The Arms Industry and International Criminal Liability: Challenging the Status Quo?

This chapter considers the meaning of “equality of arms” between the prosecution and defense in modern international criminal law. The analysis reveals the disparity between the theory and practice, and shows how this oft mentioned principle in the jurisprudence and the literature is a lofty goal that seems to be applied feebly. The paper starts out by examining how international criminal courts define and apply the phrase in concrete cases, and offers multiple examples of courts shying away from ensuring the substantive equality of the parties in favor of reading the right as a mere procedural guarantee. Following a brief discussion of the link between equality of arms and the right to a fair and public trial, the authors argue that equality of arms is more than a simple fair trial right; it is an expansive institutional entitlement which is impacted by the lack of structural independence of defense offices in all but one international criminal court. The chapter uses the glaring inequality in investigative resources between the prosecution and the defense as a case study to advocate for special attention to the substantive enjoyment of equality of arms during the important investigative stages of such trials. In addition, the authors assess the out-of-court structural and resource inequalities that further stack the deck against defendants. They show how greater prosecution compliance with the statutory duty to collect and disclose both incriminating as well as exculpatory evidence in the permanent International Criminal Court could serve as one mechanism to help improve the substantive position of the defense and the fairness of international criminal trials.

Emerging from the Shadow of Nuremberg: Crimes Against Humanity in the Modern Age

Background: Crimes against humanity are among the gravest offences under international criminal law and require individual criminal responsibility to prevent impunity. The International Criminal Court (ICC), established by the Rome Statute, provides a framework on crimes against humanity and modes of liability, yet its case law reveals doctrinal tensions. This article examines how the Court interprets and applies individual criminal responsibility in such cases. Methods: The research employs a normative legal method using statute and case approaches. It analyses provisions of the Rome Statute on crimes against humanity and individual responsibility, and reviews selected ICC judgments, which are qualitatively assessed to evaluate coherence and trends in the Court’s reasoning. Findings: The study finds that the Court has developed an architecture of modes of liability, including direct perpetration, co-perpetration, indirect perpetration, participation, and command responsibility, each with distinct actus reus and mens rea requirements. However, overlaps between modes, fluctuating evidentiary thresholds for senior leaders, and divergences between Trial and Appeals Chambers generate uncertainty and raise concerns about consistency and fairness. These dynamics reveal a gap between the conceptual aims of international criminal law and its practical enforcement before the ICC. Conclusion: The article concludes that, although the Court has advanced the doctrine of individual criminal responsibility for crimes against humanity, significant doctrinal and practical challenges remain. Novelty/Originality of this article: This study offers a structured mapping of modes of liability in ICC jurisprudence and links those patterns to wider debates on the legitimacy and effectiveness of international criminal justice.

The Khmer Rouge under their leader Saloth Sar (“Pol Pot”) were in power in Cambodia between April 1975 and January 1979.1 They came into control of the country after a long and brutal civil war2 an...

The origins of modern international criminal law date back to the military tribunals established after World War II. Although the Nuremberg and Tokyo trials have been largely criticised for the fact that they operated without precedent, the trials’ legacies have endured and their jurisprudence aided in the further development of international criminal law norms. To be sure, the lasting legacy of the Nuremberg and Tokyo trials is the assertion that individuals are subjects of international law and can be held criminally responsible for perpetrating war crimes and crimes against humanity. However, following the conclusion of the trials, there is a large gap in time between the Nuremberg and Tokyo military tribunals of the 1940s and the civilian ad hoc tribunals of the 1990s. The creation of these tribunals, under the auspices of the UN Security Council, was in response to atrocities that took place in the Balkans and Rwanda respectively. Their emergence ushered in a new era in international law and international criminal justice, whereby once again the international community has sought to hold individuals accountable for the violation of international crimes.

This chapter considers the accuracy of interpretations and, to some extent, translations in international and hybrid criminal courts settings and looks at the effects of both linguistic and paralinguistic (nonverbal) misinterpretations on the effectiveness of the international criminal process and, in particular, the effects these can have on the quality of trials, procedural fairness, and ultimately defense rights. Specifically, the rights to seek and expect from international criminal courts and tribunals competent and effective language services, as well as the corresponding right to review translated transcripts and relevant documents, are considered here. As this chapter tries to demonstrate, the protection and further development of these specific rights are essential to the requirements of procedural fairness alongside the rights to equality before the law, equality of arms, and the right to a fair trial. Although statutes and rules of international courts and tribunals assert that equal treatment before the law, as recognized in international human rights law, requires that there be no significant disparity in trial and punishment regimes in individual cases, there remain considerable outcome problems in these complex multilingual and multicultural settings. Right to equality before the law and the right to a fair trial are examined here with a particular reference to the International Covenant on Civil and Political Rights 1996 (ICCPR) Article 14. Case law reveals in fact that equal and equitable protection of fundamental procedural pretrial and trial rights remains inconsistent and that the determination of the nature of ICCPR provisions is contradictory. Given the complexity of most international criminal trials, some practical interpretation and translations problems may be readily recognized and anticipated. Nevertheless, the responsibility to fully explore reasons and conditions that lead to potentially procedurally and ethically unjust trial outcomes rests on the judiciary. The responsibility to provide effective remedies in individual cases rests on them too. Importantly, these courts and tribunals are based and legitimized on the basis of their legal foundations and principles deriving from the rule of law, such as independence, transparency, and accountability. In turn, the rule of law increasingly requires that international justice is administered by applying norms that promote and protect elevated, and not just minimum, human rights standards and fundamental values of equality, fairness, and justice. By analyzing statutes and rules of procedure and evidence of international courts and their proceedings as well as studying court transcripts and simultaneous translations in different international criminal law jurisdictions (mainly the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court), the chapter examines whether the review of court transcripts in the second (translated) language could amount to a procedural right in international criminal law.

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

The collective nature of crimes under international law does not absolve us of the need to determine individual responsibility. Article 25 of the Statute of the International Criminal Court (ICC) now contains a detailed regulation of individual criminal responsibility. While discussing the elements of various modes of individual criminal responsibility, this essay shows that the most important difference between prior legal frameworks and Article 25(3) ICC Statute lies not in the redefinition of the scope of individual responsibility in international criminal law, but in the systematization of modes of participation. The case is made that Article 25(3) is best construed as a differentiation model with four levels of participation. In this model, modes of participation should be understood as indicative of the degree of individual guilt, and thus as helpful guidelines in sentencing matters. With particular reference to joint commission, the author shows that this concept also leads to a coherent interpretation of the various modes of participation.

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

Article 7(1) of the ICTY Statute, which has served as the model for the statutes of three other courts applying international criminal law, sets forth a seemingly exhaustive list of the forms of responsibility within the jurisdiction of the Tribunal: 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. ‘Committed’, in this context, would appear to refer only to physical perpetration by the accused of the crime with which he is charged. Beginning in 1999, however, the ICTY Appeals Chamber has consistently held that ‘committing’ implicitly encompasses participation in a joint criminal enterprise (JCE), even though that term does not expressly appear anywhere in the Statute. As it has been developed in the jurisprudence of the ad hoc Tribunals, JCE is a theory of common-purpose liability: it permits the imposition of individual criminal responsibility on an accused for his knowing and voluntary participation in a group acting with a common criminal purpose or plan. The doctrine of JCE has its critics, both within and outside the Tribunals. It is certain, however, that JCE is now firmly established in modern international criminal law as a form of responsibility that responds to the concern of how to characterise the role of individual offenders in contemporary armed conflicts, in which collective and organised criminality is notoriously present.

Cases against corporate managers for their involvement in international crimes are rare. Still, legal precedent from the Nuremberg trials and more recent cases in national jurisdictions shows that corporate officers of arms manufacturing companies may be liable under international criminal law (ICL) when exported arms are used for the commission of war crimes. This article examines the circumstances under which corporate officers responsible for weapons exports can be criminally liable as accomplices to war crimes under Article 25(3)(c) of the Statute of the International Criminal Court (ICC). To corroborate our analysis, we use the case study of European arms exports to members of the Saudi-led coalition in Yemen. There is evidence that this coalition has been committing war crimes in Yemen since 2015. Despite factual difficulties and legal complexities such as the mens rea standard of Article 25(3)(c) ICC Statute, we argue that corporate officers involved in arms exports may be individually liable, depending on their contribution to the commission of war crimes; their knowledge and awareness of the consequences of the provision of arms due to the abundance of information in the public domain; and the international standards for corporate human rights due diligence that apply to their specific business activities.

Civilizational antagonism, dehumanization and moral neutrality of law are analyzed as the main challenges to public international law and international criminal law. Civilizational antagonism grew out of political and legal transformations that took place under the influence of the strengthening of the consumerist nature of the modern world, the globalization of relations between states and other world subjects, the creation of supranational state-monopoly formations (transnational corporations), and the obsessive desire of a number of Western states to impose their ideas about the world order and living standards on the world. Behind the human rights rhetoric, more and more new interpretations of previous legal norms, far from the original meaning, are being born, behind which lies the lack of spirituality and dehumanization of international relations, the public legalization of social immorality. law and international criminal law have become mechanisms for strengthening the moral neutrality of modern states, their equal tolerance for good and evil, for social institutions and actions of any spiritual content. This is the path of degeneration and death of humanity. The practice of humanitarian interventions has become a manifestation of the deformations of international law. The preservation of each nation’s spiritual and moral basis and traditional values requires the restructuring of public international law and modern international criminal law on the basis of spiritual, moral, political and legal imperatives.

Click to increase image sizeClick to decrease image size Acknowledgement The author would like to thank Hugh Dyer and David Galbreath for their helpful comments. Notes Sam Zia-Zarifi, ‘Who's Afraid of International Relations?’ Leiden Journal of International Law, Vol.13 (2000), pp.1015–24. Ibid. Tam Dalyell, ‘Blair, the War Criminal,’ The Guardian, 27 March 2003; see also Richard Tyler, ‘Greek Lawyers to Sue Blair for War Crimes’, World Socialist Web Site, 2 June 2003, found at www.wsws.org See Yoram Dinstein, ‘The Distinction between War Crimes and Crimes against Peace’, Israel Yearbook on Human Rights, Vol.24 (1995), pp.1–17. Of course, the unilateral resort to force does not necessarily qualify as aggression. A state may claim that a unilateral act is lawful under customary international law, for instance in the case of humanitarian intervention, or to uphold prior resolutions adopted under Chapter VII of the Charter. In adopting the latter argument the UK government followed a similar line of argument to that used to justify NATO action in Kosovo in March 1999. See Constantine Antonopoulos, ‘Whatever Happened to Crimes Against Peace?’ Journal of Conflict and Security Law,Vol.6 (2001), pp.33–62. ‘Treaty of Peace with Germany’, American Journal of International Law, Vol.13 (1919), p.250; see also ‘International Military Tribunal Judgement and Sentences’, American Journal of International Law, Vol.41 (1947), pp.172–332. See Broomhall, (under review) pp.46–7; Sadat (under review) pp.132–8. Sadat (under review), pp.132–3. G. Gaja, ‘The Long Journey towards Repressing Aggression’, in Cassese et al. (under review), p.428; see also A. Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in Cassese et al. (under review), p.10, fn.23. Dalyall, ‘Blair the War Criminal’ (note 3). Sadat, p.xiii. The ICC assumed non-retrospective jurisdiction over genocide, crimes against humanity and war crimes on 1 July 2002. This was following the 60th ratification of the Rome Treaty earlier that year. The Rome Statute reaffirms the illegality of aggression in principle but specifies in Article 5 that the Court may not exercise jurisdiction until the Assembly of State Parties is able to define it and not within seven years of the Statute entering into force. This political compromise allowed some commentators to claim that the Court exercises ‘dormant jurisdiction’ over the crime of aggression. Kirsch and Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), p.78. Marc Weller echoes Sadat in calling the Rome Conference ‘a constitutional moment’. He writes, for instance that the Conference ‘exercised the function of an international constitutional convention’. See ‘Undoing the global constitution: UN Security Council action on the International Criminal Court’, International Affairs Vol.78 (2002), pp.693–712. With the definition of a state's right of self-defence expanding following the use of force after September 11th it is likely that a consensus on aggression is even further away. On the right to self-defence see M. Byers, ‘Terror and the Future of International Law’ in K. Booth and T. Dunne (eds.), Worlds in Collision: Terror and the Future of Global Order (Basingstoke: Palgrave, 2002), pp.118–27. Sadat (under review), p.9. Sadat, (under review), pp.8–9. See also L.N. Sadat and S.R. Carden, ‘The New International Criminal Court: An Uneasy Revolution’, The Georgetown Law Journal, Vol.38 (2000), pp.381–474. K. Sengupta, ‘Guilty of War Crimes – or Victim of a Feud with US Soldiers?’ The Independent, 22 May 2003; Richard Norton-Taylor, ‘Soldier Arrested over Iraqi Torture Photos’ The Guardian, 31 May 2003. M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to extradite or prosecute in international law (Dordrecht: Martinus Nijhoff, 1995) Broomhall (under review), p.4. On this use of Grotian solidarism see F. Mégrét, ‘Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law’, European Journal of International Law, Vol.12 (2001), pp.247–68; see also Bassiouni and Wise (note 16), pp.22–42. Broomhall (under review), p.105. Ibid., p.59. Ibid., p.106. See also William Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes” ’, Journal of International Criminal Justice, Vol.1 (2003), pp.39–63. Broomhall (under review), p.109. Ibid., p.112. See also Holmes, ‘National Courts versus the ICC’ in Cassese et al. (under review), pp.667–8. Antonio Cassese, ‘From Nuremburg to Rome: International Military Tribunals to the International Criminal Court’, in Cassese et al. (under review), p.18. See Sadat, pp.21–46; Broomhall, pp.71–6. Cassese (note 24), p.15. Ibid., p.16. James Crawford, ‘The Work of the International Law Commission’ in Cassese et al. (under review), pp.23–34; see also Adriann Bos, ‘From the International Law Commission to the Rome Conference (1994–1998)’, In Cassese et al. (under review), pp.35–65. Sadat (under review), pp.11–12. See P. Kirsch QC and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), pp.67–91. Ibid., p.88. W.R. Pace and J. Schense, ‘The Role of Non-Governmental Organization’, in Cassese et al. (under review), pp.105–43. Ibid., p.137. Sadat (under review), p.5. Broomhall (under review), p.5. Mégrét (note 18), p.258. Sadat (under review), p.103. Mégrét (note 18), p.258. For a commentary on the origins of complimentarity and the relevant Articles of the Statute see John T. Holmes, ‘Complimentarity: National Courts versus the ICC’, in Cassese et al. (under review), pp.667–86. Rome Statute, Article 17, accessed at http://www.un.org/law/icc/statute/romefra.htm. J. Ralph, ‘Between Cosmopolitan and American Democracy: Understanding American Opposition to the International Criminal Court’, International Relations Vol.17 (2003), pp.195–212. The term ‘new sovereigntist’ is Peter J. Spiro's. See his ‘The New Sovereigntists: American Exceptionalism and Its False Prophets’, Foreign Affairs, Vol.79 (2000), pp.9–15. In May 2002 the Bush administration ‘unsigned’ the Rome Treaty. In a public statement explaining US policy, Under Secretary of State Marc Grossman stated that the US remained ‘committed to promoting the rule of law and helping to bring violators of humanitarian law to justice, wherever the violations may occur.’ Remarks to the Center for Strategic and International Studies (CSIS), Washington, DC, 6 May 2002, accessed at http://www.state.gov/p/9949.htm. The US government opposes the Rome Statute, however, because it has delegated jurisdiction to an unaccountable court. In other words the US does not necessarily oppose universal jurisdiction for core crimes, but it has insisted that such jurisdiction can only be enforced by national courts. This position can be found in D.J. Scheffer, ‘Staying the Course with the International Criminal Court’, Cornell International Law Journal, Vol.35 (2002), pp.47–100. See also R. Wedgewood, ‘The International Criminal Court: An American View’, European Journal of International Law, Vol.10 (1999), pp.93–107. The subject is addressed in the Cassese volume by Hans-Peter Kaul who was Deputy Head and Head of the German Delegation to the Rome Conference and Preparatory Committee respectively. He argues that ‘the idea of universal jurisdiction entitles states to do collectively what they have the power to do individually’. States ‘may confer this individual power on a judicial entity they have established and sustain together and which acts on their behalf.’ He argues that the principle of universal jurisdiction for the core crimes is well established in customary international law. ‘Consequently, States have a legitimate and acknowledged legal basis to use, if they so wish, the universality approach with regard to core crimes, either in their national criminal jurisdiction or when establishing together a new and complimentary international criminal justice system as during the UN negotiation for the ICC.’ Hans-Peter Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (under review), p.591. America's pressure on Belgium to repeal legislation providing for universal jurisdiction suggests that the US statement supporting universal jurisdiction enforced at the level of the state is merely a rhetorical strategy to disguise a policy that puts American national interests ahead of the universal interest. See C.S. Smith, ‘Rumsfeld says Belgian law could prompt alliance to leave’, International Herald Tribune, 13 June 2003’, and ‘Belgians are incensed by American pressure on war crimes law’, International Herald Tribune, 14 June 2003. Broomhall (under review), p.93. See also Jan K. Kleffner, ‘The Impact of Complimentarity on National Implementation of Substantive International Criminal Law’, Journal of International Criminal Justice, Vol.1 (2003), pp.86–113. Darryl Robinson, ‘The Rome Statute and its Impact on National law’, in Cassese et al. (under review), pp.1849–50. Luis Moreno Ocampo, an Argentinian lawyer who helped bring the leaders of his country's former military dictatorship to justice was elected as Prosecutor in March 2003. For detailed commentary on these procedures see Olivier Fourmy, ‘Powers of the Pre-Trial Chambers’ in Cassese et al. (under review), pp.1207–30. P. Kirsch, QC and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese et al. (under review), p.662. For similar arguments see Fernandez de Gurmandi, S.A., ‘The Role of the International Prosecutor’, in Roy Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), pp.175–88. See Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). Grossman, ‘American Foreign Policy and the International Criminal Court’ (note 42). For this see Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). See also David P. Forsythe (2002) ‘The United States and International Criminal Justice’, Human Rights Quarterly, Vol.24, pp.974–91. Broomhall (under review), p.68. At the time of writing 90 of the 139 signatories had ratified the Rome Treaty. Sadat notes that opponents of the idea of an independent Prosecutor included not only the US, but also the Russian Federation, China, France, Israel, India, Malaysia, Egypt and Syria. The UK, she notes, was initially undecided. Its decision to join the Like-Minded Groups was a pivotal moment in the history of the negotiations. Sadat (under review), p.94. Rome Statute, Article 16 (note 40). D.J. Scheffer, ‘The United States and the International Criminal Court’, American Journal of International Law, Vol.93 (1999), p.18. Kaul (note 42), p.600. Rome Statute, Article 12 (note 40). Not only did the US vote against the Treaty at the Rome Conference, it has since pursued a strategy to exclude American citizens from the Court's jurisdiction. On the use of Article 16 to negotiate exemptions for UN personnel see C. Stahn, ‘The Ambiguities of Security Council Resolution 1422’, European Journal of International Law, Vol.14 (2003), pp.85–104; on the use of Article 98 to negotiate bilateral agreements promising US citizens immunity from ICC jurisdiction, see S. Zappalà, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, Vol.1 (2003), pp.114–34. Kaul (note 42), p.607. Sadat (under review), p.118. Ibid., p.106; see also E. Wilmshurst, ‘Jurisdiction of the Court’, in Lee (note 48), pp.127–42. Sadat (under review), pp.120–21. Rome Statute, Article 72 (note 40). H.J. Behrens, ‘Protection of National Security Information in the ICC: A Guide to Article 72 of the Rome Statute’, in Roggemann and S˘arccˇevicˇ (under review) pp.116–17. Rome Statute Article 72 (note 40). W. Schabas, ‘National Security Interests and the Rights of the Accused’, in Roggemann and [Sbreve]arcčevič (under review), p.113. Rome Statute, Article 66 (note 40). Schabas (note 65), p.109.

By affirming criminal responsibility of the individual, the ICC Statute recognizes a distinction from the international responsibility of states, which is the basis of modern international criminal law. The importance of the principle is evident not only in the breadth and analytical nature of the provision dealing with it, i.e. Article 25 of the Statute, but by its being placed in the part of the Statute devoted to the 'General Principles of Criminal Law'. After an introductory consideration of the context of the Article and of its general implications, this article analyses the contents of the regulation and the type of responsibility outlined in it. The principle that emerges could be called the 'personal nature' of international criminal responsibility. Although the general principles set out in the ICC Statute are rather rudimentary in comparison with what is to be found in the 'General Part' of most national criminal laws, the principle of personal responsibility emerging from the Statute is nevertheless in the best traditions of criminal law. It serves both as the foundation and as the limitation of international criminal responsibility, so helping to ensure that modern international criminal law is not a tool for oppression but rather an instrument
\nof justice.

It is important to note that the general principles form a synthesis of common and civil law systems, as well as Sharia law and other criminal law systems. This chapter examines the most important rules of substantive international criminal law (ICL) that have obtained the status of general principles. Actus reus and mens rea are the two components that constitute international criminal liability in all legal systems. The International Criminal Tribunals (ICTS) aim is to prosecute individuals, not states or organizations. International criminal courts and tribunals have committed themselves only to bring to justice perpetrators of the most serious crimes or those who bear the greatest responsibility for serious violations of international humanitarian law. The mens rea of aiding and abetting consists of knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.Keywords: actus reus; aiding and abetting doctrine; international criminal law (ICL); international criminal liability; International Criminal Tribunals (ICTS); mens rea