Individual criminal responsibility
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This article is written by Priyank Shandilya, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction 

The International Criminal Court (ICC) is the international system of criminal justice which administers the crimes against humanity as a whole. It operates upon a statute which is known as the ‘Rome Statute’. The Rome Statute came into force on July 1, 2002. It is a legal document, containing the whole effort of mankind against the abolishment of dangerous crimes and for punishment the criminals that depreciate the most important value such as human life. Before the Rome Statute, there used to exist only temporary criminal mechanisms, exactly ad-hoc tribunals which came into existence due to concrete conflicts. Nuremberg, Tokyo, International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). 

In this article, the author analyzes Individual Criminal Responsibility, which is determined by Article 25 of the Statute of International Criminal Court. 

What is criminal responsibility?

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.

What is Individual Criminal Responsibility? 

When there is commission of a crime with international importance, besides State responsibility for violations of international law, individuals may be held criminally responsible for international crimes i.e., crimes against humanity, war crimes, and genocide, etc.. For example, if there is a breach of laws of war, 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. It is possible to hold accountable the 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 an international crime to face accountability for their actions. 

According to the 25th Article of ICC statute, the court has the jurisdiction or authorized power over every person falling under jurisdiction of this statute and a person shall be punished as per the crime. This statute also talks about committing the crime within the jurisdiction of the court and whether he or she will be liable for the punishment. The person being held responsible for committing the crime is not necessarily must be participating in doing something explicitly or directly, but aiding or abetting for doing an act or giving or supplying any object or weapons will also be liable and would be kept under the scope of this Article and accordingly, would be given same punishment as it would be given to the persons who have committed the crime. 

It has also been stated that if any group, people or organization work for a common intention or motive, which ultimately resorts to an offence under the scope of ICC Statute. Every person involved in that organization or group shall be made liable for the act that has been pursued. It also covers the crimes related to genocide. Genocide is killing of masses especially for being oriented towards any religion or ethics or of any particular ideology. It has been observed, individuals are held responsible for planning and preparation for the commission of the crime.

Interplay between criminal responsibility and international law

International law is a legal testamentary system which involves treaties and agreements between nations. It possesses laws that govern transactions of nations with each other, transactions of nations with citizens of other nations, and International Trade. International law can be subdivided into two different categories. 

“Private international law” deals with controversies between non-government entities overseas, those people or companies and corporations, having a significant relationship with more than one nation. For example: if we consider lawsuits arising out of the toxic gas leak in Bhopal, India from industrial plant owned by Union Carbide, which is a U.S. corporation, falls under the scope of a matters to be considered as ‘the matter of private international law’.

“Public international law” deals with the relationships between Governments of Nations. These include standards of the laws of the sea, international behavior, diplomatic law, economic law, human rights law, environmental law, and humanitarian law. These principles of public international law are either written or evolved over time. Those which have been written are “codified” and are called treaties. Those which have evolved over the time are known as “customary” laws, and have obtained nations’ consent by implication.

Over time, a greater part of international law has now been secured by treaties; it usually depends upon the discretion of the governments of the nations as to how they have to enforce the law in their nation. However, there are a few treaties that certain international organizations enforce themselves. The most familiar example is the United Nations, with 192 member states.

In modern times the world is more and more connected than it has ever been in the history of humanity. It has started to grow as a global community. Motive of International Law is to maintain the code of conduct of the nations in multidimensional ways. ICC Statute also comes under the umbrella of international law. It is a part of International law which aims to treat the international criminals and issue appropriate orders to minimize crimes against humanity. 

Does Article 25 ICC Statute interfere or dominate any State’s internal criminal justice system?

The International Criminal Court doesn’t override or act as a substitute for the internal judiciary of the nations. According to the ICC Statute, every state is duty bound to exercise its criminal jurisdiction over people who are held responsible for international crimes. The ICC shall only intervene where a State is showing unwillingness or genuinely unable to enforce penalties and pursue investigation to prosecute the perpetrators. The chief objective of the International Criminal Court is to escalate the effort to put an end to impunity for the perpetrators of the most heinous crimes of concern to the international community.

Important Precedents of decision of ICC

Saif al-Islam Gaddafi v/s situation in Libya

The second most widely recognized person in Libya, the “de facto” Prime Minister of the time, and was a possible successor, though he rejected this. Saif al-islam publicly turned down his father’s (Muammar Gaddafi’s) offer of the country’s second highest post and held no official government position. During his father’s reign, an arrest warrant was issued for him on 27 June 2011 by the International Criminal Court (ICC) for charges of crimes against humanity against the Libyan people. He was charged for killing and persecuting civilians, under Articles 7(1)(a) and 7(1)(h) of the ICC statute. Although he denied the charges, was sentenced to death on 28 July 2015 by a court in Tripoli for crimes during the civil war. In a trial conducted in absentia. As of December 2019, Gaddafi remained wanted under his ICC arrest warrant for crimes against humanity. And at the end his father Gaddafi was released from prison back to Libya.

Thomas Lubanga Dyllo v/s situation in the Democratic Republic of the Congo

The first person ever convicted by the International Criminal Court (ICC). Thomas Lubanga Dyllo, a convicted war criminal from the Democratic Republic of the Congo (DRC). He founded and led the Union of Congolese Patriots (UPC) and was a key player in the Ituri conflict. Rebels under his command have committed massive human rights violations, including murder, ethnic massacres, rape, torture, forcibly conscripting child soldiers and mutilation. Dyllo was convicted for crime against humanity, rape, murder, etc, and was given the given the 14 years of imprisonment in the year 2006, Imprisonment got completed on 15th March 2020. Now he has been released from prison to live his rest of the life peacefully and with non-violence.

Conclusion

The international criminal court punishes the participants and criminals; it also looks-up to the victims and witness protections as well. As far as basics are concerned, this is all about the international criminal responsibility one can know. 

The creation of the ICC is the most innovative event in international law after establishing the United Nations. ICC Statute is one of the more complicated instruments that have ever been adopted. The Statute of ICC doesn’t only check on the criminal responsibility of individuals that commit crimes under Statute; it also spreads on the individuals that indirectly take part in committing crime under international law. 

The importance of article 25 of ICC Statute is strengthened by the existence of the differentiated model of participation, which means the existence of different modes of participation in crime. Differentiated model in its turn plays a significant role for the International Criminal Court in relations with determination of individual criminal responsibility. 

The issue of individual criminal responsibility became more improved after World War II, that was determined by the development of Nuremberg, Tokyo, ICTY and ICTR case law. From the objective point of view, despite the limited jurisdiction of Nuremberg, Tokyo, ICTY and ICTR, they played and still are playing a significant role. The existence of Rome Statute and its article is mostly the merit of above mentioned tribunals. Decisions made by these tribunals are very important for further development of international criminal and international humanitarian law, also for strengthening the issue of individual criminal responsibility.

References


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