Introduction
In every criminal system and regulation of justice mechanisms which are pervading all around the globe, the element of responsibility does possess a very crucial position amongst all other existing legal aspects. As has been remarked by Roscoe pound that the relevance and importance of responsibility does appear at every single stage of development of the legal paradigm of any country, whether it relates to magisterial discipline or that of the advancement of the stage of justice rendering system through legislation.
Adjudication of criminal responsibility of an individual is considered to be more linked with the public opinion of his country and their demand of making him accountable for the commission of wrong or the infliction of pain carried out. With the level of transformation and evolution, the regime of criminal science is undergoing there have been certain noticeable shifts witnessed in its interpretation and implementation by the states. The overall concept relating to collective responsibility that has been prevalent from the primitive community has got shifted towards the establishment and maintenance of individual responsibility.
Within the international legal system, a commission of crime has been mostly considered to be a phenomenon of collectivity and cooperation amongst a group of individuals. But with the graduation of time and the growing nature of complexities of the crimes committed all around the globe the international law has ultimately taken into consideration the aspect of individual responsibility[1]. While acknowledging the collective responsibility or nature of crimes, the international legal system does not abstain itself from taking account of or determining the propensity of individual responsibility involved in the commission of any criminal act.
In regard to the nature of collective responsibility that has been extensively targeted under the international law for adjudication of the criminal matters before the International Criminal court, the same does not accords them with the opportunity of ignoring the determination of individual responsibility[2]. In addition to this it has also been notified and accepted that while considering the extent of contribution or individual responsibility within a collective action or any form of organized crime, the establishment of a distant connection with the actual act committed does not lowers down the degree of criminal responsibility[3].
This was further notified while dealing with the case of Adolf Hitler regarding his act of sending millions of people to death under his orders and that of the act of mass killing undertaken by Adolf Eichmann, by the Yugoslavia tribunal. The essential elements in regard to the aspect of criminal activities that was been proposed suggest that the final execution of any such act is actually the subjective manifestation of criminality that is collective in nature[4]. But this does not necessarily absolve the authorities from considering individual responsibilities as they all acted in conformity to a common design.
The Doctrine of Individual Responsibility and Customary Law
Since the very inception, the prevalence and accounting of individual responsibility did mainly existed within the customary international law in regard to abridgement of some of the already existing norms in general[5]. Apart from this the existence and relevance of the individual accountability can be further traced back to areas within the international law such as war or acts of espionage, acts considered to be hostile in nature committed by the civilian enemies.
The first acknowledgement that was been made by the U.S. Supreme court expressly in regard to the principles of individual responsibility was in the year 1942 in the case of Ex Parte Quirin[6]. It was been stated by Justice Stone that, previously the provisions relating to the law of war would basically apply to the rights and obligations of the enemy nations conducting such acts but the same shall also be applicable to individuals taking part within the same. With the promulgation of Nuremberg Charter more stringent regulation in respect of participation in any plan of conspiracy for raging war or aggression has been considered to be a crime. In the year 1945, on 8th of Aug with collaborative efforts from the governments of U.S.,
The U.K., The Soviet Union and that of the provisional government of French Republic decided to embark on the procedure of establishing an International Military Tribunal with the objective of adjudicating war criminals. This got eventually converted into Nuremberg Charter which has specifically under Article 6 has stated about the paradigm of individual responsibility that is recognized under international law[7]. The concerned article has mentioned expressly about the nature and forms of crimes within which the leaders, accomplices or the instigators as well will be held equally responsible for taking active participation in the formulation of the common plan to commit a crime against international law. The principle that is being included within the Nuremberg Charter has the sole objective of subjecting each and every individual to criminal prosecution on the ground of extending or promoting any kind of support that is clearly evident as criminal participation.
In addition to this the more specific, stringent and sophisticated provision relating to participation within the international law that can be resorted to involving Article 7(1) and 6(1) of the statute of ICTY & ICTR respectively. In regard to the functioning of the ad-hoc tribunal jurisdiction, it is been notified that every single mode or way of participating in an act of crime execution are characterized through different elements based on differentiation of mens rea and that of the Actus Reus[8].
Apart from this, the modes of participation can be further categorised under two heads which involves principal or primary liability and that of the secondary or accessory liability. Under the first head comes the actual or the substantive part that is a commission of the actual act and under the second category comes planning, aiding and that of abetting the concerned commission. This particular form of distinction which is being introduced by the ad hoc tribunals is to assess and analyse the propensity or the extent of individual responsibility of a co-perpetrator[9]. The same can also be witnessed from the recent trials and decisions that are being rendered by the Ad-hoc tribunals. For instance, in Vasiljevic[10], the ICTY Appeals Chamber was of the view that an act of abetment or aiding attaches responsibility of lower nature in comparison to the responsibility of acting as a co-perpetrator.
The Appeals Chamber has also rendered a decision in Semanza, articulating that if an act of the accused does circumscribe in its ambit the elements of abetting, aiding and that of order then the same gets construed as the principal act of ordering[11]. All these decisions and introduction of concepts within the international legal system demonstrates the fact that the former application of the unified or collective model of perpetration is getting overshadowed with the value-oriented and rather individual model of responsibility ahead. After the completion of these trials and the decisions rendered it was being supported by Telford Taylor with the perspective that this has positively contributed towards the expansion of the principle of liability of an individual within the international law[12].
Article 25 of the Statute of ICC
Another important up gradation that can be enlisted in respect to the purview of individual criminal responsibility is Article 25 of the ICC statute[13]. As per the provision of Article 25 of the ICC statute, it has become a well-established principle that the concerned court shall automatically have jurisdiction over natural persons exclusively except any non-naturalistic that is states and other organisations. Paragraph 2 of the said article of ICC statute expressly discusses making a person liable individually and subject to the penal actions or sanctions enumerated within the statute, if the said person does commit a crime within the court’s jurisdiction.
Paragraph 3 of the article addresses the modes of placing individual responsibility in regard to the nature of criminal participation upon a person before making him get subjected to criminal prosecution under the statute[14]. In addition to all these above-mentioned provisions that relate to the criminal responsibility of an individual, the ICC statute does not absolve the state parties from exercising their obligation within the international criminal law. The most crucial part subsisting within Article 25 of the ICC statute is paragraph 3(a) – (d), whereby all the approved modes of participation have been enlisted that is commission, ordering, instigation, aiding and abetting of any substantial commission of the crime.
The main aspect or the line of difference that lies between the priorly existing legal frameworks and that of the implementation of Article 25(3) of the ICC statute is the systematic provision of the modes of participation. As it has been mentioned above unlike the Ad hoc tribunals have rendered active support in attaching individual responsibility, Article 25(3) of the ICC statute apart from mentioning the modes have also classified the same.
The range of classification provided within the article includes firstly, the substantial act of commission of the crime, secondly, abetting or providing instigation in commission and execution of the act, thirdly, rendering the desired level of support or assistance and lastly the fourth category states about the proportion of one’s contribution in an organized or group crime. Article 25 of the statute of ICC has clearly through its phrasing has been able to mark a distinction that is evident enough between the first mode that is commission and that of the other modes of crime participation.
Commission clearly states about the ultimate liability of an individual in respect of the crime committed and is the subsequent result of his own conduct[15]. Whereas, on the other hand, the remaining other modes of participation are to be considered as accessory liability for the final execution of a criminal act by some other individual. The cases that has been adjudicated by the ad-hoc tribunals previously, all these four modes of participation were being considered to be equally circumstanced with the pre-existence of only one element that is a commission or an attempt been made to commit a crime.
Going in accordance with Article 25 of the ICC statute, if the mode of participation is in compliant to the requirement of the section then, in that case, the perpetrator shall be subjected to criminal prosecution before the jurisdiction of ICC[16]. With the application of an appropriate level of interpretation, the nature of gravity of the offence committed also gets clear before the international courts. Since it is an established fact that commission of a crime under international law will basically require collectiveness and cooperation between certain groups of people, hence it becomes highly essential within the international criminal law to determine the exact nature and extent of responsibility of an individual involved[17]. Based on the case laws, which are faced by the Yugoslavia tribunals recently, distinction and differentiation of the mode of participation act as an appropriate tool in the identification and raising the bar of culpability of an individual as well under the international legal system. Therefore it can be very well construed that Article 25 (3) (a) – (d) does account for the most specific and clear model of differentiation with the inclusion of four distinct modes in which the first one attracts liability of the highest degree and, the fourth is considered to be the weakest and least proportion of responsibility[18].
Commission
Under the statute of ICC Article 25(3) (a) has stated about the presence and application of three different kinds of commission for which criminal liability under the international legal system can be faced. The three kinds of commission involve individual, joint and that of commission through the act of other individuals [19]. Howsoever in respect of the first kind, the provision is very clear as the fulfilment of the requisite mens rea to commit any crime will make the individual solely liable as a principal for the same under the international criminal law.
Joint Commission
In respect to the kind of joint commission that has been impliedly included within Art. 25 (3) (a), it can be stated that such situation arises if a large number of people come together with the objective of committing a crime under international law, then every single individual shall be held accountable for the same[20]. For the purpose of establishing the same one has to showcase that there has been criminal cooperation in regard to a common plan. This sense of cooperation will eventually lead on to the generation of the concept of co-perpetrators, thereby making every individually getting singly responsible for the actions of other co-perpetrators. On many occasions it has been reiterated by various renowned scholars and researchers that Article 25(3) can best be understood and interpreted as a model of differentiated participation, therefore undertaking the same will lead to the formation of the highest degree of individual responsibility[21].
Commission through another person
This is the third alternative in respect of the criminal liability of any perpetrator under Art 25 (3) of the statute of ICC. Placing of criminal responsibility under this third alternative of the mode of commission within the statute of ICC is completely independent or not related to the fact that whether the direct or the principal perpetrator has been made liable or not[22]. Therefore the concerned provision under Art 25 of ICC has established and glorified a different norm whereby the Perpetrator-by-means can be accorded with criminal liability even on circumstances where the direct perpetrator has not been made responsible. Apart from this the concerned provision has also uphold the maxim of “Tater hinter dem Tater” that the concept of “perpetrator behind the perpetrator”[23]. This same doctrine has also been implemented by the Supreme court in Germany recently, in regard to the killings that were being reported at the inner German border between the time 1961 and 1989[24].
Howsoever, with the development and inclusion of such specific provision relating to individual responsibility for a crime committed under the international law, but the ICC statute has remained silent in respect of the liability arising out of an act of omission. There can rise situations whereby an act of omission can certainly lead to the commission of a crime under the circumference of international criminal law. One of the most evident examples that can cited in regard to any such circumstances is the purview of command responsibility included within Art.28 of the Statute of ICC[25]. Under this concerned article the basis of the imposition of criminal liability is an act of failure or incompetence in prevention or reporting of a crime within the international law. Although ad hoc tribunals such as the tribunal of Yugoslavia and that of the Rwanda, both has taken into consideration the aspect of liability that results out from direct omission of the perpetrator. In order to bridge this gap or loophole which is present within Art.25 of the ICC STATUTE, in Lubanga, the ICC pre-trial chamber[26] has asserted its interpretation in a way that puts a blanket effect for all types of cases including the one’s that has been expressly criminalized and those where omission might result into a criminal act.
Instigation, ordering or abetting
‘Kordic and Cerkez Appeals Judgment in the year 2004 the ad hoc tribunal have stated the jurisprudence in relation to an individual acting as an instigator. The judgment defined scope and purview of the term instigator as an individual prompting others in performing an act of crime that is liable for criminal prosecution under the international law. An act of omission is also being construed as a prompt instigation that is punishable. One of the core essentials required to establish an individual’s responsibility in respect to the commission of a crime is to demonstrate the existence of a causal link between a concerned act of instigation and that of the crime committed[27]. The Yugoslavia tribunal’s also hold a similar view in this respect that it is necessary and sufficient to establish that instigation has substantially resulted in commission of the said crime by the other person. In addition to this for affixing individual responsibility, prevalence of the mental element that such provocation is likely to lead towards commission of the crime on the part of the instigator. But still there lies one of such questions unanswered through the provision of Art. 25 is that whether the instigator is also required to share and possess similar intent as that of the perpetrator. This issue has not yet been practicably dealt upon by the ad hoc tribunals till date, as the concerned framework only works with the assumption that the instigator was aware of the intent of perpetrator[28].
Assistance
Under this head Art. 25 (3)(c) of the statute of ICC has expressly stated about the aspect of providing any form of aid, assistance or that of abetment in respect to the commission of any crime will make an individual criminally liable for the same. As per the jurisprudence of ad hoc tribunals, in order to impose culpability upon an individual under this head it is required to be showcased that the concerned assistance has put a substantial effect in regard to the commission of crime under the international law[29]. Whereas in respect of the wordings that are included within Art. 25 (3) (c) there is no requirement to demonstrate the fact that assistance has led on to putting a substantial impact in the conduct of a crime. Henceforth it can be stated and understood that level of assistance mentioned within the statute of ICC are mainly targeted towards that does not falls within the purview of joint commission. Apart from the concerned provision also holds the view that there is no particular necessity of an individual rendering assistance to share similar mental elements that might be possessed by the perpetrator. This notion has further been meted with a huge level of criticisms by a varied number of research scholars. As for instance conviction for the crime of genocide requires every participant to share similar genocidal mens rea, irrespective of the modes of participation of every accomplice[30]. Therefore within the international scenario, the mode of participation leads on to the ascertainment of personal involvement of an individual and thereafter assessing their degree of responsibility in relation to the crime committed. Moreover the nature of culpability that is attached with an act of assistance within the statute of ICC is secondary as it showcases that the same is not an essential requirement for occurrence of a criminal act and, that providing assistance does not hold the desired mens rea for committing the same[31].
Systematic effects of individual responsibility on international crimes
One of the most strategic and stringent actions that has been initiated by the international community in respect of the crimes that are conducted against international law is the imposition of individual responsibility. In order to keep the core values and policies of international community completely unbridled and intact, the aspect of entering into the phase of prosecuting individual perpetrators through domestic as well as international legal forums has been undertaken[32]. But in a majority of circumstances where the international community acts in compliance with the implementation of individualistic approach towards the responsibility of an individual, they are firstly required to consider the roles and obligations of the states in regard to the occurrence of any such crime[33]. The notion of involvement of states within the purview of international crimes does not necessarily imply that the concerned State might have committed the same. But now due to the changing pattern of the primitive international law, there exists varied number of ways in which a wrongful act or omission on the part of state parties will make them accountable for an international crime. Situations like these can arise if the State fails to take relevant actions against the perpetrators individually or is incompetent in preventing commission of the same. This further showcases that State involvement in regard to the commission of crime gives rise to the presence of a systematic element, which is bigger in purview and depth in comparison to the aspect of individual responsibility[34].
The term System Criminality was first being referred by B.V.A Roling, which denotes the circumstances whereby the commission or incitement of carrying out criminal activities are being done based on governmental orders[35]. Keeping an eye past criminal interventions and abridgment of the international law it can be easily suggested that majority of the international crimes does contained the element of system criminality.
In this regard it can be further stated that the aspect of individual responsibility does not fit well for international crimes having elements of systematic criminality. Generally, criminal law lacks the procedure or the mechanism of targeting the complexity involved in the process of committing a mass crime. Whereas the concept or the doctrine of individual responsibility does contributes towards addressing issues involved in the process of committing system criminality. Although the prosecution of most of the individual prosecutors involved in any international crimes is being performed after there has been termination of the situation of conflict has occurred. For instance individual prosecution of criminals such as Milosevic, Saddam in the ICTR showcases the impact of individual responsibility[36]. Large number of scholars and researchers are of the view and suggestion that application of the principle of individual responsibility even on perpetrators in forms of systematic criminality under the international law will put a deterring impact on the same.
Through the application of the statute of ICC and the concerned Art. 25 (3) (a) if any leader or principal perpetrator uses any of the organisation of a State with the objective of creating a collective entity and thereby transform the same into system criminality, the same will get controlled[37]. The concerned provision will attach culpability in an individual nature for the purpose of commission of crime irrespective of the fact that the same is committed through joint commission or singlehandedly. On the other hand, another alternative approach relating to the application of the principal of individual responsibility in regard to systematic criminality is the implementation of the doctrine of Superior responsibility[38]. Implementation of this doctrine can be made on the ground that an act of transgression of the core principles of the international law cannot be undertaken by an individual solely but are being performed on the orders of individuals being placed at superior positions. Application of this concerned principle will further contribute towards attaching individual culpability upon superiorly ranked individuals and could be held liable for criminal prosecution. This raises the bar of the application of paradigm of individual responsibility.
For the purpose inflicting criminal prosecution in an individualistic approach under the international legal system for systematic criminality, there lies the third alternative that is the doctrine of Joint Criminal Enterprise[39]. Implementation of this doctrine mainly contributes towards the aspect of catching the participation of individual perpetrators in any form of collectivities for the crime commission. For instance, the accusation of Slobodan Milosevic in regard to his participation and working with three of the biggest criminal enterprises was being carried out at the international court, thereby attaching the degree of individual responsibility for being a co-perpetrator.
Conclusion
At the end of this report, it can be very well ascertained that within the purview of the International legal system there is the requirement and necessity of the application and implementation of individual responsibility for criminal activities. This will further accord protection of human rights and peaceful execution of the principles of international law at the global level. In addition to this, it can also be cited that both the principles that are individual and collective responsibility are complementary to each other. The aspects of individual responsibility can also be cited and implemented in respect of international crimes that contains an element of systematic criminality thereby making the higher position placed personnel’s also liable for criminal prosecution as a co-perpetrator of the crime committed. Henceforth it can state that Art. 25 of the ICC statute does accounts to be one of the most specific and crucial provisions in regard to the aspect of individual criminal responsibility.
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This article is authored by Urmi Roy, B.A.LL.B (Hons.) Graduated from S.K. Acharya Institute of Law
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