Forms of Individual Responsibility

• Pages: 277-300
• Author: Beth Van Schaack,Ronald C. Slye

277

Chapter 10

FORMS OF INDIVIDUAL

RESPONSIBILITY

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.

So wrote the Nuremberg Tribunal in its historic judgment.

Modern international criminal law (ICL) is premised on individual—

as opposed to state or collective—responsibility. Shifting

responsibility from the collective to the individual was a doctrinal

revolution that has made possible the multitude of international

criminal proceedings going forward today. In fact, at the moment, it

is far easier—and far more common—to hold individuals responsible

for international crimes than states, corporate entities, or other

collectives. The shift from collective to individual responsibility

required the development of forms of individual liability. Like

domestic law, ICL recognizes different types of personal involvement

in criminal conduct that trigger individual liability. Some—like

complicity, conspiracy, co-perpetration, and incitement—trace their

origins to domestic law principles that would be familiar to common

law and/or civil law lawyers. Other forms of responsibility—such as

superior responsibility—are more unique to international law.

Liability may be divided into two broad types: principal and

accessory. A defendant can be found liable as a principal if they

committed, planned, or ordered a crime. Likewise, a defendant may

be found liable as an accessory if they instigated, incited, aided and

abetted, or was otherwise complicit in a crime. Many of these forms

of liability inevitably involve two or more participants in criminal

behavior: the direct perpetrator (who personally commits the crime

and is directly liable) and the accessory (who is responsible for

making some knowing and substantial contribution to the crime).

Domestic criminal law recognizes various forms of complicity liability

during the life of a crime, including the roles of accessories before and

after the fact. To a certain extent, these forms exist in ICL as well.

Domestic penal law systems do not generally recognize criminal

liability by omission unless there is some special duty on the part of

the defendant to act. This is generally the case in ICL as well.

Because international crimes often involve the participation of

multiple individuals over vast expanses of time and space, premising

liability on the defendant’s relationship, association, or joint action

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INTERSECTIONS

Pt. II

with others has become increasingly important in ICL. In addition,

criminal law has long recognized the particular dangers posed by

group criminality, where individuals may be influenced and

encouraged by their peers and less willing to abandon a criminal

enterprise if others are involved. In the United States in particular,

prosecutors deploy the doctrine of conspiracy to capture the web of

activity associated with organized criminal activity. Internationally,

the concept of conspiracy is somewhat disfavored, except with respect

to the crime of genocide.

1

Instead, we find a related doctrine of

liability in the concept of the joint criminal enterprise, although the

two concepts present some significant differences.

Forms of liability in ICL find expression in three primary

sources of international law: treaty law, customary international

law, and general principles of law. Many international treaties, as

well as the statutes of the ad hoc international tribunals, expressly

set forth applicable forms of liability. For example, the Genocide

Convention at Article III makes punishable acts of conspiracy,

incitement, attempt, and complicity to commit genocide, in addition

to the direct commission of genocide. Likewise, the Torture

Convention at Article 4(1) obliges states to punish attempts to

commit torture and complicity in torture. National legislatures have

codified these forms of responsibility (and sometimes others) when

they domesticated these treaty obligations.

Superior responsibility—a doctrine that holds superiors liable

for the criminal conduct of their subordinates—was first codified in

the 1977 Protocol I to the 1949 Geneva Conventions at Article 86(2),

though it was invoked as a mode of liability in the WWII tribunals

and well before in military justice proceedings. Superior

responsibility was later codified in the statutes of the ad hoc war

crimes tribunals (see Article 7(3) of the Yugoslav Tribunal Statute

and Article 6(3) of the Rwanda Tribunal Statute) and the

International Criminal Court (see Article 28 of the Rome Statute).

The Draft Articles on Prevention and Punishment of Crimes Against

Humanity produced by the U.N. International Law Commission in

1

The drafters of the Genocide Convention included the crime of conspiracy to

commit genocide as a punishable offense because the goal of the Convention was not

only to punish perpetrators, but also to prevent acts of genocide. The ICTR Trial

Chamber in Musema, drawing upon the Convention’s travaux préparatoires (drafting

history) and common law and civil law understandings of conspiracy, defined

conspiracy to commit genocide as “an agreement between two or more p ersons to

commit the crime of genocide.” Prosecutor v. Musema, Case No. ICTR-96-13-A,

Judgement & Sentence, ¶ 191 (Jan. 27, 2000). That Trial Chamber held that an

accused cannot be convicted of both genocide and conspiracy to commit genocide, as

the latter crime merges with the former if genocide is actually committed, id. ¶ 198,

and that it must be demonstrated that the defendant possessed the specific intent to

commit genocide. Id. ¶ 192. Musema was ultimately acquitted of conspiracy to commit

genocide, because there was insufficient evidence that he conspired with others to

commit genocide or reached an agreement to that end. Id. ¶ 940.