CYIL vol. 12 (2021)

Katarína ŠmigovÁ CYIL 12 (2021) Conference, a specific provision was adopted in relation to the crime of aggression, which is for the purpose of the Statute to be committed only by a person in a position who effectively exercises control over or directs the political or military action of a State. 33 Extensive para. 3 of art. 25 of the Rome Statute can be considered to be a systematization of different methods of participation in a criminal act, or attribution to it. Letter (a) of this paragraph regulates three possible forms of committing a crime: as a perpetrator, jointly with another individual, or a perpetrator through another person who does not even have to be criminally responsible. All these are principals with essential participation, unlike accomplices with substantial participation that are responsible under art. 25 para. 3 (b) that provides different forms of participation and (c) that provides auxiliary forms of participation. Unlike Nuremberg with its unitary model, the Rome Statute differentiates various forms of participation in a criminal act. However, the hierarchy in art. 25 of the Statute is not a hierarchy of guilt. 34 Nevertheless, the ICC has emphasised what its predecessors have tried to do as well, namely, not to allow impunity in cases of the most serious crimes under international law. In practice it means that there are efforts to prove culpability especially to those individuals that were not present at the site of a crime, nevertheless, they have control over the commission of a crime. As joint-perpetrators they have to be essentially involved in the joint-commission of a crime, which is implied in the concept of joint control. The issue of control is not present in the Rome Statute; despite this, the ICC judges have adopted it and used in most cases since the Lubanga case. 35 Based on this concept, it is possible to distinguish the main perpetrator from an accomplice. 36 Moreover, it has influenced the rejection of joint criminal enterprise responsibility within ICC case law since it determined that the objective element of a crime was decisive to establish individual criminal responsibility. 37 Unlike in a unitary model where an individual is punished for committing the crime, what was relevant for Nuremberg, in a differentiated system an individual is punished for soliciting a crime. 38 This latter approach was adopted by the ad hoc tribunals and subsequently developed by the Rome Statute and even more by the ICC case law. This specification of criminal participation is based on a requirement to prosecute all thinkable forms of contribution to serious crimes under international law. Nuremberg also solved this requirement by the matter of membership in a criminal organisation. ICTY has introduced the concept of joint criminal enterprise, ICC has adopted the concept of control. 39 3.2 Supremacy of International Law The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. 33 Art. 8bis para. 1 of the Rome Statute. 34 ICC, Ngudjolo Chui , Judgment, 18 December 2012, concurring opinion of Judge Van den Wyngaert, paras. 22 et seq. 35 ICC, The Prosecutor v. Thomas Lubanga Dyilo , Judgment, 1 December 2014, ICC-01/04-01/06 A 5, paras. 326–41; ICC, The Prosecutor v. Germain Katanga et al ., Decision on the Confirmation of the Charges, 30 September

2008, ICC-01/04-01/07, paras. 480–6. 36 Lubanga , para. 469, see supra note 35. 37 See also infra 3.7 Complicity as a Crime under International Law in this article. 38 VAN SLIEDREGT, 2012, p. 70, see supra note 19. 39 See also infra 3.7 Complicity as a Crime under International Law in this article.

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