Rule 102. Individual Criminal Responsibility
Rule 102. No one may be convicted of an offence except on the basis of individual criminal responsibility.
Volume II, Chapter 32, Section O.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The Hague Regulations specify that no penalty can be inflicted on persons for acts for which they are not responsible.[1] The Fourth Geneva Convention provides that “no protected person may be punished for an offence he or she has not personally committed”.[2] The requirement of individual criminal responsibility is recognized as a fundamental rule of criminal procedure in Additional Protocols I and II.[3]
The requirement of individual criminal responsibility is explicitly provided for in several military manuals.[4] It is a basic rule of most, if not all, national legal systems.[5]
The requirement of individual criminal responsibility is included in the American Convention on Human Rights (as a non-derogable right), the African Charter on Human and Peoples’ Rights and the Cairo Declaration on Human Rights in Islam.[6] The European Convention on Human Rights does not spell out this rule, but the European Court of Human Rights has stated that “it is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act”.[7]
It is a basic principle of criminal law that individual criminal responsibility for a crime includes attempting to commit such crime, as well as assisting in, facilitating, aiding or abetting, the commission of a crime. It also includes planning or instigating the commission of a crime. This is confirmed, for example, in the Statute of the International Criminal Court.[8] Article 28 of the Statute also confirms the principle of command responsibility for crimes under international law.[9] The principles of individual responsibility and command responsibility for war crimes are dealt with in Chapter 43.
[1] Hague Regulations, Article 50 (cited in Vol. II, Ch. 32, § 3718).
[2] Fourth Geneva Convention, Article 33, first paragraph (ibid., § 3721).
[3] Additional Protocol I, Article 75(4)(b) (adopted by consensus) (ibid., § 3723); Additional Protocol II, Article 6(2)(b) (adopted by consensus) (ibid., § 3725).
[4] See, e.g., the military manuals of Argentina (ibid., § 3739), Canada (ibid., § 3745), Colombia (ibid., § 3746), France (ibid., § 3751), Netherlands (ibid., § 3760), New Zealand (ibid., § 3761), Romania (ibid., § 3763), Sweden (ibid., § 3767), Switzerland (ibid., § 3768) and United States (ibid., §§ 3772–3773).
[5] See, e.g., the legislation of Kyrgyzstan (ibid., § 3787).
[6] American Convention on Human Rights, Article 5(3) (ibid., § 3722); African Charter on Human and Peoples’ Rights, Article 7(2) (ibid., § 3726); Cairo Declaration on Human Rights in Islam, Article 19(c) (ibid., § 3731).
[7] European Court of Human Rights, A. P., M. P. and T. P. v. Switzerland (ibid., § 3810).
[8] ICC Statute, Article 25 (cited in Vol. II, Ch. 43, § 20).
[9] ICC Statute, Article 28 (ibid., § 574).
