International Journal of Law X-raying the evolutionary trend vis-à-vis the prospects of the principle of individual criminal responsibility under international law

Abstract

The principle of individual criminal responsibility has evolved over centuries, both at the municipal level and at the international plane, thus, giving rise to mammoth statistics of individuals who have been prosecuted and sentenced both by municipal courts and international courts or tribunals, over commission of crimes. It is against this backdrop that this paper has written to examine and appraise the chronological order of the evolutionary realities of the principle of individual responsibility. It also examined the nature and dynamics of the principle as well as the prospects thereof. It found out that despite the long history and popularity of the principle, it has not been able to totally obliterate crime and criminality from the global society. It ends with some concluding remarks and recommendations.

Full text

International Journal of Law
135
International Journal of Law
ISSN: 2455-2194, RJIF 5.12
www.lawjournals.org
Volume 3; Issue 4; July 2017; Page No. 135-147
X-raying the evolutionary trend vis-à-vis the prospects of the principle of individual criminal
responsibility under international law
1 Dr. Abegunde Babalola, 2 Dr. Filani Alfred Oluropo, 3 Barr Omidoyin Taiye Joshua
1 Senior Lecturer and Head, Department of Public Law, Faculty of Law, Ekiti State University, Ado-Ekiti, Nigeria
2 Senior Lecturer, Faculty of Law, Ekiti State University, Ado-Ekiti, Nigeria
3 Lecturer, Faculty of Law, Ekiti State University, Ado-Ekiti, Nigeria
Abstract
The principle of individual criminal responsibility has evolved over centuries, both at the municipal level and at the international
plane, thus, giving rise to mammoth statistics of individuals who have been prosecuted and sentenced both by municipal courts
and international courts or tribunals, over commission of crimes. It is against this backdrop that this paper has written to examine
and appraise the chronological order of the evolutionary realities of the principle of individual responsibility. It also examined the
nature and dynamics of the principle as well as the prospects thereof. It found out that despite the long history and popularity of
the principle, it has not been able to totally obliterate crime and criminality from the global society. It ends with some concluding
remarks and recommendations.
Keywords: evolution, timeline, prospects, individual, criminal, responsibility, recommendations
Introduction
The idea of “A Just World Under Law “ in International Law
implies the desire of international lawyers to pose fundamental
questions about the world we live in and the role of
International Law in shaping that world [1]. Part of what may
inform whether human beings will eventually live in a just
world under law depends on whether modern International Law
can reconcile its fundamentally state-centric nature with the
increased and increasing participation of individuals and non-
state actors in the processes of International Law making, while
at the same time subjecting those same actors to some form of
accountability or responsibility under the international legal
regime [2].
In previous approaches to International Law, individuals were
portrayed as lacking in any international capacity [3]. Thus, they
neither enjoyed rights nor possessed any duties. In other words,
individuals were regarded as objects, rather than subjects of
International Law, which is a discipline that exclusively
governs relations between and among states. The logical
consequences of this doctrinal attitude was that whatever
happened to the individual within the confines of the state in
respect of its own nationals “remained its own internal affair,
an element of its autonomy, and a matter of its domestic
jurisdiction” [4]
Indeed, concern for individuals by International Law seeped
into the international system as far back as the 18th and 19th
centuries and such interest led to the emergence of a fledging
international legal framework exhibiting concern for the human
being by circumscribing the freedom of action of the other
states in respect of specific categories of individuals such as
diplomats and foreign nationals whose daily business brought
them into contact with other states [5].
Recently, eminent authorities in the field of International Law
raised the question whether it would not be a sound and
progressive or even a necessary process to develop
International Law in the direction of recognition of the
responsibility of the individual [6]. If it were really true that
only the state is bound by and responsible under International
Law, the individual action would be of no concern to the law of
nations. This study would examine that if state alone is held
responsible for acts of an individual, the punishment for the
crime will not be felt by the criminal himself, hence, in
practice, the principle of effective responsibility is denied.
While International Law had always prescribed sanctions for
unlawful or outrageous conducts by entities subject to it, the
world seems to be at the threshold of a new era where not only
states and abstract entities would engage international
responsibility but also individuals, especially Heads of state or
government as well as their agents or privies who would now
be liable for heinous crimes committed by them against their
nationals or foreigners without regard to time or space [7].
The global trend is that international crimes such as crimes
against humanity and other egregious violations of
international human rights and humanitarian law, including war
crimes and genocide must be adequately redressed. The
cardinal principle has been that of regulating, reducing and
limiting man’s inhumanity to man [8]. In the global community
we inhabit, the domaine reserve or area of exclusive domestic
jurisdiction has continued to dwindle so much so that today’s
dictators, tyrants and cruel rulers have nowhere to hide. Unlike
in the past when the plea of domestic jurisdiction could avail
oppressive regimes whenever they were confronted with
allegations of human rights violations at international fora, the
contemporary world no longer tolerates infringements of
internationally-guaranteed minimum standards of human rights
[9].
It has taken centuries for the principle of individual criminal
responsibility to evolve in national law. The concept that a
person is only culpable to the extent of his own free will or
guilty mind can be traced to the canonical law and the insights

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of Italian jurists in the Renaissance [10]. Today, the national
concept of individual criminal responsibility is represented by
the recognition of the concept’s emancipation from collective
responsibility, the release from immunity of state officials who
previously relied on the Act of State doctrine [11]. This is a
desk-based research which relied on both primary and
secondary sources of data, which were subjected to contentual
and contextual analysis.
Timeline
This study identified three chronological periods in the
evolutionary trend and development of individual criminal
responsibility under International Law.
Period Before 1945
In previous approaches to International Law, states were
perceived as hermetically sealed entities, and only inter-state
relations were deemed proper matters for international
regulations [12]. Individuals were classified as potential objects
rather than subjects of international law and consequently
lacking any international capacity [13]. The logical consequence
of this doctrinal attitude was that whatever happened to the
individual within the confines of the state in respect of its own
nationals “remained its own affair, an element of its autonomy,
a matter of its domestic jurisdiction” [14]. In practice, however,
as Henkin observed, “neither the international political system
nor International Law ever closed out totally what went on
inside a state and what happened to individuals within a state”
[15].
Although individuals have limited international legal
personality, contemporary International Law increasingly
recognizes that an individual may possess both international
rights and duties [16]. The greater awareness of human rights
over the last 60 years has raised consciousness and prompted
the guarantees of human rights for individuals through
international and regional instruments [17]. At the same time,
International Law imposes duties directly on individuals [18].
The most important of these duties include: [19] (a) The duty to
refrain from acts of piracy which is defined as a crime humanis
generis; and (b) The duty to refrain from committing crimes
against peace, crimes against humanity, war crimes and
genocide. Hijacking and associated acts are now considered to
be crimes of quasi-universal jurisdiction as created by
convention [20].
Simultaneously, it has been increasingly recognized that
individuals may be held responsible for certain conduct, and
the development of international individual criminal
responsibility is a notable feature of International Law today
[21].
A sure precedent in the international criminal law of
individuals being held criminally responsible by an adhoc
international tribunal is the case of Peter Von Hagenbach in the
year 1474 [22]. Charles the Bold, Duke of Burgundy (1433 –
1477), known to his enemies as Charles the Terrible, had
placed Hagenbach at the helm of the government of the
fortified city of Breisach, on the Upper Rhine [23]. The
governor, overzealously following his master’s instructions,
introduced a regime of arbitrariness, brutality and terror so as
to reduce the population of Breisach to submission. Murder,
rape, illegal taxation and wanton confiscation of private
property became generalized practices. All these violent acts
were also committed against inhabitants of the neighboring
territories, including Swiss merchants on their way to the
Frankfurt fair.
A large coalition (Austria, France, Bern and the towns and
knights of the Upper Rhine) moved to put an end to the
ambitious goals of the powerful Duke (who also wanted to
become King and even gain imperial crown). The siege of
Breisach and a revolt by both his German mercenaries and the
local citizens led to Hagenbach’s defeat as a prelude to Charles
death in the battle of Nancy in 1477 [24].
Already, the year before Charles was killed, the Archduke of
Australia, under whose authority Hagenbach was captured, had
ordered the trial of the bloody governor.
Instead of remitting the case to an ordinary court, an ad-hoc
tribunal was set up, consisting of 28 judges of the allied
coalition states and towns. In his capacity as the sovereign of
the City of Braisach, the Archduke of Austria appointed the
Presiding Judge. Considering the State of Europe at the time –
the Holy Roman Empire had degenerated to the point where
relations among its different entities had taken on a properly
international nature, and Switzerland had become independent
(even though this had not yet been formally recognized) – it
can be concluded that the tribunal was a real international one
[25].
At the trial, a representative of the Archduke acted as Plaintiff,
stating that Hagenbach had “trampled under foot the laws of
God and man”. More precisely, the defendant (Hagenbach) was
charged with murder, rape, perjury and other malefacta
including orders to his non-German mercenaries to kill the men
in the houses where they were quartered so that women and
children would be completely at their mercy. The tribunal
found Hagenbach guilty, and deprived him of his rank of
knight as well as related privileges (because he had committed
crimes which he had the duty to prevent). Hagenbach was
executed following the Marshal’s order: “Let justice be done”
[26].
This case is extremely interesting for several reasons. While it
is not easy to establish that the acts in question were war
crimes, since most of them were committed before the formal
outbreak of hostilities, at the time (as today) the borderline
between war and peace were difficult to distinguish and were
“fluid” than in later centuries. In any case, Breisach had to be
considered as occupied territory. Moreover, even if it is
difficult to classify these acts as war crimes, they can
nevertheless be considered as early manifestations of what are
now known as “crimes against humanity” [27].
Following World War 1, a Commission of the Peace
Conference reported that the war carried on by the Central
Powers was conducted by barbaric methods in violation of the
established laws and customs of war and the elementary laws
of humanity [28]. According to the Commission,
All persons belonging to enemy countries, however high
their positions may have been, without distinction of rank,
including Chiefs of states, who have been guilty of offences
against the laws and customs of war or the laws of
humanity and are liable to prosecution [29].
The Allies attempted via the Treaty of Versailles of 28 June,
1919, to try and punish individuals responsible for violations of
the laws and customs of war” [30]. Articles 227 – 230 of the
Versailles Treaty dealt with the issue of prosecuting the
German Emperor Kaiser Wilheim II and other “persons

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accused of having committed acts in violation of the laws and
customs of war” [31]. The Allied powers agreed to establish” a
Special Tribunal” composed of judges appointed by the United
States, Britain, France, Italy and Japan to try the accused
persons. In its decision, the tribunal would be guided by the
highest motives of international policy, with a view of
vindicating the solemn obligations of international
undertakings and the validity of international morality [32].
Before he could be tried, Emperor Wilheim made his way to
Netherlands where he was granted political asylum. A request
to extradite him was refused and he eventually died there in
1941 [33]. The German Government resisted surrendering any of
the accused. The Allied leaders realized that forcing Germans
to co-operate in the surrender of German military personnel
and politicians involved in war crimes would destabilize the
German government and would likely bring about a Bolshevic
revolution in the country [34]. A compromise was, therefore,
reached to try 854 suspects of a list prepared by Britain,
France, Belgium, Italy, Poland, Romania and Yugoslavia.
These suspects were to be tried in Germany by the Supreme
Court of the Reich in Leipzig. After other negotiations, the
Allied powers agreed to reduce the list to 45 individuals. Even
then, by the end, only 12 individuals were accused, and 6 were
convicted [35].
On 27 September, 2016, the International Criminal Court
entered conviction and sentence that marked several firsts in
the history of the Court. It found the accused – Ahmad Al-Faqi
Al Mahdi, guilty of the war crime of intentionally directing
attacks against buildings dedicated to religious, education, art,
science, or charitable purposes, historical monuments (in
violation of Article 8(2)(e)(iv) of the Rome Statute). He was
sentenced to 9 years imprisonment. Al-Mahdi’s conviction is
not only the first at the ICC arising from a guilty plea, but it is
also the first for destruction of cultural heritage. AL-Mahdi
destroyed nine mausoleums and mosque of Sidi Yahia during
2012 non-international conflict in Mali [36].
Period Between 1945 - 1990
After World War II, the idea of international justice was given
a new impulse with the determination of the main Powers
fighting the Nazi-regime to punish all “those German officers
and men as well as members of the Nazi party who have been
responsible to have taken a consenting part in… atrocities,
massacres, and executions” [37]. The major war criminals of the
European Axis countries were to be tried by an International
Military Tribunal (IMT), which was to be established in
Nuremberg [38]. Twenty four men of the political and military
leadership of the Third Reich were initially considered to stand
trial [39], but in the end, 22 accused [40] were prosecuted for
crimes of waging war of aggression, war crimes, and of crimes
against humanity [41] of whom one was tried in absentia [42].
Among these, 12 were convicted to death by hanging [43], seven
were convicted to sentences ranging from 10 years to life
imprisonment [44] and 3 were acquitted [45].
Nuremberg’s International Military Tribunal represents the
modern starting point and watershed at international level in
holding individual criminals responsible for international
crimes; it ended the Act of State doctrine previously claimed as
immunity by government officials to escape criminal liability
for international crimes.
Again, the main legacy of Nuremberg is the unambiguous
acceptance, in contemporary International Law, of the idea that
individuals may be held responsible for egregious crimes
committed in the name of a state policy.
The transformed world vision is perhaps best reflected in the
well-known statement of Justice Jackson during the Nuremberg
proceedings, when he noted that:
Crimes against international law are committed by men,
and not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of
international law be enforced [46].
The principles of individual criminal responsibility under
International Law was further applied in the trial of the
Japanese political and military leadership by the International
Military Tribunal for the Far East in Tokyo (IMTFE), which
albeit not being established on the basis of an international
agreement, had a function similar to the IMT [47].
Later the UN International Law Commission (ILC) under the
mandate of the General Assembly determined, by formulating
the Nuremberg principles, that:
Any person who commits an act which constitutes a crime
under international law is responsible therefore and liable to
punishment [48]
Period After 1990 to Date
The second generation of International Criminal Tribunals
carried forward the concept of individual culpability with
respect to international criminal law in the establishment of ad-
hoc international tribunals in the 1990s. In 1993, following the
widespread atrocities in Bosnia, the UN Security Council
established the International Criminal Tribunal for the former
Yugoslavia (ICTY) in the Hague, triggering a decade of
multilateral court building [49]. When, a year later, ethnic Hutus
slaughtered hundreds of thousands of Tutsis in Rwanda, the
UN Security Council created the International Criminal
Tribunal for Rwanda (ICTR), locating it in Arusha, Tanzania
[50]. The Security Council directed both so-called ad-hoc
tribunals to prosecute war crimes, crimes against humanity and
genocide. During this period of court building, the United
Nations convened governments and NGOs to establish a
permanent international criminal court with global jurisdiction.
These negotiations led to a treaty creating the International
Criminal Court (ICC) [51].
The United Nations has also established hybrid tribunals in
which international and domestic investigators, prosecutors,
judges, defense counsel, and other judicial sector professionals
try criminal cases together [52]. For instance, the Special Court
for Sierra-Leone, based in Freetown since 2002; the
Extraordinary Chambers in the Courts of Cambodia (also
known as the Khmer Rouge Tribunal), based in Phnom Penh
since 2006, bring together international and domestic personnel
and law in single institutions, prosecuting the most senior
officials responsible for atrocities, such as former Liberian
President Charles Taylor and the leading associates of Khmer
Rouge leader Pol-Pot, respectively.
The foregoing evolutionary trends of individual criminal
responsibility under International Law ultimately aims at
putting an end to the dark era of impunity in the global village
we inhabit. The emergence of global value systems of
democracy, good governance and the rule of law have led to
the growth of international (and transnational) institutions to

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offer realization of, guidelines to, and the enforcement of those
values. These global institutions and values seek to build on
local practices and institutions in order to generate domestic
consensus, credibility and acceptability [53]. These value system
and the need for their enforcement have led to the creation of
an international justice system whose raison d’etre is to bring
an end to the culture of impunity by both state and non-state
actors who violate human rights [54].
ICC, which was created by the Rome Statute in 1998 and
became operational on 1st July, 2002 seeks to give permanence
to the international efforts to wipe out impunity. It was created
to deal with serious crimes of international concern,
specifically, crimes against humanity, war crimes and
genocide.
In the words of former UN Secretary General Kofi Annan,
“there can be no healing without peace, no peace without
justice” [55]. Consequently, there can never be a just world
unless individuals are made accountable for their actions and
inactions under international legal order [56].
Nature and Dynamics of Individual Responsibility
International criminal law has developed over several decades,
marked by the foundation and refinement of general principles,
including theories of criminal responsibility. It is now well
established that a person bears responsibility for war crimes,
genocide, crimes against humanity and other international
crimes on the basis of the principle of individual criminal
responsibility [57]. The modern theories of criminal justice
draws inspiration from Kant’s individualistic approach to
criminal justice and responsibility informed by the philosophy
that individuals have free-will and are able to make rational
decisions and self-interested choices. Consequently, as
autonomous moral agents, they can fairly he held accountable
and punishable for the rational choices they make [58]. Only an
individual can act in violation of the law, only an individual
can be put in the dock for trial, and only an individual can
appreciate the pain and evils of suffering punishment. If state is
held responsible for acts of a culprit, then the culprit himself
goes unpunished [59].
The basis of making individuals personally responsible is to
put an end to the era of impunity by preventing perpetrators of
international crimes from hiding under Acts of State or
sovereign immunity. Existing international courts exclusively
punish individuals [60], (as opposed to other types of legal entity
such as states or corporation) [61], and imprisonment constitutes
the principal form of punishment imposed [62]. Principles
derived from domestic criminal law have played an important
role in the development of international criminal law [63].
International criminal law has adopted key philosophical
commitments of national criminal justice systems. The most
important of these is the focus on individual wrongdoing as a
necessary pre-requisite to the imposition of criminal
punishment. The international criminal law like most municipal
criminal law systems, maintains that “punishment may not
justly be imposed where the person is not blameworthy” [64].
According to Mirjan Damaska, the evolution of the criminal
law from its early days of collective tribal guilt reveals a steady
progression towards fixing punishment based solely on
responsibility for one’s own actions and personal degree of
culpability [65]. The Nigerian Criminal Code provides that a
man is directly responsible for the consequences of his actions
and omissions [66]. German Criminal Code declares that “the
guilt of the perpetrator is the basis for the determination of
punishment” [67]. Similarly, the French Criminal Code states
that one may only be held criminally responsible only for his
own actions.
Although, contemporary municipal criminal systems have in
many ways strayed significantly from the culpability principle
in practice, it still provides a leading theoretical and moral
basis for criminal punishment [68]. Indeed, most if not all
modern legal systems prevent the imposition of criminal
punishment for actions that were not a crime when taken [69].
Prospects of Individual Criminal Responsibility
Law has undoubtedly, exerted considerable influence on the
shaping of the human destiny. Indeed, it is no exaggeration to
aver that the evolution law has been a critical moment in
human experience [70]. Without it, it is practically impossible to
contemplate human society or as Roberto Unger once put it,
law is the glue that holds society together [71]. There is a
general awareness among members of the international
community that peoples of the world share a common destiny
and are joint shareholders in the survival of the planet [72].
Individual Criminal Responsibility has the following prospects
among others:
Strengthening Universality and Discouraging Strict
Adherence to the Doctrine of State Sovereignty.
One of the essential features of an international criminal
tribunal whether established ad-hoc by Security Council
pursuant to Chapters VI or VII of the UN Charter or whether
made permanent through a multilateral treaty – is that it
purports to exercise international criminal jurisdiction directly
over individuals living in states subject to the exercise of the
exclusive authority of such states [73]. It thus casts aside the
shield of state sovereignty. There is no doubt the establishment
of such tribunals and courts constitutes a major in-road into the
traditional omnipotence of sovereign states [74].
However, State Sovereignty resurfaces when it comes to the
day to day operation of the tribunals and its ability to fulfill its
mandate. This proves once again the remark made by a
renowned German Lawyer, Nlemeyer, earlier this century, he
pointed out that, “international law is an edifice built on a
volcano – state sovereignty” [75]. By this he meant that
whenever state sovereignty explodes into the international
scene, it may demolish the very bricks and mortar from which
the Law of Nations is built. It is for this reason that
international law aims to build devices to withstand the seismic
activities of the states to prevent and diminish their pernicious
effect. This metaphor is particularly apt in relation to an
international tribunal.
The tribunal must always contend with the violent eruption of
State Sovereignty. Hence, absolute sovereignty of state has
been compromised. Therefore, between international law and
municipal law, the atrocities of Nazi Germany effectively
nullified any such pretensions towards according primacy to
municipal law in modern times [76]. Indeed, quite a number of
countries today have constitutions which unabashedly proclaim
the primacy of international law over the constitutions
themselves as well as their countries legal orders. Accordingly,
any attempt to disparage international law in favour of
municipal law is today met with disdain and derision [77].
In practice, the area of domestic jurisdiction of state has further
dwindle, hence, matters such as human rights violation have

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now assumed universal status [78]. The obligation of states to
cooperate with an international tribunal, whether pursuant to a
binding Security Council resolution in the case of ad-hoc
tribunals or pursuant to their treaty obligations in the case of a
permanent international criminal court; requires each state to
enact implementing legislation or to amend its existing
legislation for this purpose.
A particular problem which arises with respect to most
implementing legislation enacted by states to date with regards
to the international tribunal [79] is the tendency to subsume
cooperation with international institution under the traditional
model of inter-state judicial cooperation. For example, many
states, in their implementing legislation, apply extradition
procedures to requests by the International Tribunal for
surrender of accused persons, some even referring expressly to
“extradition” of accused persons [80].
The application of the law of extradition to cooperation with
the ICTY is inappropriate. Extradition to a state and surrender
to an international institution are two totally different and
separation mechanism. The former concerns relations between
two sovereign states and is therefore a reflection of the
principle of equality of states. It gives rise to a horizontal
relationship [81]. The latter instead, concerns the relation
between a state and an international judicial body endowed
with binding authority: it is therefore the expression of a
vertical relationship. The Appellate Chambers of the ICTY has
recently noted that the relationship between national courts of
different states is horizontal in nature [82].
Strengthening Shift from Impunity to Accountability.
The idea of “a just world under law” in international relations
implies the desire of international lawyers to pose fundamental
questions about the world we live in and the role of
International Law in shaping that world [83]. Hence, there can
never be a just world unless individuals and non-state actors
are held accountable for their crimes, actions and inactions
given the increasing participation of individuals and non-state
actors in the process of international law-making while at the
same time subjecting those same actors to some form of
accountability under the international legal regime [84].
Following the World War I, a Commission [85] of the Peace
Conference reported that the war carried on by the central
powers was conducted by “barbarous methods” in violation of
the established law and customs of war and the elementary
laws of humanity. According to the commission:
All persons belonging to enemy countries however high
their position may have been, without distinction of rank,
including chiefs of States, who have been guilty of offences
against the law and customs of war or the laws of humanity
are liable for prosecution [86].
Article 237 of the Treaty with Germany thereafter provided:
The Allied and Associated Powers publicly arraigned
Emperor Wilhelm II of Hobenzollen, formerly German
Emperor, for a Supreme offence against morality and the
sanctity of treaties…
The sealed box of the State was clearly broken open in the case
of Emperor Wilhelm. However, before Wilhelm could be tried,
he escaped to Netherlands on asylum, the government of
Netherlands refused to extradite the Emperor and he was never
tried till he died [87]. The transformed world view is perhaps
best reflected in the well-known statement of Justice Jackson
during the Nuremberg proceedings when he noted that crimes
are not committed by states, they are committed by individuals
thus:
Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who
commit such crimes can the provision of international laws
be enforced [88].
The Article 7 of the Charter or Agreement setting up the
Nuremberg Tribunal of 8 August 1945, provides that:
The official position of the defendant, whether as Heads of
states or responsible officials in Government Departments,
shall not be considered as freeing them from responsibility
or mitigating punishment [89].
Commenting further on this, Starke stated, referring to the
principles as laid down by the Tribunal:
In these principles, as formulated references are to
‘persons’ as being guilty of crimes against the peace and
security of mankind. In the light of these principles too, one
point has been clarified, namely, that International Law can
reach over and beyond traditional technicalities, and
prevent guilty individuals sheltering behind the abstract of
the state [90].
In this vein, an unimaginable number of individuals have been
prosecuted and convicted for violation of International Law
and commission of atrocious crimes in disregard of their
official status or positions. Some of the prosecutions took place
before International Tribunals at Nuremberg and Tokyo. Adolf
Hitler committed suicide prior to the setting up of the
Nuremberg Tribunal [91]. In reality, the Head of State in office
at the moment of the Nuremberg trial was Admiral Doenitz
who became Head of State on 1st May 1945 succeeding Hitler,
he was prosecuted and convicted to ten yeas imprisonment for
war crimes and crimes against humanity [92].
The Nuremberg Tribunal sentenced the following people to
death. Hans Frank, Wilhelm Frick, Hermann Goring, Alfred
Jodi, Ernst Kaltenbrunner, Wilhelm Keitel, Martin Bormann,
Alfred Rosenberg, Fritz Sauckel, Joachim Von Ribbenstrop,
Arthur Seyss-Inquant and Julius Streicher and they were all
executed accordingly [93]. The Nuremberg Tribunal sentenced
Walter Funk, Rudolf Hess and Erich Reader to life
imprisonment while others were sentenced to various lesser
terms of imprisonment [94].
The Tokyo Tribunal sentenced seven Japanese military and
political leaders to death by hanging and they were executed in
Sugamo prison on 23 December, 1948, while sentencing 16
more to life imprisonment while others get various lesser jail
terms [95].
The Yugoslavia Tribunal (ICTY) indicted President Slobodan
Milosevic and four other top officials for war crimes, genocide
and crimes against humanity. Milosevic was indicted while in
office as serving President. He died in prison custody while
standing trial before ICTY [96]. Other indictees include Milan
Milutonovic (President Serbia and member of the Supreme

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Defence Council); Dragoljub Ojdanic (Chief of General Staff
of Yugoslavia Army), Nikola Sainovic (Deputy Prime –
Minister of Yugoslavia) and Vlajko Slojikovic Serbian
Minister of Internal Affairs) [97].
The trial of Milosevic at the war crimes Tribunal in the Hague
marks a victory for international humanitarian law over
impunity. According to Carla-Del-Poute the ICTY prosecutor,
“The trial of Milosevic proves that no individual is above the
law” [98]. ICTY has however convicted several accused [99] and
sentenced them accordingly.
The Rwandan Tribunal (ICTR) prosecuted and convicted Jean
Paul Akayesu [100] (the Bourgnestre of Taba); Jean Paul
Kambanda [101] (the Prime-Minister of Rwanda) among others.
The Special Court of Sierra-Leone has prosecuted several
persons who bear the greatest responsibility for the atrocities
committed in the territory of Sierra-Leone since 30 November
1996 [102]. The SCSL also tried and convicted Charles Taylor
[103] and in its historic judgment delivered on 30 May 2012
sentenced sixty four years old Charles Taylor to 50 years
imprisonment.
Across the world, the dictators have continued to face judicial
waterloo and this has also happened in Iraq in the celebrated
case of Saddam Hussein and a couple of his lieutenants who
were tried, convicted and sentenced to death by Iraq Special
Tribunal [104]. The International Court of Justice’s first trial of
Congolese militia leader
Thomas Lubanga began on 26 January 2009 and on 14 March
2012, the ICC found Lubanga guilty of war crimes (using child
soldiers) among others [105].
Other evidences of shift from impunity to accountability also
manifest in the municipal courts which exercise universal
jurisdiction over international crimes as shown in the case of
Augustus Pinochet [106] whose immunity as a head of state was
torn into shreds by the British court (the House of Lords)
which held that international crimes such as torture could not
constitute official or state functions. The court held further that
the International Law prohibition of crimes against humanity
rendered ineffective the immunity that was traditionally
accorded under customary international law for former state
officials or heads of state [107].
Again, Ethiopian Federal High Court convicted former
Ethiopian President – Megistu Haile Mariam of genocide and
crimes against humanity under Article 281 of the 1957
Ethiopian Penal Code [108]. Also, Hissene Habre, former
President of Chad is currently being held in Senegal for war
crimes, genocide, torture and crimes against humanity [109]. On
June 2, 2012, an Egyptian court sentenced 84 year old former
President Hosni-Mubarak to life imprisonment 2012, while
former Interior Minister – Habid al-Adly got life imprisonment
from the same Egyptian court [110].
The foregoing among others has shown a good prospect that
individual criminal responsibility doctrine has help
strengthened the shift from the dark era of impunity (of Idi-
Amin, Mobutu Sese Seko, Emperor Jean Bokasa etc) to the
new dawn of accountability and the future is bright. Hence,
accountability need to still be further and better strengthened.
Strengthening the Jurisprudence of International Criminal
Justice
One remarkable feature of the principle of individual criminal
responsibility under international law is that it has enhanced
the development of international criminal law jurisprudentially.
In the Akayesu judgment, for the first time in International
Law, an international court construed and applied the crimes of
rape and sexual violence in an international context, finding
that rape and sexual violence can constitute act of genocide.
Therefore, when committed with specific intent to destroy a
group, in whole or in part, rape and sexual violence constitute
genocide [111].
The initial indictment against Akayesu had not charged rape
and sexual violence, but during the early stages of the trial,
many witnesses recounted acts of rape and sexual violence.
The judges permitted an amendment to the indictment to add a
count of a crime against humanity (rape). The amendment
alleged that Tutsi women, who had sought refuge at the Bureau
Communal were repeatedly subjected to sexual violence, and
that Akayesu knew and encouraged these acts of sexual
violence. The evidence advanced in support of these
allegations was overwhelming [112].
In addition to finding Akayesu culpable for rape as a crime
against humanity, the Trial Chambers, of its own accord, made
an important pronouncement, namely, that the same acts of
rape and sexual violence under-pinning crimes against
humanity also constitute genocide [113].
Article 2, of the ICTR Statute, like the Genocide Convention
does not expressly identify rape and sexual violence as acts of
genocide, but includes two important actus-reuses, namely
“imposing measures intended to prevent births within a group”
and “deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction” [114]. In the
Chamber’s view, rape and sexual violence met the above two
requirements or forms of actus-reus of genocide [115].
The international tribunals have made significant contributions
to International Law with respects to the volume of case laws
on immunity of state officials. ICTR was the first international
criminal tribunal to prosecute and convict a former state
official – Jean Kambanda [116] for genocide and other violations
of international humanitarian law. The judgment sent a clear
message that immunities, such as those enjoyed by state
officials cannot be invoked as a defence to international crimes,
or as barring international criminal tribunals from exercising
jurisdiction over state officials.
Moreover, the ICTR’s approach to fair trial guarantee and
related matters are noteworthy. The tribunal emphasized that
defendants must enjoy fair trial guarantees [117]. In addition to
the redress of release, which appear to be available only in
exceptional circumstances, the ICTR’s jurisprudence holds that
other forms of effective redress are also available to accused
victims of rights violation, such as financial compensation [118]
or a reduction of sentence [119].
The Tribunal’s statute and Rule of evidence has further
elucidated its jurisprudential endeavour to ensure the rights of
the accused is properly balanced with those of the victims and
witnesses, the ICTR implements appropriate measure of
protection.
The ICTR has enriched the existing jurisprudence on the
criteria for determining an accused’s fitness to stand trial. The
ICTR in the Ngeze case [120] made a notable contribution to the
development of international criminal law by identifying the
factors which are relevant, namely: (a) his ability to stand and
his capacity to participate meaningfully in the said trial; (b) his
mental capacity to communicate with his defence counsel in a
comprehensive manner and his ability to instruct counsel with

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141
regard to his defence; and (c) the prognosis and proposed
treatment, if any [121].
The ICTR’s jurisprudence, like the ICTY, has emphasized that
in charging international crimes, indictments must spell out the
material facts underpinning the charges, as well as the specific
modes of criminal responsibility by which the accused
perpetrated the crimes (i.e. Commission, ordering, instigation,
aiding, and abetting or command responsibility) [122]. The
Tribunal’s jurisprudence that defects may be cured by post-
indictment communication of clear, timely and consistent
information promotes substantive justice [123].
It is pertinent to mention that similar strides were made by
other international tribunals of ICTY, SCSL and the ICC
details of which cannot be discussed here. The SCSL also
made significant contribution to International Law, including
decisions on immunity of state officials [124], enlisting or
conscripting children under the age of 15 years into armed
forces [125], sexual violence [126], forced marriage [127], judicial
impartiality, indictments and joinder of accused persons. It is
interesting to note that SCSL is the first international criminal
tribunal to try persons accused of recruiting child soldiers. The
SCSL in Prosecutor V Norman [128] handed down the first
judgment regarding recruitment of child soldiers and Thomas
Dyilo Lubanga is the first person to be found guilty by the ICC
and he was found guilty for using child soldiers among other
crimes [129].
The procedural regime of the ICC, composed of the Statute,
rules as well as the regulations and has also built on the basic
documents and jurisprudence of the ad-hoc tribunals. For
example, the procedures regarding victims have been
augmented and developed in the Rome Statute of the ICC,
most notably by the provision for representation of victims [130].
Moreover, it has been said that the framers of ICC statute
attempted to avoid an often criticized bias in favour of common
law procedures, choosing instead to blend aspects of the
adversarial and inquisitorial systems and innovate where
neither system had a rule that fit the court’s needs [131].
The Rome statute provides for a more comprehensive set of
general principles/substantive law, applicable to trials before
the ICC, and deals with, among others: (1) nullum crimen-sine
lege (no criminal offence without a pre-existing law), (2) nulla
poena sine lege (no punishment for a criminal offence without
a pre-existing law), (3) individual criminal responsibility, (4)
irrelevance of official capacity, (5) responsibility of
commanders and other superiors (6) the mental requirements
for the crimes within the jurisdiction of the court, (7) Grounds
for excluding criminal responsibility, and (8) the defence of
mistake of fact or mistake of law [132].
Also, the ICC statute provides greater responsibility towards
victims and a broader role for victims. The ICC statute requires
the prosecutor to take appropriate measures to protect the
safety, physical and psychological well-being, dignity and
privacy of victims and witnesses [133].
A significant departure from the practice of the adhoc tribunals
is the possibility for victims to have their own representatives
in order for their views and concerns to be presented where
their personnel interests are affected [134]. Interestingly the
drafters of the ICTY statutes considered provisions on the
appointment of a counsel for victims, but the proposal was
rejected [135].
The ICC statute also provides for reparation and Trust Fund for
victims of crimes. The inclusion of such provisions in the ICC
statute indicates an evolution in legal thinking, and the
recognition of victims rights as one of the rationales for
international criminal law and consequently bringing justice to
thousands of victims out there.
Both the ICTY and ICTR confirmed that the same event may
give rise to more than one offence [136]. In Tadic case the
Appeal Chambers of the ICTY recognized that the distinction
between internal and international conflict is artificial and loses
its relevance or importance taking into account the fact that
fundamental human rights should be guaranteed irrespective of
the classification of a conflict and that there are a growing
number of international instruments protecting civilians in
internal conflicts [137].
Furthermore, both ICTY and ICTR made significant
contributions to the evolution of the theories of criminal
responsibility as they are today, for instance, the theories Joint
Criminal Enterprise (JCE with all its variations) and the
command responsibility.
Undoubtedly, the jurisprudence of international criminal law
has greatly evolved through the lofty and collective legacies of
the International tribunals and the ICC. The pronouncements of
these courts or Tribunals on individual criminal responsibility
are therefore very significant. It is also apt to submit that the
improved jurisprudence of the international criminal law has
further help to strengthen the rule of law globally and
ultimately give justice to the victims.
The concept of individual criminal responsibility has high
prospect of better future. However, the future pace of progress
will depend on the efficacy of the International Criminal Court
and the cooperation of States.
Concluding Remarks
There is a general awareness among members of the
international community that peoples of the world share a
common destiny and are joint shareholders in the survival of
the planet. The very essence of the principle of individual
criminal responsibility is that individuals have international
duties which transcend the national obligations of obedience
imposed by the individual state. Hence, there can never be a
just world unless the individuals and non-state actors are held
accountable for their crimes, actions and inactions given the
increasing participation of individuals and non-state actors in
the process of international law-making while at the same time
subjecting those same actors to some form of accountability
under the international legal order.
Even though a lot remains to be done to make the principle of
individual criminal responsibility more effective. Any
comparism between the law today and that of yester-years
demonstrates that in the area of individual criminal
responsibility, International Law has clearly moved towards
much greater criminalization and accountability. This shift
appears in the international arena, involving international
criminal tribunals and international humanitarian law and on
the national level, with regards to the expanding criminal
responsibility of corporations. In national legal systems,
concepts of universality of jurisdiction and protective
jurisdiction have gained added force. International institutions
and more specifically international tribunals have enhanced the
development of international criminal law. The future pace of
progress will depend primarily on the efficacy of the
International Criminal Court and on the cooperation of states.
The problem is therefore not majorly with the existing legal

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142
instruments and available institutions but with enforcement and
implementation. Hence, since Nuremberg those who perpetrated
the worst crimes have too often escape justice.
Recommendation
The following recommendations are offered on how to
maximize and effectively implement the principle of individual
criminal responsibility under international law.
State sovereignty with all its imputations is a major obstacle
(the greatest challenges) to the effective enforcement of
international criminal justice. There is no doubt that the
establishment of international tribunals constitutes a major in
road into the traditional omnipotence of sovereign states.
However, state sovereignty resurfaces when it comes to the day
by day operations of the tribunal and its ability to fulfil its
manadate. Hence, it is recommended that states should
restructure or amend their municipal laws especially the
constitution to incorporate Restrictive Sovereignty Clause and
reinforce the No-immunity Rule. By so doing, states would be
voluntarily surrendering part of their sovereignty and freedom
of action to the international community especially on issues
bothering on human rights. Example of such restrictive
sovereignty clause can be found in the constitutions of the
Federal Republic of Italy, Article II of which provides:
Italy accepts subject to reciprocity from other states, such
limitations of its sovereignty as are necessary for the
establishment of the system of securing mutual peace and
justice among nations of the world.
Similar provision can be found in the constitution of Federal
Republic of Germany which provides:
In order to preserve peace… (the Federal Republic of
Germany) may join system of mutual security – consent to
those limitations of its sovereign powers, which bring a
peaceful and lasting order….among the nations of the world
[138].
The Federal Republic of France also has a clause, which
provides:
Subject to reciprocity – (Federal Republic of France)….
accepts such limitations of its sovereignty as are necessary
for establishing and maintaining peace [139].
There is the need for states which have not yet ratify the statute
establishing ICC to do so, while, a state like Nigeria need to
quickly domesticate the statute through the Act of the National
Assembly [140]. The foregoing will enhance and facilitate the
work of the ICC and other national and international
enforcement mechanisms.
Unlike national courts, international criminal tribunals and the
ICC have no law enforcement agency akin to a police
judiciaire. They thus rely primairly on the cooperation of
national authorities for the effective investigation and
prosecution of persons accused of violations of international
humanitarian/human rights laws.
Again, an extension of ICC jurisdiction over legal or juristic
persons is desirable. International criminal law is a rapidly
expanding field with much potential for ending impunity
relating to corporate criminality. A review of ICC statute to
incorporate jurisdiction over legal or juristic persons would
bring the Nuremberg precedents of Krupp, Flick and I.G.
Faben into the modern age, which would also have authority in
domestic jurisdiction. Interestingly, the Draft Protocol on the
Statute of the African Court of Justice and Human Rights has
made provision for corporate criminal liability under Article
46C of the Draft Protocol. This, provision, whose
implementation may be difficult still has the potential to
resolve some of the underlying perpetrators of conflict in
Africa that include corporate arm suppliers [141].
States should encourage and support national and international
commissions of inquiry and fact-finding mission established in
accordance with international standards. States should
cooperate fully with international and hybrid accountability
mechanisms established by the United Nations or with its
support. States that are party to the Rome Statute of the ICC
must incorporate the Rome Statute into their national
legislation and discharge their obligations to cooperate fully
with the court. States not party to the Rome Statute should
consider ratifying it.
There is a need to ensure national implementation of existing
legal framework. There is a body of International Law
(conventions/treaties, customary law, state legislations and case
laws) on this principle of individual responsibility. While there
are more areas in which law-making would be valuable, the
real challenge lies in the implementation of the plethoral of
existing legal framework.
States may have justice mechanisms based on tradition, custom
or religion operating alongside state institutions. Such as the
traditional Gacaca Panel in Rwanda. These systems can play an
important part in the delivery of justice services, including the
adjudication and determination of dispute. In this connection
states should therefore ensure that all laws and justice
mechanisms, including traditional and informal justice
mechanisms, are in line with international norms and standards.
Corruption is another challenge that needs to be addressed by
states. It is also recommended that states should provide
adequate resources including funding of the institutional
mechanisms or frameworks involved in enforcing individuals
accountability. Adequate resources should be provided to
enable them carry out more effective functions. The current
practice under which the institutions rely on epileptic donations
from states and international organizations should be
discouraged.
It is also recommended that the existing international judicial
mechanisms should collaborate and complement one another’s
effort and they should exchange or share information and
possibly engage in joint investigation. Domestic institutions too
should complement the efforts of the sub-regional, regional and
international institutions on the enforcement of individual
criminal responsibility. Again, states should strengthen the
capacity of domestic courts to perform effectively and
efficiently.
It is also recommended that the international community and
the UN as a body need to be sensitive to the domestic and
national dynamics in their pursuit of international justice. In
this regard international packages should be adapted to the
tradition and culture of the peoples and their communities.
Also, it is recommended that the national civil society groups
should be watchdogs over the rights of their respective
communities and lead in demanding accountability from their
governments for their international obligation especially in

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143
cases that address impunity within their shores. Also,
international civil society groups [142] should continue to build
and strengthen international justice, promote the expansion and
utilization of universal jurisdiction, monitor the impact of
international justice in ICC situation countries, ensure that
international justice is accountable to victim communities and
develop a programme of research and monitoring on
international justice. We have entered a phase in the evolution
of global civil society which is characterized by a transition
from international to cosmopolitan norms of justice which are
useful in combating impunity and in working towards global
justice.
It is recommended that in addition to focusing on individual
accountability, also, the underlying root causes of violence and
criminality should not be ignored including poverty, inequality
and cultural memory. I also urge a more reflexive
understandings of how the rule of law movement impacts
societies and recommends that justice advocates should focus
both on criminal responsibility and addressing structural
inequalities.
Also, it is recommend that democratization of governance
across the globe is a new road to peace and stability.
References
1. See 2006 ASIL Annual Meeting theme, available at <
www. asil.org/events/am06 theme. html>; Nmehielle, V.O.
(2006)“A Just World Under Law: An African Perspective
on the Status of Individual in International Law, 254
A.S.I.L. Proc. 249,.
2. Ibid
3. Rebecca MMW. International Law, London, Sweet &
Maxwell Ltd, 56-58; Schneeberger, E. (1941-1947) “The
Responsibility of the Individual Under International Law,
35 Georgetown. L.J481. 2005.
4. Henkin L. International Law: Politics, Values, and
Functions, in 216 Collected Courses Of The Hague
Academy Of International Law. 1989; 13(4):208.
5. Nmehielle, supra note 1.
6. Idolsen. The Law of Nations and the Individual, 30
Transactions Of The Grotius Society 50; Stimson, (1947)
The Nuremberg Trial: Landmark in Law,25 Foreign
Affairs 179; Smith,(1946) The Nuremberg Trails 32
A.B.AJ 394, “... guilty individuals should not escape by
relying on the age long excuses that the acts done were
done by the state “ Lippmann, (1946)One World or None
68, “… it is to have laws operate upon individual …..1945
7. Oyebode A. International Law and Politics: An African
Perspectives (Bolabay Publishers, Lagos). 2003, 206.
8. Adedamola K. Accountability for War Crimes, the
Concept of Asylum and Charles Taylor’s Saga: Issues and
Challenges, 1 Ikeja Bar Journal, 2005, 26.
9. Oyebode, supra note 7. Dr.Babalola Abegunde,Head,
Department of Public Law,Faculty of Law, Ekiti State
University,Ado-Ekiti. E-mail :
babalola.abegunde@eksu.edu.ng, Tel: +234-8037446738.
10. Turack DC. The Criminal Responsibility of Individuals for
Violations of International Humanitarian Law.33 Cap.U.L.
Rev. 2004-2005, 525.
11. Ibid
12. Shelton D. The Status of the Individual in International
Law, 100 Am. Soc.y Int’l.L. Proc. 249; Oppenheim, L,
(1912). International Law, 2nd ed. Oppenheim is a great
proponent of the classical school of thought. 2006.
13. Nmehielle VO. A Just World Under Law: An African
Perspective on the Status of the Individual in International
Law, 100 Am. Soc’y Int’l L. Proc. 2006, 253.
Schneeberger, E., (1941-1947). The Responsibility of the
Individual under International Law”, 35 Geo. L.J. 481.
14. Henkin L. International Law: Politics, Values and
Functions, in 216 Collected Courses of the Hague
Academy of International Law. 1989; 13(4):208.
15. Ibid.
16. Rebecca MMW., International Law, Sweet & Maxwell,
London, 5thed. 2005, 59-81.
17. E.g. 1926 Slavery Convention; 1956 Supplementary
Convention on the Abolition of Slavery, Slave Trade and
Institutions and Practices similar to Slavery; International
Convention for the Suppression of Traffic in Women and
Children, 60 U.N.T.S 416; United Nations Charter, Article
1 (3); Universal Declaration of Human Rights 1948;
Covenant on Civil and Political Rights 1966; Covenant on
Economic and Peoples Rights 1981; European Convention
on Human Rights and Fundamental Freedom 1950;
American Convention on Human Rights 1951 etc.
18. Lord Templeman. Revision Workbook Public
International Law, Old Bailey Press, London, 1st ed. 2000,
4:48-49
19. Ibid.
20. Tokyo Convention on Offences and Certain Other Acts
Committed on Board Aircraft 1963, Hague Convention for
the Suppression of Unlawful Seizure of Aircraft 1970, and
the Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation 1971.
21. See The Rome Statute of the International Criminal Court
(ICC) 2002.
22. Greppi E. The Evolution of Individual Criminal
Responsibility under International Law in I.R.R.C, NO
835, Pp. 1- 20; Schwarzenberger, G., (1968), International
Law as Applied by International Courts and Individuals,
Vol. II: The Law of Armed Conflict, Stevens, London, P.
15; Ogren, K. Humanitarian Law in the Articles of War
Decreed in 1621 by King Gustavos II Adolphus of
Sweden”, IRRC, No 313 July – August 1996, P. 438. The
Swedish Articles of War had considerable influence in
Europe. 1999.
23. Greppi E. op. cit (n.13), p:2; Timeline – War Crimes Trials
from Ancient Rome to Geneva and Beyond available at
http//www.rnw.nl/international justice/article/timeline-
war-crimes-trials-ancient-rome-geneva-and-beyond; The
New International Encyclopedia/Hagenbach Peter Von,
available at
http://enwikisource.org/wiki/The_New_InternationalEncyc
lop% C3 % Abdia/Hagenbach, - Petervon; Peter Von
Hagenbach – Profiles and Historical Records –
Ancestry.com available @
http://records.ancestry.com/Peter_Von_Hagenbachrecords.
ash?pid=65401456.
24. Greppi, E., op.cit (n.13) P.3
25. Schwarzenberger, G. op. cit (n.13), p.464
26. Greppi, E. op. cit.
27. Ibid
28. Commission on the Responsibility of the Authors of the
War and on Enforcement of Penalties Report presented to

International Journal of Law
144
the Preliminary Peace Conference reprinted in 14 A.J.I.L
95, 115 (1920).
29. Ibid.
30. Text in The Treaties of Peace 1919 – 1923, Vol. 1,
Carnegie Endowment for International Peace, New-York,
1924, 121
31. In particular Article 227 declared that Kaiser Wilheim of
Hohenzollen was responsible “for a supreme offence
against international morality and the sanctity of treaties”.
Article 228 declared that “the German government
recognizes the right of the Allied and Associated powers to
bring before military tribunal persons accused of having
committed acts in violation of the laws and customs of
war”.
32. See Article 237 of the Treaty of Versailles 1919. See also
Garner, J.W. (1920), “Punishment of Offences Against the
Laws and Customs of War”, 14 A.J.I.L. 70, 91.
33. deThan C, Shorts E. International Criminal Law and
Human Rights, Sweet & Maxwell, London P.27; Willis,
J.F., (1982), Prologue to Nuremberg – The Politics and
Diplomacy of Punishing War Criminals of the First World
War, Greenwood Press, Westport/London, P.88. The
sealed box of state was clearly broken open at last. 2003.
34. Eugenio JGA. Setting Standard for Domestic Prosecution
of Gross Violations of Human Rights Through the ICC:
International Jurisdiction for Willful Killings in Brazil? In
the ICC: Challenges and Prospects: European Inter-
University Centre for Human Rights and Democratization
(EIUC), Venice. 2006, 1-34
35. Ibid; Ahlbrecht H., Gestchicte der Volkerrechtlichen
Strapgerichtsbarkeitim 20.Jahrhundert, Baden-Baden:
Nomosverlagsgesellschaff, 1999.
36. Prosecutor v Ahmad Al-Faqi Al-Mahdi Marina L.
Prosecutor v Al-Mahdi: A Positive New Direction for the
ICC, Opinio Juris,available @ opiniojuris.org, assessed on
Sunday 12th February, 2016-2017.
37. Declaration of German Atrocities (also known as “Mosco
Declaration) adopted on 1-11-1943 at the Mosco
Conference attended by the Heads of State or government
of the US, Britain, and the Soviet Union. Full text is
available in Bassiouni, M. C., (1992) Crimes Against
Humanity in International Criminal Law, MartinusNijhoff
Publishers, 573-574.
38. Cf. Agreement for the Prosecution and Punishment of
Major War Criminals of the European Axis, signed in
London on 8/8/1945 (a.k.a. London Agreement”),
available in Bassiouni, M.C., Crimes Against Humanity in
International Criminal Law, op.cit., PP – 579 – 581.
Article 1 of the Nuremberg Chater 1945 vested the tribunal
with jurisdiction to try war criminals whose offences have
no particular geographical location. The trial before the
IMT at Nuremberg began on 20th November, 1945 and
pronounced its verdicts on 30th September, and 1st October,
1946.
39. The leaders included in this list were Herman Wilhelm
Goring, Rudolf Hess, Joachim Von Ribbentrop, Wilhelm
keitel, Hans Fritzsche, Fraiz Von Papen, Ernt
Kaltenbruner, Alfred Rosenberg, Hans Frank, Wilhelm
Frick, Julius Streicher, Walther Funk, Karl Donits, Erich
Raeder, Baldur Von Schirach, Fritz Saukel, Alfred Jodi,
Arthur Seyss – Inquart, Albert Ley, Gustav Krupp Von,
Bohlen und Halbach. See Eugenio, J.G.A., op. cit. n. 25,
P.4
40. Robert Ley committed suicide before the beginning of the
case and Gustav Krupp was considered in-capacitated to
stand trial.
41. The crimes were defined in Article 6 of the Charter of the
IMT, annexed to the London Agreement. Text available in
Bassiouni, M.C. Crimes Against Humanity in International
Criminal Law, op. cit. 582–585.
42. i.e. Martin Bormann was tried in absentia.
43. Sentenced to death were: Hermann Wilhelm Goring
(Committed suicide before being executed), Joachim Von
Von Ribbentrop, Wilhelm Keitel, ErntKaltenbruner,
Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius
Streicher, Fritz Saukel, Alfred Jodi, ArthusSeyss – Inquart
and Martin Bormann (not executed).
44. Rudolf Hessc (life imprisonment), Walter funk (life
imprisonment), Karl Donitz (10 years imprisonment),
Erich Rader (Life imprisonment), Baldur Von Schirach
(20 years imprisonment), Albert Speer (20 years
imprisonment, Konstantin Von Neurath (15 years
imprisonment).
45. Frank Von papen, Hans Fritzche and Hjalmar Schacht. It is
pestinent to note that they were all later convicted by
German Courts.
46. The Judgment Nuremberg (30 September, 1946). Full text
published by the Stationery Office, London: 1999, p.84.
47. The IMTFE was established by an Act of the “Allied
Supreme Commander for the Pacific Theater”, General
Douglas McArthur, and not by an agreement like the IMT.
By this Act the Charter of the IMTFE was also
promulgated, and modeled after the IMT Charter and
shares provisions on punishable crimes. It is pertinent to
mention here that both the IMT and IMTFE represent the
first generation of modern or contemporary international
criminal tribunals for the prosecution of international
criminals. Another relevant point deserving mentioning
here is the Control Council Law No 10 of 20 December,
1945 (CCL No.10). With the CCL, the Allied Control
Council for Germany accepted and improved upon the
models of the Nuremberg war crimes trial. The CCL was
intended to ensure that “the subsequent trials” in the four
occupied zones would rest on a uniform legal basis.
Numerous national trials took place, including the twelve
so called Nuremberg subsequent trials (1946-1949). For
crimes against humanity, CCL No. 10 included an
improvement that still has an effect today: the nexus to
war crimes or crimes against peace required by the
Nuremberg Charter was eliminated.
48. Nuremberg Principle 1, in 5 UN GADR Supp. (NO. 12) 1,
U.N. Doc. A/1316, 1950
49. See United Nations Security Council document
S/RES/827, May 25, 1993,
http://www.icty.org/x/file/Legal%20Library/Statute/statute
_827_1993_en.pdf
50. See UN Security Council document S/RES/1995,
November 8, 1994,
http://www.unictr.org/portals/o/English/Legal/Resolutions/
English/955e.pdf. See also Kaye, D.A., (2011) Justice
Beyond -The Hague Supporting the Prosecution of
International Crimes in National Courts, in Council
Special Report. 2011; 61:7-9.

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51. On July 17, 1998, the ICC Statute was adopted by 120
states at an International Conference in Rome. It entered
into force on July 1, 2002. By 2003, the ICC opened its
office in The Hague, The Netherlands. Unlike the IMT,
IMTFE, ICTY, and ICTR, the ICC is not a temporary but
permanent Court. Its jurisdiction is limited to certain
conflict or time periods (See Article I, II etseq of the ICC
statute). However, the Court is subject to the principle of
complimentarity i.e. it can only act if states are unwilling
or unable to carry out criminal proceedings (see Article 17
of the ICC statute). The ICC statute contains detailed
provisions on genocide, crimes against humanity and war
crimes (See Articles 5 – 7 of the ICC statute. For the first
time, general principles of international criminal law were
codified (see Articles 22 – 23 of the ICC statute).
52. See generally Cesare, P.R. Romano, Andre Nollkaemper,
and Jann K. Kleffner, (eds), Internationalized Criminal
Courts, Oxford University Press, Oxford, 2004; Dickinson,
L.A., (2003), The Promise of Hybrid Courts, A.J.I.L. 95,
295-310.
53. International Justice System and International Criminal
Court: Opportunities and Challenges for Uganda, Synthesis
Report, Uganda Law Society & Friedrich Ebert Stiftung,
Kampala, Uganda, 2007, 1- 9.
54. Ibid
55. Ibid
56. See 2006 ASIL Annual Meeting Theme, available at
www.asil.org/events/am06theme.html.
57. Gerhard W. Principles of International Criminal Law,
(T.M.C Asser Press 94); Cryer, R., (2004) General
Principles of Liability in International Criminal Law, in,
McGoldrick, D., Rowe, P. & Donnelly, E. (eds), The
Permanent International Criminal Court: Legal and Policy
Issues, 235, Hart Publishing; Schneeberger, E, (1947),
“The Responsibility of the Individual under International
Law, 2005, 35 Geo. L.J. 481-489, 1946-1947
58. Dennis I. The Critical Condition of Law”, 50 Current
Legal Problems, 237;Kamatah, J.M. (2003), “The
Challenge of Linking International Criminal Justice with
National Reconciliation: The case ICTR, Journal of
International Law. 1997; 16:115-133.
59. Schneeberger E. The Responsibility of the Individual
under International Law”, 35 Geo. L.J. Pp. 481-489. The
principle focuses on the criminal liability of natural
persons in International Law, taking it beyond the notion
of state responsibility. 1997.
60. The judgment of the IMT at Nuremberg is the canonical
source of this proposition. It declared that, “Crimes against
International Law are committed by men, not by abstract
entities, and only by punishing individuals who commit
such crimes can the provisions of International Law be
enforced” IMT judgment, in Trial of the Major War
Criminals before the IMT at Nuremberg, 14 November,
1945 – 1 October 1946, 171, 223 (1947).
61. Some scholars argued that corporations may be punished
under Customary International Law, see, e.g. Stephens, B.,
(2002); “The Amorality of Profit: Transnational
Corporations and Human Rights,” 20 Berkeley J. Int’l L.
45, 73 – 78, although none of the statutes of the existing
international fora explicitly provides for such prosecution.
62. The ICC may also in addition to imprisonment, order that
a fine be imposed on a convicted person and that he forfeit
property or asset derived from the crime. Article 77 of the
ICC statute. ICC may also order a convicted person to
make reparations to the victim. See Article 75 of the ICC
Statute. See Danner, A.M., and Martinez, J.S, (2005)
“Guilty Associations: Joint Criminal Enterprises,
Command Responsibility, and the Development of
International Criminal Law,” Cal. L. Rev. 1-77.
63. For a criticism of this transposition of domestic criminal
law into the international sphere, See Tallgren, I., (2002)
Sensibility and Sense of International Criminal Law, 13
Eur.J.I.L.561.
64. Sanford HK. Why Substantive Criminal Law – A
Dialogue, in Blame and Punishment, 3, 12; Danner and
Martinez, op. cit. 1987, 5
65. Damaska M. The Shadow Side of Command
Responsibility, 49 Amer. J. Comp. L. 2001, 455-470.
66. Section 24 Criminal Code Law of Federation of Nigeria
2004
67. Section Criminal Code Law of the Federal Republic of
Germany. 46(1).
68. Danner & Martinez, op. cit. P. 6; Levinson, D.J.,
Collective Sanctions, NYU Law School, Public Law
Research Paper No. 57, at 3 (“Liberal conceptions of
morality insist that agency and responsibility be attributed
only to individuals, not groups”), available at
http://ssm.com
69. Fletcher G. Basic Concepts of Criminal Law 207; Shelton,
D (2002), “Hierarchy of Norms and Human Rights: Of
Trumps and Winners”, 65 Sask.L. Rev. 299, 314.
Individual criminal responsibility embraces both
commission of crime in person and participation in a group
criminality. 1998.
70. Oyebode A. of Norms, Values and Attitudes: The Cogency
of International Law, Being an Inaugural Lecture
Delivered at the University of Lagos Main Auditorium on
Wednesday 7th December, 2011, 1-61 at 3.
71. Unger RM. Law in Modern Society, P. 47; Oyebode, op.
cit. 1976.
72. Oyebode, op. cit. P. 13
73. Cassese, A (1998), “On Current Trends towards Criminal
Prosecution and Punishment of Breaches of International
Humanitarian Law”, E.J.I.L, 9, 1-17 at 11.
74. Ibid.
75. Nlemeyer HG. Einstweilige Verfugungen des Weltyerich
Schofs thr Wesen und thre Grenzen. 1932, 3.
76. Oyebode, op. cit. P. 13
77. Ibid
78. Kaczorowska A) Public International Law, Old Bailey
Press London, P. 94 see generally Article 2 (7) Charter of
the UN, 1945; Universal Declaration of Human Rights.
1948; See also Abegunde, B, (2009), Public International
Law, Petoa Educational Publishers, Ado-Ekiti, P. 115.
Human rights norms are now jus-cogens and superior to
the powers of the state. See Shelton D (2006) “The Status
of Individual in International Law, A.J.I.L, 2003, 250-253
at 252.
79. As at 10 November 1997, the following 20 states have
enacted legislation regarding the International Criminal
Ttribunal for the former Yugoslavia: Italy, Finland,
Netherlands, Germany, Iceland, Spain, Norway, Sweden,
Denmark, France, Bosnia and Herzegovina, Australia,
Switzerland, New-Zealand, USA, UK, Belgium, Croatia,

International Journal of Law
146
Austria and Hungary. Four countries have indicated that
they do not need implementing legislation (Korea, Russia,
Singapore and Venezuela).
80. E.g. Article 2 Denmark Act on Criminal Proceeding before
ICTY; Article2 Norway’s Act; Article II of Italy’s Decree
Law No 544 of 28 December 1993.
81. Cassese, Op. Cit. P. 13
82. Ibid
83. See 2006 ASIL Annual Meeting Theme- available at<
www.asil.org/events/am06/am06/theme.html>
84. Nmehielle, V.O. (2006) ASIL Proceedings P. 252.
85. Commission on the Responsibility of the Author of the
War and on Enforcement of Penalties, Report presented to
the Preliminary Peace Conference reprinted in 14 A.J.I.L
95, 115 (1920).
86. Ibid
87. Shelton D. The status of the Individual in International
Law, AJIL, 2006, 250-253.
88. Judgment of the International Military Tribunal, in the
Trial of German Major War Criminals: Proceedings of the
Tribunal sitting at Nuremberg, Germany, Part 22, (1950),
London, P.447.
89. Article 7 Charter of the Nuremberg Tribunal 1945. The
same provision is incorporate in the statutes of subsequent
ad-hoc Tribunals e.g. Tokyo Tribunal, ICTY, ICTR, SCSL
and the ICC.
90. Starke JG. Introduction to International Law 9th ed. P. 60;
Ohurogu, CC and Olagunju, A.G. (2004), Fostering
International Peace and Security. The Different Facets of
the Peace Process and the Continuing Challenges of the
United Nations, “being a paper presented at the 40th
Annual Conference of the Nigerian Association of Law
Teachers (NALTS) held at the Nigerian Institute of
Advance Legal Studies, Lagos, Nigeria, from 16-19 May,
2004.PP 1- 21 at. Hence, individuals have a duty to
maintain international peace and security failing which
criminal accountability necessarily follows. 2003.
91. Racsmany ZD. Prosecutor V Taylor: The Status of the
Special Court for Sierra-Leone and its Implication for
Impunity, Leiden J. Int’l L. 2005 299-338.
92. Ibid. See also European J. Int’l L. 1996-2004 European
University Institute P. 6. Proceedings at the Nuremberg
Tribunals 20 November 1945 – 1st October 1946.
93. Wikipedia, free encyclopedia, http://www.wikipedia.org
94. Ibid. For instance Albert Speer, Balder Von Schirach got
20 years imprisonment each, Baron Konstantin Von got 15
years imprisonment, Karl-Donitz got 10 years
imprisonment etc. While Hans Frank and Dr. Hjalmar
Schacht were acquitted.
95. Those who received death sentence are General Kenji
Doibara (Airforce Comander); Baron Koki Hirota (Foreign
Minister); General Seishiro Itagaki (War Minister), and
Generals Heitaro Kimura, Iwane Matsui, Akira Muto, and
Hideki Tojo. Those sentenced to life jail include General
Sadao Araki, Colonel Kingoro Hashimoto, Fielsd Marshal
Shunroku Hata, Baron Kichiro Hiranuma (prime minister)
Naoki Hoshino (Chief Cabinet Secreatry), Okinori Kaya,
Marquis Koichi Kido (Lord Keeper of Privy Seal), General
Kuniaki Koso (Governor of Korea), General Jiro Minami
(Army Commander), AdmiralTakasumi Oka (Naval
Minister), General Kenryo Suto (Chief of Military Affairs
Bureau), Admiral Shigetaro Shimada, Toshio Shiratori
(Ambassador to Italy), General Teichi Suzuki (President
Cabinet Planning Board), General Yoshijiro Umezu. See
generally judgment and proceedings: International Military
Tribunal for the Far East available at
http://www.ibibio.org/hyperwar/PTO/IMTFE/index.html.
96. The indictment of Milosevic et al case 17-99-37-1, ICTY,
May 24, 1999. See generally http:www.un.org/icty/glance-
e/index.html.
97. Ibid
98. Del-Poute’s November 2000 address to the United Nations
Security Council, Prosecutor to ICTY No. 2001, New
York
99. See generally, Prosecutor V Endemovic, case No IT-96-
22-A Appeal Chamber 7 October 1997 (life jail);
Prosecutor V Tadic Case No IT-94-1 Appeal Chambers 15
July 1999, (life jail); Prosecutor V Blagojevic and Jovic
case No IT-02-60-Trial Chamber of 17 January 2005 etc.
100. Prosecutor Akayesu V. case No ICTR – 96 – 4- T
delivered. 2008.
101. Prosecutor V Kambanda case No ICTR-97-23 S delivered.
2008.
102. See Prosecutor V Fofana & Kondewa Case SCSL-04-14-
A) Appeal Judgment 28 May 2008 where Fofana got 15
years imprisonment while Kondewa got 20 years;
Prosecutor V Sesay, Kallon and Gbao (Case SCSL-04-14-
A) Appeal judgment 25 October 2009 which sentences
Sesay to 52 years, Kallon 40 years and Gbao to 25 years
imprisonment. Prosecutor V Brima, Kamara and Kanu
(Case SCSL-04-16-T) judgment of 19 July, 2007, Brima
got 50 years, Kamara got 45 years and Kanu got 50 years
imprisonment.
103. Prosecutor V Charles Taylor Case SCSL-2003-01-1) 3
March 2003, Leke Baiyeku, Taylor: Lesson for African
Tyrant, PUNCH, Sunday June 3, 2012. P. 11.
104. Stahn C. The Geometry of Transitional Justice: Choice of
Design, Leiden J.Int’l L. 18, No 3 PP 424-466. Saddam
Hussein was hanged on 30 December, 2006. Also, hanged
areTaha Yasin Ramadan (the Vice-President to Saddam
Hussein), Ali-Hassam al-Majid (a.k.a. Chemical Alli),
Sultan Hashim (former Defence Minister), Hussein Rashid
al-Tikrit (Head of Republic Guard). They were found
guilty of war crimes, genocide and crimes against
humanity. Others sentenced to life imprisonment are
Farhan al-Jibouri (ex-military Commander), Saber Abdul
Aziz (ex-Intelligence Chief). See also PUNCH Newspaper.
2005-2007, 43.
105. Prosecutor V Dyilo Lubanga Case ICC-01/04-01/06,
January 2009 available at www.icc-cpi.int. Other indictees
who are currently in ICC Detention Centre and are
standing trial before ICC are German Katanga, (a.k.a
Simba a former leader of the Patriotic Resistance Force in
Ituri DRC); Mathieu Ngudjolo Chui (also a Congolese
Warlord); Jean-Pierre Bemba (a former Vice-President in
the DRC). See generally ICC website: www.kc-cpi-int.
Also, ICC has issued several arrest warrants particularly
interesting is the one issued against Omar-al-Bashir the
President of Sudan for atrocity crimes and also against the
Janajweed militia leaders Ali Kushayb
106. In Re-Pinochet. 2 WLR; Jallow H & Ben Souda, F, 2008
“International Criminal Law in an African Context” in
African Guide to International Criminal Justice published
by Institute for Security Studies, Pretoria, S/Africa, PP 25-

International Journal of Law
147
55, at 19-21. Although Pinochet died without having been
convicted of any of the crimes committed during his
regime, the case demonstrated that immunity does not
shield any head of state. 1999.
107. Ibid
108. Babatunde IO, Abegunde B. Investigating and Prosecuting
International Crimes Domestically; Rethinking
International Criminal Law Essays in Honour of Niyi
Idowu, by Justice Chambers Obafemi Awolowo
University, Ile-Ife. 2012, 16.
109. Ibid
110. Ibid. See also the trial of Adolf Eichmann pursuant to
Israeli Nazis and Nazi Collaborators (Punishment) Law of
1950. Eichamann was tried, convicted and sentenced to
death by Israeli domestic court. See Att. Gen. Israel V
Eichmann (1961) 36 ILR 18, 50; 1962 36 ILR 277.
111. Prosecutor V Akayesu (supra) para 743; Mugwanya, G.W.
“The Contribution of the International Criminal Tribunal
for Rwanda to the Development of International Law” in
Murungu C & Biegon, J (eds), Prosecuting International
Crimes in Africa, Pretoria University Law Press Pp. 63-93
at 68-71
112. Ibid. Previously rape was recognized as a crime against
humanity and a war crime, but not genocide.
113. Ibid
114. Ibid
115. Ibid
116. Prosecutor V Kambadan (supra) paras 42-44
117. See Barayawiza V Prosecutor case ICTR 97-19-Judgment
3 November 199. See Decision on Prosecutor’s Request
for Review or Reconsideration 31 March, 2000
118. Rwamakuba V Prosecutor, Case ICTR-98-44C-A 13 Sept.
2007
119. Prosecutor V Barayawiza (Supra) para.75
120. Prosecutor V Nahimana et al Case ICTY-99-52-T 20 Feb.
2001
121. Ibid
122. Mugwanya, op. cit P. 94
123. Ibid
124. Prosecutor V Charles Taylor (supra) para 545-53
125. Prosecutor V Fofana and Kondewa (supra) para 182-199
Prosecutor V Norman, Fofana and Kondewa SCSL-04-14-
T 25 may 2005 Para. 9
126. Article 2 (g) statute of SCSL, Prosecutor V Norman,
Fofana & KOndewa (Supra) para 19.
127. Article 2 (g) statute of SCSL, Prosecutor V Sesay, Kallon,
and Gbao (Supra) paras 36, 50, 51, 57; see also Prosecutor
V Brima, Kamara and Kanu (supra) paras 36, 51-52, 57
128. Prosecutor V Norman et al (supra)
129. Prosecutor V Lubanga (supra)
130. Gurmendi FSA. Elaboration of the Rules of Procedure and
Evidence in Lee.R (ed) The International Criminal Court:
Elements of Crimes and Rules of Procedure. New York
Transnational Publishers. 2001, 256.
131. Sadat L. The Legacy of the ICTY: The International
Criminal Court. New England Law Review. 2002;
37(4):1076.
132. See generally Part 3 of the Rome Statute of the ICC. 2002.
133. Jallow & Bensouda, Op. Cit P. 45
134. Ibid. P.46. See also Article 68 (3) ICC Statute.
135. Morris V, Scharf M. An Insider’s Guide to the
International Criminal Tribunal for former Yugoslavia: A
Documentary History and Analysis, P. 167; Tochilovsky,
V., (2002) “Proceedings in the International Criminal
Court: Lessons to Learn from the ICTY Experience”.
European Journal of Crime, Criminal Law and Criminal
Justice. 1996; 10(4):273.
136. Prosecutor V Akayesu ICTY case (Supra); This matter
was further examined in Prosecutor V Delalic et al case
ICTY-IT-96-21. Appeal chambers. See also Kaczorowska,
A. Op. Cit. PP. 506 – 7.
137. Prosecutor V Tadic ICTY Appeal) (supra).
138. Article 24 (2) Constitution of Federal Republic of
Germany.
139. Paragraph 15 (Preamble) to the 1946 Constitution of
France.
140. Section 12 (1) of Constitution of Nigeria 1999; Fawehinmi
V Abacha (2000) 6 NWLR (Pt 228), Pp. 351-352;
Trendtex Trading Corporation V Central Bank of Nigeria
(1977) 1 ALL.E.R. 881
141. See Doc.Ex.CL/731(XXI)a, July 13, 2012 available at
http://www.au.int/en/sites/default/files/Ex%20CL%20696-
725%20(XXI)%200CLpdf
142. Such as Centre for Human Rights and International Justice
(CHRIJ), Coalition for International Criminal Court
(CICC), Human Rights Watch (HRW), Campaign Against
Impurity (CAI) etc. These NGO enjoyn global network.