An Introduction To The International Criminal Court - Institute for ...

general principles of criminal law 101
Individual criminal responsibility
The International Criminal Court is concerned with trying and punishing
individuals, not States. ‘Crimes against international law are committed by
men, not by abstract entities, and only by punishing individuals who commit
such crimes can the provisions of international law be enforced’, wrote the
Nuremberg Tribunal in 1946. This philosophy is reflected in Article 25 of
the Rome Statute. Proposals that the Court also exercise jurisdiction over
corporate bodies in addition to individuals were seriously considered at the
Rome Conference. While all national legal systems provide for individual
criminal responsibility, their approaches to corporate criminal liability vary
considerably. With a Court predicated on the principle of complementarity,
it would have been unfair to establish a form of jurisdiction that would in
effect be inapplicable to those States that do not punish corporate bodies
under criminal law. During negotiations, attempts at encompassing some
form of corporate liability made considerable progress. But time was simply
too short for the delegates to reach a consensus and ultimately the concept
had to be abandoned. 39
The International Criminal Court, like its earlier models at Nuremberg,
The Hague and Arusha, is targeted at the major criminals responsible for
large-scale atrocities. Most of its ‘clientele’ will not be the actual perpetrators
of the crimes, soiling their hands with flesh and blood. Rather, they will be
‘accomplices’, those who organise, plan and incite genocide, crimes against
humanity and war crimes. The Court can approach this issue in two different
ways. The first is to consider the planners and organisers as principal
offenders. The District Court of Jerusalem held Adolf Eichmann to be a
principal offender ‘in the same way as two or more persons who collaborate
in forging a document are all principal offenders’. 40 Alternatively, they may
be tried as accomplices, who aid or abet the principal offenders. The Trial
Chamber of the International Criminal Tribunal for the Former Yugoslavia
has stated that there is a customary law basis for the criminalisation of accessories
or participants. 41 Either approach will work under the Rome Statute,
which in Article 25 sets out rather elaborate texts dealing with complicity or
secondary liability. But, in one case, the ICTY Appeals Chamber cautioned
39 Saland, ‘International Criminal Law Principles’, p. 199; Ambos, ‘General Principles’, p. 7.
40 A-G Israel v. Eichmann, (1968) 36 ILR 18 (District Court, Jerusalem), para. 194.
41 Prosecutor v. Tadic (Case No. IT-94-1-T), Opinion and Judgment, 7 May 1997, paras. 666 and 669.