CYIL vol. 12 (2021)

CYIL 12 (2021) THE NUREMBERG PRINCIPLES AS THE BASIS OF INTERNATIONAL CRIMINAL Law of responsibility for membership, 21 joint design/plan 22 or participation, 23 depending on which concept was closest to the relevant legal culture and the national legal system. Such an approach meant that the original unitary approach of Nuremberg has morphed into various systems distinguishing various forms of participation and attribution in a crime. 24 Although individual criminal responsibility under international law was also established by the Genocide Convention, 25 the Geneva Conventions of 1949 26 and their Additional Protocol I of 1977, 27 and the Convention against Torture, 28 it was only in the 90s that it was dealt with in more detail in the Draft Code of Crimes against the Peace and Security of Mankind from 1996 29 and in the Statutes of ad hoc Tribunals. As far as the ad hoc tribunals are concerned, criminal responsibility of an individual has been set in their statutes in relation to the different ways of participating in a crime. 30 Since the statutes did not distinguish between the various ways of committing a crime and participating in a criminal act, the related interpretation remained in the decision-making practice of the tribunals; these different ways of participation were the reason for tribunals to distinguish between principal and accomplice offenders, which subsequently affected the decision-making regarding punishment. 31 This is an approach that is more typical for a differentiated rather than a unitary model. 32 The first decisions of the ad hoc tribunals were adopted approximately at the time when the Rome Statute was being prepared, which also influenced its provisions. Individual criminal responsibility is set up by art. 25 of the Rome Statute, the first paragraphs of which lay down general principles, namely that the Court has jurisdiction only over natural persons who, when committing an offense under the jurisdiction of the Court, are individually responsible and subject to punishment in accordance with the Statute. The fourth paragraph clearly states that no provision of the Statute on individual criminal responsibility affects the responsibility of States under international law. Moreover, in Kampala, during the Review 21 USA v. Altstötter et al ., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Nuremberg, Law Reports of Trials of War Criminals, vol. III, pp. 954–1201. 22 Trial of Martin Gottfried Weiss & Thirty-Nine Others (Daxhau Concentration Camp Case). Law Reports of Trials of War Criminals, UN War Crimes Commission, vol. XI, 5–17. 23 Franz Holstein & Two Others , Law Reports of Trials of War Criminals, UN War Crimes Commission, vol. VII, pp. 22–33. 24 ESER, A., Individual Criminal Responsibility, in CASSESE, A., GAETA, P. and JONES, J.R.W.D. (eds), The Rome Statute of the International Criminal Court: A Commentary , Vol. 1, Oxford University Press, 2002, p. 784 et seq. 25 The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. 26 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Convention (III) relative to the Treatment of Prisoners of War, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 27 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 28 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984. 29 Draft Code of Crimes against the Peace and Security of Mankind, ILC, Yearbook of the International Law Commission, 1996, vol. II, Part Two. 30 Art. 7 of the ICTY Statute, art. 6 of the ICTR Statute. 31 WERLE, G., JESSBERGER, F., Principles of International Criminal Law , Oxford University Press, 2014, p. 195. 32 VAN SLIEDREGT, 2012, p. 65 et seq, see supra note 19.

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