Individual responsibility

Individuals, whether or not actively involved in armd conflict, are to respect standards of human rights and international humanitarian law. Otherwise, they may be held criminally resposible for their role in war crimes, crimes against humanity and genocide.

To establish individual criminal responsibility, the following steps can be used:

Step 1: criminal act and guilty mind

For individual criminal responsibility to occur, two preconditions should be met:

• A criminal act (objective)
• A guilty mind (subjective): knowledge and intent as to the conduct/consequences

Step 2: commission or omission

Accountability may arise from both the active commission of a crime, or the omission to act and/or prevent a crime. 

Step 3: modes of participation

There are various ways by which individuals may become liable for their participation in a criminal act. The terminology varies per jurisdiction or judicial approach. Yet the can be summarized as: 

• Commission as an indivudual
• Joint commission
• Commission through another person
• Instigating or ordering the commission of a crime
• Providing assistance in the commission of a crime
• Contributing to a group crime
• Participation in an "incomplete" crime: incitement, attempting to commit a crime, abandonment of a  plan to commit a crime

Step 4: Defences

Some commonly invoked defences are:

• Lack of mental capacity (mental disease, involuntary intoxication, immaturity)
• Mistake of law and/or fact
• Duress
• Self-defence
• Superior orders

Step 5: assessing aggravating or mitigating circumstances