The Rome Statute developed in 2002 for and of the International Criminal Court. The statute is divided into XIII parts. Part III deal with the General Principles of Criminal Law and Article 25 is part of that section. In this paper I provide my commentary on Article 25.
Article 25: Individual Criminal Responsibility
Article 25: Individual Criminal Responsibility states as follows:
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
______(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
______(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
______(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; 18 Rome Statute of the International Criminal Court
______(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
_______________(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
_______________(ii) Be made in the knowledge of the intention of the group to commit the crime;
______(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
______(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.
Rome Statute Article 25
Article 25 formulates the rules on individual responsibility as a form of perpetration. Grosso modo, generally, a person is criminally responsible if that person (i) perpetrates, (ii) partakes or (iii) attempts to commit crime, where the jurisdiction of the International Criminal Court applies.
While International Criminal Law differs from National Criminal Law, generally provisions are in line with principles of National Criminal Law. But on the other hand it must also be noted that depending on statute provisions for a particular State regulation can differ vastly. In addition National Criminal Law usually focus on crimes cause by individual acts and the respective punishment, but International Criminal Law deals with punishable acts done in a systematic and collective context (but also retaining the individual as contributor perpetrator to crime).
Rome Statute Article 25(1) and (2)
Rome Statute Article 25(1) and (2) deal particularly with the universal principle of individual criminal responsibility of the violation of Article 3 of the Geneva Convention
Geneva Convention: Article 3 see here for more information
Article 3 of the Geneva Convention provides that all individuals within a signatory’s territory of the Geneva Convention while engage in armed conflict are responsible for the protection of those who are not combatants in action or combatants who have laid down their arms. This was again reaffirmed in International Criminal Tribunal of Yugoslavia (CYT) with the Tadic case. See here for more information
Rome Statute Article 25(1)
“The Court shall have jurisdiction over natural persons pursuant to this Statute”
When the Rome Statute was being developed an intense discussion developed as to whether a legal entity or judicial person were to be consider under the jurisdiction of the court developed. The outcome was that the ICC would have jurisdiction over natural persons.
Rome Statute Article 25(2)
Article 25(2) “A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.” Article 25(2) deals with the principle of individual criminal responsibility. A crime within the Court’s jurisdiction they are set out in Article 5 and are as follows:
___(a) The crime of genocide;
___(b) Crimes against humanity;
___(c) War crimes; and,
___(d) The crime of aggression.
These are defined in Rome Statute Articles 6 to 8. Although they are more detailed in the Statute they are outlined below.
Rome Statute Article 6: The Crime of Genocide
Article 6: The Crime of Genocide means:
___(a) Killing group members;
___(b) Causing serious bodily or mental harm to group members;
___(c) Deliberately inflicting on the group conditions bring s physical destruction in whole or in part;
___(d) Imposing prevention of births within the group;
___(e) Forcibly transferring children of the group to another group.
Rome Statute Article 7: Crimes against Humanity
Article 7(1) Crimes against Humanity means:
___(d) Deportation or forcible transfer of population;
___(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
___(g) Rape, sexual slavery, forced (i) prostitution, (ii) pregnancy, (iii) sterilization, or other sexual violence of comparable gravity;
___(h) Persecution of identifiable groups on grounds of political, racial, national, ethnic, cultural, religious, gender orientation;
___(i) Enforced disappearance of persons;
___(k) Inhumane acts.
Article 7(2) Crimes against Humanity also includes:
___(a) “Attack directed against any civilian population”
___(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
___(c) “Enslavement” means ownership over a person… including …trafficking in persons, in particular women and children;
___(d) “Deportation or forcible transfer of population”;
___(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person…;
___(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic …cleansing;
___(g) “Persecution” means the intentional and severe deprivation of fundamental rights …;
___(h) “The crime of apartheid…;
___(i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, for a prolonged period of time.
Rome Statute Article 7(3) refers to gender and gender means the two natural sexes, male and female – on other inclusion is provided.
Rome Statute Article 8: War Crimes
Article 8 (1) includes a plan or policy or as part of a large-scale commission of War Crimes. Article 8 (2)(a) War Crimes means:
___(a) Grave breaches of the Geneva Conventions of 12 August 1949 including:
___(b) Wilful killing;
___(c) Torture or inhuman treatment or biological experiments;
___(d) Wilfully causing great suffering, or serious injury to body or health;
___(e) Extensive destruction …of property not justified by military necessity and carried out unlawfully and wantonly;
___(f) Compelling a prisoner of war or… [others] … to serve in the forces of a hostile Power;
___(g) Wilfully depriving a prisoner of war or … [other]s … the rights of fair and regular trial;
___(h) Unlawful deportation or transfer or unlawful confinement;
___(i) Taking of hostages.
Rome Statute Article: 8 continued
Article 8 (2) War Crimes means: Other serious violations of the laws and customs applicable in international armed conflict… including Intentionally attacking civilian population who are not taking direct part in hostilities(i) ; which are not military objectives (ii);, units or vehicles involved in a humanitarian assistance or peacekeeping mission;
Others are summarised as follows:
___(a) Intentionally causing widespread, long-term and severe damage to the natural environment;
___(b) , undefended towns, villages, dwellings or buildings;
___(c) Killing or wounding a combatant who has surrendered, or has no longer has means of defence;
___(d) Making improper use of a flag of truce
___(e) The transfer (directly or indirectly) parts of the population;
___(f) Intentionally attacking buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals etc;
___(g) Subjecting persons who are in the power of an adverse, mutilation or to medical or scientific experiments of any kind etc;
___(h) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country …
___(j) Employing poison or poisoned weapons;
___(k) Others are humiliating and degrading treatment; rape, sexual slavery, enforced prostitution, forced pregnancy, conscripting or enlisting children under the age of fifteen years into the national armed forces.
Rome Statute Article 77: Possible Punishment for Breach of Articles: 5 to 8
Article 77 states that the possible punishments on conviction crime under Article 5 are:
___(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
___(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
2. In addition to imprisonment, the Court may order:
___(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
___(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
Rome Statute Article 25(3)
Rome Statute Article 25(3)(a)-(c) deal with individual attribution.
___1. Article 25(3)(a) deals with perpetrations that are self-engaged and/or as a co-perpetrator (or through or by means of another person);
___2. Article 25(3)(b) deals with different forms of perpetration (ordering or attempting a crime of same);
___3. Article 25(3)(c) Established criminal responsibility for abetting and aiding (This is a subsidiary form of perpetration).
For conviction under any of the three forms of perpetration mentioned here proof of criminal intent and awareness of same must be had.
Under Article 25(3)(a) individual perpetration can mean that the perpetration was engaged by an individual either (directly) distinctly or a co-perpetrator or indirectly through or by means of another person who contributes to the commission of the crime by the direct perpetrator.
Co-perpetration or joint-perpetration comprises a functional component of the crime. Each person engaged in the commission of the crime share criminal intent and awareness of the crime. In consideration of the commission of crimes the ICC takes (i) conditio sine qua non and (ii) actus reus into account.
Put differently ICC jurisprudence resolves if action(s) or conduct of the co-accused was (or was not) a constituent element of/for the commission of the crime(s) and come to a decision if a co-accused was (or was not) co-perpetrator in the crime(s).
What is at the basis of this assessment is that each co-perpetrator:
___(1) is accountable for the part his/her did in carrying out not only the crime itself but also the objective component of the crime; and,
___(2) who carried out the objective element of the crime (which includes those who assistance in furthering the crime) is held responsible for the commission of the crime.
These were especially brought out in the in Prosevutor v Thomas Lubanga Dyilo (2007: 152-157 refers) in the Pre-Trial Chamber I hearing (available here).
When a group of people commit a crime this “joint commission” can be linked to (or identified as with) accessory to the crime. In analysing same, three criterion approaches can be considered. These are:
___(1) the standard objective approach;
___(2) the subjective approach; and,
___(3) the control over the crime approach.
The objective approach focuses on distinguishing between the principals of the crime and accessories to the crime. In this view “only those who physically carry out one or more of the objective elements of the offence can be considered principals to the crime” (Fan & Whiting 2011: 354). Here Fan & Whiting (2011: 354-355) identify the second and third approaches mentioned above as follows:
“The subjective approach – which is the approach adopted by the jurisprudence of the ICTY through the concept of joint criminal enterprise or the common purpose doctrine – moves the focus from the level of contribution to the commission of the offence as the distinguishing criterion between principals and accessories, and places it instead on the state of mind in which the contribution to the crime was made. As a result, only those who make their contribution with the shared interest to commit the offence can be considered principals to the crime, regardless of the level of their contribution to its commission.
The concept of control over the crime constitutes their approaches for distinguishing between principals and accessories which, contrary to the Defence claim, is applied in numerous legal systems. The notion under pinning this approach is that principals to the crime are limited to those who physically carry out the objective elements of the offence, but also include those which inspire of being removed from the scene of the crime, control or masterminding its commission because they decide whether and how the offence will be committed.
This Approach involves and objective element, consisting of the approach factual circumstance of the appropriate factual circumstances for exercising control over the crime, and a subjective element, consisting of an awareness of such circumstances.”
See also The Situation in the Democratic Republic of the Congo, Prosecutor v Thomas Lubanga Dyilo (2012 14th March refers) and is available here.
Perpetration by way of another person (intermediary) is where the direct perpetrator uses the intermediary to physically carry out the crime. The intermediary is the instrument. Here the indirect perpetrator is the mastermind who engages complex knowledge and/or superior willpower to execute the crimes or have it executed. To carry out such a crime the indirect perpetration need not just solicit or persuade a person to commit a crime, but uses force or exploitation etc. as well. This in determining individual criminal responsibility with regard to intermediary perpetration, it does not matter if such a person had anything to do with physically carrying out the crime or not – he/or she is criminally responsible for the crime. This is especially covered by Justice Wolfgang Schomburg (who served as Judge at the (UN). International Tribunal for the former Yugoslavia) where in his paper Jurisprudence on JCE – Revisiting a Never-Ending Story he draws on the case of The Prosecutor v. Katanga et al. (Pre-Trial Chamber Decision on the Confirmation of Charges) ICC-01/04- 01/07 (30 September 2008) which at paragraph 495 states:
“The commission of a crime through another person is a model of criminal responsibility recognised by the world’s major legal systems.. The principal (the ‘perpetrator-by-means’) uses the executor (the direct perpetrator) as a tool or an instrument for the commission of the crime. Typically, the executor who is being used as a mere instrument will not be fully criminally responsible for his actions.656105 As such, his innocence will depend upon the availability of acceptable justifications and/or excuses for his actions.”
“Acceptable justifications and excuses include the person’s: i) having acted under a mistaken belief; ii) acted under duress; and/or iii) not having the capacity for blameworthiness.”
“A concept has developed in legal doctrine that acknowledges the possibility that a person who acts through another may be individually criminally responsible, regardless of whether the executor (the direct perpetrator) is also responsible. This doctrine is based on the early works of Claus Roxin and is identified by the term: ‘perpetrator behind the perpetrator…”
“The underlying rationale of this model of criminal responsibility is that the perpetrator behind the perpetrator is responsible because he controls the will of the direct perpetrator. As such, in some scenarios it is possible for both perpetrators to be criminally liable as principals: the direct perpetrator for his fulfilment of the subjective and objective elements of the crime, and the perpetrator behind the perpetrator for his control over the crime via his control over the will of the direct perpetrator.”
For further reading see by justice Wolfgang Schomburg’s paper Jurisprudence on JCE – Revisiting a Never-Ending Story and more is available at ECCC here.
Article 25(3)(b) deals with different forms of perpetration such as ordering or attempting to order a crime which deals with “accessory before the fact”.
Under Article 25(3)(b) to induce, order and/or solicit the commission shows relationship to the crime. It here applies to situations where the subordinate carries out (or attempts to carry out) a crime under the order of a superior. There is a superior-subordinate relationship. With regard to this they of crime in 1996 the International Law Commission has stated:
“The superior who orders the commission of the crime is in some respects more culpable than the subordinate who merely carries out the order and thereby commits a crime that he would not have committed on his own initiative. The superior contributes significantly to the commission of the crime by using his position of authority to compel the subordinate to commit a crime. The superior who orders the subordinate to commit a crime fails to perform two essential duties which are incumbent upon every individual who is in a position of authority. First, the superior fails to perform the duty to ensure the lawful conduct of his subordinates. Secondly, the superior violates the duty to comply with the law in exercising his authority and thereby abuses the authority that is inherent in his position.”
“The principle of the criminal responsibility of a superior … applies only to those situations in which the subordinate actually carries out or at least attempts to carry out the order to commit the crime, as indicated by the phrase “which in fact occurs or is attempted.”
This quote is from Draft Code of Crimes against the Peace and Security of Mankind with Commentaries 1996. This was adopted by the International Law Commission in
1996, at its 47th General Assembly. It is available here.
Article 25(3)(c) Established criminal responsibility for abetting and aiding in the attempt or accomplishment of a crime. This is a subsidiary form of perpetration. This includes “providing the means for its commission”.
Here the intention or knowledge of wrongdoing (mens rea) that constitutes part of a crime has two differentiations: (i) aiding and (ii) abetting. With regard to these the person must act with purpose. This requires (i) knowledge that the accomplice aids the main perpetrator; and (ii) desire to assist the commission of a crime. It may well be argued that it is a means provided with retrospective action or force (ex post facto) if the agreement was made prior to the perpetration of the crime.
So what of silence on the matter of War Crimes ….. ?
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