81
An important element in relation to the competence ratione personae (personal
jurisdiction) of the International Tribunal is the principle of individual criminal
responsibility. As noted above, the Security Council has reaffirmed in a number of
resolutions that persons committing serious violations of international humanitarian law
in the former Yugoslavia are individually responsible for such violations.231
Article 7(1) also sets out the parameters of personal criminal responsibility under the
Statute. Any act falling under one of the five categories contained in the provision may
entail the criminal responsibility of the perpetrator or whoever has participated in the crime
in one of the ways specified in the same provision of the Statute.
187.
Bearing in mind the preceding general propositions, it must be ascertained whether
criminal responsibility for participating in a common criminal purpose falls within the ambit
of Article 7(1) of the Statute.
188.
This provision covers first and foremost the physical perpetration of a crime by the
offender himself, or the culpable omission of an act that was mandated by a rule of criminal
law. However, the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the
Statute might also occur through participation in the realisation of a common design or
purpose.
189.
An interpretation of the Statute based on its object and purpose leads to the
conclusion that the Statute intends to extend the jurisdiction of the International Tribunal to
all those “responsible for serious violations of international humanitarian law” committed in
the former Yugoslavia (Article 1). As is apparent from the wording of both Article 7(1) and
the provisions setting forth the crimes over which the International Tribunal has jurisdiction
(Articles 2 to 5), such responsibility for serious violations of international humanitarian law
is not limited merely to those who actually carry out the actus reus of the enumerated
crimes but appears to extend also to other offenders (see in particular Article 2, which refers
to committing or ordering to be committed grave breaches of the Geneva Conventions and
Article 4 which sets forth various types of offences in relation to genocide, including
conspiracy, incitement, attempt and complicity).
231
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N.
Doc. S/25704, 3 May 1993 (“Report of the Secretary-General”), para. 53 (emphasis added).
Case No.: -94-1-A
15 July 1999