As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible recharacterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.
1 Prosecutor v. Thomas Lubanga Dyilo, Judgment, Trial Chamber I, ICC-01/04–01/06, 14 March 2012 (hereinafter Lubanga judgment).
2 Prosecutor v. Thomas Lubanga Dyilo, Decision on Sentence pursuant to Article 76 of the Statute, Trial Chamber I, ICC-01/04-01/06, 10 July 2012.
3 Prosecutor v. Mathieu Ngudjolo Chui, Jugement rendu en application de l'article 74 du Statut, Trial Chamber II, ICC-01/04-02/12, 18 December 2012 (hereinafter Ngudjolo judgment/acquittal).
4 Separate Opinion of Judge Adrian Fulford to Prosecutor v. Thomas Lubanga Dyilo, Judgment, Trial Chamber I, ICC-01/04-01/06, 14 March 2012 (hereinafter Separate and Dissenting Opinion Judge Fulford); Concurring Opinion of Judge Christine van den Wyngaert to Prosecutor v. Mathieu Ngudjolo Chui, Jugement rendu en application de l'article 74 du Statut, Trial Chamber II, ICC-01/04-02/12, 18 December 2012 (hereinafter Concurring Opinion Judge Van den Wyngaert).
5 Lubanga judgment, para. 999.
6 C. Roxin, ‘Straftaten im Rahmen organisatorischer Machtsapparate’, Goltdammer's Archiv für Strafrecht (GA) (1963), translated to English: Roxin, C., ‘Crimes as Part of Organized Power Structures’, (2011) 9 JICJ, 193–205. See also C. Roxin, Täterschaft und Tatherrschaft (2006), at 242–52, 704–17; Roxin, C., Strafrecht Allgemeiner Teil, Vol. 2 (2003), 46 et seq.
7 See Guilfoyle, D., ‘Responsibility for Collective Atrocities: Fair Labelling and Approaches to Commission in International Criminal Law, (2011) 64 Current Legal Problems 1, at 6. See van Sliedregt, E., ‘The Curious Case of International Criminal Liability’, (2012) 10 JICJ 1171, at 1182–85.
8 Separate and Dissenting Opinion Judge Fulford, para. 16.
9 Concurring Opinion Judge Van den Wyngaert, para. 44.
10 Manacorda, S. and Meloni, C., ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’, (2011) 9 JICJ 159. See also Weigend, T., ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’, (2011) 9 JICJ 91. E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), 83–8.
11 Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, Pre-Trial Chamber, ICC-01/04-01/06, 29 January 2007, para. 341 (emphasis added) (hereinafter Lubanga Conformation Decision). See Lubanga Judgment, para. 1000.
12 Lubanga Confirmation Decision, para. 342. The Chamber concluded: ‘Hence, although none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task.’
13 Ibid., para. 347.
14 Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, Pre-Trial Chamber, ICC-01/04-01/07, 30 September 2008, para. 525 (hereinafter Katanga and Ngudjolo Confirmation Decision).
15 Lubanga Judgment, para. 1004.
16 Lubanga Confirmation Decision, para. 330; Lubanga Judgment, para. 1003.
17 Separate and Dissenting Opinion Judge Fulford, para. 15.
18 Ibid., para. 17.
19 Ibid., para. 16.
20 Probably Judge Fulford's ‘operative link’ would, upon closer inspection, end up looking very much like the Lubanga majority's ‘essential contribution’.
21 Judge Fulford claims that the concepts which appear in the four subsections of Art. 5(3) of the ICC Statute ‘will often be indistinguishable in their application vis-à-vis a particular situation, and by creating a clear degree of crossover between the various modes of liability, Article 25(3) covers all eventualities’. Therefore, he thinks, ‘the possible modes of commission under Article 25(3)(a)–(d) of the Statute were not intended to be mutually exclusive.’ (Separate and Dissenting Opinion Judge Fulford, para. 7). It is not quite clear on what evidence Judge Fulford makes this claim. But even if the authors of the ICC Statute had foreseen that, in a given situation, more than one mode of liability under Section 25(3) might be applicable, that would not justify leaving these various modes undefined and adjudicating cases using a vague ‘crossover’ form of criminal liability.
22 The dispute over whether Art. 25(3) (a)–(d) of the ICC Statute contains a hierarchical ranking of various forms of liability (Lubanga Judgment, paras. 994–999, See also Werle, G., ‘Individual criminal responsibility in Article 25 ICC Statute’, (2007) 5 JICJ 953, 957, or a mere listing (Separate and Dissenting Opinion Judge Fulford, para. 9; Concurring Opinion Judge Van den Wyngaert, paras. 22–30) is not of much relevance to the question whether it is necessary to properly define these forms of liability.
23 Concurring Opinion Judge Van den Wyngaert, paras. 41–42.
24 Ibid., para. 44 (emphasis in the original).
25 Ibid., para. 42.
26 Ibid., para. 44.
27 Ibid., para. 47.
28 Ibid., para. 46.
29 Ibid., para. 45.
30 The Trial Chamber in Lubanga seems to take an ex ante perspective where it refers to the assignment of roles as the test for what is ‘essential’ (Lubanga Judgment, para. 1000); but it is not entirely clear whether the Chamber would rule out a reassessment of the distribution of roles after the fact. The prosecution in Lubanga proposed to distinguish between an assessment ex ante (where the co-perpetrator must have been assigned a contribution that was ‘central to the implementation’ of the common plan) and a retrospective assessment of the plan as it was carried out (where it should be sufficient that the co-perpetrator's contribution can be deemed ‘substantial’); cf. Lubanga Judgment, paras. 990–991. The Trial Chamber did not adopt or even discuss that distinction, thus leaving unresolved the question whether the requirements of joint perpetration should be assessed from the participants’ perspective ex ante or from an objective perspective ex post.
31 Separate and Dissenting Opinion Judge Fulford, para 16.
32 Lubanga Judgment, paras. 1003–1004.
33 It is not logically impossible for several persons to co-perpetrate a crime of recklessness or dolus eventualis; but inadvertent negligence and joint perpetration in a technical sense seem to be mutually exclusive.
34 See Ohlin, J. D., ‘Joint Intentions to Commit International Crimes’, (2011) 11 Chicago JIL 693, at 721.
35 German courts have traditionally relied heavily on subjective factors for distinguishing between perpetrators and accessories, treating as mere accessories those who participated in the crime with an animus socii (mind of an associate); see Bundesgerichtshof (Federal Court of Justice), Judgment of 23 January 1958, 11 Entscheidungen des Bundesgerichtshofes in Strafsachen 268, at 271–2; Bundesgerichtshof, Judgment of 10 March 1961, 16 Entscheidungen des Bundesgerichtshofes in Strafsachen 12, at 14; for a summary of the present position of the Federal Court of Justice see Bundesgerichtshof, Judgment of 24 October 2002, 48 Entscheidungen des Bundesgerichtshofes in Strafsachen 52, at 56. Of course, in most cases it is the judges who determine, in hindsight and on considerations of equity, what may have been the ‘mind’ of a participant at the time of the crime. The emphasis on subjective elements thus leaves the distinction between perpetrators and accessories to the practically unreviewable discretion of the trial court.
36 It is not necessary here to discuss at length Professor Roxin's many contributions to the German debate on perpetratorship. But it should be noted that Roxin has expressly rejected the ‘essentiality’ theory as defined by the Lubanga majority: Roxin – followed by the great majority of German writers – requires for co-perpetratorship a ‘substantial’ contribution to the common plan as regarded ex ante, but writes that the contribution of a co-perpetrator need not be ‘causal’ for the offence as a whole (See Roxin, Strafrecht Allgemeiner Teil supra note 6, at Section 25, marginal note 213). For an overview of the current German debate on the subject, see B. Weißer, Täterschaft in Europa (2011), 333–7.
37 See Roxin, Strafrecht Allgemeiner Teil supra note 6, at Section 25, marginal note 199.
38 Under that test, a gang leader might be a joint perpetrator of a bank robbery where he is in contact, by mobile phone, with the actors in the bank, and can decide, for example, that the robbery attempt should be abandoned when the perpetrators report unexpected obstacles. If that is not the case, the leader of a criminal group would come under the label of ‘ordering, soliciting or inducing’ (Art. 25 (3)(b) ICC Statute), or he might be considered a perpetrator ‘through another person’ if the special requirements of domination of others are fulfilled. For extensive argument on these points, see Roxin, Strafrecht Allgemeiner Teil supra note 6, at Section 25, marginal notes 198 et seq.; B. Schünemann, Section 25, marginal notes 180 et seq., in Laufhütte, H. W., Rissing-van Saan, R., and Tiedemann, K. (eds.), Strafgesetzbuch: Leipziger Kommentar, Vol. 1 (2007).
39 Concurring Opinion Judge Van den Wyngaert, para. 59.
40 See, e.g., Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Decision on Confirmation of Charges, Pre-Trial Chamber II, ICC-01/09-02/11, 23 January 2012 (hereinafter Muthaura et al. Confirmation Decision); Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision on Confirmation of Charges, ICC Appeals Chamber, Case No. ICC-01/09-01/11 (hereinafter Ruto et al. Confirmation Decision); Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, ICC-02/05-01/09, 4 March 2009.
41 Lubanga Confirmation Decision, para. 340.
42 See Roxin, ‘Crimes as Part of Organized Power Structures’, supra note 6, 193–207.
43 Not only are such defendants vertically removed from the commission of the crime (by virtue of their indirect perpetration), but they are horizontally removed as well (by virtue of their co-perpetration with other collaborators on the horizontal level). The notion of ‘control’ then provides the connection that links such defendants, along the two axes, to the physical perpetrators of the atrocities. See Ohlin, J. D., ‘Second-Order Linking Principles: Combining Vertical and Horizontal Modes of Liability’, (2012) 25 LJIL 771. Indirect co-perpetration therefore has some structural similarities with later versions of JCE theory, because under the latter doctrine the leadership-level JCE need not encompass the relevant physical perpetrators, who might report directly to one member of the JCE.
44 Katanga and Ngudjolo Confirmation Decision, para. 484.
45 See Concurring Opinion Judge Van den Wyngaert, para. 60.
46 Ibid., para. 61.
47 See Concurring Opinion Judge Van den Wyngaert, para. 62 (concluding that modes of liability can be combined when the elements of each are established). For a comparative-law perspective on combining modes of liability: Van Sliedregt, supra note 10, at 68–9.
48 Katanga and Chui Confirmation Decision, para. 493.
49 Prosecutor v. Stakić, Trial Judgement, IT-97-24, T.Ch., 31 July 2003, para. 469.
50 On this point, see the analysis by Burghardt, B. and Werle, G., ‘Die mittelbare Mittaterschaft–Fortentwicklung deutscher Strafrechtsdogmatik im Völkerstrafrecht?’, in Bloy, R. (ed.), Gerechte Strafe und legitimes Strafrecht: Festschrift für Manfred Maiwald zum 75. Geburtstag (2010), 849; Weigend, supra note 10, at 110–11; Wirth, S., ‘Co-Perpetration in the Lubanga Trial Judgment, (2012) 10 JICJ 971, at 980 et seq.
51 See Burghardt and Werle, supra note 50, at 863–4 (distinguishing between ‘indirect co-perpetration’ per se and cases of ‘joint indirect perpetration’); Weigend, supra note 10, at 111 (junta model involves ‘one group of subordinates subject to control by a group of leaders working together’); Ohlin, supra note 43, at 779.
52 See Concurring Opinion Judge Van den Wyngaert, para. 52 (‘elevating the concept of “control over an organization” to a constitutive element of criminal responsibility under Article 25(3)(a) is misguided’).
53 Ibid., para. 53.
54 Ibid. (‘there is a fundamental difference between the interaction among individuals, even within the context of an organisation, and the exercise of authority over an abstract entity such as an “organisation”. Moreover, by dehumanising the relationship between the indirect perpetrator and the physical perpetrator, the control over an organisation concept dilutes the level of personal influence that the indirect perpetrator must exercise over the person through whom he or she commits a crime’).
55 For different views on this requirement, see the symposium in (2010) 23 LJIL 825.
56 But see Cupido, M., ‘The Policy Underlying Crimes against Humanity: Practical Reflections on a Theoretical Debate’, (2011) 22 Criminal Law Forum, 275 (suggesting that the facts as applied in various cases show a greater similarity between the ICTY and ICC standards for crimes against humanity with regard to the plan or policy requirement).
57 See Muthaura et al. Confirmation Decision, para. 229; Ruto et al. Confirmation Decision, para. 186.
58 The Trial Chamber in Stakić was more explicit about searching a new path away from JCE.
59 Pinkerton liability allows vicarious liability for the acts of co-conspirators that fall outside the scope of the criminal plan. It was cited with approval in Prosecutor v. Tadić, Judgment, Appeals Chamber, IT-94-A, 15 July 1999, para. 224 n. 289 (hereinafter Tadić Appeals Judgement), citing Pinkerton, 328 U.S. 640 (1946).
60 See Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the ICC Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Pre-Trial Chamber II, 15 June 2009, paras. 366–369 (rejecting application of dolus eventualis under the ICC Statute).
61 For example, see the analysis in Lubanga Confirmation Decision' paras. 352–353 (applying dolus eventualis).
62 Ibid., para 352. There are, of course, different formulations of dolus eventualis in domestic legal systems; the notion of ‘reconciling’ oneself to the potential consequence is just one of them, though it is arguably the most influential. For a discussion of the different versions, see Badar, M. E., ‘Dolus Eventualis and the Rome Statute without It?’, (2009) 12 New Crim. L Rev. (2009) 433.
63 Lubanga Confirmation Decision, para. 354 (emphasis added).
64 See, e.g., Ohlin, supra note 43, 771 et seq.
65 In Tadić, the ICTY Appeals Chamber explicitly referred to dolus eventualis as the basis for JCE III, where the defendant ‘willingly took the risk’. See Tadić Appeals Judgement, para. 220.
66 See R. Clark, ‘Elements of Crimes in Early Decisions of Pre-Trial Chambers of the International Criminal Court’, (2009) New Zealand YIL. Piragoff and Robinson conclude that while dolus eventualis can be defined in many ways, if it refers to ‘substantial or serious risk that a consequence will occur and indifference whether it does’ then it was ‘not incorporated explicitly into article 30’ and the only way to bring it into play is with the ‘unless otherwise provided’ prong of Article 30. Piragoff, D. K. and Robinson, D., ‘Mental Element’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), at 849, 860 n. 67. Schabas's analysis is similar. See W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010), at 476 (concluding that dolus eventualis was rejected during Rome Statute negotiations).
67 Chairman's Text, UN Doc. A/AC.249/1997/WG.2/CRP.4.
68 On normative and naturalistic approaches to criminal participation in international law, see Vogel, J., ‘How to Determine Individual Criminal Responsibility in Systematic Contexts: Twelve Models’ (2002) Cahiers de défense sociale, 151–69.
69 Tadić Appeals Judgement, para. 220.
70 Ibid., para. 192.
72 The Krstić and Kvočka Trial Chambers, on the other hand, readily accepted the distinction between co-perpetrators and aiders and abettors. Prosecutor v. Krstić, Judgement, Trial Chamber I, IT-98-33-T, 2 August 2001, paras. 643–645; Prosecutor v. Kvočka, Judgement, Trial Chamber I, IT-98-30/1-T, 2 November 2001, paras. 278 and 284.
73 See further H. Olasolo, Criminal Responsibility of Senior Political and Military Superiors as Principals to International Crimes (2009), 23–7; C. Damgaard, Individual Criminal Responsibility for Core International Crimes (2008), 198–212; van Sliedregt, E., ‘Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide’ (2007) 5 JICJ 184.
74 Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić Motion Challenging Jurisdiction – Joint Criminal Enterprise, Pre-Trial Chamber, IT-05-87-PT, 22 March 2006, para. 20.
75 Prosecutor v. Šljivančanin, Judgement, Appeals Chamber, IT-95-13/1-A, 5 May 2009, para. 407.
76 As empirical research has shown. Hola, B.et al., ‘International Sentencing Facts and Figures: Sentencing Practice at the ICTY and ICTR’ (2011) 9 JICJ 411, at 417.
77 See also Olasolo, supra note 73, at 27.
78 Prosecutor v. Charles Taylor, Judgment, Trial Chamber, SCSL-03–1-T, 26 April 2012, para. 6959.
79 Consider the statement of Judge Lussick, a member of the Taylor bench, who held that the 80-year imprisonment requested by the prosecutor would have been excessive as Taylor was convicted of aiding and abetting, which ‘as a mode of liability generally warrants a lesser sentence than that imposed for more direct forms of participation’.
80 Rather, it affects, along with other factors, the sentence of the convicted person. Charles Taylor's capacity as a former head of state was an aggravating factor that seems to have ‘compensated’ the mitigation that aiding/abetting implies.
81 Lubanga Confirmation Decision, paras. 330–335; Katanga and Ngudjolo Decision, paras. 506–508.
82 Katanga and Ngudjolo Confirmation Decision, para. 518.
83 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the appeal of Mr Germain Katanga against the decision of Trial Chamber II of 21 November 2012 entitled ‘Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons’, Appeals Chamber, ICC-01/04-01/07 OA 13, 27 March 2013, para. 15.
84 Ibid., para. 518, emphasis added.
85 Originally, in felony law there was a normative distinction between principals in the first degree (the perpetrator/principal), principals in the second degree (secondary principal), and accessories before the fact. The difference between secondary principals and an accessory before the fact, both of whom are accomplices, was that the secondary principal was at the scene of the crime while the accessory was not. The secondary principal was generally more closely involved in committing the crime than the accessory, while the crime was physically committed by the principal in the first degree. Dressler, J., ‘Reassessing the Theoretical Underpinning of Accomplice Liability: New Solutions to an Old Problem’, (1985) 37 Hastings LJ 191, at 194–5. See Van Sliedregt, supra note 10, 112–16.
86 Para. 22.
87 Even in those systems that provide for a distinction between principals and accessories where labelling comes with a sentence reduction, ‘principal liability’ may still be derivative/accessorial. For instance, co-perpetrators in Dutch law have the status of accessories. Their liability rests on that of the physical perpetrator; they are only liable when the crime is committed or attempted. They are punished as if they were principals (Art. 47(1) Dutch Penal Code: ‘Als daders van een strafbaar feit worden gestraft: 1zij die het feit plegen, doen plegen of medeplegen’).
88 Ambos, K., Treatise on International Criminal Law, Vol. 1 Foundations and General Part (2013), 146–7.
89 Ibid. at 152–3.
90 As discussed in Saland, P., ‘International Criminal Law Principles’ in Lee, R. S. (ed.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (1999), at 198.
91 According to Arts. 77 and 78 of the ICC Statute the Court can impose any sentence (up to lifelong imprisonment) taking into account the gravity of the crime and the individual circumstances of the convicted person; no distinction is made between forms of responsibility. This does not mean that in sentencing role-variance does not play a role. Rule 145(1)(c) of the Rules of Procedure and Evidence of the ICC stipulates that judges in their determination of sentence give consideration to the ‘degree of participation of the convicted person’. This accords with practice at the ICTY where the Appeals Chamber held that ‘the gravity of the offence, as stipulated in Art. 24(2), requires judges to consider the crime for which the accused has been convicted, the underlying criminal conduct in general, and the role of the offender in the commission of the crime (ergo the degree of participation). Still, it is at the level of sentencing, not at conviction level, that the degree of responsibility is expressed.
92 Consider in this respect F. Z. Giustianini's paper on the ICTR's Appeals Chamber's ruling in Seromba where a broad concept of ‘commission’ was adopted and where instigation would have been more appropriate. According to F. Z. Giustanini this was to impose a severe and exemplary punishment on Seromba. Giustanini, F. Z., ‘Stretching the Boundaries of Commission Liability: The ICTR Appeals Judgment in Seromba’, (2008) 6 JICJ 783, at 798. See also Townsend, G., ‘Current Developments in the Jurisprudence of the International Criminal Tribunal for Rwanda’, (2005) 5 ICLR 147, at 156.
93 See M. A. Drumbl, Atrocity, Punishment and International Law (2007), 174. In sentencing practice, this translates to attaching much weight to the sentencing purposes of retribution and deterrence. E.g. Prosecutor v. Delalić et al., Judgement, Appeals Chamber, IT-96-21-A, 20 February 2001, para. 806; Prosecutor v. Serushago, Sentence, Trial Chamber, ICTR 98-39-S, 5 February 1999, para 20; Prosecutor v. Tadić, Judgement in Sentencing Appeals, Appeals Chamber, IT-94-1-A and IT-94-1-Abis, 26 January 2000, para. 48. See Henham, R., ‘Some Issues for Sentencing in the International Criminal Court’, (2003) 52 ICLQ 81. Note also Section 5 of the preamble of the ICC Statute, which comprises the aim to contribute to the prevention of international crimes.
94 See Kress, C., ‘Claus Roxins Lehre von der Organisationsherrschaft und das Völkerstrafrecht’, (2006) 153 Goltdammer's Archiv für Strafrecht 304, at 308; Weigend, supra note 10, at 102–3.
95 See for instance Ambos, supra note 88, at 146.
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