saqarTvelos generaluri prokuratura

marTlmsajuleba, 2008, #3The significant difference between prior legal frameworks and article 25 of ICC Statute is systematizingof modes of participation. Unlike the Statutes of Tribunals statutes Article 25(3) does not simply list thedifferent modes of participation. It distinguishes and classifies four levels of individual criminal responsibility:1. Individual criminal responsibility for commission of a crime;2. Individual criminal responsibility for ordering and instigating;3. Individual criminal responsibility for assistance;4. Individual criminal responsibility for contribution to a group crime.It should be mentioned that liability for commission is different from the liability of other modes ofparticipation. In accordance with the case law of the ad hoc Tribunals, ordering, instigating, assistance andcontribution to group crimes - all require that the crime itself has in fact been committed, or at least attempted.Committing crimes under international law generally entails the cooperation of a large number of persons.It means that the need for determination of the degree of individual culpability in international criminal lawis more essential than in national legal systems. Above mentioned should be understood not only asdescriptive concepts to establish individual criminal responsibility, but also as indicators of the degree ofindividual guilt, since they are helpful guidelines in case of sentencing.3. Commission of CrimeArticle 25 (3)(a) of ICC Statute entails three different types of commission: commission as an individual,joint commission and commission through another person. 9Person whose conduct is covered by the definition of the crime in terms of Article 25 (3)(a) is liableunder international criminal law.The fundamental idea of joint commission pursuant to Article 25(3)(a) is clear: if several people acttogether in committing a crime under international law, each one is individually responsible for the crime.A specific concept of liability has been developed in the case law of the ICTY: participation in a “jointcriminal enterprise”. 10 The doctrine of joint criminal enterprise is of great importance in the process ofwork of ICTY. It has also been adopted by the ICTR. 11 As the ICTY has stated the three requisiteelements of the joint criminal enterprise‚s actus reus:Ø a group of persons;Ø the existence of a common plan;Ø the contribution of the accused within the common plan. 12The common plan must include committing one or more crimes against international law. But, the planneed not be formed before the commission of the crime; it can also be spontaneous. Its presence alreadymeans the co-operation of several persons that is followed by criminal result. 13According to case law of ICTY joint criminal enterprise is divided in three categories:Category I – basic form;Category II – Systematic form;Category III – extended form.The first category includes cases in which a group of persons plans the commission of a crime underinternational law. Since each participant shares the same intent to commit the crime, each of them is responsiblefor it.9Judgment, Semanza (ICTR-97-20-A), Appeals Chamber, 20 May 2005, Paragraph 355;10Rome Statute of International Criminal Court, 1998, Article 25(3)(a);11Judgment, Tadic (IT-94-1-A), Appeals Chamber, 15 July 1999, paragraph 194;12Judgment, Simba (ICTR-01-76-T), Trial Chamberm 13 december 2005, paragraph 385;13Judgment, Krnojelac, (IT-97-25-A), Appeals Chamber, 17 September 2003, Paragraph 31; Judgment, kvocka (IT-98-30/1-A), Appeals Chamber, 28 February 2005, Paragraph 81.101