A Study Of Individual Criminal Responsibility For Crimes Against International Humanitarian Law

International humanitarian law is a set of rules which provides the most basic protection for persons in armed conflict and plays an important role in maintaining peace and security for all mankind. However, fragrant acts in violation of international humanitarian law and astounding humanitarian catastrophes have never disappeared. Such atrocities are serious deviation from the basic moral rules of human beings and unacceptable attack on the basic values of the worldl community. As a defensive response, international law classifies acts seriously violating international humanitarian law as international crimes and sets the principle of individual criminal responsibility as the legal basis for punishing these crimes. However, due to the implicit tension between the collective criminality of crimes in violation of international humanitarian law and the individualized criminal responsibility, precise attribution of criminal responsibility to each participant of such crimes has become a constant request. Relying on the abundant practice and enlightening case law of UN ad hoc Tribunals and International Criminal Court (ICC), this dissertation addresses certain pertinent issues concerning individual criminal responsibility for violation of international humanitarian law, including the essence of individual criminal responsibility, criteria for differentiating principals and accessories, elements of specific responsibility forms and grounds for excluding individual criminal responsibility, and tries to give a few cues for tackling the difficult task of responsibility ascription.The dissertation is composed of five chapters.Chapter 1 is titled as Crimes in Violation of International Humanitarian Law and Individual Criminal Responsibility.With respect to war or armed conflict, international law has developed two different but interrelated categories of law, i.e. jus ad bellum and jus in bello. International humanitarian law belongs to the latter category. It is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict and protect persons who are not or no longer participating in the hostilities and restricts the means and methods of warfare. It is constructed. on several essential principles such as 'respect for and protection of human rights','restriction on the means and methods of warfare' and 'differentiation between military and civil objects', and serves, in armed conflicts, as the last shield for the most fundamental human rights.Offences in serious violation of international humanitarian law do great harm to the peace and security of human society. In order to fight with them, international law has two powerful weapons. One is the criminalization of these offences and the other is the establishment of the principle of individual criminal responsibility.According to current international criminal law, crimes in violation of international humanitarian law are not only international crimes, but also belong to the scope of'the most serious crimes of concern to the international community' and 'core international crimes'. Generally speaking, crimes in violation of international humanitarian law consist of genocide crimes and crimes against humanity committed in armed conflict, and war crimes.According to the principle of individual criminal responsibility, anyone who commits or participates in a crime in violation of international humanitarian law shall be imposed criminal responsibility. The essence of individual criminal responsibility for crimes in violation of international humanitarian law relates to autonomy of personal will. It refers to the impugnment imposed by international criminal law to a person of proper capacity for his choice of acts violating international humanitarian law, on the condition that at the time of action he actually has another choice which conforms to the law. In international criminal law, crime and responsibility shall be assessed separately. The establishment of a crime only provides a basis, for responsibility. If a crime is established, individual criminal responsibility can be set up, provided that he meets the elements of a specific mode of responsibility and lacks defenses which exclude his responsibility. Considering the collective, widespread and systematic context of crimes in violation of international humanitarian law, assigning of responsibility in such crimes is a difficult but crucial task. In order to resolve this problem, international criminal law has constructed a hierarchical system of responsibility, which includes three classes of responsibility, i.e. responsibility for principals, responsibility for accessories and responsibility for omission. Under this system, the responsibility descends by class. Each class consists of some specific forms of responsibility and each specific form of responsibility has different elements.Chapter 2 explains Responsibility of Principals for Crimes in Violation of International Humanitarian Law.With respect to crimes in violation of international humanitarian law, a principal shall assume the most severe responsibility.Under ad hoc Tribunals, a principal is a person who 'committed' a crime of the Statute shall be individually responsible for the crime. In accordance to the case law of ad hoc Tribunals,'committing' encompasses not only physical perpetration of a crime, but also participation in a joint criminal enterprise (JCE), and JCE is a form of responsibility in customary international law, even though that term does not expressly appear anywhere in the Statute. JCE is a theory of common-purpose liability:it permits the imposition of individual criminal responsibility on an accused for his knowing and voluntary participation in a group acting with a common criminal purpose or plan. Ad hoc Tribunals'employment of the JCE theory demonstrates that they have adopted a subjective criterion to determine principals. The jurisprudence of the ad hoc Tribunals distinguished three categories of JCE:(?) the basic form, where the participants act on the basis of a 'common design' or 'common enterprise' and with a common 'intention';(?) the systemic form, i.e. the so-called concentration camp cases where crimes are committed by members of military or administrative units such as those running concentration or detention camps on the basis of a common plan;(?) the so-called 'extended' joint enterprise where one of the co-perpetrators actually engages in acts going beyond the common plan but his or her acts still constitute a 'natural and foreseeable consequence' of the realization of the plan.Under ICC, a different criterion—control criterion, which combines subjective and objective elements, has been adopted to differentiate principals and accessories. According to this approach, only those who have control over the commission and are aware of having such control may be principals. Considering Article 25(3)(a) of the Rome Statute together with the case law of ICC, persons acting in the following modes shall be imposed responsibility as principals:direct perpetration, indirect perpetration, co-perpetration, and indirect co-perpetration. Direct perpetrators physically carry out the objective elements of the offence; indirect perpetrators control the will of those who carry out the objective elements of the offence; co-perpetrators have, along with others, control over the offence by reason of the essential tasks assigned to them; indirect co-perpetrators have joint control with others over the crime by accomplishing the assigned essential tasks through others. The jurisprudence of ICC interprets the concept of indirect perpetration as including the indirect perpetrator committing the crime through another by means of control over an organization. Under all the modes of responsibility of principals, the perpetrators must carry out the subjective elements of the crime, and are aware of the factual circumstances enabling them to control the crime or control the crime jointly.Chapter 3 elaborates Responsibility of Accessories for Crimes in Violation of International Humanitarian Law.With respect to crimes in violation of international humanitarian law, an accessory incurs responsibility less severe than a principal.Under ad hoc Tribunals, the forms of responsibility of accessories cover: planning, instigating, ordering and aiding and abetting. The planner designs an act or omission and his conduct substantially contributes to the perpetration of a crime; the instigator prompts another to engage in an act or omission and his conduct substantially contributes to the perpetration of a crime; under the mode of ordering the person instructs another person under his authority to engage in an act or omission and his conduct has a direct and substantial effect on perpetration of a crime. Under these three modes of responsibility, the person shall conduct with the direct and indirect intent that a crime be committed. The aidor and abettor intentionally lends practical assistance, encouragement, or moral support to the physical perpetrator, with the awareness of the crime and the perpetrator's mental state, and his conduct has a substantial effect on the commission of the crime.Under ICC, the forms of responsibility of accessories are respectively stipulated in Article 25(3)(b)-(d) of the Rome Statute and their culpability descend accordingly.The first grade of accessory responsibility is set in Article 25(3)(b) of the Rome Statute and embodies ordering, soliciting and inducing. Under these responsibility forms, the person respectively instructs, prompts or entices another to commit a crime, with the intent and knowledge that the crime be committed, and his conduct contributes to the commission of a crime which in fact occurs or is attempted.The second grade of accessory responsibility is provided in Article 25(3)(c) of the Rome Statute and enbraces aiding and abetting and otherwise assisting. Under these responsibility modes, the person provides practical assistance, encouragement, or moral support to the physical perpetrator of a commited or attempted crime, including providing the means for its commission, with the intent to facilitate the commission of s a crime.The third grade of accessory responsibility is formulated in Article 25(3)(d) of the Rome Statute and refers to the subsidiary form of accessory responsibility contributing to joint commission of a crime. Under this responsibility form, the person, in any other way than those listed in Article 25(3)(a)-(c) of the Rome Statute, contributes the joint commission or attemption of a crime, with the intent to further common criminal purpose or with the knowledge of common criminal purpose.Acoording to the control criterion applied in ICC, an accessory has no control over the commission of a crime. However, so far as contribution is concerned, the triggering standard for accessory responsibility still need to be developed in the future jurisprudence of the court.Chapter 4 discusses Responsibility for Omission for the Crimes in Violation of International Humanitarian Law-Superior Responsibility.With respect to crimes in violation of international humanitarian law, superior responsibility derives from the superior's culpable omission and introduces a responsibility with lower threshold than both principal and accessory responsibility.The roots of superior responsibility can be found in ancient international law and its rationale lies in the concept that the positions of superior entail duties. Due to the post second world war trials and the jurispreduce of ad hoc tribunals, the doctrine of superior responsibility has experienced great historical evolution. After the establishment of the ICC, its development continues.Under ad hoc Tribunals, superior responsibility refers to the responsibility imposed on the superior, if he knew or had reason to know that his subordinates were commiting or about to commit a crime or had commited a crime, but failed to take all necessary and reasonable measures within his material ability to prevent the subordinates from or punish their for engaging in the criminal conduct in question.Under ICC, military superior responsibility is differentiated from civil superior responsibility, the threshold of the former is lower than the latter. Military superior responsibility refers to the responsibility imposed on the military superior, if he knew or should have known that, as a result of his failure to exercise control properly, the forces under his effective control were committing or about to commit a crime, but failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter for investigation and prosecution. Civil superior responsibility refers to the responsibility imposed on the civil superior, if he knew, or consciously disregarded information which clearly indicated, that as a result of his failure to exercise control properly, the subordinates under his effective control were committing or about to commit a crime concerning activities within his effective responsibility and control, but failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter for investigation and prosecution.The theme of Chapter 5 is Grounds for Excluding Individual Criminal Responsibility.Grounds for excluding individual criminal responsibility refer to a range of factors that justifies or excuses the person's act which has already produced harmful consequence.The recognition of grounds for excluding individual criminal responsibility by international criminal law is a requirement for maintaining justice and protecting the human rights of defendants.Grounds for excluding individual criminal responsibility can be differentiated as substantial ones and procedural ones. Substantial grounds for excluding individual criminal responsibility consist of two categories:justification grounds and excusing grounds. The former covers legitimate defense, necessities and duress. The latter includes mental disease or defect, intoxication, mistake of fact and mistake of law, superior command and military necessity. Procedural grounds usually refer to such grounds preventing the investigation of the individual criminal responsibility as under-age, official capability and limitation etc.