Türk ve Alman Ceza Hukuku Perspektifinden Roma Statüsü’nün İştirake Dair Hükümlerinin İncelenmesi
Sercan TokdemirFailler dışında suça katılanların cezalandırılması için ceza kanunlarında iştirake ilişkin hükümler düzenlenir. Uluslararası mahkemelerin kuruluş belgelerinde ve içtihatlarında iştirak kurumu bu disipline özgü prensipler çerçevesinde şekillenmiştir. Bu durum, uluslararası ceza hukukunun bir parçası ve Uluslararası Ceza Mahkemesi’nin (UCM) kurucu belgesi olan Roma Statüsü için de geçerlidir. Uluslararası suçlar bakımından asıl sorumlu görülen kişi suç tipinin maddi unsurlarını bizzat gerçekleştiren kişi değildir. Tipik fiillerin işlenmesine neden olan kişiler, arka planda duran üst düzey idareciler ve komutanlardır. Bu bağlamda planlama, komplo, müşterek suç girişimi, üstün sorumluluğu gibi bazı farklı sorumluluk şekilleri ve iştirakin klasik görünüş şekilleri olarak faillik, azmettirme ve yardım etme kabul edilmiştir. Roma Statüsü md 25 (3) (a) bendinde tek başına, başkalarıyla birlikte ve başkası aracılığı ile suç işleyen kişinin sorumlu olacağı ifade edilerek doğrudan, müşterek ve dolaylı faillik; md 25 (3) (b) bendinde azmettirme ve yardım etme şeriklik şekilleri olarak kabul edilmiştir. Azmettirmenin bir işleniş şekli olan emretme ise bağımsız bir iştirak şekli olarak ayrıca düzenlenmiştir. Hükümde “işlenen veya teşebbüs edilen suç” ifadesiyle bağlılık kuralı kabul edilmiştir. Statü’de akim kalmış azmettirme (azmettirmeye teşebbüs) cezalandırılmamıştır. Bununla birlikte soykırım suçuna doğrudan ve alenen tahrik bağımsız bir suç tipi olarak düzenlenmiştir. Müşterek suç girişimi (md 25 (3) (d)) iştirak benzeri bir kurum olarak düzenlenirken, uluslararası ceza hukukunun gereksinimleri doğrultusunda üstlerin sorumluluğu öğretisi (md 28) bir başka sorumluluk şekli olarak kabul edilmiştir.
The Examination of the Rome Statute’s Provisions on Participation from the Perspective of Turkish and German Criminal Law
Sercan TokdemirCriminal codes are used to regulate provisions on participation to penalize those who contribute to crimes, except for the perpetrator. Furthermore, participation isshaped within the framework ofspecific principlesin the statutes and case laws of international courts, asin the example of the Rome Statute, which is a part of international criminal law and the statute of the International Criminal Court (ICC). In international crimes, the person who personally perpetrated the actus reus of the crime is not deemed responsible. The persons who cause the commission of typical acts are senior administrators and commanders at the background. Herein, certain modalities of responsibility, such as planning, conspiracy, joint crime, responsibility of superiors, perpetration, instigation, and aiding, which are considered classical forms of participation, are accepted. In Articles 25(3)(a) and (b) of the Rome Statute, direct, joint, and indirect perpetration as well as instigating and aiding are accepted as forms of accessory, respectively. Moreover, ordering, which is a form of instigation, is regulated as an independent form of participation. The rule of accessory is accepted with the expression of “committed or attempted crime” in the provision; however, failed instigation is not punished, except for direct and public incitement to the crime of genocide. According to the international criminal law requirements, the responsibility of superiors is accepted as another modality of responsibility (Article 28); meanwhile, joint criminal enterprise (Article 25(3)(d)) is regulated as an institution similar to participation.
One or more persons can commit a crime, and this notion is known as participation in criminal law. The provisions regarding participation should be regulated in a penal code for individuals who participate in the crime to be punished. In terms of participation, two basic systems have been adopted, namely, monist and dualist. In the first system, a person is treated as if he/she is the perpetrator. However, the second system is based on the distinction between the perpetrator and accessory, wherein direct, joint, and indirect perpetration within the scope of perpetration and instigation as well as aiding/abetting within the scope of complicity have been accepted as forms of participation in crime as in Turkish and German laws.
The institution of participation is formed within the framework of the specific principles embodied in the statutes and case laws of international courts, such as the Rome Statute, which is a part of international criminal law and the statute of the International Criminal Court (ICC), and it came into force on 01.07.2002. Moreover, it has regulated participation in genocide, aggression, crimes against humanity, and war crimes accepted within the jurisdiction of the ICC. International criminal law accepted the monist system until the adoption of the Rome Statute. However, after this statute came into force, a tendency emerged toward the dualist system.
According to the Rome Statute, the person who commits a crime as an individual, jointly with others, or through another will be responsible; thus, direct, joint, and indirect perpetration have been adopted (Article 25(3)(a)). Although the Rome Statute does not regulate side-by-side perpetration, it can be evaluated within the scope of direct perpetration.
The rule of accessory is accepted and is expressed as “committed or attempted crime” in the provision. Furthermore, instigating and aiding/abetting are accepted as forms of accessory. Meanwhile, ordering, which is a form of instigation, is regulated as an independent form of participation. For persons who participate in the crime as instigators or aiders to be punished, the main act must have reached at least the stage of attempt. The Rome Statute does not offer penalization for failed instigation due to the rule of accessory. However, direct and public incitement to the crime of genocide is regulated as an independent type of crime regardless of the aforementioned rule.
International criminal law is a discipline that addresses the most severe of the aforementioned crimes of concern to the international community with a character separate from the criminal law of nations but inspired by national criminal law. Thus, regarding criminal responsibility, its principles have emerged through a historical process. Along with the requirements of international criminal law, the doctrine of the responsibility of superiors is accepted as another modality of responsibility (Article 28), while joint criminal enterprise (Article 25(3)(d)) is regulated as an institution similar to participation.
To regulate Article 28, it is aimed to extend criminal responsibility to superiors for ensuring that persons under their command comply with the laws of war. The legal nature of superior criminal responsibility is controversial in the doctrine. The arguments indicate that it is an independent, sui generis, and mixed form of responsibility. In German law, however, the arguments focus on superior criminal responsibility as an independent factual negligence crime. Moreover, an opinion holds that the superior is responsible for helping the subordinate through negligence. According to the researchers, superior criminal responsibility should be evaluated in terms of the punishability of a negligence act committed by a subordinate despite its extending nature of personal criminal responsibility. In other words, the issue is only partially independent of participation.
For the provision related to joint criminal enterprise, any contribution to committing or attempting to commit a crime by a group of persons acting with a common purpose can be considered a form of accessory. The doctrine has discussed the legal nature of the institution, and various opinions have been suggested. One opinion has claimed that the institution was considered a form of corporation form; however, as per another opinion, it is a form of accessorial liability. According to the second view, the provision is unnecessary and is an expanded form of aiding and abetting. However, in our opinion, a joint criminal enterprise carries the characteristics of perpetration and accessory. Therefore, individuals who participate in this organization as perpetrators and accessories should be held responsible. Thus, describing it as an institution similar to participation or a mixed institution is a more appropriate approach.
Finally, the impact of the jurisprudence of international criminal courts on this issue should be considered. In this context, the joint criminal enterprise is an institution developed as an institution similar to participation with the case law of the International Criminal Tribunal for the Former Yugoslavia.
This study’s primary objective is to examine participation in crime under criminal law from the perspective of Turkish and German criminal laws within the framework of the Rome Statute and the jurisprudence of the court instead of an in-depth revelation of the difference between the Rome Statute and the jurisprudence of the court and customary international law. Hence, using a comparative perspective, this study will identify differences between the national law and Rome Statute. Similarly, it will mention the regulations of various countries such as France, Italy, the United States, and the United Kingdom. The study will first examine participation in crime in general, which will be subsequently evaluated in terms of international criminal law. After demonstrating the general appearance of participation in international criminal law, the subject will be examined within the framework of the Rome Statute with the intention of making deductions.
