CILRAP » Case Matrix Network » CMN Knowledge Hub » Elements Digest » Arts. 25 and 28 Modes of liability
Arts. 25 and 28 Modes of liability
-
Attempt
- M.1. The perpetrator took action that commenced the execution of the crime by means of a substantial step
- M.2. The crime did not occur because of circumstances independent of the perpetrator's intention.
- M.3. Perpetrator did not abandon the effort to commit the crime or did not otherwise prevent the completion of the crime by completely and voluntarily giving up the criminal purpose
- M.4. The perpetrator intended that his action would commence the execution of the crime
- M.5. The perpetrator was aware that he did not completely or voluntarily give up the criminal intent.
-
Command responsibility
- M.1. A crime within the jurisdiction of the Court was committed or was about to be committed by the forces
- M.2. The perpetrator was a military commander or a person effectively acting as a military commander
- M.3. The perpetrator had effective command and control, or effective authority and control over the forces that committed the crime
- M.4. The crimes committed by the forces resulted from the perpetrator’s failure to exercise control properly over forces
- M.5. The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution
- M.6. The perpetrator either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit one or more of the crimes
- M.7. The perpetrator was aware that he or she was military commander and had effective command and control or authorityand control over the forces
- M.8. The perpetrator was aware that his or her failure to take necessary and reasonable measures would result in the commission of crime by the forces
- M.9. The perpetrator was aware that he or she failed to take the necessary and reasonable measures within his or her power to prevent or repress crime or submit the matter for investigation and prosecution
-
Common purpose
- M.1. A group of persons acting with a common purpose attempted or committed the crime.
- M.2. The perpetrator contributed to the commission or attempted commission of the crime by the group of persons [in any way not amounting to another mode of liability under article 25(3)3(a)-(c)].
- M.3. The perpetrator's contribution was intentional
- M.4. The contribution was made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court. OR
- M.5. The contribution was made in the knowledge of the intention of the group to commit the crime
-
Complicity
- M.1. A crime within the jurisdiction of Court was attempted or committed by a person or persons other than the perpetrator, with or without the participation of the perpetrator
- M.2. The perpetrator had purpose of facilitating the commission of the crime
- M.3. The perpetrator aided, abetted or otherwise assisted in the commission or attempt of the crime
- M.4. The Perpetrator intended to aid, abet or otherwise assist the commission or attempt of the crime
- M.5. The accused was aware of the factual circumstances enabling him to facilitate the commission of the crime
- Direct and public incitment to genocide
- Individual perpetration
-
Inducing
- M.1. A crime within the jurisdiction of Court was attempted or committed by a person or persons other than the perpetrator, with or without the participation of the perpetrator
- M.2. The perpetrator commanded, authorized, urged, incited, requested, or advised another person to commit the crime
- M.3. The perpetrator intended to command, authorise, urge, incite, request or advise the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts
-
Joint perpetration
- M.1. Existence of a common plan or agreement between two or more persons.
- M.2. The perpetrator provided an essential contribution to the common plan involving the commission of the crime.
- M.3. The perpetrator fulfilled the subjective elements of the crime charged.(In addition to M.2.1. requirement, requirements of M.2.2. and M.2.3. as well M.2.4. will be applicable as defined in mental elements of each specific crime.)
- M.4. The perpetrator and the other co-perpetrators are all mutually aware and mutually accept that implementing their common plan may result in the realization of the objective elements of the crime.
- M.5. The perpetrator was aware that he provided an essential contribution to the implementation of the common plan
- M.6. The perpetrator was aware of the factual circumstances enabling him to exercise joint control over the crime.
-
Ordering
- M.1. A crime within the jurisdiction of the Court was attempted or committed by a person or persons other than the suspect, with or without the participation of the suspect.
- M.2. The perpetrator gave an express or implied order to a subordinate or other person over whom the perpetrator was in a position of authority.
- M.3. The crime was attempted or committed in execution of or otherwise in furtherance of an order issued by the perpetrator
- M.4. The perpetrator intended to order the commission of the crime, or was aware of the substantial likelihood that the commission of the crime would be a consequence of his or her acts.
- M.5. The perpetrator was aware that the crime was attempted or committed in execution of or otherwise in furtherance of an order issued by the perpetrator
-
Perpetration through another
- M.1. A crime was committed by a person or persons other than the perpetrator
- M.2. The perpetrator dominated over subordinates through an organized structure of power and was in the position to replace a subordinate who did not comply with his or her will.
- M.3. The accused used such direct perpetrator as an instrument or tool to commit the relevant crime.
- M.4. The perpetrator intended that the crime would be committed.
- M.5. The perpetrator was aware of the existence of a unitary chain of command and his or her controlling predominance over the direct perpetrator.
- M.6. The perpetrator intended to use such person or persons as instruments or tools to commit the relevant crime.
-
Soliciting
- M.1. A crime within the jurisdiction of Court was attempted or committed by a person or persons other than the perpetrator, with or without the participation of the perpetrator
- M.2. The perpetrator commanded, authorized, urged, incited, requested, or advised another person to commit the crime
- M.3. The perpetrator intended to command, authorise, urge, incite, request or advise the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts
-
Superior responsibility
- M.1. A crime within the jurisdiction of the Court was committed or was about to be committed by the forces
- M.2. Superior and subordinate relationship not described in paragraph art. 28(a) of the Rome Statute existed between the perpetrator and the subordinates
- M.3. The perpetrator had effective authority and control over the subordinates
- M.4. The crimes concerned activities were within the effective responsibility and control of the perpetrator
- M.5. The crimes committed by the subordinates resulted from the perpetrator’s failure to exercise control properly over such subordinates
- M.6. The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime or failed to submit the matter to the competent authorities for investigation and prosecution
- M.7. The perpetrator either knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes
- M.8. The perpetrator was aware that he or she was superior and had effective authority and control over the subordinates
- M.9. The perpetrator was aware that crimes concerned activities within his or her effective responsibility and control
- M.10. The perpetrator was aware that his or her failure to take necessary and reasonable measures would result in the commission of crime by the subordinates
- M.11. The perpetrators was aware that he or she failed to take the necessary and reasonable measures within his or her power to prevent or repress crime or submit the matter for investigation and prosecution
