JURISDICTION OF THE ICC

Article 13 of the Rome Statute, entitled “Exercise of

Jurisdiction,” provides that the Court may exercise
jurisdiction in only one of three circumstances:
(i) where “a situation” is referred by a State Party to the
Rome Statute;
(ii) where “a situation” is referred by the United Nations
Security Council; or
(iii) where the ICC Prosecutor “has initiated an
investigation” proprio motu with the authorization of the
Court’s Pre-Trial Chamber, which must determine that
there is a reasonable basis to proceed with the proposed
investigation.

INDIVIDUAL CRIMINAL RESPONSIBILITY

Individual responsibility received extensive consideration

only in the last 15 years. As they are largely the product of
judicial law-making, rather than express State consent,
they continue to comprise an area of law susceptible to
legal challenge.

The principle of legality

The principle of legality is a fundamental concept which
prescribes criteria for the legitimate application of the
criminal law. It is frequently described by reference to the
latin maxim nullum crimen, nulla poena sine lege (‘no
crime, no penalty without law’), the heart of the principle
lies in the idea that a person may only be held criminally
liable and punished if, at the time when he performed a
certain act, the act was regarded as criminal offence by the
relevant legal order.

Within the principle of legality, we can discern the

following core guarantees:
• the nullum crimen principle;
• the nulla poena principle;
• the principle of non-retroactivity;
• the principle of specificity;
• the ban on analogy; and
• the favor rei principle.

The ICC sets out the principle of legality in Article 22:

Nullum crimen sine lege
1. A person shall not be criminally responsible under this
Statute unless the conduct in question constitutes, at the
time it takes place, a crime within the jurisdiction of the
Court. (Criminal responsibility is predicated upon the fact
that the accused’s conduct already constituted a crime
within the ICC’s jurisdiction at the relevant time)
2. The definition of a crime shall be strictly construed and
shall not be extended by analogy. (In case of ambiguity,
the definition shall be interpreted in favour of the person
being investigated, prosecuted or convicted. This requires
a strict construction of the definition of a crime.)
3. This article shall not affect the characterisation of any
conduct as criminal under international law independently
of this Statute.

Article 23
Nulla poena sine lege
A person convicted by the Court may be punished only in
accordance with this Statute. (The accused should not
be penalised to an extent greater than that compatible with
the law at the time they committed the crime for which
they have been convicted)

Article 24
Non-retroactivity ratione personae
1. No person shall be criminally responsible under this
Statute for conduct prior to the entry into force of the
Statute.
2. In the event of a change in the law applicable to a given
case prior to a final judgment, the law more favourable to
the person being investigated, prosecuted or convicted
shall apply.
PRINCIPLE OF SPECIFICITY
For the purposes of international criminal law, a norm
must possess ‘sufficient clarity’ such that its ‘general
nature, its criminal character and its approximate gravity’
were foreseeable to the accused.
The clear goal is to ensure that the accused received fair
warning as to the illegality of their conduct.

The Prohibition of Analogy

Closely related to the principle of specificity is the
prohibition of analogy, which requires the
definition of a crime to be narrowly construed and not
extended through means of unwarranted interpretation.

The Favor Rei Principle

The principle favor rei or ‘interpretation in favor of the
accused’ is closely intertwined with the ban on analogy. It
requires, in case of conflicting interpretations of a rule, a
construction that favors the accused.

The non bis in idem principle (double jeopardy)

The non bis in idem principle (also known as the rule
against double jeopardy or the autrefois acquit/
autrefois convict principle) states that no one shall be tried
or punished more than once for the same crime.

The non bis in idem principle is particularly important in

the international context.
The effect of a prior international prosecution on a
subsequent national prosecution is sometimes
referred to as ‘downward’ non bis in idem.
The reverse, the effect of a prior national prosecution on
a subsequent international prosecution, may then be
referred to as ‘upward’ non bis in idem.
Both ‘upward’ and ‘downward’ non bis in idem may
impose constraints on subsequent prosecutions.

The regime under the ICC Statute is found in Article 20

which provides:
1. Except as provided in this Statute, no person shall be
tried before the Court with respect to conduct which
formed the basis of crimes for which the person has been
convicted or acquitted by the Court.
2. No person shall be tried by another court for a crime of
[genocide, crimes against humanity, war crimes, and
potentially aggression for which that person has already
been convicted or acquitted by the Court.
3. No person who has been tried by another court for
conduct also proscribed under article 6, 7, or 8 [genocide,
crimes against humanity, and war crimes] shall be tried by
the Court with respect to the same conduct unless the
proceedings in the other court:
(a) Were for the purpose of shielding the person concerned
from criminal responsibility for crimes within the
jurisdiction of the Court; or
(b) Otherwise were not conducted independently or
impartially in accordance with the norms of due process
recognised by international law and were conducted in a
manner which, in the circumstances, was inconsistent with
an intent to bring the person concerned to justice.

It thus appears that the ICC will only re-try cases where
the relevant ‘conduct’ was not prosecuted in a fair or
proper manner. A prosecution in the ICC would be barred
if there had previously been a national prosecution for
even an ‘ordinary’ crime if that prosecution was based on
the same underlying conduct unless the national
prosecution was a sham trial or conducted improperly.

FORMS OF INDIVIDUAL RESPONSIBILITY

Article 25 of the ICC Statute

Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons
pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of
the Court shall be individually responsible and liable for
punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be
criminally responsible and liable for punishment for a
crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual,
jointly with another or through another person, regardless
of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a
crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a
crime, aids, abets or otherwise assists in its commission or
its attempted commission, including providing the means
for its commission;
(d) In any other way 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:
(i) Be made with the aim of furthering the criminal activity
or criminal purpose of the group, where such activity or
purpose involves the commission of a crime within the
jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group
to commit the crime;

(e) In respect of the crime of genocide, directly and

publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that
commences its execution by means of a substantial step,
but the crimes does not occur because of circumstances
independent of the person’s intentions. 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 this Statute for the attempt to commit
that crime if the person completely and voluntarily gave up
the criminal purpose.

4. No provision in this Statute relating to individual

criminal responsibility shall affect the responsibility of
States under international law.

Modes of liability v inchoate crimes

In considering the forms of individual responsibility under
international criminal law, it is essential to appreciate the
distinction between modes of liability and inchoate crimes.
A mode of liability is a legal doctrine by which the
intentional or knowing conduct of an accused renders
them criminally liable for a broader unlawful act
committed by other parties.

An inchoate crime or incomplete crimes which are

punishable even if no act of genocide, for example, has
resulted therefrom. It penalises the commission of certain
acts capable of constituting a step in the commission of
another crime. An inchoate crime does not require that
the substantive offence be committed. The inchoate
offences are attempts, incitements and conspiracy.
Conspiracy, as an inchoate crime, for example, makes it an
offence for two or more people to agree on a course of
conduct which will necessarily result in the commission of
a criminal offence with the intent that the targeted offence
occurs (eg conspiracy to commit genocide). It is not
necessary for the agreed crime actually to be carried out,
and, unless the agreed crime is carried out, the defendants
should only be charged with the conspiracy and not with
the substantive offence.

Modes of liability under the ICC

In addition to direct and individual perpetration, two

modes of liability loosely known as ‘co-perpetration’
(‘jointly with another’) and ‘perpetration by means’ or
‘indirect perpetration’ (‘through another person’) are
provided for in the ICC.

Co-perpetration is based on joint control over the crime. It

involves the division of essential tasks between two or
more persons, acting in a concerted manner, for the
purposes of committing that crime. The fulfilment of the
essential tasks can be carried out by the co-perpetrators
physically or they may be executed through another
person.
‘Co-perpetration’ and ‘perpetration by means’ can also be
combined in a further mode of liability known as ‘indirect
co-perpetration’, which is characterised by the accused’s
use of agents to carry out the crucial task assigned to them
in the common criminal plan. Like simple co-
perpetration, it is essential that the accused exercised
‘joint control’ over the criminal conduct, and thus that
their contribution was a sine qua non for its success.

SUPERIOR OR COMMAND RESPONSIBILITY

Article 28 of the ICC Statute provides:

Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility
under this Statute for crimes within the jurisdiction of the
Court:
(a) A military commander or person effectively acting as a
military commander shall be criminally responsible for
crimes within the jurisdiction of the Court committed by
forces under his or her effective command and control, or
effective authority and control as the case may be, as a
result of his or her failure to exercise control properly over
such forces, where:
(i) That military commander or person either knew or,
owing to the circumstances at the time, should have
known that the forces were committing or about to commit
such crimes; and
(ii) That military commander or person failed to take all
necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation
and prosecution.

(b) With respect to superior and subordinate relationships

not described in paragraph (a), a superior shall be
criminally responsible for crimes within the jurisdiction of
the Court committed by subordinates under his or her
effective authority and control, as a result of his or her
failure to exercise control properly over such subordinates,
where:
(i) The superior either knew, or consciously disregarded
information which clearly indicated, that his subordinates
were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the
effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and
reasonable measures within his or her power to prevent
and repress their commission or to submit the matter to
the competent authorities for investigation and
prosecution.

Superior responsibility is a distinct mode of liability in

international criminal law in that it takes a very
different approach to the nature of the requisite link
between the conduct of the accused and that of
the direct perpetrator of the criminal offence.

A superior may be held responsible for participation in an

act which violates international law. As such, their
personal contribution to a crime or underlying offence
may engage their responsibility under the ordinary
principles of liability.
Superiors may also be held responsible for offences
committed by their subordinates, even though the superior
made no personal contribution to the criminal activity at
all. This special form of liability is justified as a device to
acknowledge and enforce the particular responsibilities
assumed by an individual trusted to command the actions
of others.
It is in this latter sense that the terms ‘superior
responsibility’ or ‘command responsibility’ have acquired
independent legal meaning. The term ‘superior
responsibility’ is to be preferred, as it emphasises that
liability under this head is no longer confined to members
of the military.
Superior responsibility reflects an individual’s liability for
his failure to prevent or punish the criminal conduct of
their subordinates.

It must be stressed that superior responsibility is not a

form of vicarious liability (which imposes liability on the
accused due to a breach of duty committed entirely by
another person). Although the charge against the superior
is determined by the conduct of their subordinates, their
liability is predicated on their own culpable failure.

Three elements must be satisfied for command/superior

responsibility:
• There must be a ‘superior-subordinate’ relationship
between the accused and the person who
committed the crime;
• The accused knew or had reason to know that his
subordinate was committing or was about to or had
committed a crime (mental element);
• The accused failed to take the necessary and reasonable
measures to prevent the subordinate from committing the
crime and/or to punish the subordinate for the crime
(physical element).

Provided that these elements are met, it is not, necessary

that subordinates ‘commit’ criminal acts in their entirety: a
superior may be liable for the participation of a
subordinate in criminal activity through any of the modes
of liability.

The superior-subordinate relationship

For a superior to be held liable for the act of the
subordinate, it must be shown that the superior actually
manifested ‘effective control’ over the subordinate on the
facts of the particular case.

A superior is considered to have effective control if they

have the material ability to prevent or punish the
commission of offences by subordinates.
The potential existence of superior-subordinate
relationships is not confined solely to the context of
military or paramilitary organisations. In principle, any
civilian may be in a position to exercise the powers (and
bear the responsibility) of a superior, although the means
and methods by which they work may differ from
conventional military principles.

Mental element: knew or had reason to know

Superiors may be liable for the acts of their subordinates
where they have actual knowledge of the fact of past or
imminent crimes, or where they possess information
which would place a reasonable person in their role on
notice of the need to investigate further.

Physical element: failure to prevent or punish

The Prosecution must prove that the superior failed
to take the necessary and reasonable measures to prevent
the offence(s) charged, or to punish the perpetrators.
‘Necessary’ measures are the measures appropriate for the
superior to discharge his obligation (showing that he
genuinely tried to prevent or punish) and ‘reasonable’
measures are those reasonably falling within the material
powers of the superior.

The law of superior responsibility before the ICC adheres

to the doctrines of effective control, actual knowledge and
the nature of ‘necessary and reasonable measures’.

Under Article 28(b) it must be shown that the non-military

superiors ‘knew, or consciously disregarded information
which clearly indicated’ that subordinates were or would
be involved in relevant criminal activity.

With respect to military superiors, it is sufficient that they

‘knew or, owing to the circumstances at the time, should
have known’ of subordinates’ criminal activities.
The use of the wording ‘should have known’ re-opens the
door to a lower mental standard, placing the military
superior under some kind of positive duty to remain
informed (in other words, to be a ‘good’ commander).

GROUNDS FOR CONTESTING CRIMINAL

RESPONSIBILITY

Justification and excuse are both are equally valid forms of

defence.
Immunity is another form of defense.
Functional immunities
• the subject entitled to immunities is a State official;
• it extends to act performed in the exercise of a State
official’s functions;
• it does not extend to a State official’s private acts;
• it does not end when the State official relinquishes his or
her official position.
Article 27(1) of the ICC Statute provides:
“This Statute shall apply equally to all persons without any
distinction based on official capacity.
In particular, official capacity as a Head of State or
Government, a member of a Government or parliament,
an elected representative or a government official shall in
no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a
ground for reduction of sentence.”

This provision refers to subject matter immunities

regardless of whether they are provided for in
international or national law. It excludes the availability of
the international law doctrine of functional immunity and
of national legislation sheltering State officials with
immunity for official acts in the case of crimes within the
ICC jurisdiction.
Furthermore, national and international case law have
confirmed the customary nature of the rule waiving
functional immunities with regard to international crimes.

It can therefore be concluded that with regard to

functional immunities, a customary rule has evolved to the
effect that States officials, including those at the highest
level, are not entitled to functional immunities if charged
with international crimes, such as war crimes or crimes
against humanity. This rule applies not only in
international criminal proceedings but also in domestic
ones.

Personal immunity
Personal immunity is full immunity from all prosecution
regardless of whether an act was carried out as part of the
official functions or in a personal capacity attaching
directly to the person by virtue of his or her position and
lasting for the duration of his or her term in office. Thus,
personal immunity is absolute – but only lasts for the
length of the person’s time in office.

Personal immunities are granted to specific classes of

individuals while they carry out important representative
functions. They pertain to the particular status of the
holder, for example, Heads of State, Heads of Government,
and Foreign Ministers, and to diplomats and other officials
on special mission in foreign State in order to enable them
to carry out their official duties within the territory of a
foreign State.
Other senior members of the government, for example,
defence ministers or ministers of the interior, may also
enjoy personal immunities because they perform
comparable functions in representing their States in
international relations.

Personal immunities
• absolute immunities;
• protects the highest State officials, such as Heads of
State;
• cover all acts performed by State officials;
• it ends when a State official leaves office.

The consistent practice shows that the rules on personal

immunities cannot be derogated from at the national level.
On the other hand, international courts and tribunals may
indict and charge high State officials, such as
Heads of State, suspected of crimes under their
jurisdiction even if they are still serving in office.

Article 27(2) of the ICC Statute clearly removes personal

immunities when international crimes are at stake and
therefore provides for an important derogation from
customary international law on personal immunities:
Article 27(2) of the ICC Statute
“Immunities or special procedural rules which may attach
to the official capacity of a person, whether under national
or international law, shall not bar the Court from
exercising its jurisdiction over such a person.”

States consent to waive immunity before international

courts and tribunals. The States may give their consent
directly through the ratification of a treaty, for example,
the ICC Statute.
However, since only parties to a treaty are bound by its
provisions, a treaty establishing an international tribunal
cannot remove immunities with regard to officials of
States non-parties to the treaty.

Ratification of the ICC Statute represents a State’s express

consent to the waiver of immunity. Article 27(2) of the ICC
Statute clearly removes personal immunities when
international crimes are at stake and therefore provides
for an important derogation from customary international
law on personal immunities:

Article 27(2) of the ICC Statute provides:

“Immunities or special procedural rules which may attach
to the official capacity of a person, whether under national
or international law, shall not bar the Court from
exercising its jurisdiction over such a person.”

But Article 98(1) if the ICC makes clear that the ICC
cannot compel a State party to surrender an official of a
State not party to the Statute in violation of its obligations
under international law with regard to immunities vis-à-
vis the State not party concerned.
The Court may proceed with a request for surrender of
such official only after obtaining a waiver of immunities
from the State not party concerned. If this is the case,
the requested State is legally bound to comply with the
Court’s request.
By contrast, the waiver of immunity is not necessary if the
requested State is bound, as far as immunities are
concerned, towards the State party to the Statute.

Article 27 obliges States to change their national

legislation with a view to removing immunities with regard
to the perpetration of the international crimes falling
within the ICC’s jurisdiction.