Description
The crimes within the jurisdiction of the Statute are most often offences committed by a number of persons. Crimes against humanity and genocide are offences that are generally committed by many individuals operating as part of an extensive criminal organization. Those holding the highest degree of criminal responsibility for these crimes are most often individuals in positions of authority who had no direct contact with the victims. They either issued the orders, incited others to commit the crimes, or furnished the means with which to commit these crimes.
This is why the Statute does not restrict criminal responsibility for these crimes to individuals who are directly involved in their commission, but extends it to those who were indirectly involved as well. Under article 25, a person is criminally responsible if he or she:
- commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
- orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
- aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
- 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 be made with the aim of furthering the criminal activity or criminal purpose of the group, or be made in the knowledge of the intention of the group to commit the crime;
- in respect of the crime of genocide, directly and publicly incites others to commit genocide;
- attempts to commit such a crime.
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 the Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose (article 25 (3)(f)).
Complementarity Requirements
States Parties to the Statute desiring to prosecute criminals in their national courts under the principle of complementarity should ensure that their implementation legislation includes all the forms of individual criminal responsibility and inchoate offences provided by the Statute. Otherwise, they may not be able to prosecute in national courts the majority of individuals responsible for the commission of the crimes described in the Statute.
Implementation
Most national criminal legislation already describes individual criminal responsibility in these terms; there would be no need therefore to adopt any particular legislative amendments. States should however ensure that this responsibility applies to all the crimes within the ICC's jurisdiction.
4.6 Responsibility of Commanders and Other Superiors
Description
International law requires that all persons in positions of authority have the obligation to prevent those under their orders from violating the rules of international humanitarian law. Articles 86 (2) and 87 of the First Additional Protocol to the Geneva Conventions codified this principle. As stated by the ICTY in the Delalic case, military commanders of each State Party to the Statute should correctly instruct their soldiers concerning the rules of international humanitarian law, ensure that these rules are observed when making decisions on military operations, and set up a communications network so that commanders can be quickly informed of each breach of the laws of war committed by their soldiers. They should also apply corrective measures for every violation of international humanitarian law.
Article 28 of the Statute covers the resp
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