INDIVIDUAL CRIMINAL

PROF. GILBERT V. SEMBRANO, B.A., J.D., LLM

(Principally taken from International Criminal Law Manual –Dr. Misa Zgonec-Rozel)

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When does criminal responsibility
lie?
When a crime is committed. . .

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Objective structure of crimes:

 1. conduct

 2. consequences

 3. circumstances
 That define or qualify the crime –
 subjective or objective facts, qualities or motives with regard to the subjective of the
crime (e.g., superior orders article 28, or crime against humanity – pursuant to a state
policy)

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INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA
INDIVIDUAL CRIMINAL RESPONSIBILITY
 Article 7 (1)  7 (3)
3. The fact that any of the acts referred to
in articles 2 to 5 of the present Statute was
1. A person who planned,
committed by a subordinate does not
instigated, ordered, committed or
relieve his superior of criminal responsibility
otherwise aided and abetted in
if he knew or had reason to know that
the planning, preparation or
the subordinate was about to commit
execution of a crime referred to in
such acts or had done so and the
articles 2 to 5 of the present
superior failed to take the necessary and
Statute, shall be individually
reasonable measures to prevent such
responsible for the crime.
acts or to punish the perpetrators thereof.

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 Article 25 of the ICC Statute
Individual criminal responsibility

 Xxx
 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.

WHEN IS A PERSON CONSIDERED TO HAVE COMMITTED A

CRIME?

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Individual criminal responsibility
Art. 25 (3) of ICC 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;

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(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.

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KINDS OF PARTICIPATION

 Directly perpetrates the crime

 “use” or cause others to commit
 Commit crimes as part of a group
 Who deliberately help others to commit

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 ARTICLE 28 ICC STATUTE
Command Responsibility & Superior Orders

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, 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

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Art 28 . . .
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 the 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 or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.

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 MODES OF LIABILITY VERSUS
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. (contributes to)

An inchoate crime 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.

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 A classic example of an inchoate crime is conspiracy.
This 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.

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 Modes of liability
 The principle of personal culpability - requires the demonstration of a
meaningful link between the personal conduct of the accused and the
criminal offence with which they are charged.
 Modes of liability demonstrate that link, and are legitimate insofar as they
meaningfully reflect an individual’s culpability.

MENS REA and ACTUS REUS

 Various forms of liability have different physical and mental elements.

ACTUS REUS – THIS IS THE WRONGFUL ACT THAT MAKES UP THE PHYSICAL -
ACTION (merriam-webster law dictionary) (E..G, ACT OF KILLING)

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 MENTAL ELEMENT (MENS REA)

 Article 30 – Mental element

1. Unless otherwise provided, a person shall be criminally responsible and
liable for punishment for a crime within the jurisdiction of the Court only if
the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that
consequence or is aware that it will occur in the ordinary course of
events.
3. For the purposes of this article, ‘knowledge’ means awareness that a
circumstance exists or a consequence will occur in the ordinary course of
events.

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Mens rea: GENERALLY – ICC requires
intent - knowledge
Dolus directus – intent + and will to cause circumstance (e.g., murder)

DOLUS SPECIALIS (special intent) - in addition to the dolus directus

there is a specific goal that goes beyond the result of the conduct
e..g, genocide – intent to destroy, in whole or in part, a
national, ethnical, racial or religious group

Dolus eventualis (recklessness or indirect intent) – taking the risk – e.g.

superior orders – liable for subordinates if S/he deliberately disregarded
information that shows subodinates would commit etc./use of
weapon that causes large number of casualties – principle of
proportionality

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DOLUS EVENTUALIS -RECKLESSNESS

 [D]olus eventualis is present when a person, who is going to do something

that will cause an event, is fully aware of the possible outome as a side-
effect to such behaviour, but nevertheless decides to continue with the
conduct, recognizing and approving the result as a possible cost of
attaining the aimed goal. Approval of an evil result, though not directly
pursued by the actor (‘side effect’), is the subjective attitude that underpins
the criminal conviction.

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CULPA GRAVIS- GROSS NEGLIGENCE

Culpa gravis – gross negligence or culpable

negligence – failed: reasonable “person”
standard e.g. superior orders – should have
known but did not act

 Note : general rule: dolus directus

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 Accordingly, in order to secure a
conviction, the Prosecution must
invariably prove the following key
elements:

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 General Elements (Chapeau) example : Crimes vs. humanity
+
 Underlying contextual offenses: eg. Murder etc. (mens rea and actus reus)
+

 Specific requirement(s) of the underlying offence (if applicable)

+
 Actus reus (physical element) of the relevant form of responsibility
+
Mens rea (mental element) of the relevant form of responsibility

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 For a person to be convicted of aiding and abetting
murder as a crime against humanity, the following
elements would need to be proved:
 Existence of widespread or systematic attack against civilian
population(chapeau element of crime against humanity) Committed by
Persons X and Y.
 + One or more people intentionally killed (the physical and mental
elements of the underlying offence). Committed by Person Z.
 + The accused provided Person Z with weapons and ammunition(actus
reus of aiding and abetting: the accused’s assitance must have a
‘substantial’ effect upon the commission of a crime).
 + The accused knew that Person Z intended to kill(mens rea of aiding and
abetting: the accused must know they are assisting a particular crime and
must be aware of the essential elements of the crime, including the
perpetrator’s mental state).

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Actus reus

With regard to actus reus, the acts of the

accused must, except in the case of superior
responsibility, contribute to, or have an effect
on, the commission of the crime. Hence, this
participation must have ‘a direct and
substantial effect on the commission of the
illegal act’

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Mens rea

With regard to mens rea, except in the case of

superior responsibility, the accused must at least
know (or be aware of the substantial likelihood)
that their acts will render assisance to the
criminal consequence

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INCHOATE CRIMES

inchoate crimes should be seen as the exception, rather than the rule, in
attributing responsibility in international criminal law.
Hence, a limited number of inchoate offences are well established in
international criminal law:

• attempt to commit a crime proscribed by international law (ICC only, except

for attempt to commit genocide which is an offence under the ICTY and ICTR
Statutes);
• direct and public incitement to commit genocide; and
• conspiracy to commit genocide

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attempt

 Attempts to commit such a crime by taking action

 that commences its execution by means of a substantial step,
 but the crime does not occur because of circumstances independent of
the person’s intentions.
Defense
However, a person who abandons the effort to commit the crime or otherwise
prevent the completion of the crime shall not be liable for punishment under
this Statute for the attempt to commit that crime if that person completely and
voluntarily gave up the criminal purpose

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Direct and public incitement to
commit genocide
Direct and public incitement to commit
genocide consists of directly and publicly
provoking a person to commit genocide.

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Conspiracy to commit genocide
 requires proof that two or more
people agreed to commit the crime
of genocide.1009 It need not be
shown that the crime was actually
committed. The conspirators must
have possessed the special intent for
genocide.

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Modes of liability
1. Direct and individual perpetration
 The ICTY and ICTR consider a person to have ‘committed’ an
offence ‘when he or she physically perpetrates the relevant criminal
act or engenders a culpable omission in violation of a rule of
criminal law’
Elements
 the deliberate conduct of the accused formed an ‘integral’1018
part of the actus reus of the offence charged;
 • the accused ‘intended’ the offence, or acted while reconciled to
the knowledge of the substantial likelihood that their actions would
result in that offence coming to pass;1019 and
 • the accused possessed any specific intent required.

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PERPETRATION THROUGH A GROUP
 • Joint Criminal Enterprise (JCE);
 • Co-perpetration (also known as ‘joint perpetration’);
 • Indirect perpetration (also known as ‘perpetration by
means’);
 • Indirect co-perpetration.

Note: equal criminal responsibility but sentencing should

be individualized

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JOINT CRIMINAL ENTERPRISE
 JCE liability holds an accused responsible as a
perpetrator for the totality of conduct which may be
attributed to a group operating with a common criminal
plan, design or purpose which they share.
 The accused need not personally carry out all or any
elements of the crime(s) or underlying offence(s).
 Although the accused’s contribution need not be
necessary or substantial, it should at least be a significant
contribution to the crimes for which the accused is to be
found responsible.

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JCE categories
 ‘Basic’ JCE (JCE I), according to which, all members, acting pursuant to a
common purpose, possess the same intent to commit a crime or underlying
offence, and the crime or underlying offence is committed by one or more
or them, or by others acting on their behest.

 • ‘Systemic’ JCE (JCE II), which is characterised by the existence of an

organised criminal system, as in the case of detention camps in which the
prisoners are mistreated pursuant to a common purpose.

 ‘Extended’ JCE (JCE III) covers crimes that fall outside the common plan,
but which are nevertheless a natural and foreseeable consequence of the
effecting of that common purpose. For example, a group-shared intention
to forcibly remove members of one ethnicity from their town, village or
region with the consequence that, in the course of doing so, one or more
of the victims is shot and killed.

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Elements
Common Physical elements:
Physical elements
(a) plurality of persons;
(b) existence of a common criminal plan, design or
purpose which amounts to or involves the commission of
a crime provided for in the Statute;
(c) participation of the accused in the common criminal
plan, design or purpose involving the perpetration of one
of the crimes provided for in the Statute.

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