Criminal Responsibility

The concern of the International Criminal Court lies on the trial and punishment of
individuals not states for the crimes within its jurisdiction. The court tries individuals who are
liable for the crimes within the jurisdictions which refers to genocide, crimes against humanity,
war crimes, and crimes of aggression,1 either criminally responsible as an individual or as a
superior.
Criminal responsibility is defined in medical jurisprudence as a defendant’s mental
capacity or ability to understand the charges brought against them for his or her conduct at the
time a crime is committed as well as any consequences of their actions.2
Article 25 of the ICC Statute provides the various modes of individual liability within
the jurisdiction of the ICC. This is the core of a case, providing the legal theory which connects
the accused to the crimes charged. The Rome Statute provides a general framework for
determining individual criminal responsibility.
In Article 28, the Rome Statute also reflects a customary rule by introducing specific
modes of command responsibility.
Moreover, how the ICC relates to the previous ad hoc tribunals regarding cases which
covers criminal responsibility and what circumstances lead to the exclusion of the
responsibility will be discussed further.

Individual Responsibility
Pursuant to Article 25(1) of the Rome Statute, ICC establishes the principle of ‘personal
jurisdiction’, giving the ICC jurisdiction over natural persons accused of crimes within its
jurisdiction. The ICC is only called upon to adjudicate conducts prohibited and criminalized
under its substantive criminal law provisions, when those conducts are committed by:
(a) Nationals of a state Party or of a state that has accepted the jurisdiction of the Court,
on the territory of any state;3
(b) Nationals of any state, on the territory of a state Party or of a state that has accepted
the jurisdiction of the Court;4

1
Art. 5(1)(a)-(c) and 6-8 ICCst.
2
Segen's Medical Dictionary. S.v. "Criminal Responsibility." Retrieved September 11 2017 from http://medical-
dictionary.thefreedictionary.com/Criminal+Responsibility
3
art. 12(2)(b)and (3) ICCst
4
art. 12(2)(a) and (3) ICCst.
 (c) Nationals of any state, on the territory of any state, in case a referral is made by the
Security Council acting under Chapter VII of the Charter.5
The crimes specified in Article 25(2) refers to genocide, crimes against humanity and
war crimes and the possible punishment follows from Article 77. This provision and in
particular paragraphs 1 and 2 of the Article confirm the universal acceptance of the principle
of individual criminal responsibility.
Subparagraphs (a) through (c) of paragraph 3 establish the basic concepts of individual
criminal attribution. Subparagraph (a) refers to three forms of perpetration: physical
commission of the crime on one’s own (commission of the crime in person or direct
perpetration), commission of the crime jointly because of essential tasks assigned to them (as
a co-perpetrator), or commission through another person by controlling the will of the physical
perpetrators (indirect perpetration).6
The characterization of direct perpetration as committing a crime ‘as an individual’ is
unfortunate since it does not make clear that the direct perpetrator acts on his or her own
without relying on or using another person. It must not be overlooked, however, that the term
‘committed’ as such is broad enough to include the other forms of perpetration contained in
subparagraph (a), especially if they are not explicitly mentioned. In Tadic, it was held that the
word ‘committed’ as used in article 7 para. 1 ICTY Statute means ‘first and foremost the
physical perpetration … by the offender himself’.7
According to Pre-Trial Chamber I, ‘The concept of co-perpetration based on joint
control over the crime is rooted in the principle of the division of essential tasks for the purpose
of committing a crime between two or more persons acting in a concerted manner. Hence,
although none of the participants has overall control over the offence because they all depend
on one another for its commission, they all share control because each of them could frustrate
the commission of the crime by not carrying out his or her task’.8 According to Pre-Trial
Chamber III, ‘criminal responsibility under the concept of co-perpetration requires the proof
of two objective elements: (i) the suspect must be part of a common plan or an agreement with

5
art. 12(2) chapeau and art. 13(b) ICCst.
6
Tadić (IT-94-1-A), Judgment, 15 July 1999, para. 332. Also Katanga et al. (ICC-01/04–01/07), Decision on the
Confirmation of the Charges, 30 September 2008, para. 488; Bashir (ICC-02/05–01/09), Decision on the
Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, 4 March 2009, para.
210.
7
Ibid., para. 188.
8
Prosecutor v. Lubanga, No. ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, PTC I, 29
January 2007, para. 342. Quoting Prosecutor v. Stakic ´, No. IT-97-24T, Judgment, TC, 31 July 2003, para. 440.
one or more persons;9 and (ii) the suspect and the other co-perpetrator must carry out essential
contributions in a coordinated manner which result in the fulfilment of the material elements
of the crime.10
The general concept of perpetration ‘through another person’ was for the first time
taken up in the Lubanga Confirmation Decision: The PTC recognized that those who have
‘control over the commission of the offence’ are perpetrators since, inter alia, they ‘control the
will of those who carry out the objective elements of the offence (commission of the crime
through another person, or indirect perpetration).11 The underlying assumption behind the
concept of indirect perpetration is that the accused makes use of another person, who actually
carries out the incriminated conduct, by virtue of the accused's control over that person, and
the latter's conduct is therefore imputed on the former".12
Complicity is specifically addressed in the Rome Statute in subparagraphs (b) and (c)
of Article 25(3). Subparagraph (b) contains different forms of participation; ordering,
soliciting or inducing commission. Subparagraph (c) establishes criminal responsibility for
aiding and abetting and 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 and attempt.13
Participation listed under Article 25(3)(b) specifically entails a person who ordered a
crime not merely as an accomplice but a perpetrator by means of using a subordinate to commit
the crime.14 “Ordering” complements the command responsibility provision (article 28): in the
latter case the superior is liable for an omission, in the case of an order to commit a crime the
superior is liable for commission for having ‘ordered’. It belongs to the form of commission
‘through another person’ which is provided in subparagraph (a) and consequently any
additional subjective requirement, such as the ‘intent to destroy’ in Article 6, must be
fulfilled.15
Soliciting and inducing a crime refer to a situation where a person is influenced by
another to commit a crime. Soliciting a crime means, inter alia, ‘urging, advising, commanding,

9
Ibid., paras. 343–5.
10
Ibid., paras. 346–8.
11
Ibid., para. 332.
12
Prosecutor v. Lubanga, No. ICC-01/04-01/06-3121-Red, Judgment on the appeal of Mr Thomas Lubanga Dyilo
against his conviction, A. Ch., 1 December 2014, para.465.
13
art. 25(3) ICCst.
14
Gerhard Werle and Florian Jessberger, Principles of International Criminal Law, 3rd edn (Oxford University
Press, 2014), 214.
15
Ibid., 215-6.
or otherwise inciting another to commit a crime’.16 Similarly, inducing entails the ‘enticement
or urging of another person to commit a crime’.17 In contrast to cases of ‘ordering’, a superior-
subordinate relationship is not necessary for solicitation and inducement to happen.18 In both
cases, however, the conduct must have a ‘direct effect on the commission or attempted
commission of the crime’.19
Subparagraph (c) codifies any other assistance not covered by subparagraph (b).
Generally speaking, participation as defined by subparagraph (c) implies a lower degree of
responsibility than in the case of subparagraph (b). The form of liability for the purpose of
facilitating the commission of a crime, aids, abets or assists in its commission under Article
25(3)(c) has not yet been adjudicated at the ICC. ‘Aiding and abetting’ as the weakest form of
complicity covers any act, which contributes to the commission or attempted commission of a
crime.20 The difficult task is to determine the minimum requirements of this mode of
complicity. The ICTY referred to the requirements in the Tadic case and held that the act in
question must constitute a direct and substantial contribution to the commission of the crime.21
The ICTR defined aiding in Akayesu as ‘giving assistance to someone’ and abetting as
involving ‘facilitating the commission of an act by being sympathetic thereto’.22 Subsequent
case law, however, does not distinguish between aiding and abetting but requires for both,
taking the same approach as the ICTY, any form of physical or moral support which contributes
substantially to the commission of a crime.23

Command Responsibility
Article 28 sets out the boundaries for how the ICC shall apply the doctrine of superior
responsibility under which, in specific circumstances, military commanders, persons
effectively acting as military commanders and certain other superiors are held accountable for
the crimes undertaken by their subordinates, or perhaps more accurately, with regard to the

16
Bryan A. Garner, editor, Black’s Law Dictionary, rev. 9th ed., (St. Paul, Minn. : West, 2009), 1398.
17
Ibid., 779.
18
Prosecutor v. Gbagbo, No. ICC-02/11-01/11-656-Red, Decision on the Confirmation of Charges, PTC I, 12
June 2014, para. 243.
19
Prosecutor v. Mudacumura, No. ICC-01/04-01/12-1Red, Decision on the Prosecutor’s Application under Article
58, PTC II, 13 July 2012, para. 63.
20
Sarah Finnin, Elements of Accessorial Modes of Liability: Article 25 (3)(b) and (c) of the Rome Statute of the
International Criminal Court, (Leiden: Martinus Nijhoff Publishers 2012), 91.
21
Prosecutor v. Tadic, No. IT-94-1-T, Judgment, TC, 7 May 1997, paras. 674, 688–92.
22
Prosecutor v. Akayesu, No. ICTR-96-4-T, Judgment, TC, 2 September 1998, para. 484
23
Prosecutor v. Rutaganda, No. ICTR-96-3-T, Judgment, TC, 6 December 1999, para. 43; Prosecutor v. Musema,
No. ICTR-96-13-T, Judgment, TC, 27 January 2000, paras. 125–6; Prosecutor v. Bagilishema, No. ICTR-95-1A-
T, Judgment, TC, 7 June 2001, para. 33.
crimes of their subordinates. Article 28 ICC Statute provides for three categories of persons
that may fall under the doctrine of command responsibility: (a) military commanders or persons
effectively acting as such (so-called military-like commander); and (b) other superiors. Rank
and status are of limited relevance,24 the key element is the existence of a superior-subordinate
relationship. It is also the first requirement of the three stage test adopted by the ICTY to hold
someone accountable under the doctrine:
(i) the existence of a superior-subordinate relationship;
(ii) that the superior knew or had reason to know that the criminal act was about to
be or had been committed; and
(iii) that the superior failed to take the necessary and reasonable measures to prevent
the criminal act or punish the perpetrator thereof.25
Under the ICC Statute, unless it resulted into the commission of one of the crimes
enlisted under article 5, a commander’s failure to exercise proper control over his subordinates
is not criminally relevant.
The term ‘military commander’ in paragraph (a) refers to persons who are formally or
legally appointed to carry out a military commanding function (i.e., de jure commanders). The
concept as defined by the ICC Pre-Trial Chamber in the Bemba Case embodies all persons who
have command responsibility within the armed forces, irrespective of their rank or level.26
A superior may only be held liable for the crimes committed by a subordinate if he
effectively exercised command and control over him. In the Bemba Case the ICC Pre-Trial
Chamber concluded that the expressions ‘effective command’ and ‘effective authority’ have
close but distinct meanings, even though the required degree of control is the same.27In order
to say that a superior failed to ‘exercise control properly’, it must be shown that he had
‘effective control’ over his forces: failure to exercise such control is a scenario of
noncompliance with such duties. The underlying crime must be the result of the superior’s
desertion of duty to exercise proper control.28
Paragraph (b) is subsidiary to paragraph (a). Therefore, it is only exercised where a
hierarchy of a military or quasi-military nature cannot be established.

24
Celebici (Trial Chamber Judgement), note 3, paras. 647, 704 and 742.
25
Ibid., para. 346.
26
Bemba (PTC II Decision), note 90, para. 4408
27
Ibid., para. 413.
28
Ibid., para. 422.
 Exclusion from Responsibility
Grounds for exclusion from criminal responsibility is analyzed in Article 31 of the
Rome Statute. In Article 31(1)(a) this defence concerns the mental state of the defendant at the
time of the commission of the crime, not at the time of the trial. One question is whether the
defendant should conclusively prove the defence of insanity, or merely raise the defence
shifting the burden of negating it to the prosecutor? In Delalic et al., one of the accused pleaded
lack of mental capacity, or insanity. The Trial Chamber considered that the accused was
presumed to be sane. It was for the accused to rebut the presumption of sanity on the balance
of probabilities. The Trial Chamber held that “[t]his is in accord and consistent with the general
principle that the burden of proof of facts relating to a particular peculiar knowledge is on the
person with such knowledge or one who raises the defence”.29
The provision in subparagraph (b) allows a narrow defence for intoxication by alcohol
or drug consumption. The defence is denied in cases of voluntary intoxication in an attempt to
exclude cases were a person puts himself or herself in a state of non-responsibility with
objective of committing a crime and later invoke this as a ground of excluding criminal
responsibility. It is less clear whether this defence excludes cases where a defendant
disregarded the risk that he or she would commit crimes when intoxicated.
Article 31(1)(c) concerns self-defence, defence of other persons and in the case of war
crimes defence of property essential for accomplishing a military mission. It does not concern
the defensive use of force by States (or equivelant non-State actors) as provided for in Article
51 of the UN Charter. The ICTY Trail Chamber in Kordić and Čerkez has stated that the
principle of self-defence enshrined in Article 31(1)((c) "reflects provisions found in most
national criminal codes and may be regarded as constituting a rule of customary international
law"30. According to the same Trial Chamber "[t]he notion of ‘self-defence’ may be broadly
defined as providing a defence to a person who acts to defend or protect himself or his property
(or another person or person’s property) against attack, provided that the acts constitute a
reasonable, necessary and proportionate reaction to the attack".31 From the requirement the
danger has to be "imminent" and "unlawful use of force" it follows that the defence cannot be
used for pre-emption, prevention or retaliation. Further the defensive reaction must be
reasonable in the sense that it is necessary and it must be proportionate.

29
Prosecutor v. Delalić et al., No. IT-96-21, ICTY T. Ch., 16 November 1998, paras. 78, 603, 1157–1160, 1172.
30
Prosecutor v. Kordić and Čerkez, No. IT 95-14/2, ICTY T. Ch., Judgment, 26 February 2001, para. 451.
31
Ibid., para. 459.
 Subparagraph (d) mentions the defence duress which concerns the situation when a
person is compelled to commit a crime as a result of a threat to his or her life or another person.
Necessity is a related defence, the difference is that the threat is the result of natural
circumstances. They have a close affinity and subparagraph (d) is an attempt to blend into one
norm the traditional necessity and duress defence, as known in national criminal justice
systems. In Aleksovski the Appeals Chamber considered the defence of necessity, but rejected
its application to the case. The Appeals Chamber considered it "unnecessary to dwell on
whether necessity constitutes a defence under international law, whether it is the same as the
defence of duress".32
Duress is often confused with the defence of superior orders, but the two defences
should be treated as distinct and different. The question whether the defence of duress could
amount to a ground for excluding criminal responsibility or merely a mitigating circumstance
was addressed in the Erdemović case. The majority found that duress "cannot afford a complete
defence"33 while Judge Cassese in minority considered that the defence of duress could be
accepted taking into account at minimum the following four criteria: (1) a severe threat to life
or limb; (2) no adequate means to escape the threat; (3) proportionality in the means taken to
avoid the threat; (4) the situation of duress should not have been self-induced.34 The drafters
of the Rome Statute effectively adopted the minority view of Judge Cassese.
Paragraph 2 dates from early drafting stages when some delegations held the view that
defence should not be codified, the judges should determine them on a case-by-case basis. In
the end defences were codified in paragraph 1 and paragraph 2 was a consession to those
delegations that had favored a minimalist approach. Eser argues that that "paragraph 2 provides
that the Court may alter, in the interests of justice, each and every of the Statute´s codified
grounds for excluding criminal responsibility according to the facts of the individual case"35.
Schabas finds this an "extravagant interpretation" meaning that the Court is not bound by
Article 31(1) and (3). Instead he argues that paragraph 2 confirms the role of the Court in
determing the applicability of various defences on a case-by-case basis within the general
framework of the rest of Article 31 and other relevant provisions.36

32
Prosecutor v. Aleksovski, No. IT-95-14/1, ICTY A. Ch., Judgment, 24 March 2000.
33
Prosecutor v. Erdemović, ICTY A. Ch., Judgement, 7 October 1997, para. 88
34
Ibid., para. 41.
35
Albin Eser, Article 31 - Grounds for Excluding Criminal Responsibility, in Otto Triffterer (Ed.), Commentary
on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, C.H.
Beck/Hart/Nomos, (München/Oxford/Baden-Baden, 2008), 890.
36
William A. Schabas , The International Criminal Court: A Commentary on the Rome Statute, (Oxford: Oxford
University Press, 2010), 491-492.
 Paragraph 3 concerns uncodified defences to the extent they can be found in the
applicable law as set forth in Article 21. This may include the defences listed above. The
reference in Article 21(b) to the "established principles of the international law of armed
conflict" is of particular relevance.