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Individual Criminal Responsibility in International Law$

Elies van Sliedregt

Print publication date: 2012

Print ISBN-13: 9780199560363

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199560363.001.0001

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(p.307) Annex Selected Provisions

(p.307) Annex Selected Provisions

Source:
Individual Criminal Responsibility in International Law
Publisher:
Oxford University Press

ICTY and ICTR Statutes

Article 6 ICTR Statute and Article 7 ICTY Statute: individual criminal responsibility

  1. 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

  2. 2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

  3. 3. The fact that any of the acts referred to in Articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

  4. 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

ICC Statute

Article 21: Applicable law

  1. 1. The Court shall apply:

    1. (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

    2. (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

    3. (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

  2. 2. The Court may apply principles and rules of law as interpreted in its previous decisions.

  3. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, (p.308) colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

Article 25: Individual criminal responsibility

  1. 1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

  2. 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. 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:

    1. (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;

    2. (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

    3. (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;

    4. (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:

      1. (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

      2. (ii) Be made in the knowledge of the intention of the group to commit the crime;

    5. (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

    6. (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. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

Article 28: Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

  1. (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

    (p.309)
    1. (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

    2. (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

  2. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

    1. (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

    2. (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

    3. (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Article 30: Mental element

  1. 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

  2. 2. For the purposes of this article, a person has intent where:

    1. (a) In relation to conduct, that person means to engage in the conduct;

    2. (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

  3. 3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

Article 31: Grounds for excluding criminal responsibility

  1. 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:

    1. (a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;

    2. (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, (p.310) or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

    3. (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;

    4. (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

      1. (i) Made by other persons; or

      2. (ii) Constituted by other circumstances beyond that person's control.

  2. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.

  3. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in Article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.

Article 32: Mistake of fact or mistake of law

  1. 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

  2. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in Article 33.

Article 33: Superior orders and prescription of law

  1. 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

    1. (a) The person was under a legal obligation to obey orders of the Government or the superior in question;

    2. (b) The person did not know that the order was unlawful; and

    3. (c) The order was not manifestly unlawful.

  2. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

    (p.311)

Statute of the SCSL

Article 6: Individual criminal responsibility

  1. 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute shall be individually responsible for the crime.

  2. 2. The official position of any accused persons, whether as Head of State or government or as a government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

  3. 3. The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

  4. 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Court determines that justice so requires.

  5. 5. Individual criminal responsibility for the crimes referred to in Article 5 shall be determined in accordance with the respective laws of Sierra Leone.

Statute of the ECCC

Article 29

Any Suspect who planned, instigated, ordered, aided and abetted, or committed the crimes referred to in Article 3 new, 4, 5, 6, 7 and 8 of this law shall be individually responsible for the crime.

The position or rank of any Suspect shall not relieve such person of criminal responsibility or mitigate punishment.

The fact that any of the acts referred to in Articles 3 new, 4, 5, 6, 7 and 8 of this law were committed by a subordinate does not relieve the superior of personal criminal responsibility if the superior had effective command and control or authority and control over the subordinate, and the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.

The fact that a Suspect acted pursuant to an order of the Government of Democratic Kampuchea or of a superior shall not relieve the Suspect of individual criminal responsibility.

Article 4: genocide

The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed the crimes of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and which were committed during the period from 17 April 1975 to 6 January 1979.

(p.312) The acts of genocide, which have no statute of limitations, mean any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:

  • killing members of the group;

  • causing serious bodily or mental harm to members of the group;

  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

  • imposing measures intended to prevent births within the group;

  • forcibly transferring children from one group to another group.

The following acts shall be punishable under this Article:

  • attempts to commit acts of genocide;

  • conspiracy to commit acts of genocide;

  • participation in acts of genocide.

Article 5: crimes against humanity

The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979.

Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as:

  • murder;

  • extermination;

  • enslavement;

  • deportation;

  • imprisonment;

  • torture;

  • rape;

  • persecutions on political, racial, and religious grounds;

  • other inhumane acts.

Article 6: war crimes

The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed or ordered the commission of grave breaches of the Geneva Conventions of 12 August 1949, such as the following acts against persons or property protected under provisions of these Conventions, and which were committed during the period 17 April 1975 to 6 January 1979:

  • wilful killing;

  • torture or inhumane treatment;

  • wilfully causing great suffering or serious injury to body or health;

  • destruction and serious damage to property, not justified by military necessity and carried out unlawfully and wantonly;

  • compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

  • wilfully depriving a prisoner of war or civilian the rights of fair and regular trial;

  • unlawful deportation or transfer or unlawful confinement of a civilian;

  • taking civilians as hostages.