WEBVTT
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Good day.
This is Roger Clark again,
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this time talking about
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article 25 of the
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Statute, entitled
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"Individual Criminal Responsibility."
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It is rather long,
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so I am not going to try to drive you crazy
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by reading it all to you
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at the outset.
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It would be helpful if you have a
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hard copy of it nearby
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to refer to as we go along.
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The fundamental points to note
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about article 25
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are the twin statements in
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paragraph 1 that, and I quote,
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"The Court shall have jurisdiction
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over natural persons
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pursuant to this Statute";
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and in paragraph 2
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that "A person who
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commits a crime within the
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jurisdiction of the Court
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shall be individually responsible
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and liable for punishment
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in accordance with
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this Statute."
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These twin statements reflect
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the classic lesson from
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Nuremberg that there is
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individual criminal
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responsibility
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for the commission of crimes
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under international law.
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A number of States participating
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in the Rome negotiations,
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led by France and the Solomon Islands,
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thought it was fair that
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there should also be responsibility for
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corporate entities,
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legal or juridical persons.
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Notably, such bodies
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would be more likely to have
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assets to pay reparations
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than individuals would.
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It was not possible to forge
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a consensus to this effect
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in Rome and the initiative failed.
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Notice, however, that corporate
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entities may be pursued
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in crime or in tort
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at the domestic level.
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And paragraph 4
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of article 25
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insists that the corporate
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entities we call "states"
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may be held responsible
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elsewhere, in the International
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Court of Justice for example,
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just not at the ICC.
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Paragraph 4 accordingly says
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that "No provision in this Statute
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relating to individual
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criminal responsibility
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shall affect the responsibility of
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States under international law."
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Paragraph 3,
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sub paragraphs (a) to (d) of article 25,
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deal with the issue we often
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call "parties to offences."
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Echoing the drafting in a
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typical domestic
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penal code,
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the offence definitions in
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article 6 (genocide),
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article 7 (crimes against humanity),
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article 8 (war crimes)
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and now article 8bis (aggression),
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describe the particular crime
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in terms of the
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actual perpetrator.
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The responsibility of others
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who are associated with that
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perpetrator or perpetrators,
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falls to be decided on
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the basis of general
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part provisions.
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Paragraph 3 is
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such a general
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part provision.
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Thus, sub paragraph (a)
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announces the responsibility of
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those who
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"Commit such a crime,
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whether as an individual,
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jointly with another or
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through another person,
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regardless of whether that
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other person is criminally responsible."
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These are the people
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national systems
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typically describe as principals,
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including those who act through
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others such as,
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children who are themselves
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below the age of criminal responsibility.
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Sub paragraph (b)
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deals with those who act
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before the event to
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persuade others to
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commit a crime,
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that is one who
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"Orders, solicits or induces
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the commission of such a crime
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which in fact occurs
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or is attempted."
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"While sometimes described
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as "secondary" parties,
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military or civilian
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leaders in this category
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may be more morally
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responsible than the
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foot soldier who carries
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out the dirty deeds.
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Sub paragraph (c)
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deals with what are usually called
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accessories or accomplices,
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one who "For the purpose of
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facilitating the
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commission of such a crime,
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aids, abets or otherwise assists
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in its commission or
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attempted commission,
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including providing the
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means for its commission."
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Sub paragraph (d)
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has its origins in the
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United States doctrine of
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conspiracy whereby a party
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to a conspiracy may be held
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responsible for the substantive offences
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committed by other conspirators,
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it also has basis in a
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"common purpose" theories
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that gave rise to the
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joint criminal enterprise doctrine
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espoused especially
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by the International Criminal
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Tribunal for the Former
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Yugoslavia.
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It deals with one
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who in any
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other way
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contributes to the commission
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or attempted commission of
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such a crime by
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a group of persons
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acting with a common purpose.
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Such contribution
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shall be intentional
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and shall either:
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i. Be made with the aim of
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furthering the criminal activity
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or criminal purpose of
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the group, where such
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activity or purpose
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involves the commission
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of a crime within
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the jurisdiction of the Court; or
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ii. Be made in the knowledge
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of the intention of the group
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to commit the crime.
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Two general points are
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worth making about these four,
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overlapping, categories
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in sub-paragraphs (a) through (d).
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First is the question of
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principals and accessories.
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In most modern
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American systems,
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all of the people in the four
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categories would be
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treated as "principals"
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who are equally guilty
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of the offence and
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subject to the same penalty.
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Any distinctions between their
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individual guilt
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would be dealt with in a rough-and-ready
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way by the
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sentencing judge.
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On the other hand,
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many civil law systems
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would regard aiders or
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abettors and probably
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those in a group acting with a
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common purpose
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as guilty of a different,
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lesser offence
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and thus entitled,
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as a right, to
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a lesser penalty.
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The process of drafting
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article 25
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was probably a good example
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of the way communication
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across legal cultures
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is not always successful
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in such negotiation.
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As a common lawyer involved
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in the drafting of article 25
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from a mish-mash of different proposals,
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it never occurred to me
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that other participants
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might regard the list
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of modes of participation
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as somewhat hierarchical
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and as functionally amounting
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to different offences.
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In the early cases before
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the Court,
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the issue has manifested itself
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in efforts to insist
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that the defendants fit category
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(a) as perpetrators,
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rather than as
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secondary parties.
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This has led to the application
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of some complex civil
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law doctrine that constitutes
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a gloss on the supposedly
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plain language of the
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article and it has
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lead to much academic debate.
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At all events,
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the relationship between the
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various categories
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and how this plays out
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at the sentencing stage
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remains a work in progress.
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The second general point
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is the question of the requisite
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mental element or
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mens rea.
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Article 30 of the Statute
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sets out the general rule
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that, unless otherwise
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provided, the material
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elements of the crimes within
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the jurisdiction of the Court
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must be committed
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"with intent and knowledge."
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Subparagraphs (a) and (b)
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are completely consistent
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with this general rule.
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One can hardly "commit"
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or "order" a crime
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without having the intent
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for the crime.
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Subparagraph (c)
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is more interesting.
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There is a big debate in
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international criminal law
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and in some domestic systems
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about whether the aider
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or abettor,
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one who supplies essential material
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for the crimes for example,
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must share the intent of
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the principal or whether knowledge
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of that to which he is
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contributing is enough.
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Take the supplier of
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precursors to poison gas
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who supplies them to an
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evil regime
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knowing the intended purpose
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but indifferent to
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the use to which they
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will be put.
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Some of the post-World War II
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cases and some
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more recent domestic
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decisions would regard
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that knowledge as enough.
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But sub paragraph (c) does not.
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It insists that the
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actor must have the
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"purpose of
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facilitating the
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commission of such a
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crime."
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I wonder if those who thought
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the aider was responsible
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for "the crime"
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felt more comfortable
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with the intent standard,
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while those who saw aiding
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as a lesser crime
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might have felt
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comfortable with a lower
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mens rea of
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knowledge.
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Notice moreover, that in the
305
00:12:47.300 --> 00:12:50.000
"common purpose" provision,
306
00:12:50.000 --> 00:12:52.520
subparagraph (d),
307
00:12:52.520 --> 00:12:54.520
the first part of it
308
00:12:54.520 --> 00:12:56.520
deals with actors who have
309
00:12:56.520 --> 00:12:58.050
intent,
310
00:12:58.050 --> 00:13:00.050
who have the aim of
311
00:13:00.050 --> 00:13:02.900
furthering the criminal enterprise.
312
00:13:04.300 --> 00:13:06.680
In the second part, however,
313
00:13:06.680 --> 00:13:09.380
knowledge - uniquely in
314
00:13:09.380 --> 00:13:12.380
article 25- is enough.
315
00:13:13.480 --> 00:13:15.480
I suspect that when an
316
00:13:15.480 --> 00:13:17.480
actor is convicted only
317
00:13:17.480 --> 00:13:20.500
on the knowledge basis,
318
00:13:20.500 --> 00:13:22.500
he or she is likely to be
319
00:13:22.500 --> 00:13:24.840
treated as a peripheral
320
00:13:24.840 --> 00:13:27.200
player in the enterprise
321
00:13:27.200 --> 00:13:29.200
and thus subject to a
322
00:13:29.200 --> 00:13:31.100
lesser penalty than
323
00:13:31.100 --> 00:13:34.220
those at the center.
324
00:13:36.700 --> 00:13:39.500
Subparagraph (e)
325
00:13:39.500 --> 00:13:43.120
of article 25
326
00:13:43.120 --> 00:13:46.540
goes in another direction.
327
00:13:46.540 --> 00:13:48.940
It creates an inchoate
328
00:13:48.940 --> 00:13:51.540
or preparatory offence
329
00:13:51.540 --> 00:13:55.240
which is unique to genocide.
330
00:13:55.240 --> 00:13:58.140
It is derived from the 1948
331
00:13:58.140 --> 00:14:00.900
Genocide Convention.
332
00:14:00.900 --> 00:14:02.900
It makes it an offence,
333
00:14:02.900 --> 00:14:04.900
in respect of the crime of
334
00:14:04.900 --> 00:14:07.500
genocide, to directly
335
00:14:07.500 --> 00:14:10.700
and publicly incite others
336
00:14:10.700 --> 00:14:13.350
to commit genocide.
337
00:14:14.650 --> 00:14:16.850
The drafters did not
338
00:14:16.850 --> 00:14:18.950
see fit to extend
339
00:14:18.950 --> 00:14:21.250
this kind of preparatory
340
00:14:21.250 --> 00:14:24.450
crime to the other offences
341
00:14:24.450 --> 00:14:26.450
within the jurisdiction
342
00:14:26.450 --> 00:14:28.750
of the Court.
343
00:14:30.250 --> 00:14:32.250
Notice that, as an
344
00:14:32.250 --> 00:14:34.250
inchoate offence, there is
345
00:14:34.250 --> 00:14:36.550
no need for the prosecution
346
00:14:36.550 --> 00:14:38.550
to show that any
347
00:14:38.550 --> 00:14:40.350
genocidal acts were
348
00:14:40.350 --> 00:14:42.250
actually caused
349
00:14:42.250 --> 00:14:44.550
by the actor's incitement.
350
00:14:46.200 --> 00:14:48.200
On the other hand, if such
351
00:14:48.200 --> 00:14:50.900
acts do occur,
352
00:14:50.900 --> 00:14:53.100
the actor will be responsible
353
00:14:53.100 --> 00:14:55.100
for the substantive offence
354
00:14:55.100 --> 00:14:58.400
under subparagraph (b)
355
00:14:58.400 --> 00:15:00.400
for soliciting or
356
00:15:00.400 --> 00:15:02.400
inducing them.
357
00:15:03.600 --> 00:15:05.600
"Solicits", "induces"
358
00:15:05.600 --> 00:15:07.600
and "incites"
359
00:15:07.600 --> 00:15:09.600
seem to be substantially
360
00:15:09.600 --> 00:15:11.600
synonyms for
361
00:15:11.600 --> 00:15:13.200
this purpose.
362
00:15:15.400 --> 00:15:17.300
The Genocide Convention
363
00:15:17.300 --> 00:15:19.300
also requires its parties to
364
00:15:19.300 --> 00:15:21.300
criminalize another
365
00:15:21.300 --> 00:15:23.300
inchoate crime,
366
00:15:23.300 --> 00:15:25.300
namely conspiracy
367
00:15:25.300 --> 00:15:27.100
to commit genocide.
368
00:15:28.100 --> 00:15:30.100
Oddly, this is not
369
00:15:30.100 --> 00:15:32.100
carried forward into the
370
00:15:32.100 --> 00:15:34.400
Rome Statute along
371
00:15:34.400 --> 00:15:37.400
with the incitement offence.
372
00:15:38.900 --> 00:15:40.900
Note that some kinds of
373
00:15:40.900 --> 00:15:42.700
conspirators are
374
00:15:42.700 --> 00:15:45.900
caught by subparagraph (d),
375
00:15:45.900 --> 00:15:47.900
but only if the offence
376
00:15:47.900 --> 00:15:49.900
is carried out or
377
00:15:49.900 --> 00:15:50.900
attempted.
378
00:15:52.220 --> 00:15:54.220
Subparagraph (d) is not a
379
00:15:54.220 --> 00:15:56.220
preparatory offense
380
00:15:56.220 --> 00:15:59.800
like subparagraph (e).
381
00:16:02.100 --> 00:16:04.100
Subparagraph (f)
382
00:16:04.100 --> 00:16:06.400
deals with another incomplete
383
00:16:06.400 --> 00:16:08.100
offence, attempt.
384
00:16:09.400 --> 00:16:11.400
The Nuremberg and Tokyo
385
00:16:11.400 --> 00:16:13.400
Tribunals did not have
386
00:16:13.400 --> 00:16:16.400
jurisdiction over attempts,
387
00:16:16.400 --> 00:16:18.900
but other international instruments
388
00:16:18.900 --> 00:16:20.900
such as the Genocide
389
00:16:20.900 --> 00:16:23.100
Convention introduced
390
00:16:23.100 --> 00:16:26.200
the possibility of such charges.
391
00:16:27.400 --> 00:16:29.400
Subparagraph (f)
392
00:16:29.400 --> 00:16:32.700
provides for the responsibility
393
00:16:32.700 --> 00:16:35.300
of one who:
394
00:16:35.300 --> 00:16:37.300
Attempts to commit
395
00:16:37.300 --> 00:16:39.300
such a crime
396
00:16:39.300 --> 00:16:41.300
by taking action
397
00:16:41.300 --> 00:16:43.900
that commences its execution
398
00:16:43.900 --> 00:16:47.900
by means of a substantial step,
399
00:16:47.900 --> 00:16:50.500
but the crime does not occur
400
00:16:50.500 --> 00:16:52.500
because of circumstances
401
00:16:52.500 --> 00:16:54.300
independent of the
402
00:16:54.300 --> 00:16:56.500
person's intentions.
403
00:16:57.800 --> 00:16:59.800
However, a person who
404
00:16:59.800 --> 00:17:02.300
abandons the effort to commit the crime
405
00:17:02.300 --> 00:17:04.300
or otherwise prevents
406
00:17:04.300 --> 00:17:06.300
the completion of the crime
407
00:17:06.300 --> 00:17:08.300
shall not be liable for
408
00:17:08.300 --> 00:17:10.300
punishment under this Statute
409
00:17:10.300 --> 00:17:12.500
for the attempt to commit that
410
00:17:12.500 --> 00:17:13.700
crime
411
00:17:13.700 --> 00:17:16.160
if that person completely
412
00:17:16.160 --> 00:17:18.960
and voluntarily gave up
413
00:17:18.960 --> 00:17:22.860
the criminal purpose."
414
00:17:24.260 --> 00:17:26.260
How to describe
415
00:17:26.260 --> 00:17:28.260
how close an actor
416
00:17:28.260 --> 00:17:31.200
must get to completion
417
00:17:31.200 --> 00:17:33.200
to be criminally liable for an
418
00:17:33.200 --> 00:17:35.200
attempt is a vexed
419
00:17:35.200 --> 00:17:38.600
question in most jurisdictions.
420
00:17:38.600 --> 00:17:40.800
The solution in this article
421
00:17:40.800 --> 00:17:42.800
is based primarily on
422
00:17:42.800 --> 00:17:44.800
the Model Penal
423
00:17:44.800 --> 00:17:46.800
Code standard
424
00:17:46.800 --> 00:17:48.800
which is law in about three
425
00:17:48.800 --> 00:17:50.400
quarters of the
426
00:17:50.400 --> 00:17:52.100
United States.
427
00:17:53.200 --> 00:17:55.000
It includes the
428
00:17:55.000 --> 00:17:57.000
controversial abandonment
429
00:17:57.000 --> 00:17:58.900
doctrine
430
00:17:58.900 --> 00:18:00.900
even if the defendant's acts
431
00:18:00.900 --> 00:18:02.900
reach the point of a
432
00:18:02.900 --> 00:18:04.900
substantial step,
433
00:18:04.900 --> 00:18:06.700
she can still avoid
434
00:18:06.700 --> 00:18:08.700
punishment by voluntarily
435
00:18:08.700 --> 00:18:10.700
giving up.
436
00:18:10.700 --> 00:18:12.700
I say voluntarily because it is not
437
00:18:12.700 --> 00:18:14.600
enough to give up because she
438
00:18:14.600 --> 00:18:17.500
sees the constabulary approaching.
439
00:18:17.500 --> 00:18:19.500
A willing change of heart
440
00:18:19.500 --> 00:18:21.800
is necessary.
441
00:18:23.980 --> 00:18:25.680
One final thought about
442
00:18:25.680 --> 00:18:27.680
article 25
443
00:18:27.680 --> 00:18:29.680
relates to the amendment
444
00:18:29.680 --> 00:18:31.680
made to it as part
445
00:18:31.680 --> 00:18:33.680
of the 2010
446
00:18:33.680 --> 00:18:35.680
Kampala Amendments
447
00:18:35.680 --> 00:18:37.480
to the Statute
448
00:18:37.480 --> 00:18:39.280
enabling the Court to
449
00:18:39.280 --> 00:18:41.280
exercise its jurisdiction
450
00:18:41.280 --> 00:18:44.300
over the crime of aggression.
451
00:18:45.780 --> 00:18:47.980
Paragraph 3bis
452
00:18:47.980 --> 00:18:49.980
was added to
453
00:18:49.980 --> 00:18:53.800
article 25.
454
00:18:53.800 --> 00:18:56.380
It provides that:
455
00:18:56.380 --> 00:18:58.380
"In respect of the crime
456
00:18:58.380 --> 00:19:00.380
of aggression,
457
00:19:00.380 --> 00:19:02.380
the provisions of this article
458
00:19:02.380 --> 00:19:04.380
shall apply only to
459
00:19:04.380 --> 00:19:06.080
persons in a position
460
00:19:06.080 --> 00:19:08.080
effectively to exercise
461
00:19:08.080 --> 00:19:10.080
control over
462
00:19:10.080 --> 00:19:12.080
or direct the political
463
00:19:12.080 --> 00:19:14.080
or military action
464
00:19:14.080 --> 00:19:18.200
of a State."
465
00:19:19.650 --> 00:19:21.850
Aggression is a crime
466
00:19:21.850 --> 00:19:23.850
which can be committed
467
00:19:23.850 --> 00:19:25.980
only by the political
468
00:19:25.980 --> 00:19:27.980
or military leadership
469
00:19:27.980 --> 00:19:29.980
of a State.
470
00:19:29.980 --> 00:19:31.980
Paragraph 3 bis makes it
471
00:19:31.980 --> 00:19:33.980
clear that, while
472
00:19:33.980 --> 00:19:35.680
the general provisions of
473
00:19:35.680 --> 00:19:37.480
article 25
474
00:19:37.480 --> 00:19:37.680
are applicable to the
article 25
475
00:19:37.680 --> 00:19:39.480
are applicable to the
476
00:19:39.480 --> 00:19:41.480
crime of aggression,
477
00:19:41.480 --> 00:19:43.480
the foot soldier
478
00:19:43.480 --> 00:19:46.280
cannot be held liable,
479
00:19:46.280 --> 00:19:48.280
as he or she
480
00:19:48.280 --> 00:19:50.280
could be held liable
481
00:19:50.280 --> 00:19:52.280
for the other crimes
482
00:19:52.280 --> 00:19:54.280
within the jurisdiction
483
00:19:54.280 --> 00:19:55.900
of the Court.