Article 25 Individual criminal responsibility

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Rome Statute of the International Criminal Court (ICC) Article 25 Individual criminal responsibility is quoted below:

    Introduction
    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.

    Purport

    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).

    Exploration and Elucidation

    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 http://www.cfr.org/human-rights/geneva-conventions/p8778
    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: http://www.icty.org/case/tadic/4

    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:
    (a) Murder;
    (b) Extermination;
    (c) Enslavement;
    (d) Deportation or forcible transfer of population;
    (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
    (f) Torture;
    (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;
    (j) Apartheid;
    (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.

    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 …
    (i) Pillaging;
    (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.

    Exploration and Elucidation

    Rome Statute Article 25(3)
    Rome Statute Article 25(3)(a)-(c) deal with individual attribution.
    • 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);
    • Article 25(3)(b) deals with different forms of perpetration (ordering or attempting a crime of same;
    • 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 above proof of criminal intent and awareness of same must be verified. With regard to Article 25(3)(a). Perpetration as an individual can be interpreted to 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 perpetration or joint perpetration comprises a functional component of the crime. Each share the some criminal intent and awareness of the crime.
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  1. The Court shall have jurisdiction over natural persons pursuant to this Statute.   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.   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;[319]

(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.

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