Subjects of international law were, originally, merely the states. The first international criminal law instruments were limited to certain crimes (e.g., piracy) and did not create supranational crimes but only imposed on states the obligation to penalize the respective conduct. The rules concerning individual criminal responsibility, including the modes of participation, were not included in these international sources. Such rules existed only in the national legal systems. International criminal law operated only on a horizontal level— that is, between states. With the establishment of the International Criminal Tribunals in Nuremberg and Tokyo, individuals were for the first time tried at the inter- and supranational level for breaches of international law. Thus, international criminal law started to operate on a vertical level. Yet, at that time, international criminal law provided very few provisions concerning individual criminal responsibility. The development of more detailed rules was—on purpose—left to the judges, and even today the jurisprudence is refining the elements of individual criminal responsibility. In this process, domestic legislation and doctrine has proven to be an important source of inspiration. International criminal law deals with macro or system-criminality, which differs considerably in its nature from ordinary criminality because its main focus is or at least should be on the “system” or organization behind the criminal acts. Given limited personal and other resources, the prosecution policy of international tribunals focuses on the “most responsible” for international crimes (i.e., the senior political and military leaders). Most defendants—given their status and rank—do not commit the crimes by themselves and therefore cannot be considered direct perpetrators in a physical sense. As a consequence, international criminal law must put a special emphasis on modes of participation that include the leaders and other high-level perpetrators who normally act in the background. These modes of participation are co-perpetration/joint criminal enterprise, indirect perpetration/perpetration by means, and command responsibility.
Given the fragmentation in international criminal law and justice, in terms of the great number of different courts and codifications, there is no uniform approach with respect to the modes of participation. Broadly speaking, as concisely outlined in van Sliedregt 2012, one can distinguish two approaches: One is based on the Rome Statute of the International Criminal Court (ICC Statue) and another on the Statutes of the UN Ad Hoc Tribunals established by the UN Security Council, in particular the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute), analyzed in Boas, et al. 2007. Article 25(3) of the ICC Statute contains different modes of participation in paragraphs (a) to (d): committing a crime individually, jointly, or through another person; ordering, soliciting, or inducing a crime; aiding, abetting, and otherwise assisting a crime; and contributing to a group crime. Article 7(1) of the ICTY Statute provides criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of a crime. Following Olásolo 2009, it is clear from these statutory approaches that the ICC Statute overcomes the unitarian approach of the ICTY Statute and replaces it by a (at least terminologically) differentiated approach. The ICC case law has so far accepted the control over/domination of the act theory (Tatherrschaftslehre) as the fundamental conceptual tool to distinguish between perpetration (participation as a principal) and complicity (secondary, derivative participation). Eser 2002, Ambos 2008, and Ambos 2013 try to grasp the intricacies contained in the different subparagraphs of Article 25, while Swart 2009 as well as Burghardt 2010 set Article 25 into a larger context of theoretical inquiries concerning the fundamental systemic character of international crimes. The following text starts from Article 25(3) of the ICC Statute as the basis of the analysis of the modes of responsibility and adds a section of joint criminal enterprise as a particularly relevant form of responsibility not (explicitly) provided for by Article 25. Subparagraph (a) refers to three forms of perpetration as forms of principal responsibility: perpetration on one’s own, as a co-perpetrator, or through another person (traditionally also called perpetration by means, mittelbare Täterschaft). Subparagraphs (b) and (d) provide forms of secondary participation, employing different terms that can be best captured by the umbrella terms Encouragement, Assistance, and Contribution to a Group Crime (for further explanation of the terms principal/secondary participation, see Modes of Participation in Comparative Criminal Law). A special form of participation (command responsibility) in crime is provided for in Article 28 of the ICC Statute.
Ambos, Kai. “Article 25: Individual Criminal Responsibility.” In Commentary on the Rome Statute of the International Criminal Court. 2d ed. Edited by Otto Triffterer, 743–770. Munich: C. H. Beck, 2008.
Displays the complex structure of Article 25 and analyzes the origins and meaning of each subparagraph. Special emphasis is paid to the doctrine of indirect perpetratorship embodied in subparagraph (a) as well as to questions of delimitation between the subparagraphs.
Ambos, Kai. “Individual Criminal Responsibility.” In Treatise on International Criminal Law. Vol. 1, Foundations and General Part. By Kai Ambos, 102–179. Oxford: Oxford University Press, 2013.
Chapter 4 of this book provides an in depth analysis of the historical origins and the recent developments of individual criminal responsibility in international criminal law. A special focus is laid on the various modes of participation set out in Article 25 ICC Statute.
Boas, Gideon, James L. Bischoff, and Natalie L. Reid. Forms of Responsibility in International Criminal Law. International Criminal Law Practitioner Library 1. Cambridge, UK: Cambridge University Press, 2007.
The book contains a critical analysis of the objective and subjective elements of the modes of participation as set out in the statutes and jurisprudence (with particular reference to ICTY and International Criminal Tribunal for Rwanda [ICTR] case law) of the international criminal tribunals.
Burghardt, Boris. “Modes of Participation and their Role in a General Concept of Crimes under International Law.” In The Review Conference and the Future of the International Criminal Court. Edited by Christoph Burchard, Otto Triffterer, and Joachim Vogel, 81–94. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2010.
The author defines the functions of the different modes of participation in the structure of the crime with a view to a general theory of crime under international law. In his eyes, the two eminent functions are, first, their precise description of the criminalized conduct and, second, their application as criteria for ascribing a certain degree of responsibility.
Eser, Albin. “Individual Criminal Responsibility.” In The Rome Statute of the International Criminal Court: A Commentary. Vol. 1. Edited by Antonio Cassese, Paola Gaeta, and John R. W. D. Jones, 767–822. New York: Oxford University Press, 2002.
An eloquent and concise study of the Article 25 regime, in particular with interesting considerations concerning the accomplice threshold in subparagraphs (c) and (d).
Olásolo, Héctor. The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes. Oxford: Hart, 2009.
The subject of this book is a critical discussion of the common purpose doctrine and control over the act doctrine, which are considered best suited to grasp the central role played by senior political and military leaders in campaigns of large scale and systematic commission of international crimes.
Rome Statute of the International Criminal Court. UN Treaty Series 2187. UN Secretary General, 1 July 2002.
The ICC Statute contains 128 articles dealing with questions of substantive law (Articles 6–10, 22–33), procedural law (Articles 5, 11–21, 53–85, 103–111), and the organization of the court and other statute bodies (Articles 1–4, 34–52, 112–118) as well as international cooperation (86–102).
Statute of the International Criminal Tribunal for the Former Yugoslavia. Security Council Resolution 827 (1993). Last amended by Security Council Resolution 1837, 28 September 2008.
The ICTY Statute contains thirty-four articles dealing with questions of substantive law (Articles 2–7, 24), procedural law (Articles 1, 8–10, 18–23, 25–30), as well as the organization of the court (Articles 11–17, 31–34).
Swart, Bert. “Modes of International Criminal Liability.” In The Oxford Companion to International Criminal Justice. Edited by Antonio Cassese, 82–93. New York: Oxford University Press, 2009.
Portrays the different modes with a special focus on the principle of legality. For Swart, the actus reus of joint criminal enterprise (JCE) in particular poses difficulties in light of the principle of legality (fair warning) given that it is not clearly foreseeable which contribution to a JCE amounts to a punishable contribution.
van Sliedregt, Elies. Individual Criminal Responsibility in International Law. New York: Oxford University Press, 2012.
The study comprehensively delineates the modes of attribution adopted in the jurisprudence of the ad hoc tribunals. It provides a good, critical insight into the doctrine of joint criminal enterprise; an in-depth analysis of the doctrine of superior responsibility; and a section dealing with incitement and conspiracy in genocide. The second part of the book deals with grounds excluding criminal liability.
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