift action. If so, another
method of enforcement can be invoked by the Security Council.15

The Council, whether or not it establishes the court that would exercise jurisdiction. can
circumvent obstacles to speedy transfer of suspects by authorizing 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 authorization
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 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

15
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199560363.001.0001/acprof-9780199560363
 P a g e | 15

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 debatable 16. 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.

16
https://www.coursera.org/lecture/international-law-in-action-2/individual-criminal-responsibility-ScqKK
 P a g e | 16

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 participation17. 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,18 where the judges decided that the ‘control over the crime’ amounted to
‘control over the organization’.

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'.

17
https://www.researchgate.net/publication/
279203052_Individual_Criminal_Responsibility_According_to_Article_25_of_ICC_Statute
18
Prosecutor v. Katanga and Ngoudjo, ICC PT. Ch. I, Confirmation of Charges Decision, ICC-01/04-01/07- 717, 30
September 2008, paragraph 500
 P a g e | 17

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. 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.19

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 responsibility.20

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. 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.

19
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
20
https://lib.ugent.be/fulltxt/RUG01/002/349/623/RUG01-002349623_2017_0001_AC.pdf
 P a g e | 18

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. That violation of these provisions constituted
crimes for which the guilty individuals were punishable was too well settled to admit of
argument.

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.

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'.

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.

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'. According to Article 2, 'a crime
against the peace and security of mankind entails individual responsibility'. The crime of
genocide (Article 17) reflects the 1948 Convention, with the same wording as in Article 6 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
 P a g e | 19

involving the violation of fundamental human rights and freedoms and resulting in seriously
disadvantaging a part 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. The Rome Statute refers to concepts like "personal dignity", the prohibition of "humiliating
and degrading treatment", "judicial guarantees", the prohibition of "persecution", discrimination
and apartheid. 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 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
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.

BIBLIOGRAPHY

 Article 25 Rome Statute.

 Article 66 Rome Statute.
 Article 55 of the Rome Statute
 P a g e | 20

 Universal Declaration of Human Rights, UNGA Res 217A (III) (10 December 1948) UN
Doc A/810 (UDHR).
 International Covenant on Civil and Political Rights (adopted on 16 December 1966,
entered into force on 23 March 1976) 999 UNTS 171 (ICCPR).
 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.
 Antonio Cassese, International Criminal Law (OUP 2003) 15.
 Prosecutor v Furundzija (Lasva Valley) [2000] IT-95-17/1-A
 ICCHomepage: http://www.icccpi.int/menus/icc/about%20the%20court/icc%20at%2/ 0a
%20glance/icc%20at%20a20glance?lan=en-GB
 file:///E:/Old%20Laptop/sem%2010/projects/ICL/[20841264%20- %20Wroclaw
%20Review%20of%20Law,%20Administration%20&%3B%20Eco nomics]%20The
%20protection%20of%20the%20accused%20in%20international%20 criminal%20law
%20according%20to%20the%20human%20rights%20law%20standa rd1%20(1).pdf
 http://defensewiki.ibj.org/index.php/Rights_of_the_Accused_in_the_International_Cr
iminal_Court
 file:///E:/Old%20Laptop/sem%2010/projects/ICL/Presentation_LSmith_AsserInstitute
_26%2003%202008.pdf