Individual Criminal Responsibility by Chantal Meloni

The recognition of individual criminal responsibility under international law is relatively recent. The commission of mass atrocities during the 20th century prompted the international community to recognize that individuals can be criminally responsible directly under international law and to work for the establishment of an international criminal court having jurisdiction on international crimes committed by individuals. Thus, after World War II, the principle was established that individuals—and not only states—can be the addressee of obligations, commit crimes, and therefore bear criminal responsibility directly under international law. As affirmed by the judges sitting in Nuremberg: “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.” As a consequence, it is now undisputed that individuals shall be punished for the commission of crimes under international law (or “international crimes”) that seriously damage the interest of the international community as a whole, so that the goals of prevention and deterrence can be achieved. This principle is now well expressed in the Preamble of the Rome Statute of 1998, where it affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished” and that the International Criminal Court aims “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” The attribution of criminal responsibility to individuals does not exclude that states can be held responsible for the violations of international law that also potentially amount to international crimes; however, individual criminal responsibility under international law possesses the same legal nature as the criminal responsibility under domestic law, whereas the responsibility of states is of an international/civil nature. Given the macro-criminal dimension of the crimes at stake, which normally involve the state apparatus and are committed by an organized group or in a systematic manner, the process of “individualization” of the responsibility encounters more than one challenge. First, the issue of immunities for heads of states and other subjects under international law; second, the regulation of the modes of liability, which need to take into account the collective dimension of commission of international crimes. To overcome some of the difficulties, the rules of attribution of criminal liability to individuals had been partly reinterpreted and new modes of liability developed. Moreover, the principle of personal culpability excludes collective and strict liability. As a consequence, several grounds to exclude criminal responsibility are recognized. Finally, the enforcement of individual criminal responsibility for international crimes is the real challenge in a context of collective commission and macro-dimension of the crimes, where, moreover, the mechanisms of enforcement are not homogeneous.

General Overviews

Individual criminal responsibility is at the foundation of the whole international criminal law system. Without the recognition that individuals can be held criminally responsible directly under international law for the commission of certain crimes, considered to be of international concern, international criminal law would not exist at all. Bassiouni 2008 explains that individuals are now recognized as subjects of international law, though only with respect to certain areas. All manuals, textbooks, and commentaries on international criminal law include a chapter on individual criminal responsibility, laying down the foundation of the discipline (Werle and Jessberger 2014, Stahn 2019). The attribution of criminal responsibility to individuals for the commission of international crimes is one of the most difficult topics and the discipline still needs to be systematized, although in the past twenty years some important works, inter alia, Ambos 2002 and van Sliedregt 2012, have definitely contributed in this direction. Crimes under international law, namely war crimes, crimes against humanity, genocide and aggression (the “core crimes”), are indeed mass crimes involving special features and requiring special rules (Damgaard 2008). Various scholars have expressed the view, summarized in Meloni 2010, that the macro-dimension of the core crimes and their collective commission does not exclude the need to determine individual criminal responsibility of those who participated in their commission. With the notable exception of the Nuremberg International Military Tribunal, the various international criminal tribunals that have been established so far to prosecute those responsible for the commission of international crimes have jurisdiction only over natural persons; however, debate is ongoing as to whether it is desirable and possible to hold legal persons (and, in particular, corporations) criminally liable under international law, as discussed in various contributions in Nollkaemper and van der Wilt 2009.

• Ambos, Kai. Der Allgemeine Teil des Völkerstrafrechts: Ansätze einer Dogmatisierung. Berlin: Dunkler & Humblot, 2002. This is one of the fundamental early works on the subject; the author conducts an extensive and in-depth analysis of the general part of international criminal law, including the principle of individual criminal responsibility; starting from the sources—case law and international instruments—the author examines the foundations of the principle of individual responsibility and reconstructs dogmatically its various components.
• Bassiouni, M. Cherif. “The Subjects of International Criminal Law: Ratione Personae.” In International Criminal Law. Edited by M. Cherif Bassiouni, 41–70. 3d ed. Leiden, The Netherlands: Martinus Nijhoff, 2008. The author briefly outlines the essential components of the duties and responsibilities that are incumbent over individuals directly under international law and that generate criminal responsibility.
• Damgaard, Ciara. Individual Responsibility for Core International Crimes. Berlin: Springer, 2008. One of the few works dedicated to the principle of individual criminal responsibility in international law. Very helpful tool that clearly outlines all components of the principle and its related issues and analyzes them in a critical perspective.
• Meloni, Chantal. “The Principle of Individual Responsibility and the Macro-dimension of International Crimes.” In Command Responsibility in International Criminal Law. By Chantal Meloni, 7–31. The Hague: T. M. C. Asser, 2010. This chapter, which sets the basis for a broader study on command responsibility, offers a concise but comprehensive overview of the content and context of the principle of individual criminal responsibility, which takes into account the difficulties arising from the macro-dimension of international crimes.
• Nollkaemper, André, and Harmen van der Wilt. System Criminality in International Law. Cambridge, UK: Cambridge University Press, 2009. This collective volume brings together a number of excellent contributions on the difficult relation between individual criminal responsibility and the systematic dimension of international crimes.
• Stahn, Carsten. A Critical Introduction to International Criminal Law. Cambridge, UK: Cambridge University Press, 2019. Chapter 2, “Individual and Collective Responsibility” (pp. 117–158), is dedicated to a comprehensive analysis of all components of the principle of individual criminal responsibility, including the issue of collective responsibility.
• van Sliedregt, Elies. Individual Criminal Responsibility in International Law. 2d ed. Oxford: Oxford University Press, 2012. The volume offers an in-depth study of the individual criminal responsibility principle and of the various modes of liability for international crimes. The author analyzes the principal theories of criminal responsibility and includes a part on collective criminal liability for international crimes.
• Werle, Gerhard, and Florian Jessberger. “Foundations.” In Principles of International Criminal Law. 3d ed. By Gerhard Werle and Florian Jessberger, 1–163. Oxford: Oxford University Press, 2014. This fundamental handbook by German professors Werle and Jessberger lays down the foundations of international criminal law, including the principle of individual criminal responsibility for international crimes.

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