Art. 25 - Individual Criminal Responsibility

Abstract

The provision, in particular paragraphs 1 and 2, confirms the universal acceptance of the principle of individual criminal responsibility as recognized by the International Military Tribunal and reaffirmed by the ICTY in the Tadic jurisdictional decision with regard to individual criminal responsibility for violations of common article 3 of the Geneva Conventions. The drafting history has been described elsewhere. Subparagraphs (a)-(c) of paragraph 3 establish the basic concepts of individual criminal attribution. Subparagraph (a) refers to three forms of perpetration: on one'sown, as a co-perpetrator or through another person (perpetration by means). Subparagraph (b) contains different forms of participation: on the one hand, ordering an (attempted) crime, on the other soliciting or inducing its (attempted) commission. Subparagraph (c) establishes criminal responsibility for aiding and abetting as the subsidiary form of participation. Thus, in contrast to the ILC Draft Codes of Crimes against the Peace and Security of Mankind4 and the Statutes of the ad hoc Tribunals, paragraph 3 distinguishes between perpetration (subparagraph (a)) and other forms of participation (subparagraphs (b) and (c)), with the latter establishing different degrees of responsibility. This approach confirms the general tendency in comparative criminal law to reject a pure unitarian concept of perpetration (Einheitstatermodell) and to distinguish, at least on the sentencing level, between different forms of participation. Subparagraphs (d), (e) and (f) provide for expansions of attribution: contributing to the commission or attempted commission of a crime by a group, incitement to genocide, attempt. Thus, in sum, article 25 para. 3 contains, on the one hand, basic rules of individual criminal responsibility and, on the other, rules expanding attribution (which may or may not still be characterized as specific forms of participation). A grosso modo, an individual is criminally responsible if he or she perpetrates, takes part in or attempts a crime within the jurisdiction of the Court (articles 5-8). It must not be overlooked, however, that criminal attribution in international criminal law has to be distinguished from attribution in national criminal law: while in the latter case normally a concrete criminal result caused by a person's individual act is punished, international criminal law creates liability for acts committed in a collective context and systematic manner; consequently the individual's own contribution to the harmful result is not always readily apparent.