International law is concerned primarily with the relations of states. Historically, this has meant that there has been little scope for the international personality of individuals, and states have guarded carefully their right to deal with their own nationals while honouring the right of other states to deal with theirs. [1] International state conflict no matter how 'barbaric' was not, until the conclusion of the Second World War considered being the business of the International community. [2] This lead to individuals being regarded as having international personality in meaningful sense, and subsequently because international law began to impose personal obligations on individuals separately from those attaching to the state which they represented. [3]
Criminal acts gives rise to international personality because of the destructive effect they have on international order. Universal jurisdiction over piracy constitutes a long established principle of the world community. [4] Those committing piracy or slave trading have long been regarded as guilty of crimes against international society bearing direct responsibility, for which they may be punished by international tribunals or by any state at all. [5]
The Notion of Individual Criminal Responsibility
The personality of individuals in modern international law is the responsibility that each individual bears for war crimes, crimes against the peace, and crimes against humanity. [6] These are the situations in which the individual is responsible personally under the international law, irrespective of the laws of his own country and has become known as international criminal law. [7] Therefore an individual may be tried according to the law by an international court, as with the Nuremberg and Tokyo War Crimes Tribunals, the International criminal Court (ICC, formally established in 2002), the International tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the territory of the Former Yugoslavia (1993), the International Tribunal for Rwanda (1994) and the special court for Sierra Leone (2002). [8] These examples especially the ICC are material manifestation of the willingness of international law to include the international personality of the individual by way of the imposition of obligations. [9]
Development of the Principle of Individual Criminal Responsibility
The International Military Tribunal at Nuremberg and Tokyo functioned on the basis of characters which required the punishment of individuals for war crimes, crimes against humanity and crimes against peace. [10] The Principle of Individual responsibility for crimes under the International law was recognized in the Charter and judgment of the Nuremberg tribunal. [11] The Nuremberg tribunal affirmed that 'international law imposes duties and liabilities as well as upon states as against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced'. [12] In Resolution 95(1) adopted unanimously on December 1946, the General Assembly affirmed 'the principle of international law recognized by the charter of the Nuremberg Tribunal decision' which is now regarded as part of international law. [13]
The acknowledgement of this principle has made it possible to prosecute and punish individuals for serious violations of International law. The Nuremberg principle also established a number of other significant principles projected at ensuring individual accountability for crimes under International law, such as the exclusion of the official position of an individual, including head of state or other high level official, of the mere existence of superior orders as valid grounds for relieving an individual of responsibility for such crimes. [14] In addition the assembly stated that genocide was a crime under international law bearing individual responsibility [15] , which was affirmed in the Genocide Convention of 1948. [16]
In 1996, the International law Commission adopted twenty draft articles constituting a Code of Crimes against the Peace and Security of Mankind. [17] The Commission recommended that the General Assembly select 'the most appropriate form which would ensure the widest possible acceptance of the Draft Code', which relates to the responsibility of individuals for the relevant crimes. [18] The Draft Code reflects the principles of the Nuremberg principles relating to individual criminal responsibility. The 1996 Draft Code [19] provides for individual criminal responsibility with regard to aggression, genocide, a crime against humanity, a crime against the United Nations and associated personnel and war crimes. [20] The fact that an individual may be responsible for the crimes in question is deemed not to affect the issue of state responsibility. [21]
At the request of the general Assembly, the Preparatory Committee took into account the Draft Code in preparing the Draft Statute of the International Criminal Court. [22]
Individual responsibility has also been established with regard to 'grave breaches of the four 1949 Geneva Red Cross Conventions and 1977 Additional Protocols I and II dealing with armed conflicts'. [23]
The events which occurred in the former Yugoslavia incited a regeneration of concern in the establishment of an international criminal court. [24] The Security Council in 1993 established an International Tribunal for the prosecution of person responsible for serious violation of humanitarian law committed in the territory of the former Yugoslavia since 1991. [25] Article 7 of the International Criminal Tribunal for the Former Yugoslavia (ICTY) [26] which deals with individual responsibility was inspired by the Nuremberg principles.
Correspondingly, the events in Rwanda during 1994 and the mass slaughter that took place, lead the Security Council of the United Nation in establishing an International Criminal Tribunal for Rwanda (ICTR) with the authority to prosecute persons accountable for serious violations of international humanitarian law. [27]
On 17 July 1998 the Rome Statute of International Criminal Court (ICC) was established. In order for the Rome Statute to come into force it needed to be rectified by 60 states, this accordingly happened on 1 July 2002. [28] The ICC statute enshrines the principle of individual responsibility of natural persons just like the ICTY and the ICTR. [29] Importantly, the statute stipulates that it is irrelevant if the perpetrator of the crime committed the crime in an 'official capacity'. [30] In addition the Statute stipulates that no immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, will bar the court from exercising its jurisdiction over such a person. [31] Lastly, there is a particular provision dealing with the responsibility of commanders and other superiors. [32]
Gerald werle article. Got to para phrase!!!!
Committing crimes under international law entails the cooperation of a large number of persons. In allocating individual responsibility, the degree of criminal responsibility does not diminish as distance from the actual act increases, it often grows. The goal of the Nuremberg Trial and subsequent trials was to subject those responsible to criminal prosecution, and to do this as comprehensively as possible. Adjudicators of international law in the beginning did not pay much attention to distinguishing different modes of participation of separating principles from accessories, but rather applied a unified perpetrator model. The principle was any support or promotion of the crime was to be considered criminal participation.
A more sophisticated doctrine of participation was ultimately achieved by the ad hoc tribunals. [33] Article 7(1) ICTY Statute and Article 6(1) ICTR Statute are the principle provision dealing with criminal responsibility. [34] It was the starting point which distinguished between committing, planning, ordering, instigating, aiding and abetting. [35] The Yugoslavia Tribunal acknowledged joint criminal enterprise as a form of (joint) commission in international law. [36] Each mode of participation in the ad hoc Tribunals are characterised by different elements, a particular actus reus and mens rea respectively. [37] Furthermore, the modes of participation can be separated into modes of primary or principle liability namely commission.
Werle states the 'denomination of a mode of participation as a form of accessory liability suggest that a person's act had a considerable effect on the commission of a crime by someone else, while in the case of commission as a principle, the crime is attributed to one's own conduct'. [38] The ad hoc tribunals attach importance to this distinction as a matter of clarifying individual criminal responsibility and in sentencing. In the Vasilijevic case the ICTY appeals chamber stated that 'aiding and abetting is a form of responsibility which warrants a lower sentence than is appropriate to responsibility as co-perpetrator'. [39] This indicates that the differentiation between modes of participation is no longer simply descriptive, but indicates the influence of individual responsibility. [40] In the Semanza case it was held, where the conduct of an accused in the commission of a crime fulfils the requirements of both aiding and abetting and ordering, it must be qualified as ordering. [41] The understanding of this assumption is that ordering is a mode of participation that generally yields a higher degree of individual criminal responsibility and therefore entails a heavier sentence. [42] Werle suggest that the practice of the ad hoc Tribunals indicates 'that in international law, the unified perpetrator model is losing its ground while the differentiated system of participation, involving value oriented levels of responsibility is gaining ground'. [43]
