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Published online by Cambridge University Press: 30 October 2015
The aim of this article is to show that the concept of perpetration by means as it appears in Article 25 of the Rome Statute of the International Criminal Court (Rome Statute) accurately reflects liability for crimes committed by high-level perpetrators who exercise control over the actions of the lower-level (fully responsible) perpetrators. Finding the proper mode of liability in these cases is crucial to the International Criminal Court's (ICC) mission of ending impunity for serious international crimes. While international criminal law may be unlikely to deter criminals, especially heads of state and other powerful leaders, it can provide some sense of justice for the victims by convicting and punishing those responsible for their suffering. As such, the functions of international criminal law are to a large extent expressive and retributive. At the same time, it is important to keep the focus of international criminal law on individual responsibility of the perpetrators. It is, therefore, crucial to find proper labels that reflect culpability well. I hope to make a contribution to this search in what follows.
This article is divided into five sections. First, I provide a background to the move, recently articulated by the ICC, from the concept of joint criminal enterprise (JCE) to that of indirect perpetration (and indirect co-perpetration) (section 2). Second, I analyse the original presentation of this idea by the German jurist Claus Roxin (section 3). Third, I examine the application of this concept by the German courts, particularly in the 1994 trial of three high level GDR officials held liable as indirect perpetrators for the killings (carried out by the border guards) of refugees at the East/West German border (section 4). Then I present a recent (Winter 2011) proposal by Jens Ohlin to abandon both JCE and indirect perpetration in favour of another mode of collective liability based on joint intentions (section 5). Finally, I defend the concept of indirect perpetration against Ohlin's criticisms, arguing that it offers a more accurate way to label the conduct of high-level perpetrators who carry out crimes by means of direct perpetrators who are themselves liable (section 6).
1 Thomas Nagel identifies four kinds of moral luck: outcome, constitutive, circumstantial, and causal. Outcome luck refers to the way things turn out as opposed to the way we intend them; constitutive luck has to do with the kinds of people we become as a result of genetic make-up and upbringing; circumstantial luck captures the fact that our moral choices are determined by the circumstances in which we are born; causal luck raises the broader problem of determinism. Particularly relevant in the present context is the category of circumstantial luck. Nagel gives the examples of Germans who left for Argentina for business reasons and therefore did not have to make the moral choices presented to those who stayed in Nazi Germany (as a result of mere accident). See T. Nagel, Mortal Questions (1993) (‘Moral Luck’).
2 Arendt, H., Organized Guilt and Universal Responsibility, in May, L. and Hoffman, S. (eds.), Collective Responsibility (1991), 281Google Scholar.
3 See the preamble to the Rome Statute: ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished’.
4 Ohlin focuses on the history of Roxin's control theory and its application in the ICC case law. He argues that the judges’ application of the control theory represents their engagement in ‘first-order questions of criminal law theory’. He continues: ‘Regardless of whether they are reaching the correct answers on any particular question (and on this reasonable minds can disagree), it is laudable that the judges are engaging directly with the deep structure of the criminal law and the key distinctions, such as co-perpetrators and accessories, embodied within it.’ (Ohlin, J., ‘Co-Perpetration: German Dogmatik or German Invasion’, in Stahn, C. (ed.), The Law and Practice of the International Criminal Court (2015)Google Scholar.
5 See, generally, K. J. Heller, The Nuremberg Military Tribunal and the Origins of International Criminal Law (2011). The American strategy for holding groups responsible was developed by Murray Bernays, an officer in the War Department's Personnel Branch. Bernays suggested applying American conspiracy jurisprudence to the SS, SA, and Gestapo. Secretary of War, Henry Stimson, the most powerful advocate of the trials in the Roosevelt administration, encouraged him by applying some of his experience in fighting the sugar trust as a young prosecutor: ‘[I] told them of my experience at the United States Attorney in finding that only by conspiracy could we properly cope with the evils which arise under our complicated development of big business. In many respects the task which we have to cope with now in the development of the Nazi scheme of terrorism is much like the development of big business’. Stimson added that he had in mind a ‘picture of a big trial for conspiracy involving the leaders and actors all the way down who had taken part in the different atrocity camps and mass murder places’. See G. J. Bass, Stay the Hans of Vengeance: The Politics of War Crime Tribunals (2000), 171.
6 ‘Letter dated 24 May 1993 from the Secretary-General to the President of the Security Council’, UN Doc. S/1993/674, quoted in Jorgensen, N. H. B., ‘A Reappraisal of the Abandoned Nuremberg Concept of Criminal Organizations in the Context of Justice in Rwanda’, (2001) 12 Crim. L. F. 371CrossRefGoogle Scholar, at 375, note 20.
7 Nersessian, D. L., ‘Whoops, I committed Genocide! The Anomaly of Constructive Liability for Serious International Crimes’, (2006) 30 Sum Fletcher F. World Aff. 81Google Scholar, at 85.
8 Ibid. See also, Manacorda, S. and Meloni, C., ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?’, (2011) 9 J. Int’l Crim. Just. 159CrossRefGoogle Scholar, at 182.
9 Ibid., 88.
10 See, for example, K. R. Olson, ‘War Hero Turned War Criminal: The ICTY Convicts Croatian General Ante Gotovina’, (Summer 2011) Accountability: Newsletter of the American Society of International Law.
11 The Prosecutor v. Thomas Lubanga Dyilo, Decision on the Issuance of a Warrant of Arrest, ICC-01/04–01/06–8-Corr, Pre-Trial Chamber I, 24 February 2006; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04–01/07–717, Pre-Trial Chamber I, 30 September 2008; see generally Manacorda and Meloni, supra note 8, at 164.
12 On the use of indirect perpetration in the case against Al Bashir, see, e.g., Giamanco, T., ‘Note: The Perpetrator Behind the Perpetrator: A Critical Analysis of the Theory of Prosecution Against Omar Al-Bashir’, (2011) 25 Temp. Int’l & Comp. L.J. 217Google Scholar, at 239.
13 Symposium: Indirect Perpetration: A Perfect Fit for International Prosecution of Armchair Killers? (2011) 9 J. Int’l Crim. Just. 89–226.
14 Werle, G. and Burghardt, B., ‘Introductory Note to Anthology: Claus Roxin on Crimes as Part of Organized Power Structures’, (2011) 9 J. Int’l Crim. Just. 191CrossRefGoogle Scholar.
15 For example, the ICTR recently found Grégoire Ndahimana guilty of the crime of extermination by ‘aiding and abetting as well as by virtue of his command responsibility over communal police on Kivumu’. (The Prosecutor v. Grégoire Ndahimana, Judgement and Sentence, ICTR-01–68-T, T. Ch. II, 30 December 2011, para. 29, affirmed on appeal ICTR-01–68-A, Judgment, 16 December 2013). The majority found that the large scale of the operation in which a church was destroyed and thousands of ethnic Tutsi civilians were killed served as a mitigating factor. ‘Though this did in no way exonerate the accused, it did, however, suggest that his participation through aiding and abetting may have resulted from duress rather than from extremism or ethnic hatred.’ See International Law Prof Blog, 20 November 2011, available at http://www.typepad.com/services/trackback/6a00d8341bfae553ef0162fca54e16970d (accessed 11 August 2015).
16 Werle and Burghardt, supra note 14. For a good account of this tendency for revisionism in postwar Germany see generally, T. Judt, Postwar: A History of Europe Since 1945 (2005).
17 Fletcher, G., ‘New Court, Old Dogmatik’, (2011) 9 J. Int’l Crim. Justice 179CrossRefGoogle Scholar, at 188.
18 Roxin, C., ‘Crimes as Part of Organized Power Structures’, (2011) 9 J. Int. Criminal Just. 193Google Scholar (translated by Belinda Cooper).
19 Ohlin, J., ‘Joint Intentions to Commit International Crimes’, (2011) 11 Chi. J. Int’l L. 693Google Scholar, at 720 (emphasis added).
20 Roxin, supra note 18, at 200.
21 Ibid., at 94, note aa1. I follow the editors’ account of the circumstances of the case provided in this note.
22 See Model Penal Code, §2.06(2) and (2)(a): ‘A person is legally accountable for the conduct of another person when: acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct’. Roxin cites several scholars who argue that it is impossible to hold indirect perpetrators responsible for acts of those who are themselves responsible (Roxin, supra note 18, at 197–8).
23 Ibid., 196.
24 Ibid., 198.
25 Ibid., 199.
26 Ibid., 200. Roxin notes that the Jerusalem Court refused to adopt the usual categories of participation (i.e. principal vs. aider and abettor) and instead characterized the events as ‘mass crime’.
27 Werle and Burghardt, supra note 14.
28 Ibid.
29 Ibid., 209, 224.
30 Ibid., at 224. The concept of indirect perpetration was also used in the so-called Grudge Informer Case, see Dyzenhaus, D., ‘The Grudge Informer Case Revisited’, (2008) 83 NYU Law Rev. 1000Google Scholar, as well as in the Juntas Trials, (1987) 26 ILM 317–72. However, a comparative analysis of the way the concept was used in these other cases is beyond the scope of this paper.
31 Werle and Burghardt, supra note 14, at 225.
32 Ibid., at 210.
33 Ohlin, supra note 19, at 693.
34 Ibid., at 739.
35 Ibid., at 741.
36 Ibid., 726–8.
37 Ibid., 747.
38 Ibid., 745.
39 A situation like that in Sudan, for example, might pose this problem. See Manacorda and Meloni, supra note 8, at 172.
40 See Jessberger, F. and Geneuss, J., ‘On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at the Hague?’ (2008) 6 J. Int’l Crim. Just. 853CrossRefGoogle Scholar, at 866.
41 Ohlin, supra note 19, at 714.
42 Ibid., 716.
43 Ibid., 715.
44 Ibid., 748, note 258.
45 See, e.g., Amicus Brief of Professor Antonio Cassese and Members of the Journal of International Criminal Justice on Joint Criminal Enterprise Doctrine, (Kaing Guek Eav (Duch Case)), Case No 001/18–07–2007-ECCC/OCIJ (PTC 02), 27 October 2008, at 82(ii) (Cited in Ohlin, supra note 19, at 750, note 271).
46 Ohlin, supra note 20, at 751.
47 Werle, G. and Burghardt, B., ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in van Sliedregt, E. and Vasiliev, S. (eds.), Pluralism in International Criminal Law(2014)Google Scholar.
48 Heller, K. J., ‘The Rome Statute in Comparative Perspective’, in Heller, K. J. and Dubber, M. D. (eds.), Handbook of Comparative Criminal Law (2010)Google Scholar, at 603–4.
49 For a detailed discussion of the problems raised by the seeming grouping together of principals and accomplices in Article 25(3)(d), see Ohlin, J. D., ‘Joint Criminal Confusion’, (2009) 12 New Crim. L. Rev. 406Google Scholar, cited in Ohlin, supra note 19, at 746, note 254.
50 Ohlin notes that the ICTY Trial Chamber arguably tried to integrate this distinction into the JCE doctrine. See Ohlin, supra note 19, at 745, note 249.
51 Prosecutor v. Katanga, Decision on the Confirmation of Charges, Case No. ICC‐01/04‐01/07, Pre-Trial Chamber I, 30 September 2008), paras. 512–16, 528–9 and 537–9 (emphasis added).
52 But see Giamanco, supra note 12, at 243–5 (arguing that command responsibility is preferable in the prosecution of Al Bashir, especially to establish liability for rape).
53 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 J. Int’l Crim. Just. 137Google Scholar, at 150.
54 Muñoz-Conde, F. and Olásolo, H., ‘The Application of the Notion of Indirect Perpetration Through Organized Structures of Power in Latin America and Spain’, (2011) 9 J. Int’l Crim. Just. 113CrossRefGoogle Scholar.
55 See, e.g., Ambos, K., ‘Remarks on the General Part of International Criminal Law’, (2006) 4 J. Int’l Crim. Just. 660CrossRefGoogle Scholar, at 665–8 (‘culpa is no longer (only) the intent to cause a certain result, but the blameworthiness of the perpetrator's conduct’), cited in Ohlin, supra note 19, at 751, note 273.
56 Sloane, R., ‘The Expressive Capacity of International Punishment’, (2007) 43 Stan. J. Int’l L. 39Google Scholar, citing Reisman, W. M., ‘Legal Responses to Genocide and Other Massive Violations of Human Rights’, (1996) 59 Law & Contemp. Probs. 75CrossRefGoogle Scholar, at 77. See also, Osiel, M., ‘The Banality of Good: Aligning Incentives Against Mass Atrocity’, (2005) 105 Columbia Law Review 1751Google Scholar.
57 The term comes from an essay of that title by P. Levi, The Drowned and the Save (1989).
58 Nersessian, supra note 7, at 96.
59 Ohlin, supra note 19, at 751.
60 Ibid. Citing F. Mégret, ‘Prospects for “Constitutional” Human Rights Scrutiny of Substantive International Criminal Law by the ICC, with Special Emphasis on the General Part’ (paper presented at Washington University School of Law, Whitney R. Harris World Law Institute, International Legal Scholars Workshop, Roundtable in Public International Law and Theory, 4–6 February 2010). For a general discussion, Ohlin also refers to Ashworth, A., ‘The Elasticity of Mens Rea’, in Tapper, C. F. H. (ed.), Crime, Proof, and Punishment: Essays in Memory of Sir Rupert Cross(1981)Google Scholar, at 45.
61 Ibid., 753.
62 Fletcher, supra note 17, at 190.
63 Ohlin, supra note 19, at 693.
