CYIL vol. 12 (2021)

Katarína ŠmigovÁ CYIL 12 (2021) and when the Rome Statute was drafted, despite different proposals to broaden the list of protected groups, the same definition was finally adopted. 3.7 Complicity as a Crime under International Law Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. This principle could have probably been united with the first principle in this Article since commission of a crime per se has been analysed there. However, to keep the scheme of the article, this part aims at pointing out the main difference between the Charter and the Rome Statute as for complicity as such. Complicity is a legal institute that is, at most, related to the criminal law element of international criminal law. Nevertheless, a systematic feature of commission of a crime under international law is accompanied by the requirement of individual criminal responsibility. According to the Nuremberg Tribunal, the relevant provision in the Charter did not add a new and separate crime to those already listed. In the view of the Tribunal, the provision was designed to “establish the responsibility of persons participating in a common plan”. 113 However, the Tribunal itself, when assessing the guilt of the individual perpetrators, used expressions typical for the criminal law term of complicity. 114 The term of participation in a common plan has influenced further developments of attribution to a crime within ad hoc Tribunals jurisprudence, and later on also the draft process of the Rome Statute. The leading ICTY judgment on this issue was the decision upon Tadić Appeal in 1999 when the ICTY reviewed State practice and determined there was a customary basis for common purpose culpability that could be divided into three classes, namely co-perpetration with participants having the same criminal intent, the so-called “concentration camp” cases, and joint criminal enterprise where the commission of a crime is outside the common purpose but as a foreseeable incident of it. 115 The ICC did not adopt the same approach within art. 25 para. 3 letter d) of the Rome Statute since it focused on the objective element of a crime whereas for the ICTY within the JCE its subjective element was decisive. 116 And as for accomplices in general within the Rome Statute, they are dealt with in detail in art. 25 para. 3 letter b) and c) of the Rome Statute. Again, like in relation to the previous Nuremberg principles, Nuremberg might be considered to be a milestone, but generally speaking, it was a sui generis situation, the circumstances of which have not been repeated. However, its approach to the basic principles of international criminal law was so innovative and persuasive that all its successors have had to build upon it, either by accepting and developing it or by challenging and overruling it. 4. The Nuremberg Principles as the Basis of International Criminal Law The basis of international criminal law is the fact that an individual is held responsible for committing crimes under international law. This individual criminal responsibility 113 Nuremberg Judgment, para. 449, see supra note. 114 Ibid., e.g . paras. 281, 416, 417 489 506. 115 ICTY, Prosecutor v. Duško Tadić , Judgment, 15 July 1999, IT-94-1-A, para. 220. 116 Although the ICTY pointed out exactly this Article of the Rome Statute when introduced the notion of joint criminal enterprise. See ibid ., para. 222.

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