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Second-Order Linking Principles: Combining Vertical and Horizontal Modes of Liability

  • JENS DAVID OHLIN
Abstract

Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ joint criminal enterprises (JCEs) and how to express their relationship with the relevant physical perpetrators (RPPs) of the crimes. The ICC addressed the issue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations – vertical and horizontal modes of liability – cannot be simply asserted; they must be defended at the level of criminal-law theory. Unfortunately, courts that have applied indirect co-perpetration have generally failed to offer this defence and have simply assumed that modes of liability can be combined at will. In an attempt to offer the needed justification, this article starts with the premise that modes of liability are ‘linking principles’ that link defendants with particular actions, and that combining these underlying linking principles requires a second-order linking principle. The most plausible candidate is the personality principle – a basic principle that recognizes the inherently collective nature of leadership-level groups dedicated to committing international crimes. Like Roxin's theories describing the collective organizations that can be used as a form of indirect perpetration, the personality principle treats the horizontal leadership group as an organization or group agent whose collective nature potentially justifies the attribution of vertical modes of liability to all members of the horizontal group. Although this article does not defend the doctrine of indirect co-perpetration, it does conclude that combined vertical and horizontal modes of liability, whether at the ICTY or ICC, implicitly or covertly rely on something like the personality principle in order to justify collective attribution to the horizontal collective.

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1 Prosecutor v. Br đanin, Trial Judgement, Case No. IT-99–36, T.Ch., 1 September 2004, paras. 347–348: ‘The Trial Chamber in this context emphasizes that for the purposes of establishing individual criminal responsibility pursuant to the theory of JCE it is not sufficient to prove an understanding or an agreement to commit a crime between the Accused and a person in charge or in control of a military or paramilitary unit committing a crime.’

2 Ibid., para. 347: ‘The Accused can only be held criminally responsible under the mode of liability of JCE if the Prosecution establishes beyond reasonable doubt that he had an understanding or entered into an agreement with the Relevant Physical Perpetrators to commit the particular crime eventually perpetrated or if the crime perpetrated by the Relevant Physical Perpetrators is a natural and foreseeable consequence of the crime agreed upon by the Accused and the Relevant Physical Perpetrators.’

3 Ibid., para. 351: ‘However, the Trial Chamber is of the view that the mere espousal of the Strategic Plan by the Accused on the one hand and many of the Relevant Physical Perpetrators on the other hand is not equivalent to an arrangement between them to commit a concrete crime. Indeed, the Accused and the Relevant Physical Perpetrators could espouse the Strategic Plan and form a criminal intent to commit crimes with the aim of implementing the Strategic Plan independently from each other and without having an understanding or entering into any agreement between them to commit a crime.’

4 See, e.g., Prosecutor v. Brđanin, Partly Dissenting Opinion of Judge Shahabuddeenin, Appeals Judgement, Case No. IT-99-36, A.Ch., 3 April 2007, para. 4 (JCE agreement inferred from circumstances), para. 7.

5 Ibid., para. 413.

6 Ibid., para. 414.

7 Ibid., para. 413, concluding that ‘the existence of this link is a matter to be assessed on a case-by-case basis’ but conceding in a footnote that the Appeals Chamber ‘declines at this time to address whether this equating is still appropriate where the accused is convicted via JCE for crimes committed by a principal perpetrator who was not part of the JCE, but was used by a member of the JCE’.

8 See Separate Opinion of Judge Meron in Brđanin, supra note 4, para. 6.

9 See, e.g., Prosecutor v. Popović et al., Trial Judgement, Case No. IT-05-88, T.Ch., 10 June 2010, para. 1029: ‘It is necessary however, that the JCE member used the non-member to commit the actus reus of a crime that can be inputed [sic] to the member of the JCE’. See also Prosecutor v. Kraji šnik, Appeals Judgement, Case No. IT-00-39, A.Ch., paras. 225–226: ‘Factors indicative of such a link include evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime.’

10 Sliedregt, E. van, ‘System Criminality at the ICTY’, in Nollkaemper, A. and van der Wilt, H. (eds.), System Criminality in International Law (2009), 183, at 198.

11 This differential is important. See, e.g., Ohlin, J. D., ‘Commentary on Stakić, the Co-Perpetrator Model of Joint Criminal Enterprise’, (2008) 14 Annotated Leading Cases of International Tribunals 739, at 739–52; see also K. J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011), 390. See also Prosecutor v. Kvočka et al., Trial Judgement, Case No. IT-98-30/1, T.Ch., 2 November 2001, concluding that JCE doctrine should distinguish between co-perpetrators who share the intent to commit the crime and accomplices who knowingly contribute to the criminal enterprise.

12 See Prosecutor v. Tadić, ICTY Appeals Chamber Judgement, Case No. IT-94-1-A (15 July 1999), para. 191.

13 See A. Cassese, International Criminal Law (2008), 195, also calling the decision ‘all the more objectionable’ because the Appeals Chamber noted that JCE applies to ‘large-scale cases’.

14 See Brđanin, supra note 4, para. 6.

15 See ibid., paras. 10–13, expressing concern with Judge Meron's notion of ordering and also discussing perpetration through an instrument. Shahabuddeen argued that RPPs were members of the JCE because they agreed or acquiesced to it.

16 This solution is proposed in, inter alia, Gustafson, K., ‘The Requirement of an “Express Agreement” for Joint Criminal Enterprise Liability: A Critique of Brđanin’, (2007) 5 JICJ 134, at 147.

17 Ibid., at 154.

18 See, e.g., Strippoli, A., ‘The Kravica Case at the Court of Bosnia and Herzegovina’, (2009) 7 JICJ 577, at 589.

19 See Gustafson, supra note 16, at 154.

20 A similar doctrine exists in conspiracy law. See, e.g., Kotteakos v. United States, (1946) 328 US 750, at 755; United States v. Bruno, (1939) 105 F.2 d 921 (2 nd Cir.); United States v. Carpenter, (1986) 791 F.2 d 1024 (2 nd Cir.).

21 See Gustafson, supra note 16, at 155.

22 See, e.g., Prosecutor v. Vasiljevic, Separate and Dissenting Opinion of Judge Shahabuddeen, Appeal Judgement, Case No. IT-98-32-A, 25 February 2004, para. 31. See also Gustafson, supra note 16, at 146.

23 Although some scholars have described the Brđanin Appeals Judgement as adopting the interlinked JCE model, this semantic characterization seems inexact. See, e.g., van Sliedregt, E., ‘Modes of Participation’, in Sadat, L. N. (ed.), Forging a Convention for Crimes against Humanity (2011), 243–4. The Appeals Judgement neither referred to ‘interlinked’ JCEs nor even suggested that the link between the leadership JCE and the RPP was established by a JCE. Instead, the Appeals Chamber majority indicated that the link was to be evaluated on a case-by-case basis, and Judge Meron suggested ‘ordering’ as the correct mode of liability.

24 See Prosecutor v. Kvočka et al., Appeals Judgement, Case No. IT-98-30/1, A.Ch., 28 February 2005, para. 91: ‘The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself. Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.’ See also Prosecutor v. Šainović et al., Decision on Ojdanic's Motion Challenging Jurisdiction: Indirect Co-Perpetration, Case No. IT-05-87, T.Ch., 22 March 2006, para. 37.

25 For a discussion of the theoretical basis of the conspiracy doctrine, see Ohlin, J. D., ‘Group Think: The Law of Conspiracy and Collective Reason’, (2008) 98 Journal of Criminal Law and Criminology 147 (criticizing overexpansive nature of conspiracy liability generally and Pinkerton liability specifically).

26 Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of the Charges, Pre-Trial Chamber I, ICC-01/04-01/06, Pt.Ch.I, 29 January 2007, para. 340.

27 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on Confirmation of Charges, Pre-Trial Chamber, ICC-01/04-01/07-3269, 30 September 2008, para. 484 (detailing control-over-the-crime approach).

28 Prosecutor v. Omar Hassan Ahmad Al-Bashir, Second Arrest Warrant, Pre-Trial Chamber, ICC-02/05-01/09, 12 July 2010, para. 4.

29 See, e.g., H. Olasolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (2009), 265–6; Jessberger, F. and Geneuss, J., ‘On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?’, (2008) 6 JICJ 853; Ohlin, J. D., ‘Joint Intentions to Commit International Crimes’, (2011) 11 CJIL 721, at 723; Osiel, M., ‘Ascribing Individual Liability within a Bureaucracy of Murder’, in Smeulers, A. (ed.), Collective Violence and International Criminal Justice (2010), 119–22.

30 See Germain Katanga and Mathieu Ngudjolo Chui, supra note 27, para. 492: ‘Rather, through a combination of individual responsibility for committing crimes through other persons together with the mutual attribution among the co-perpetrators at the senior level, a mode of liability arises which allows the Court to assess the blameworthiness of ‘senior leaders’ adequately.’

31 See, e.g., C. Roxin, Täterschaft und Tatherrschaft (1963). Several scholars have described the Pre-Trial Chamber's reliance on Roxin's theory of Organisationsherrschaft as ‘controversial’, though usually because of the court's reliance on German Dogmatik in the place of a more traditional analysis of state practice and opinio juris. See, e.g., Jain, N., ‘The Control Theory of Perpetration in International Criminal Law’, (2011) 12 CJIL 157, at 184.

32 Fujimori Judgment, CSJ, Sala Penal Especial, 7 April 2009, Exp. No. AV 19-2001, cited in Ambos, K., ‘The Fujimori Judgment: A President's Responsibility for Crimes against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, (2011) 9 JICJ 137, at 143, footnote 33.

33 German Border Case, Judgment of 26 July 1994 against Former Minister of National Defence Kessler and Others, 40 BGHSt (1995) 218–40, reprinted in (2011) 9 JICJ 211 (edited by G. Werle and B. Burghardt, translated by B. Cooper).

34 Juntas Trial Case, Judgment of 9 December 1985, translation reprinted in (1987) 26 International Legal Materials 317, cited and analysed in Olasolo, supra note 29, at 127–9.

35 This theory, Organisationsherrschaft, is one version of indirect perpetration. See Roxin, C., ‘Crimes as Part of Organized Power Structures’ (translated by Cooper, B.), (2011) 9 JICJ 193, reprinted from Goltdammer's Archiv fur Strafrecht (1963), 193–207; Roxin, supra note 31, at 244. See also F. C. Schroeder, Der Täter hinter dem Täter: Ein Beitrag zur Lehre von der mittelbaren Täterschaft (1965).

36 For one excellent example, see Weigend, T., ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’, (2011) 9 JICJ 91, at 110–11: ‘The critical issue lies not in joining human tools but in what it means to “control” their operation.’ See also Olasolo, supra note 29, at 306–30; Manacorda, S. and Meloni, C., ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’, (2011) 9 JICJ 159, at 174: ‘Whether this form of indirect co-perpetration is recognized by international criminal law remains, however, unclear.’ B. Burghardt and G. Werle, ‘Die mittelbare Mittäterschaft–Fortentwicklung deutscher Strafrechtsdogmatik im Völkerstrafrecht?’, in R. Bloy, Gerechte Strafe und legitimes Strafrecht: Festschrift für Manfred Maiwald zum 75. Geburtstag (2010), 849–64.

37 See Germain Katanga and Mathieu Ngudjolo Chui, supra note 27, paras. 543–545.

38 Ibid., para. 493 (referring to ‘ethnical loyalties within the respective organizations’).

39 Ibid., para. 548.

40 Ibid., para. 555 (‘coordinated essential contribution by each co-perpetrator resulting in the realisation of the objective elements of the crime’).

41 Ibid., para. 474.

42 See Ohlin, supra note 25; Prosecutor v. Šainović et al., Decision on Ojdanic's Motion Challenging Jurisdiction: Indirect Co-Perpetration, Case No. IT-05-87, T.Ch., 22 March 2006, para. 37.

43 See Germain Katanga and Mathieu Ngudjolo Chui, supra note 27, para. 492.

44 Ibid., para. 491.

45 Burghardt and Werle label the Katanga and Chui scenario as ‘indirect co-perpetration’ (mittelbare Mittäterschaft) but distinguish it from cases of ‘joint indirect perpetration’ (mittelbare Täterschaft in Mittäterschaft) where the hierarchical organization is controlled by a group instead of a single person. See Burghardt and Werle, supra note 36, at 863–4. Indeed, the suggestion is helpful because it is unclear whether the same doctrine can be applied to both situations, which are conceptually distinct.

46 See 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, Pt.Ch., 4 March 2009, para. 216.

47 Cf. Weigend, supra note 36, at 111, referring to this as a ‘junta’ model because ‘there is one group of subordinates subject to control by a group of leaders working together’; Burghardt and Werle, supra note 36, at 864 (distinguishing group control over an organization as a distinct variant of the doctrine). From the limited nature of the Pre-Trial Chamber's description of the state of affairs in Sudan, however, it is unclear if the Al Bashir ‘junta’ jointly controlled all of the subordinates, or if each leader controlled his or her own bureaucracy in a manner analogous to Katanga and Chui. There is also a middle position: a president might have de jure control of all of the subordinates but leave de facto operational and bureaucratic control to other political and military leaders.

48 Prosecutor v. Stakić, Trial Judgement, IT-97-24, T.Ch., 31 July 2003, para. 469; and Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05 -01/08, P.T.Ch. II, 15 June 2009, para. 370.

49 Stakić, supra note 48, paras. 482–486.

50 See Jean-Pierre Bemba Gombo, supra note 48, para. 373. Although the Pre-Trial Chamber continuously referred to Bemba as a co-perpetrator, their description of his control over MLC troops, as well as his co-perpetration with former CAR president Angel-Félix Patassé, suggests that he was an indirect co-perpetrator. See Olasolo, supra note 29, at 318. The Pre-Trial Chamber's liberal citations of the Stakić Trial Chamber judgement also support this conclusion. See Jean-Pierre Bemba Gombo, supra note 48, para. 350, footnote 441.

51 Patassé died in April 2011.

52 See H. Vest, Voelkerrechtsverbrecher verfolgen (2011), 428 (discussing horizontal co-operation).

53 This hypothetical individual could be described as a co-perpetrator or an indirect co-perpetrator. Both descriptions are equally plausible but both are simultaneously unsatisfactory. The label ‘co-perpetrator’ fails to capture the fact that the vicarious liability is traced upwards along a vertical axis through indirect perpetration. Second, the label ‘indirect co-perpetrator’ is confusing because the defendant in this scenario does not have indirect control over any of the RPP.

54 An example of this structure would be the prosecution of Salazar Monroe in Peru for his role, at the leadership level, in crimes committed along with President Fujimori. See Corte Superior de Justicia de Lima, Primera Sala Penal Especial, Judgment of 8 April 2008, Exp. No. Av. 03-2003-18 SPE/CSJLI, pp. 98–110, cited in Ambos, supra note 32, at 153.

55 There are numerous analyses of Art. 25(3)(a) of the Rome Statute. See, e.g., Manacorda and Meloni, supra note 36, at 167–8 (‘the Rome Statute clearly shows the path to be followed’).

56 In agreement, see Kvočka, supra note 24, para. 91.

57 But see E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), Chapter 4, noting that ‘compound’ or ‘multiple’ participation is permitted under some circumstances in Dutch and German criminal law when the requirements of both modes of liability are met.

58 On the significance of shared or joint intentions, see Ohlin, supra note 29, at 742 (applying Bratman's shared- intentions theory to international crimes).

59 Regarding the general acceptability of dolus eventualis as a sufficient mental element, the Stakić Appeals Chamber and Trial Chamber were in complete agreement, despite the fact that the former applied indirect co-perpetration and the latter applied JCE III. In other words, both doctrines allow the application of a lower mental state that may have a greater impact on the outcome of the case than the choice of mode of liability. See Stakić, supra note 48, para. 587. However, the Trial Chamber did concede that dolus eventualis was insufficient for genocide, which requires dolus specialis – ibid., para. 530 – a conclusion that was not accepted by the Appeals Chamber in that case. See Prosecutor v. Stakić, Appeal Chamber Judgement, IT-97–24, A.Ch., 31 July 2003, para. 38 (citing Prosecutor v. Brđanin, Decision on Interlocutory Appeal, ICTY Appeals Chamber, Case No. IT-99-36-A (19 March 2004), paras. 9–10).

60 See, e.g., Stakić, supra note 59, paras. 99–103 (equating advertent recklessness with dolus eventualis and concluding that neither violates the nullem crimen principle); Tadić, supra note 12, para. 220 (same); Cassese, supra note 13, at 201. However, several scholars have pointed out that dolus eventualis requires a distinctive attitude regarding the outcome (approval and identification with the evil result) that is not contained in the common-law concept of recklessness. See, e.g., G. P. Fletcher and J. D. Ohlin, ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’, (2005) 3 JICJ 539, at 554. Olasolo agrees with this analysis and further concludes that the standard that the ICTY actually applies in JCE III cases is the lower requirement of recklessness based on reasonable foreseeability, not dolus eventualis. See Olasolo, supra note 29, at 175–6.

61 Art. 30 of the Rome Statute states that the default mental element, unless otherwise specified, is intent and knowledge. Unfortunately, the Rome Statute's definition of intent – ‘means to engage in the conduct’ and ‘means to cause that consequence or is aware that it will occur in the ordinary course of events’ – is understood radically different by common-law and civil-law criminal lawyers. To common-law lawyers, this definition would be satisfied by the two mental elements – acting purposely and acting knowingly – that the Model Penal Code used to replace the ambiguous notion of acting with intent. For a discussion of the relationship between Art. 30 and dolus eventualis, see G. Werle and F. Jessberger, ‘“Unless Otherwise Provided”: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law’, (2005) 3 JICJ 35, at 52–3, concluding that Art. 30 excludes dolus eventualis as the default but that it might be ‘otherwise provided’ as an appropriate mental element in other articles of the Rome Statute or even customary international law.

62 In this regard, see Stakić, supra note 59, paras. 101–103.

63 Compare Jean-Pierre Bemba Gombo, supra note 48, paras. 366–369 (concluding on the basis of travaux préparatoires that Rome Statute drafters dropped the idea of including recklessness or dolus eventualis within Art. 30's default mental element) with Thomas Lubanga Dyilo, supra note 26, paras. 352–353 (accepting dolus eventualis within Art. 30's default rule).

64 See Jean-Pierre Bemba Gombo, supra note 48, para. 351; Thomas Lubanga Dyilo, supra note 26, para. 344. For a discussion, see Weigend, T., ‘Intent, Mistake of Law, and Co-Perpetration in the Lubanga Decision on Confirmation of Charges’, (2008) 6 JICJ 471, at 486.

65 In common law, a conspiracy is defined as an agreement between two or more individuals to commit a criminal or unlawful act. An agreement to commit a lawful act has never fallen within the ambit of the conspiracy doctrine. For a discussion, see Ohlin, supra note 25, at 152.

66 See, e.g., Roxin, supra note 31, at x; G. P. Fletcher, Rethinking Criminal Law (2000), 655–7; Thomas Lubanga Dyilo, supra note 26, paras. 330–332; Olasolo, supra note 29, at 36 (discussing Roxin and his predecessor, Welzel).

67 See Roxin, supra note 35, at 200–1; Ambos, supra note 32, at 149–50; Olasolo, supra note 29, at 116–18; G. Werle, Principles of International Criminal Law (2009), 178–80.

68 Scholars disagree over whether a conviction for indirect perpetration requires that the physical perpetrator have his culpability negated due to his lack of autonomy. Roxin argued that Organisationsherrschaft constituted an exception to this rule, known as the autonomy principle, because indirect perpetration was not limited to cases in which the physical perpetrator was mistaken or coerced. See Roxin, supra note 35, at 196–7; Olasolo, supra note 29, at 117; Ambos supra note 32, at 148; Schroeder, supra note 35. The Rome Statute has definitively rejected the autonomy principle requirement in Art. 25(3)(a).

69 See, generally, Fletcher, G. P., ‘New Court, Old Dogmatik’, (2011) 9 JICJ 179.

70 See Ambos, supra note 32, at 153.

71 See Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Decision on Confirmation of Charges, ICC-01/09-02/11, P.T.Ch. II, 23 January 2012.

72 Ibid., paras. 190, 361.

73 Ibid., para. 368.

74 The phrase ‘second-order’ has been used in many other theoretical contexts, although not within the scholarly literature on JCE or indirect co-perpetration. For a famous example, see Frankfurt, H. G., ‘Freedom of the Will and the Concept of the Person’, (1971) 68 Journal of Philosophy 5, at 8–10 (distinguishing second-order desires from first-order desires).

75 One might, for example, appeal to the principle of transitivity. But with regard to modes of liability generally, it cannot be the case that the principle of transitivity always applies. Assume that A aids B in his criminal endeavour. B then aids C in his criminal endeavour. Does that fact alone make A an accomplice to the crimes of C? With no additional facts added, A would not be an accomplice to C. Liability would only attach if it could be shown that A's assistance to B was, in some way, also assistance to C's endeavour. In the absence of such a fact, A remains derivatively liable for B's crime, B remains derivatively liable for C's crimes, but A is not derivatively liable for C's crimes.

76 See, generally, A. Eser and F. Rettenmaier, ‘Criminality of Organizations: Lessons from Domestic Law: A Comparative Perspective’, in A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (2009), 222.

77 Dencker's Zurechnungsprinzip Gesamttat (collective imputation principle) gestures in this direction as well. See F. Dencker, Kausalität und Gesamttat (1996), arguing that the criminal enterprise constitutes the central object of attribution. Indeed, one way of interpreting my thesis is that something resembling Dencker's Zurechnungsprinzip Gesamttat (collective imputation principle), or what I have more generally described as a personality principle, is implicitly but necessarily relied upon as a second-order linking principle in cases of combined vertical–horizontal group liability such as indirect co-perpetration or leadership JCE combined with a vertical mode of liability.

78 In another context, see also C. List and P. Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (2011), 157.

79 See Roxin, supra note 31, at 249.

80 Ibid., at 246.

81 See Dencker, supra note 77. Although Dencker's theories have not been applied by international courts, Kai Ambos has made extensive reference to them in his work. See, e.g., !!Ambos, K., ‘Joint Criminal Enterprise and Command Responsibility’, (2007) 5 JICJ 159, at 168.

82 Dencker, supra note 77.

83 K. Ambos, ‘Zur “Organisation” bei der Organisationsherrschaft’, in M. Heinrich, C. Jäger, and B. Schünemann (eds.), Festschrift für Claus Roxin zum 80. Geburtstag am 15. Mai 2011 (2011), 852.

84 Compare G. P. Fletcher and J. D. Ohlin, Defending Humanity (2008), 186–7, with J. McMahan, ‘Collective Crime and Collective Punishment’, Criminal Justice Ethics (2008), 9. Collective mitigation means that the individual's participation in the collective effort provides a reason to reduce the culpability, and perhaps punishment, of the individual, since the culpability is shared among a larger group of individuals. Several scholars, including McMahan, are sceptical of collectivist theories because they might imply fallacious results like precisely this kind of mitigation.

85 See, e.g., Ambos, supra note 32, at 148 (‘Be that as it may, the traditional system of individual responsibility, as applied for ordinary criminality characterized by the individual commission of single crimes, must be adapted to the needs of international criminal law aiming at the development of a mixed system of individual-collective responsibility in which the criminal enterprise or an organization as a whole serves as the entity upon which attribution of criminal responsibility is based’). However, the collective entity to which Ambos refers is the vertical organization.

86 See Burghardt and Werle, supra note 36, at 863 (recognizing the existence of a corporate entity in cases of joint indirect perpetration).

87 See Vest, supra note 52, at 428.

88 Cf. F. K. von Savigny, System des heutigen römischen Rechts (1840), 283.

89 See Vest, supra note 52, at 428, citing G. Heine, Taeterschaft und Teilnahme in staatlichen Matchapparaten (2000), 920. Vest suggests that leadership-level defendants should be convicted as ‘system-functional co-perpetrators’ of a common criminal endeavour, regardless of whether that endeavour is characterized as an instance of JCE I or co-perpetration.

90 See Germain Katanga and Mathieu Ngudjolo Chui, supra note 27, para. 493.

91 It is important to note that the issue at hand is not whether the defendant could be convicted simpliciter, but whether the defendant could be convicted as a principal. No one doubts that, in the situation just described, the individual at the leadership level would be guilty, at the very least, as an accomplice.

92 See G. P. Fletcher, ‘Strafrecht ohne Straftäter’, in Heinrich, Jäger, and Schünemann, supra note 83, at 793.

93 Ibid., at 797–8.

94 C. Roxin, ‘Organisationsherrschaft und Tatentschlossenheit’, Zeitschrift für internationale Strafrechtsdogmatik (2006), 296 (discussing Fungibilitätskriterium); see also Ambos, supra note 32, at 154–5 (distinguishing between negative and positive interchangeability); Weigend, supra note 64, at 97 (discussing fungibility).

95 See Thomas Lubanga Dyilo, supra note 26, para. 346 (essential contribution as an objective element of co-perpetration). For analysis, see Weigend, supra note 64, at 480 (describing the ICC's position of an ‘essential’ contribution as an intermediate position between ‘promoting’ and ‘necessary’ contribution).

96 Cf. Ambos, supra note 32, at 153 (discussing ‘structural difference between vertical indirect perpetration and horizontal co-perpetration’).

97 Cf. M. Bohlander, Principles of German Criminal Law (2009), 161 (Mittäterschaft as analogous to enterprise liability).

98 See, most recently, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber Judgement, ICC-01/04–01/06, T.Ch. I, 14 March 2012, para. 994.

99 Fletcher, supra note 69, at 190.

100 Cf. Ambos, supra note 32, at 151 (noting that the Israel Supreme Court applied indirect perpetration below the leadership level).

101 Compare Roxin, supra note 35, at 199–201, with Ambos, K., ‘Command Responsibility and Organisations-herrschaft: Ways of Attributing International Crimes to the “Most Responsible”’, in Nollkaemper, A. and van der Wilt, H. (eds.), System Criminality in International Law (2009), 127, at 152–3 (expressing scepticism about Eichmann as an indirect perpetrator). The ICC Pre-Trial Chamber, as well as the ICTY Trial Chamber in Stakić, has concluded that a defendant's contributions are indispensable if he could have frustrated the common plan by alerting the authorities. See Stakić, supra note 48, para. 490. This reasoning is fallacious because any accomplice, or third parties with knowledge of a criminal plot, could alert the authorities and potentially stop the plan from unfolding. This does not make an individual's contribution indispensable on pain of a reductio ad absurdum. If everyone is indispensable, then no one is. The same issue arises with irreplaceability; even direct perpetrators can be deemed irreplaceable if there is no time to replace them when they refuse to fire their weapons. See Ambos, supra note 32, at 155.

102 See Stakić, supra note 48, para. 440 (quoting Roxin).

103 Ibid., para. 490.

104 Ibid., paras. 490–491.

105 See Omar Hassan Ahmad Al Bashir, supra note 46, paras. 216–223. For a discussion, see Osiel, supra note 29, at 123 (noting disagreement over whether Bashir exercised total control). See also Vest, supra note 52, at 428 (uncertainty over Bashir's full control).

106 Judge Anita Ušacka dissented for this very reason, noting that ‘I do not find any evidence which addresses the issue of the locus of control; it is unclear whether such control indeed rested fully with Omar Al Bashir, or whether it was shared by others such that each person had the power to frustrate the commission of the crime’. See Partly Dissenting Opinion of Judge Ušacka, para. 104 (rejecting indirect co-perpetration as a proper basis for the warrant).

107 See Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, supra note 71, para. 186.

108 A point Hobbes made quite famously in Leviathan, where he asserted that corporate bodies were always subject to internal division while monarchs were not. See T. Hobbes, Leviathan (1994), 115–16.

109 It is imperative to recognize the correct structure of this argument. The task is not to determine on metaphysical grounds that the entity qualifies as a group agent and then mechanically draw moral or legal conclusions from this analysis. Such an analysis would afford far too much significance to metaphysical concepts of personality or group agency. See J. D. Ohlin, ‘Is the Concept of the Person Necessary for Human Rights?’, (2005) 105 Columbia Law Review 209, at 238–40. Rather, the task is to determine, at the outset, the moral and legal significance of various forms of group action so as to make sensible conclusions regarding vicarious liability for the acts of the RPP.

110 This could be described as a ‘turn-your-key’ model of joint control, in the sense that both marine officers on board a nuclear submarine must simultaneously turn their respective keys in order to launch a nuclear weapon. This creates the imagined scenario, often hypothesized, in which one compliant officer would need to threaten his recalcitrant colleague with a gun in order to get him to turn his key and co-launch a nuclear retaliatory strike.

111 What if the relevant voting procedure is collective consultation and advice-giving followed by autocratic decision-making by the president? This sounds more like a sole executive than a junta, yet the scholarly consensus is that the Bashir case involves a junta, even though he retained executive control over the country. The difference is relevant when one considers the liability of the other members of the alleged ‘junta’.

112 See Ohlin, supra note 29, at 747.

113 Ibid., at 742.

114 This view is presented in ibid., at 735 ff.

115 For problems with the subjective approach, see Weigend, supra note 64, at 480 (noting the possibility of manipulation); Fletcher, supra note 66, at 657–8 (discussing Stashchynsky); Thomas Lubanga Dyilo, supra note 26, para. 329. However, the Model Penal Code generally takes a subjective approach that is more closely attuned with culpable mental states; see, e.g., MPC § 5.01, and Weigend notes that German courts in practice have traditionally favoured a subjective approach.

116 See, generally, M. E. Bratman, Faces of Intention: Selected Essays on Intention and Agency (1999), 93−129.

117 Ibid., at 125.

118 Cf. Ohlin, supra note 29, at 744.

119 See Bratman, supra note 116, at 115.

120 Ibid., at 119.

121 Ibid., at 95–8.

122 See Ohlin, supra note 29, at 744–5.

123 See, e.g., Kornhauser, L. A. and Sager, L. G., ‘The One and the Many: Adjudication in Collegial Courts’, (1993) 81 CLR 1, at 10–13 (applying the discursive dilemma to legal contexts); List, C., ‘The Discursive Dilemma and Public Reason’, (2006) 116 Ethics 362, at 398 (‘structure of individual judgments underdetermines the appropriate decision at the collective level’).

124 See C. Rovane, The Bounds of Agency: An Essay in Revisionary Metaphysics (1998), 144–5.

125 Ibid., at 146.

126 See P. Pettit, ‘Collective Persons and Powers’, (2002) 8 Legal Theory 443.

127 See Vest, supra note 52, at 428.

128 See Thomas Lubanga Dyilo, supra note 98, para. 994.

129 See, generally, Fletcher, G. P., ‘The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt’, (2002) 111 Yale Law Journal 1499; see also M. Osiel, Making Sense of Mass Atrocity (2009), 95–102; Fletcher and Ohlin, supra note 60, at 542–5.

130 See Fletcher, supra note 92, at 798.

* Associate Professor of Law, Cornell Law School []. I am grateful for comments and suggestions from Boris Burghardt, Lori Damrosch, George Fletcher, Jean Galbraith, Florian Jeßberger, Elies van Sliedregt, and James Stewart, as well as students in the Jurisprudence of War seminars at both Columbia Law School and Cornell Law School. Sarah Heim provided invaluable research and translation assistance.

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
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