Rule 102. No one may be convicted of an offence except on the basis of individual criminal responsibility.
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).