The Application of the Notion of Indirect Perpetration through Organized Structures of Power in Latin America and Spain

Francisco Muiioz-Conde* and Hector Ohisolo**

a number of cases before Latin American courts, the notion of indirect perpet­through organized structures of power has been applied after the Juntas These include several cases relating to crimes committed during the

military regime in Argentina, the case against General Manuel son•treras in Chile, the case against former national senator Alvaro Alfonso Garcia

in Colombia and cases against former Shining Path leader Abimael ,GL<zmrdn and former President Alberto Jiujimori in Peru. As a result, although spanis/1 and Uruguayan courts continue being reluctant to apply it, the notion of Jn<lirectperpetration through organized structures of power has come to play today

a number of Latin American jurisdictions a key role in portraying the criminal :JitJbiJiity of senior political leaders and high military commanders that make use

the organizations that they control to effect the commission of the crimes.

9 December 1985, the Ctimara Federal Nacional de Apelaciones en lo Criminal y Correccional de la Capital Buenos Aires (hereinafter 'Buenos Aires Federal Court of Appeals'), issued its judgment in the so-called Juntas case.1 The military

Professor of Criminal Law, University Pablo Olavide, Sevilla, Spain, [fmuncon@upo.es] ** Professor of International Criminal Law and Procedure, Willem Pompe Institute for Criminal

Law and Criminology, University of Utrecht. fh.olasolo@uu.nl] The co-authors thank Veronica Th.mamoto, Lourie Taramin, Enrique Camero Rojo and Diana Contreras for their research on legislation, case law and doctrine.

1 Judgments Supreme Court, vol. 29, I-II, 36-1657. Initially published in E1 Diario del ]uicio, at 33-36, on 7, 14, 21 and 28 January 1986, the text of this judgment and the judgment of the

Journal of International Criminalfustice 9 (2011), 113-135 doi:l0.1093/jicj/mqq076 ©Oxford Univer~ily Press, 2011, All rights reserved. For permissions, plca&'C email: journa ls.pcrmissions@oup.com

114 JICJ91.2Glii, 113-135

commanders of the three consecutive Argentinean Military Juntas that run the authoritarian military regime governing Argentina from 1976 to (each Military junta was comprised of the Commander-in-Chief of the the ~avy and the Air Forces) were convicted. Although they had not physical abducted, tortured or murdered, the Buenos Aires Federal Court of found them liable as indirect perpetrators for the crimes committed by members of the military service they commanded. This constitutes a "umrnar decision insofar as it applied for the first time ever the notion of perpetration through organized structures of power as put forward by Roxin in 1963.2

At first. the idea was met with reluctance by Latin American and ~p.aniisl courts. This was mainly due to three reasons. First, the absence of any reference to the notion of indirect perpetration through organized str·nr•tnr" of power io those few national penal codes that expressly provided for general notion of indirect perpetration. Second, the belief that the scope of plication of the notion of indirect perpetration was limited to situations which superiors use innocent agents who are not fully criminally liable the commission of the crimes.3 In situations in which crimes are comrniltte( by subordinates in execution of orders given by their superiors in the of organized structures of power, subordinates are not mere innocent but fully criminally responsible for their free decision to carry out the Therefore, the criminal liability of those snperiors who order the corruni:ssi•ot of the crimes cannot amount to perpetration because they lack control the crimes (superiors can never be certain about whether their would be actually carried out by their subordinates). As a result, ac.cm·ding t< the traditional approach of Latin American and Spanish courts, in a sc<amirl< similar to the one referred to by Roxin, a mode of liability other than perp•etr·a· tion had to be applied - usnally, instigation because superiors who orders, once they have convinced their subordinates to commit the criim<as have no further involvement during their execution.

Third, the fact that the application of the notion of indirect perpetration no impact on the penalty to be imposed on superiors, because in 1nost American Penal Codes (such as, in Argentina, Chile, Peru, Colombia Uruguay). as well as in the Spanish Penal Code, the same penalty attaches

Argentlne Supreme Court referred to in footnote 11 is available at kor/lug/causal3 (visited 13 September 2010). For a complete report and translation mcnt. see American Society of International Law. 26 International Legal Materials (1987),

2 For a comprehensive analysis of the origins and application of this notion in i~:~'r:~:~o;,~.~;~~~' inallaw, see H. O!B.so!o,The Criminal Responsibility of Political and Military J,eaders as to lnlmwliolla) Crimes (London: Hart Publishers, 2009), Chapters 3 and 5. Sec the numerous instances of the application of the notion of indirect perpetration in this of situations referred to by H. Oliisolo and AI. P6rez Cepeda, 'The Notion of Control Crime and its Application by the ICTY in the StakiC Case', 4 International Criminal Law (20041475, at ~8S.

Application of tile Notion of Indirect Perpetration 115

of liability of instigation and necessary contribution (material assist­' wiith<JUt which the crime would not have taken place) as to perpetration.

over time, Latin American and Spanish courts have increasingly their traditional approach did not adequately reflect the nature of

lPt>ri<JrS contribution to the crimes (planning and controlling the means which the criminal activity is carried out) becanse it relegates tbem

econd:ary role that does not correspond to their actual relevance. As a in the last ten years, the question has arisen as to whether the criminal

senior political and military superiors conld be better encapsnlated of principal liability such as indirect perpetration through orga­

sti·uc:tnres of power and co-perpetration based on joint control over the according to this last notion, when a plurality of persons participate

, c<Jmm1ss1on of a crime pursuant to a division of tasks in the execution ;onllllon plan, those persons who share control over its implementation

of essential tasks (without performing them, the plan would be assigned to them are to be considered co-perpetrators (principals to

4

as the notion of indirect perpetration is based on the superiors' over their subordinates' will due to their control over the organization,

the notion of co-perpetration requires a shared control between and subordinates, the question has also arisen as to which of these

HOIC!UI~> should be applied to senior political and military superiors who systematic and widespread campaigns of criminality and order their

rdinates to implement them. pp<>rt,ers of indirect perpetration emphasize that, when crimes are com­

through organized structures of power, superiors and subordinates do into any agreement or common plan nor do they share control over

because the organization has a life on its own and subordinates implement automatically the superiors' orders. 5 In turn, supporters

cpe,rp<etr:lti<m highlight that superiors do not enjoy fnll control over the because the final decision about their commission always rests

subordinates who freely and knowingly choose to join their • criminal plan by complying with their orders. As a result, snperiors

their subordinates the control over the offences, particularly when continues during the implementation of their criminal

be seen throughont this section, Latin American and Spanisb courts divided about this issne.

on the Confirmation of Charges, Lubanga Dyilo (ICC-01/04-01/06-803), Pre-Trial 1. 29 January 2007, §§ 342, 347; Decision on the Confirmation of Charges, Katanga

(ICC-01/04-01/07-717), Pre-Trial Chamber I. 30 September 2008, §§ 515-525. Sec supra note 2, at 265-267,273-296 and 318-329. authors cited by Olclsolo and Perez Cepeda, supra note 3, at 485-486.

, at 494 et seq.

116 JICJ 9 (2011), 113-135

2. National Case Law

A. Argentina

1. The Juntas Trial

As pointed out in the introdnctory section, the 9 December 1985 judgment the Buenos Aires Federal Court of Appeals, constitutes a landmark de.ci'sion insofar as it applied, for the first time, the notion of indirect through organized structures of power. According to the Buenos Federal Court of Appeals, upon seizing power in 1976, the Military devised and set into motion an overall strategy 7 in order to fight sul>v<,rsiion by establishing an elaborate network of clandestine detention centres, those kidnapped nnderwent interrogation and torture.8 The country divided into a number of military zones, within which a regional co.mnaar1de,tf was given complete autonomy over clandestine operations. Within each middle-ranking officers of the three services of the armed forces co·op<,rated· in the abduction of suspected subversives. At the height of the against subversion, the Supreme Court, whose members had been appointed· .. by the military, repeatedly urged the military commanders to clarify the of the disappeared persons in a consolidated action on some 400 petitions habeas corpus. Despite the many civilians who had been kidnapped, tor·tnren and/or murdered (there were altogether between 18,000 victims according official sources, and 30,000 victims according to other sources), not a person was successfully prosecuted in either military or civilian courts. military government at the time constantly denied that such crimes had ever taken place.9

Under these circumstances, the Bnenos Aires Federal Court of Ar>pe•als affirmed that it was not so important who had physically perpetrated

7 The judgment highlighted that the convicted military commanders issued general instructions calling for extraordinary measures to be used not against terrorists only, but against 'subversive elements' in general. See, for instance, Dir. 504/77 issued in April 1977 by General Roberto Eduardo Viola, then Head of the First Army Corps and later Head of the Second Military Junta, concerning the industrial front of the anti-subversive campaign, La Prensa, 23 July 1984, at 5. As a consequence, the crimes in question were not the result of the erratic, solitary and individual decisions of those who carried them out: they were part of an overall strategy devised by the Military Juntas in order to fight subversion. The implementation of this strategy involved a complex number of elements (men, orders, places, arms, vehicles, food, etc.).

8 The Buenos Aires Federal Court of Appeals considered that the intervention of the military commanders of the three consecutive Juntas from the very top of the power structure was not limited to ordering unlawful activities. They also contributed actively to the commission of the crimes. As the Buenos Aires Federal Court of Appeals pointed out, the detention centres had to be financed and staffed centrally, and it was impossible for the military commanders not to have been aware of their existence and activities. The physical perpetrators of the. crimes would not have been able to commit these crimes unless they had had the necessary means to do so. These means were made available to them by order of the convicted military commanders.

9 For further details on the findings of the Buenos Aires Federal Court of Appeals, see Ol<lsolo supra note 2, 128-129.

Application of tile Notion of Indirect Perpetration 117

Indeed, the physical perpetrators were not as significant, since they only a secondary role in committing the crimes. Individuals who con­the system, controlled the will of the persons who were part of that As the control of the convicted military commanders was absolute -

if a subordinate refused to obey, he would automatically be replaced by who would conform to their directives - the plan conceived by the

i!lvict<'d military commanders could not have been upset by the will of the perpetrators of the crimes, who simply performed a minor function

a gigantic machine. Moreover, as the military commanders of the consecutive Juntas always retained the power to stop the crimes that

being committed when they deemed it necessary, they suddenly stopped irregular operations and announced to the population that 'the war had

After that time, there were no further kidnappings, disappearances or . For the Buenos Aires .Federal Court of Appeals, this was a case in the instrument operated by the man behind the scene was the system

which he manipulates at his discretion, a system composed of inter-aarrgectu•e men. Thus, the control was not so much over a specific will but

undetermined will.10 Regardless of who the subordinate officers hap­to be, the criminal acts would have taken place anyway, application of the notion of indirect perpetration through organized

of power by the Buenos Aires Federal Court of Appeals in the Trial was overturned, in a divided vote, by the Chamber of Cassation of

Argentine Supreme Court (hereinafter 'the Argentinean Supreme Court') its 20 December 1986 judgment.11 According to the Majority, in light of the

that the members of the Military Juntas did not intervene in the execution crimes, the starting point of the analysis should have been the approach

the notion of principal liability endorsed at that time by Argentinean case This was the formally objective approach, according to which principals

a crime are only those individuals who physically carry out the objective elements of the crime.

the view of the Majority, the application of this approach led to the conclu­that those individuals who plan, prepare, direct, organize, instigate or, in other way, contribute to the commission of the crime withont taking phys­

part in its execution could not be principals. Moreover, the Majority ·emphasized that this did not mean that the said individuals were not

10 As the Buenos Aires Federal Court of Appeals explained, the convicted military commanders' lack of knowledge of the existence of each criminal act and of the victims' identities is not rele­vant in determining their criminal responsibility. The orders referred generally to all 'subversive people', allowing ample freedom for the subordinates to determine who fell into that category and to act accordingly.

ll Argentine Supreme Court, judgment of 20 December 1986, at 1701 et seq. The reasons that prompted the Argentine Supreme Court to reject the application of the notion of indirect per­petration through organized structures of power in the 9 December 1985 judgment of the Buenos Aires Federal Court of Appeals are set out in the section on Legal Arguments, §§ 20 et seq. But see the separate opinion of Judges Petracchi and Bacque, favouring the application of the notion of indirect perpetration through organized structures of power.

118 JTCJ9 (2011), !13--135

crimin· II }' bl . . 1 a Y . Ia e, or were to be grven a lesser punishment, as Article 45 of

t le ~\rgentmean Penal Code, similar to other Latin American Penal Codes provided the sam It f . . . , t 'b · e pena Y or perpetrators, Instigators and necessary con n utors. As a result of the reasoning above, the Majority of the -Supren~e Court overturned the conviction of the nine commanders of Argentmea M'l't n II ary Juntas as indirect perpetrators and convicted them a necessary contributors,12 which had no impact on the length of the sentence: Imposed upon them.

2. Recent Practice

After the Junt T · 1 A · mall . . as na' rgentme conrts have progressively abandoned the for-bY objective approach to the notion of principal liability, and bave instead

em raced the approach based on the notion of control of the crime13 In this

Anew context, and in particular since the 18 May 2007 judgment of the

rgentme Supreme C t . th E h l . 1. our In e tc eco atz case, Argentinean courts have

afp Ied again the notion of indirect perpetration through organized structures 0

:ower to convict senior military commanders who were part of the higher ec elons of the Argentinean military between 1976 and 1983.14

C. Ad g~od example of this new trend is the 24 July 2008 judgment of the . {for

0 a Federal Oral Tribunal Num. 1. in which Luciano Benjamin Menendez

H ormer head of the Argentinean Army Third Corps from 1975 to 1979) ~mes Oscar Rodriguez (former head of Intelligence Battalion Num. 14l ~ ICh operated under the command of Menendez) and six physical perpetra­ors (mc!uding the former head of the Special Operations Group OP 3 who

was under the dire t d f R d , ' c comman o o nguez, and five of his subordinates)

12 Art. 45 of the A r th . rgen rnean Penal Code states as follows: 'Those individuals who participated in

e executwn of the d d h 'd d 'th . ee • or w o provi e to the perpetrator(s) an assistance or contribution WI out whrch the · Id h th cnme cou not ave taken place, will receive the penalty provided for

tosde whho committed the crime. The same penalty will be imposed on those who directly insti-gaeteperpttt ·. ·

13 S e ra or o commit the cnme. [authors' translation 1' ce E. Malarino 'EI c A .· • · - '

S b d. ' aso rgentmo, m K. Ambos (ed.), Imputaci6n de Cr{menes de los u or mado I D' · 14 S . 8 a mgente: Un Estudio Comparado (Bogota: Temis 2008) at 59 et seq

ec,mteral'ath'd '' · N b

1 ' e JU gment of La Plata Federal Oral Criminal Tribunal in von Wernich 1

ovem er 2007· th · d . ' L . • e JU gment of Cordoba Federal Oral Criminal Tribunal no 1 in Menindez UCLano Ben1·an , R I . · T , lln, 0( nguez Hermes Osmr et al., 24 July 2008; and the judgment of the

ucuman Federal Oral c · · I T 'b 1 · 2008 [ nmma n una m the Senator Vargas Aignasse case, 4 September

· nthelatter,·udgm t th T · o 1 d 1 · I ·r . . en, e ucuman ra Fe era Tnbunal sentenced both accused to he Impnsonment f' d' h

t · . ' Ill mg t at they were part of the higher echelons of the Argentinean mili-ary; an orgamzed stru t r 1 ,

d h ' c ure o powec t 10und that both accused had used their power to or er t e unlawful e t · t h 'd b , n ry In o t c res1 ence of Senator Vargas Aignasse, who was believed to c a member of a subv · k ,

f t f h . . ers1ve group nown as the Montoneros'. He was detained in his home in ron o Is Wife and h'll db

S b c I c reo an rought by force to a military centre where he was tortured. u sequently; he wa · ,. f' ,

b k'd ' s a VIC tm o a rorced disappearance. His captors pretended that he had een I napped b k ta Y an un nown group while, in fact, he had been transferred to another mili-

ry centre See a com t th 4 S b Oral Trib · . men ary 00 e eptem er 2008 judgment of the Tucumful Federal

unalml14 Anuario de IJerechos Humanos {2008),

Applimtion of t/Jc Notion of [ndirect Perpe/mtion 119

convicted for kidnapping, torturing and murdering a number of civilians in execution of the anti-insurgency campaign launched by the Argentinean M:ilitai·y Juntas in 1976. According to the Cordoba Federal Oral Tribunal, the

of the overall anti-insurgency campaign was characterized wide discretion given to Operational Zone Com1nandcrs (such as

to organize the repression in the areas under their command, as as to Operational Zone Commanders' subordinates (such as Rodriguez, the other six accused) to identify the victims. Although all accused

a role in the implementation of the campaign, Menendez and ,I\<Jdrig11ez contributed to the commission of the crimes in a way substantially 'dl!Jer<ent from the other six accused. While Menendez and Rodriguez secured

strict control over the units under their command, gave orders and instruc­to implement the anti-insurgency campaign within their sphere of au­

created the necessary conditions for the effective execution of such orders and supervised the results of their subordinates' activities, the other six accused jointly identified the victims and detained, tortured and killed them

execution of the orders given by Menendez and Rodriguez. As a result, while Menendez and Rodriguez were convicted as indirect co-perpetrators, the other six accused were convicted as direct co-perpetrators of the crimes.

However, the Argentinean courts' increasing application of the notion of in­direct perpetration through organized structures of power has not always been followed in subsequent cases. For instance, the 12 August 2009 judgment of the San Martin Federal Oral Tribunal in the Ploreal Avellaneda case applied the notion of co-perpetration based on joint control (as opposed to the notion of indirect perpetration through organized structures of power) to convict Santiago Omar Riveros (former head of the Military Institutions Command, who had operational control over the Villa Martelli Police Station and the Campo de Mayo Infantry School), Osvaldo Jorge Garcia (former head of the Campo de Mayo Infantry School), Exequiel Verplaetsen (former head of the Intelligence Area at Campo de Mayo Infantry School) and three of his subor­dinates who were physically involved in the commission of the crimes. They were all convicted for the unlawful detention and torture of Iris Avellaneda and her 15-year-old son Florea! Avellaneda, and for the latter's forced disappearance.15

This case shares a number of features with the Luciano Benjamin Menendez et al. case. In both cases, senior military leaders, mid-level military command­ers and physical perpetrators were convicted for similar types of offences committed in furtherance of the overall anti-insurgency campaign designed in 1976 by the Argentinean Military Juntas to eliminate political opponents. Furthermore, in both cases, the notion of indirect perpetration through orga­nized structures of power was expressly accepted with regard to the members of tbe said Military Juntas.

IS The body of Florea! Avellaneda was subsequently discovered at the Uruguayan coast, probably after having been dropped from an Argentine military plane.

120 )lCJ9 (201!), 113-135

Nevertheless, there is a fundamental difference in that the San Martin Federal Oral Tribunal, in the Florea] Avellaneda case, limited the application of the notion of indirect perpetration to the me1nbers of the Military Juntas

(~ecdaus~ t~ey were the only senior military commanders whose contribution m esignmg the ov II . d . . .

A d era campargn an setting Into motwn the Argentinean

rme Forces to im I . ) . f. th . P ement It d1d not take place at the stage of the execution 0 e cnmes Acco a· . 1 , . ·r·t · r mg to t 1e San Martm Federal Oral Tribunal, the other

m1 1 ary command . (O . c

U .t C ers peratwnal Zone Commanders, Area Cmnmanders m ommanders) p t' · d . . . ' , b a.r tcrpate m the tmplementatwn of the anti-insurgency

campmgn y (i) d' . , , . , a JUstmg such campargn to the specml circumstances of their

zones and areas of 'b'l' .. . , th h

. respons1 1 1ty; and (n) planmng the specific operations roug whiCh such ·

t campaign was to be carried out. In doing so, they had au-anomy to decide h h . .

t t , ow t e1r subordmates should proceed with the detention or ure and lore d a· .

th S , e ISappearance of their political opponents. As a result, for e an Martm Fed I 0 I 'b I . .

R. era ra Tn una , the Involvement rn the crimes of Iveros, Garcia and \1 I

where th . erp aetsen (the commanders of the detention centres

S t . 1 t ekcnmes took place) corresponded with a situation of division of es"

en m as s betwee th . . th . . n em and those subordmates who phystcally committed

e cnmes, m which , II f h , t . a o t em were acting pursuant to a common plan in

execu wn of the II . , avera antr-msurgency campaign.16

B. Chile

The notion of indi t f. t

1. . rec perpetration through organized structures of power was

trs app led m Ch'l b h . t· 1 e Y t e 12 November 1993 first instance judgment of an mves 1gating jud f ·h , J M ge 0 t e Chilean Supreme Court in the case against General ose anuel Contrer- r

th P . h as, >DI'mer head of the Chilean intelligence agency under e Inoc et regim 1

Es . Th e mown as DINA, and his chief of operations, Coone! pmoza. ey were both , . d ' h , .

af' . . , · conviCte ,or t e klllmg of Orlando Letelier foreign '"'rs mmiSter in th Ch'l '

h' d e I ean government of Salvador Allende. At the time of Is mur er, Letelier w · .1 . . f th I . as m ex1 e m Washmgton DC, where he was a member 0 e nstltute for Pol't' I S . .

t . , 1 . . 1 tea tud1es and played a key role m promoting interna-wna oppositiOn a · h , gamst t e Pinochet regime.

Accordmg to the · d ( h . h , JU gment, Contreras, who had total control over the DINA w Ic was militar· d ·

Put h . h' f , tze m 1974) made the decision himself to kill Letelier, and IS c Ie of operat'

Sa d. . IOns, Coronel Espinoza, in charge of creating the neces-

ry con Illons for hi I 'll' . . . I'ti' , s n mg (mcludmg the tmplementation of espionage activ-

es wr several month ) l I . ent t d . h s · I tlmately, Mr Townley, a de facto DINA agent was

rns e wtt the · · • nnsswn to kill Letelier. He was sent to the United States,

16 Moreover, the San Marti F tween II . n ederal Oral Tribunal considered that no previous agreement be-

a co-perpeh·ators . crhnin·l 1 . was reqmred, as it was sufficient that those who joined the common

a P an, once Its impl _ . . . been ass· d t h ementatron had started: (t) earned out the essential tasks that had member ~~~h 0

t em; and by doing so (ii) shared the control over the crime with the other s o e common criminal plan.

Application of lfll' Nntion of [ndirect Perpetration 121

he complied with his mission by detonating a bomb placed inside Letelier's car on 21 September 1976.

The judgment addressed at length whether, in light of Articles 14-16 of the Chilean Penal Code, Contreras and Espinoza were to be considered princi­or accessories to Letelicr's murder. In this regard, it is important to high­that, according to Article 15, perpetrators (principals) were those who part in the execution of the crime, whether directly and immediately or

foreclosing or attempting to foreclose the prevention of the crime, those forced or induced a third person to commit the crime and those who,

in concert, facilitated the means of the crime or were present while the was being committed.17

According to the judgment, in order to determine whether Townley acted punmfmt to an order, an act of instigation or an agreement, it was necessary

take into account the following factors: (i) as a de facto agent, 'lbwnley was of the hierarchical military structure of the DINA; (ii) Townley and his

'2/familiy lived under the protection and control of the DINA; and (iii) a sense of .<,J,nv,lltv towards the DINA had strongly grown in Townley, As a result, even if

'lbwnley could not be legally compelled to comply with the order to murder Letelier, the authority and influence of the director of the DINA placed

in a situation in which he was inevitably forced to carry out the kill­ing. The judgment emphasized that the existence of an agreement would have presupposed a deliberate decision by Townley, requiring a level of freedom and independence higher than the one Townley enjoyed after receiving the order to murder Letelier. In turn, the notion of instigation would have required an act of persuasion without the coercive nature of the order to kill received by 'lbwnley from the DINA:s director through the DINA:s chief of operations. As a result, the judgment underscored that the facts in this case showed the type of control of subordinates' will that superiors of organized structures of power enjoy. In these organizations, superiors use their powers to give orders and secure their implementation by interchanging the executioners as they wish. Hence, any resistance or opposition by subordinates has no impact on the execution of the crime.

In light of the afore-mentioned, and given the hierarchical proximity between the DINA:s director and his chief of staff and the lack of any other element showing that Coronel Espinoza was dependent on then Coronel Contreras, the judgment convicted both of them as indirect co-perpetrators who had agreed to use their subordinates in the DINA to effect the murder of Letelier.

Some Chilean authors have criticized this judgment because it departed, in their views without good cause, from pre-1993 Chilean case law, according

17 Authors' translation. The original version in Spanish of Art. IS of the 1874 Chilean Penal Code reads as follows: '(1). Los que tomanparte en Ia ejecuci6n dellleclw, sea de una manera imnediata y directa, sea impidiendo o procurando impedir que se evite; (2) Los que fuerzan o inducen directamente a otro a ejecutarlo; y (3) Los que, concertados para su ejecuci6n, facilitan los medias con que se lleva a ejecta e1 hecho o lo presencian sin tamar parte inmediata en ei:

122 JICJ 9 (2011), 113-135

to which the notion of indirect perpetration was only applicable to those situ~ ations in which the physical perpetrators were not criminally liable. For these authors, when, as in the present case, the level of impact by a superior did not amount to subjugating tbe physical perpetrator's will, one could only apply the notions of instigation or necessary contribution, for which the same pen­alty as for (indirect) perpetration applied under the 1874 Chilean Penal Code

18 As a result, had Contreras and Espinoza, respectively, been convicted

as instigator (Contreras) and necessary contributor (Espinoza), their wrong­domg would have been adequately reflected. According to these authors, the notion of indirect perpetration through organized structures of power only reached some level of acceptance in Chilean case law years latet~ 19 as shown by the 21 September 2007 Chilean Supreme Court decision granting the Peruvian extradition request in relation to former Peruvian president Alberto Fujimori. In this case, the Chilean Supreme Court referred expressly to the possible application of the notion of indirect perpetration through organized structures of power.20

C. Colombia

The Colombian Supreme Court made, for the first time, reference to the notion of indirect perpetration through organized structures of power in its judgment dated 7 March 2007 in the Machuca case,21 its judgment dated 8 August 2007 in the Yamid Amat case

22 and its judgment dated 12 September 2007 in the

Gabarra case. 23

The Colombian Supreme Court did not, however, apply the notion of indirect perpetration, but instead applied the notion of co-perpetration. By doing so, the Colombian Supreme Court followed its trad­itional approach to the distinction between the notions of instigation @etermi­naei6n or autorfa inteleetual), indirect perpetration (autorfa mediata) and eo-perpetration (autorfa material impropia), to which Article 23 of the 1980 Colombian Criminal Code and Articles 28 and 29 of the new 2000 Colombian Criminal Code attach the same penalty.

According to the traditional approach of the Colombian Supreme Court, instigators are those persons who, through instigation, mandate, induction,

18 J.L. Guzman, 'El Caso Chilena', in Ambos (ed.), supra note 13, at 77-82. 19 Ibid. See also P. Lifschitz, '"Cometer" y "hacer cometer": desarrollo y significaci6n actual de Ia

noci6n de autorfa mediata', in Homenaje al Dr. Marino Barbero Santos. In memoriam, val. I (Cuenca: Ediciones de Ia Universidad Castilla-La Mancha, 2001) 1231, at 1272.

20 ~ee in particular legal arguments nos 94 and 95 of this judgment. For a commentary on this JUdgment, see R. Lled6 VO.squez, 'Comentarios sobre la Sentcncia de ExtradiciOn de Alberto Fujimori Fujimori', in 4 Amwrio de Derechos Hwnanos (2008) 107-116, at 114 et seq.

21 Corte Suprema de Justicia (Colombian Supreme Court), Sala de Casaci6n Penal, Machuca case (case no. 23825), Judgment, 7 March 2007.

22 Corte Suprema de Justicia (Colombian Supreme Court), Sala de Casaci6n Penal, Yamid A mat case (case no. 25974), Judgment, 8 August 2007.

23 Corte Suprema de }usticia (Colombian Supreme Court), Sala de Casaci6n Penal, Gabarra case {case no. 24448), Judgment, 12 September 2007.

Application of the Notion of Indirect lbpctratimr 123

coercion, order, agreement or any other feasible means, effect the com­rniss1on of the crime by another person who is criminally responsible as a

perpetrator of the crime. Hence, the notion of instigation requires a of communication between the instigators and the physical perpetrators,

allows the latter to decide, even if in a precarious situation, whether or to carry out the crimes proposed by the instigators. The final decision

the commission of the crimes is not taken by the instigators, but by the cpttysical perpetrators. The notion of instigation can be distinguished from the ;\n<Juc•u of indirect perpetration in that indirect perpetration requires that the

who physically commit the crimes are not in a position to decide ';Wi1etner to commit the crimes because: (i) their roles as physical perpetrators

been imposed upon them by the indirect perpetrator and (ii) they are not of the real dimension of their roles. Finally, the notion of co-perpetration

require' that a plurality of persons, acting in a concerted manner, implement criminal plan in accordance with the principle of division of

There is, however, no need for the co-perpetrators to have entered into a previous agreement. In this scenario, as long as it can be shown that a person made a contribution during the stage of the execution of the crimes, that person becomes automatically a eo-perpetrator, regardless of the relevance of his contribution; there is no need for such contribution to be of an essential nature.Z5

1. The Machuca Case

A good example of the application of the broad notion of co-perpetration is the Machuca case. The events of this case occurred on 18 October 1998 in the village of Machuca, located in the Segovia-Antioquia area. In order to harm the Colombian oil infrastructure and economy, several members of the Cimarron Company of the National Liberation Army detonated a bomb in the Cusiana-Coveiias oleoduct, causing its destruction and the spill of a consider­able amount of oil. As the explosion took place on a hill, the oil descended down the hill to the Machuca village, destroying numerous houses and causing the death of over a hundred villagers. Although the prosecution could not identify the physical perpetrators of the bombing, it prosecuted seven members of the National Liberation Army Central Command as well as the three field commanders in charge of the Cimarron Company.

In its judgment dated 7 March 2007, the Colombian Supreme Court con­victed all accused as co-perpetrators of the crimes. In convicting them, the

24 The Colombian Supreme Court distinguishes between two types of co-perpetration: {i) cnautnr(a material propia, which takes place when each of the co-perpetrators carries out all object­ive elements of the crime; and (ii) coautoria material propia, which takes place when each of the co-perpetrators contributes in a different manner to the commission of the crime pursu­ant to the principle of division of tasks. For the purpose of this article, only the second type of co-perpetration is relevant.

25 See C. LOpez Dfaz, 'El Caso Colombiano', in Ambos (ed.), supm note 13, at 1.69-175.

124 J!CJ 9 (20Jl), 113-135

Colombian Supreme Court found that those responsible for the Machuca tra­gedy belonged to a hierarchical criminal organization that acted outside law. Within its hierarchical structure, the members of the National Lilbet·atiion.·· Army Central Command were in charge of designing and publicizing overall policy of the disruption of the oil supply that went from Caiio Limon to the United States. Units operating in the field, such as the Cimarnm Company, were given ample autonmny to plan those specific operations through which the overall policy was to be implemented. The Command retained the power to discipline those physical perpetrators who made mistakes in the execution of the overall policy.

For the Colombian Supreme Court, the physical perpetrators of the Cimarron Company freely and knowingly decided to carry out the bombing as a way contributing to the implementation of the overall campaign of disruption of the Colombian oil supply. They did so out of their ideological conviction and not because they were lied to or because they were used as tools by the Central Command. The Central Command had no control over their will. Under these circumstances, it was not possible to resort to the notion of indir­ect perpetration. Moreover, the notion of instigation could not apply because this was not just a case in which the crimes were committed in the implemen­tation of superiors' instructions. On the contrary, in the view of the Colombian Supreme Court, this was a case in which a plurality of persons, acting freely and sharing the overall policy of oil supply disruption designed by the Central Command, made their contribution to the commission of the crimes in a coordinated manner in accordance with the principle of division of tasks. As a result, the members of the Central Command, the commanders of the Cimarron Company and the physical perpetrators who bombed the oleoduct near Machuca were co-perpetrators insofar as they were all part of the same joint criminal enterprise.

2. The Case against Former National Senator Garcia Romero

The Colombian Supreme Court partially overcame its reluctance to apply the notion of indirect perpetration through organized structures of power in its 23 February 2010 judgment in the case against the former national senator Alvaro Alfonso Garcia Romero, co-founder of the paramilitary group known as Prente Himes de los Montes de Man'a."6 According to the Colombian

26 According to the Colombian Supreme Court, in the rnid-1990s, and possibly earlier, illegal armed groups started operating without much coordination under the name ofjuerzas de auto~ defensas in the department of Sucre. In 1996, these groups started being coordinated by para~ military commander Salvatore Mancuso, who was given the task of unifying the different armed groups of fuerzas de autmlejCnsas operating in the northern part of the country under Carlos Castafio, head of the broader organization known as Autodefensas Unidas de Colombia. Around the same time, some of the wealthier cattle traders of Sucre took the initiative to create an armed group ofjuerzas de autodefensas to provide security to the center and north of the Department of Sucre. As a result, there were several meetings between paramilitary com­manders (such as Salvatore Mancuso), local and regional politicians, and cattle traders of

Jipplic1ltion of tile Notio11 of [11(/ircc( Perpdmtion 125

iilrrremc Court, this paramilitary group had a strong hierarchy and organized of power, which operated in the department of Sucre, in the north

Its high~level con1manders designed specific operations, and an number of subordinates (their number was soon in the hundreds) imple­

them. The instructions given by the high-level commanders of the were detailed, and the discretion enjoyed in their implementation by

field commanders and low-level members of the group was very limited less than in some guerrilla organizations such as the National Liberation

referred to above). The numerous meetings and continuous radio and communications between the high-level com1nanders of the group and commanders allowed the former to keep a tight control over the devel-

optne11t of the group's operations. The ultimate strategy of the paramilitary aimed to secure the military control over the territory in which they

[o>rer:lted.. They protected businessmen and cattle traders in the areas in they operated because this allowed them to raise financial support, to

•eliminate any person that they considered to be assisting the guerrilla and to over the land that was left behind by the numerous villagers who fled

area from the paramilitary group. At a later stage, the strategy of the para-military group was extended to secure control over the local and regional gav­

e ermnents in the territories in which they operated. In order to achieve this the group supported candidates in local and regional elections.

The Macayepo massacre was an operation carried out by several hundred of the paramilitary group and consisted of multiple killings that

place between 9 and 16 October 2000 in several villages in the area of Carmen de Bolivar (including Macayepo) as well as the massive displacement of their population. According to the Colombian Supreme Court, Garcia Romero was convicted as an indirect perpetrator of the massacre because: (i) he had control (which he shared with its senior military commanders) over the paramilitary group; (ii) the massacre was a normal activity of the paramili­tary group that he had co-founded, and which he supported and advised; and (iii) he contributed to the 'success' of the operation by securing that the anti-guerrilla battalions of the First Brigade of the Navy Infantry were sent away by the Brigade's Commander so as to avoid any possible interference with the killings and mass displacement

27

northern and central Sucre. In this context, a meeting was held in 1997 at the Hacienda Las Canarias, where an agreement was reached between the former national senator Alvaro Alfonso Garcfa Romero, the paramilitary leader Salvatore Mancuso, and cattle traders Miguel Nule Amin, Joaqufn Garda Rodriguez and Javier Piedrahita, to create a paramilitary group, subsequently known as Bloqlle Heroes de los Montes de Mada, After agreeing on how the group would be financially and materially supported, Rodrigo Mercado PelufTo, alias 'Cadena', was appointed commander of the group. Due to his participation in this meeting, his subse­quent financial support to the paramilitary group and his material contribution to some of its operations, Garcfa Romero was convicted by the Colombian Supreme Court as a co~perpetrator of the crime of membership in a criminal organization (concierto pam delinquir agravado).

27 According to the Colombian Supreme Court, in a taped conversation between Garcia Romero and his close aid, Joaqufn Garcia, the latter informed the accused about the operation the day

126 JIC/9 (2011), JlJ-135

Nevertheless, it is noteworthy that, in the same 23 l'ebruary 2010 judgment the Colombian Supreme Court convicted Garda Romero as an instigator ' not as indirect perpetrator) for ordering the killing of Georgina According to the Colombian Supreme Court, Garcia Romero ordered mE:mtJer:s:: of the paramilitary group to kill her on 27 October 1997 after he had rectched the conclusion that. given the poor electoral results obtained by 'his cm"didal:e', (Morris Taboada), Taboada could only become the Governor of the de.pm:trrtent of Sucre if the votes in the town of San Onofre were recounted and Gc:orgirta •: Narvaez (the woman who had taken note of the votes in the first recount) killed. 28

It must be highlighted that, in contrast to the murder of Georgina Navaez where Garcfa Romero gave the order to kill, in the Macayepo massacre Garc(a Romero did not appear to have participated in the design of the operation (he .. was informed about it by his close aide Joaquin Garcia the day before its com­mencement) nor in the setting into motion of the operation (his contribution consisted of using his influence with the Commander of the First Brigade the Navy Infantry to avoid the disruption of the operation by the Colombian · military). As a result, it appears that the Colombian Supreme Court's consider­ation of Garda Romero as an instigator of the killing of Georgina Narvaez is based on its traditional approach to the notion of instigation, according to which, such a notion is applicable whenever the accused prompts a fully re­sponsible person to commit a crime without intervening during its execution. Nevertheless, this is precisely the type of situation that the notion of indirect perpetration through organized structures of power is designed to cover: when superiors use their organizations to secure the commission of the crimes.

Furthermore, according to the Colombian Supreme Court, due to the fact that Garcia Romero made a contribution during the execution of the operation in the Macayepo village and surrounding areas (ensuring no disruption to the operation by the Colombian military), the notion of instigation was no longer applicable in relation to his responsibility for the Macayepo massacre. Only

before its commencement and emphasized the need to get the counter-guerrilla battalions of the Colombian military out of the relevant area. In the said conversation, Garcia Romero agreed to talk early the next morning to the Commander of the First Brigade of the Navy Infantry. The orders subsequently received by the counter-guerriUa battalions showed that they were sent away from the area in which the massacre was taking place, which prevented them from stopping the paramilitary operation. Only after hundreds of paramilitary attackers left the area where they had committed the massacre, did the Commander of the First Brigade of the Navy Infantry order the anti-guerrilla battalions under his command to move back to the relevant area in order to locate and detain the alleged perpetrators (this was known as 'Operation Calmness').

28 According to the Colombian Supreme Court, Garcia Romero gave the order to kill Georgina Narvaez and offered an amount of 2,500 US dollars to have it done as soon as possible. The order was transmitted by Joaquin Garcia (Garcia Romero's close aide) to Salomon Feris (who was in charge of the military operations of the paramilitary group), who passed it on to Danilo (the commander of the field unit based in the town of San Onofre). The victim was shot down a few days afterwards by two unknown individuals on a motorcycle.

tlpplication of tlw Notion of Indirect Perpetration 127

the Colombian Supreme Court appears to have decided to apply, for the time ever, the notion of indirect perpetration through organized struc­

of power instead of the notion of co-perpetration. However, the dol.onlbi.an Supreme Court has chosen to do so in a case in which the accused, ii'nati,on<ll politician with much influence in the relevant area, (i) did not fully

the paramilitary group, as he shared such control with its military ;onilllancjer·s; (ii) did not appear to have participated in the design of the oper­

and (iii) did not appear to have set into motion the operation. Under particular circumstances, the application of the notion of indirect

(or even co-perpetration), based on Garcia Romero's shared • ~<mtrol over the paramilitary group and his essential contribution to secure

successful execution of the operation, would have been more adequate.

The Shining Path Case

The notion of indirect perpetration through organized structures of power was applied for the first time in Peru by the Peruvian National Penal Chamber in its 13 October 2006 trial jndgment,29 which was subsequently confirmed by the Peruvian Supreme Court.30 These judgments were issued in the case of Abimael Guzman, the founder and leader of the Maoist guerrilla organization, Sendero Luminoso or the Shining Path, and some of his closest aides (his wife

Iparraguirre, Laura Zambrano and Maria Pantoja) in relation to the Lucanamarca massacre of 3 Aprill983.31

According to the National Penal Chamber, the Permanent Direction Committee and the Central Committee of the Shining Path held ultimate con­trol over the functioning of the organization and had the power to take neces­sary disciplinary measures when the intermediate committees and field units

29 Judgment of the Peruvian National Penal Chamber dated 13 October 2006, Case No. 560-03. 30 Judgment of the Peruvian Supreme Court, Penal Chamber, dated 14 December 2007, Case No.

5385-200. 31 The Shining Path started its operations against the Peruvian governmental forces in 1980. The

territory that it controlled and the number of militants in the organization soon grew. in par­ticular in the regions of Ayacucho, Apurimac and Huancavelica (the Andean highlands). In December 1981, the Peruvian Government declared the three Andean regions an 'emergency zone'. In some of these areas, the Peruvian military trained peasants and organized them into anti-rebel militias called Rondas. In March 1983, members of a Ronda from the Huanca Sancos Province of Ayacucho stoned, stabbed, set on fire and shot a Shining Path eommander in the main square of the small town of Lucanamarca. A few weeks later, Shining Path members responded by entering the towns of Yanaccollpa, Ataccara, Llacchua, Muylacruz and Lucanamarca (all in the Huanca Sancos Province) and by killing 69 people, including 18 chil­dren (some of them as young as six-months old), ll women (some of them pregnant) and several elderly people. Most victims were killed with machetes and axe hacks, and some were shot. Some villagers were scalded with boiling water. TJltimatcly, the Shining Path's war against the Peruvian state faltered, and Guzman and several other high-ranking Shining Path members were captured in Lima in 1992.

128 )IC/ 9 (2011), 113-135

did not comply with their instructions. Their members presided over the meet­mgs wrth the intermediate committees, which in turn were in contact with the units in the field. Operations, such as the one in the Lucanamarca area :ere only launched in execution of orders that reflected the decisions take~

Y the Permanent Direction Committee and the agreements reached in the ~entral Committee. Hence, it was the competence of the Permanent Direction

1 ommtttee and the Central Committee to decide about specific actions in

hocal areas and to determine when, where and against whom the operations pad to be carried out. 32 The orders were transmitted by the members of the

e:manent Direction Committee and the Central Committee to the contact rm~ts m the intermediate committees, who were entrusted with planning the ogiStiCs of the operation. Subsequently, the intermediate committees trans­

mitted detailed instructions on how to execute the operations to the field umts. As president of the Permanent Direction Committee, the Central Committee, and the Political Bureau of the Shining Path, Guzman exercised control over the organization. As a result, he was convicted as an indirect perpetrator.

In applying the notion of indirect perpetration through organized structures ~f power, the National Penal Chamber and the Peruvian Supreme Court high­tghted that the definition of perpetrator contained in Article 100 of the 1924

32 In an interview gi b G , . . . . . . J 1

ven Y uzman to EI Dwno (a pro-Shmmg Path newspaper based m Lima) in u Y 1988, Guz.man acknowledged his responsibility in the massacre as foUows:

In the face of reactionary military actions ... we responded with a devastating action: Lucanamarca. Neither they nor we have forgotten it, to be sure, because they got an answer that they didn't imagine possible. More than 80 were annihilated, that is the t~~th. And We say openly that there were excesses, as was analysed in 1983. But every­t mg in life has two aspects. Our task was to deal a devastating blow in order to put them _in ch~ck, to make them understand that it was not going to be so easy. On some occasrons, hke that one, it was the Central Leadership itself that planned the action ~nd gave instructions. That's bow it was. In that case, the principal thing is that we ealt then: a devastating blow, and we checked them and they understood that they

were dealing With a different kind of people's fighters, that we weren't the same as t~ose they had fought before. This is what they understood. The excesses are the nega­~~~e as~ect .... If we were to give the masses a lot of restrictions, requirements and prohib­Itions, rt would mean that deep down we didn't want the waters to overflow. And what we needed was for the waters to overflow, to let the flood rage, because we know that ;~: ~:ver ~oods its banks it causes devastation, but then it returns to its riverbed .... h 0 pornt was to make them understand that we were a hard nut to crack, and

t at we were ready for anything, anything.

~he En~lish translation of the full interview is available at http://www.blythe.orgjperu-pcp/ okcs.enjmterv.htm {visited 20 June 2010). Subsequently, on lO September 2002, Guzman

ac nowledged agai h', 'b'l' , 1' h n ts responsr 1 tty tor the Lucanamarca massacre before the Peruvian

rut and Reconcili f c . . , d . . . 'bT [ a IOn ommisswn: We, actors, rerterate that we will not avotd our respon-sr 1 Ity for the Lucanamarca massacre]. I have mine, I'm the frrst one responsible, and I will never renounce my r . 'b'l't h ld , k , . . csponst 1 1 y, t at wou n t rna e any sense. The full report of the commis-ston on the Luca 'fj namarca massacre is available in Spanish at http://www.cverdad.org.pe/

)I tnaljpdf/TOM0%20VII/Casos%20Ilustrativos-UIE/2.6. %20LUCANAMARCA. pdf (visited 20 une 2010).

Application of tl!e Notion of Indirect Perpetration ]29

pern'eian Penal Code ('those who take part iu the execution of crime') 33 did not 'el"c!utdeper se the notion of indirect perpetration through organized structures

power. Moreover, the Peruvian Supreme Court highlighted that the said had been embraced by Article 23 of the new Peruvian Penal Code of

which defines perpetrators as including 'those who commit the crime as individual, through another person or joint with others'. 34

Guzman's defence claimed that the notion of indirect perpetration through Cbfga;niz;ed structures of power could not be applied because the Shining Path

not a state-sponsored organization, and therefore, its members did not a duty to comply with the orders of the Shining Path's leadership.

, it argued, prevented the transfer of responsibility up to the highest ech­of the organization. However, the National Penal Chamber and the

Peruvian Supreme Court pointed ant that the application of the notion of indir­ect perpetration through organized structures of power was never limited to state-sponsored organizations because, according to Claus Roxin, it is mainly

, s1aitable for situations in which the relevant organization acts outside the legal order.

Guzman's defence also argued that the notion of indirect perpetration could not be applied in this case because the requirement that the physical perpetra­tors be interchangeable members of the Shining Path was not met. According to Guzman's defence, not all the members of the Shining Path had the 'neces­sary skills' to kill with machetes and axes, and hack babies, women and elderly people, as it had happened in Lucanamarca. In this scenario, the interchange­ability requirement did not depend on how many formal members an organ­ization had, but on how many of them had the necessary expertise and experience to execute Lucanamarca-like operations. Given the limited 'specia­lized members' of the Shining Path who could carry out this type of operations, the defence claimed that Guzman did not have control over the organization nor over the will of the physical perpetrators of the massacre.

The Peruvian National Penal Chamber rejected the defence's arguments be­cause, in its view, Guzman's control over the will of the physical perpetrators was not based on the interchangeability of the members of Shining Path. Indeed, the reasons that could lead the original addressees to refuse compli­ance with the superiors' orders could, in principle, also be shared by the other members of the organization. As a result, for the Peruvian National Penal Chamber, the interchangeability of the members of an organization only in­creases the probability that orders will be executed; it does not secure automat­ic compliance with the orders. In the view of the Peruvian National Penal Chamber, it is the physical perpetrators' favourable attitude to comply with the unlawful superiors' orders, and not their fungible nature, that gives

33 Authors' translation. The original Spanish version of Art. 100 of the 1924 Peruvian Penal Code provides that perpetrators are those 'que tomaren parte en la ejecuci6n del hecho punible'.

34 Authors' translation. The original Spanish version of Art. 23 of the 1991 Peruvian Penal Code provides that a perpetrator is 'el que realiza por s{ o por media de otro el heclw punible y los que lo cometan conjuntamente sertin reprimidos con la pena establecida para esta infracci6n que tomaren parte en la ejecuci6n del hec/w punible'.

130 }ICJ 9 (20!1), lll-135

superiors control over their organizations. In this scenario, if the initial dressees of the superiors' orders refuse to comply with them, other me•ml>ers of the organization will replace them in the implementation of the orders cause the replacements, like most members of the organization, are (have a favourable attitude) towards the execution of the superiors' Hence, while the interchangeability of the executioners within the u'''"'llZlF tion increases the probability of compliance with superiors' orders, the iors' control over the organization is based on the favourable attitude members to comply with their orders. As a result, according to the Perm''"' National Penal Chamber, the key requirement for the application of the of indirect perpetration through organized structures of power is the exJtste,nct of this type of attitude among the membership of the relevant oq~anizatio:n; For the Peruvian National Penal Chamber, this requirement was met in case of the Shining Path as its members were ideologically motivated, had high level of political and military education and shared a common vision the State and society at large. Under these circumstances, Guzman eff<ec!iedf the commission of the Lucanamarca massacre by using the hierarchical lure of the Shining Path and by profiting from the willingness of its mt,mlbers' to follow their leader's orders.

The Peruvian Supreme Court departed from the interpretation Peruvian National Penal Chamber in that it underscored that the SUIJeriors• control over an organization was based on its hierarchical structure and interchangeability of its members. As a result, the Peruvian Supreme Court considered the fungible nature of the members of the organization a key quirement of the notion of indirect perpetration. Nevertheless, when analysing the interchangeability of the members of the Shining Path, the Supreme Court focused on the successive interchangeability of its members. It emphasized that, if a member of the Shining Path did not comply with an order of the Permanent Direction Committee, another member would replace him. This is what occurred with the order to kill Felipe Santiago Salaverry, which was executed after six attempts. The problem with this approach is that most organizations fulfil a jsuccessive interchangeability' criterion because; whenever one of its members refuses to comply with a superior's order, there will always be another member who can attempt to execute it at a later stage. As a result, this approach deprives the 'interchangeability criterion' of any value to distinguish between those cases in which superiors have a real control over their organizations and those cases in which they do not have such control.35

35 As a result, the Peruvian Supreme Court did not address the issue of how the physical perpetra­tors of the Lucanamarca massacre were fungible members of the Shining Path at the time of the massacre. As noted above, it focused its analysis on the notion of 'successive interchange~ ability'. Moreover, it highlighted the evidence showing that Guzman secured the commission of the massacre by using the hierarchical structure of the Shining Path and profited from the willingness of their members to renounce their own identity and follow their leaders' orders. However, such evidence only shows that, as required by the National Penal Chamber, Shining Path members had a favourable internal attitude towards the execution of orders issued by

Applicntion of tile Nol.ion of Im/ircct Perpetr(IUon m

Fujimori Case

the Abimel Guzmdn case, the notion of indirect p~rpetration ~hrough structures of power was applied by a Spccwl Chamber of the S~preme Court in a judgment dated 7 April 2009. in the case .of

.. · Th s · 1 Chamber convicted Alberto Fu)rmorr, mter alra, FUJimort. e pecm . . . - , T-against life and illegal detentions commrtt".d by,mrhtary, paran~rr

and para-police groups during the period of FuJrmon~ presrdency, from d 2oo136 According to the Special Chamber, the smd notron was per­

a;,mpatible with Article 23 of the 1991 Peruvian Penal Code and was ap: in the Fujimori case because all three of its reqmre1nents were. met.

. of an organized structure of power controlled by former presrde~t p "mori that was hierarchically organized; (n) physrcal perpetrators b:}~inate members of such structure of power and were replacea~le;

/~ the structure of power controlled by Alberto Fujimori acted outsrde " (understanding such as both national and internatronal law). The

Supreme Court, in its judgment of 3 January 2010, confrrmed the

udi~ment of the Special Chambee

Spain

Spanish courts have at times referred to the notion of i~direct perpetra-through organized structures of power, they have, m pnncrple, preferr;~

base convictions on the notions of instigation or nec~ssary contnbutw~, of liability to which the same penalty as to

38 (mdlrect) perpetratiOn

under the 1973 and 1995 Spanish Penal Codes.

their leader Abimael Guzman. The same conclusion is reached by 1 Me\ni, 'El C.aso ~eruano', ~n ( d) t 13 at 144 For a different evaluation of the cases fact situatiOn, see t e

~Ambos e., supra no e , · dissenting opinion of Judge Villa Stein. . . C t f 7 April 2009 in the

d f th S ·aJ Chamber of the Peruvtan Supreme our o 36 Ju gmed~t o e AVpecl~ 2001 concerning the Barrios Altos, La Cantuta and SIB basement

procee mgs no. · ~ . b /C t s ;:tjspe/index . This judgment is available at http:/ /www.p).go .pe or e upremc . ·

~:s;~· cion=detallenoticia&codigo=10409 (visited on 15 June 2010) .. For i'urt~er details, s.ee K PA!bos 'The Fujimori Judgment: A President's Responsibility for Crimes agm?s~ Hum~m~y a~ Indirec't Perpetrator by Virtue of an Organized Power Apparatus', infra, in this Issue o t e

37 ~:~·n;~~ instance the judgments of the Spanish Supreme Court of 2 July 2004 (Bom/Ji.ng of Hip~rcor superma;·ket case), of]_ October 2004 (Scilingo case) and of 17 J~ly ~008 (B~mbm~ oj Atocha train station case). For an analysis of the impact of the ~otio.n of' md1rcct ~erp;t::e1~ through organized structures of power on the case law of the Spams~ s.upreme ?ur ,' ~ ; G'l Gil 'La autoria mediata por aparatos jerarquizados de podcr en la JUnspruc~encm espanola,

I ' . . a1 (2008) 53-88 See also E. Bactgalupo Zapatcr, 53 Amwrio de Derecho penal Y Cwncws pen es · , . 1 1 (2008)· 'La teoria del dominio del hecho en Ia jurisprudencia del Tribunal Supremo, m a ey •

A. Gil Gil, 'El Caso Espafl.ol', in Ambos (ed.), supra note 13. . , . . _ h 38 The reluctance of Spanish courts to apply the notion of mdtre~t pcrpetrathwn tt~rougby

· · t t 'th the support gtven to sue no IOn o nized structures of power lS m con ras Wl .

ar~:mber of those Spanish authors who have focused their ~ork on t?e analys,~s ofFmoclldes I) · · I I See m particular r. ara o of liability in (internationa cnmma aw. • '

132 JICJ 9 (2011), 113-135

After the death of Spanish dictator Francisco Franco in 1975, there only been a handful of cases in Spain in which it could be argued that the vant crimes were committed through organized structures of power. 23 February 1981 attempted coup detat was dealt with in the 22 April judgment of the Penal Chamber of the Spanish Supreme Court. In this the Spanish Supreme Court did not apply the notion of indirect nerD<ctrMi.on•

through organized structures of power because such a notion was not ciently known by the Spanish magistrates in the early 80s. Moreover, at time, in the Spanish Penal Code and the Spanish Code of Military there were several provisions dealing specifically with the criminal liabilitv~ of military commanders who could attempt a coup d'etat.

In the so-called 'Marcy Case', which was dealt with in the 28 July 1998 judg, ment of the Spanish Supreme Court, the former interior minister and other high-ranking officials of his ministry were convicted for kidnapping an ""'"''u member of the terrorist organization ETA. In this case, the reason for not re­sorting to the notion of indirect perpetration through an organized structure of power was that the Spanish Supreme Court considered that the charged' crime (the kidnapping of alleged ETA member Segundo Marey) was an isolated act, and, therefore, had not taken place in the context of a systematic unlawful activity by illegal groups operating from within the state. 39

Spanish courts could have resorted to the notion of indirect perpetration through organized structures of power in those cases against individuals who were allegedly at the top of the terrorist organization ETA for crimes com­mitted by their subordinates within such organization. Nevertheless, although one can observe the influence of such a notion in the legal arguments used to justify convictions for instigation and necessary contribution in several cases, Spanish courts have never expressly applied it.40

Cabana, Responsabilidad penal del dirigente en estructuras jenirquicas (Valencia: Tirant lo Blanch, 2004); Fernandez IbUfiez, La autor{a mediata e11 aparatos orga11izados de poder (Granada: Comares, 2006); F. Muflo'l. Conde, 'Dominio de Ia voluntad en virtud de aparatos de poder orga­nizados en organizaciones no desvinculadas del Derecho', in 6 Revlsta Pemll (2000) 104-114; ibid., 'Problemas de autorfa y participaciOn en el Derecho penal econOmico, o cOmo imputar a tftulo de autores a las personas que, sin realizar acciones ejecutivas, deciden la realizaciOn de un delito en el Umbito de la delincuencia econOmica empresarial?' in 9 Revista Penal (2002) 59-98; Oh'lsolo, supra note 2, Chapters 3 and 5; ibid., 'Current Trends on Modes of Liability for Genocide, Crimes against Humanity and War Crimes', in C. Stahn, and L. van den Herik (eds), International Criminal Law: Currel!t and Future Perspectives (The Hague: T.M.C. Asser, 2010) 520-544.

39 According to Mufi.O'l.-Conde, supra note 38, at 104 et seq., the notion of indirect perpetration through organized structures of power can be applied to this type of cases.

40 See the 2 July 2004 and 22 February 2007 judgments of the Spanish Supreme Court. See the analysis of this case law by Gil Gil, supra note 37, at 65 et seq, According to Muiioz-Conde supra note 40, at 104 et seq., the notion of indirect perpetration through organized structures of power can also be applied to lhe leaders of terrorist organizations and commanders of terror­ist platoons, regardless of the national (ETA) or international (AI Qaeda) character of the rele­vant organization.

Application of tl!e Notio11 of Indirect Popctmtion 133

the 10 December 1998 decision to proceed against General Augusto 1inoc!bet, issu~d by Spanish investigative judge Baltasar Garz6n is another ex­

of this pattern. The decision charged General Augusto Pinochet with against humanity, torture and genocide committed by the Chilean

apparatus during his authoritarian regime. Although the arguments con­therein arc clearly related to the notion of indirect perpetration through

structures of power, such a notion is not expressly mentioned

the decision.41

Uruguay

9 February 2010 judgment of the Uruguayan Penal Tribunal No.1'2

(herc­'the Tribunal') convicted Juan Maria Bordaberry Arocena, former

UrugJLlll}'an president from 1972 to 1976, as (i) a direct perpetrator of the crime an attack against the Constitution (Bordaberry's signature was necessary to

the 27 june 1973 Decree No. 464/973 by which the Parliament was dis­and as (ii) a co-perpetrator of nine crimes of forced disappearance

two murders for political reasons. According to the Tribunal, Bordaberry did not have effective control over the

operations carried out by the Uruguayan Armed Forces between and 1976 (a period during which around one-fiftieth of all Uruguayan citi­were detained or interrogated, turning Uruguay into the country with

highest percentage of political detentions in Latin American at that time) becm1se,, from 9 February 1973 onwards, the Uruguayan Armed Forces

taken up, unilaterally, the fight against subversion, and Bordaberry no influence in its design or implementation. The means by which the

anti-subversive campaign was carried out, widespread detention and torture, followed at times by enforced disappearance and murder, were not decided by Bordaberry, but by the Uruguayan Armed Forces. As a result, the Uruguayan Penal Tribunal did not discuss in its judgment whether the notion of indirect perpetration through organized structures of power could apply,

The Tribunal focussed on the notion of co-perpetration because Bordaberry supported the repressive policies of the Uruguayan Armed Forces in the pursuit of a common goal, shared by himself, the senior commanders of the

41 In its Decision to Proceed to Trial (Auto de procesamiento) against General Augusto Pinochet of 10 December 1998, the Investigating Chamber no. 5 of the Spanish Awliencia Nacional Uudge

Baltasar GarzOn) held:

As head of the Government Council and President of the Republic, [General Augusto Pinochet] has the power to stop the existing situation. Nevertheless, he, on the contrary, incite and encourage, giving the necessary orders to his subordinates, and controlling at times, with full control over the crimes, their material execution through his leader­

ship position in the DINA.

Nevertheless, this Decision does not consider Pinochet as an indirect perpetrator. Quite the contrary, it considers him sometimes as an instigator and at other times as a co-perpetratoc

42 Case No. IUE 1-008/2003.

134 )/C)'J (2011), 113-135

Uruguayan Armed Forces and the perpetrators of the crimes: the perst,ct:ttic,n and elimination of those political groups considered to be dangerous for tiona! security. Not only did Bordaberry fail to comply with his duties to the necessary actions to prevent and stop the commission of the crimes, to quest their investigation and to file criminal complaints with the competent dicial institutions (as president of the Republic of Uruguay he had sufficient authority to take these measures through his Ministers), but he took mea,;ures to support the overall anti-subversive campaign. Indeed, according to Tribunal. the repressive policies designed and implemented by the Armed Forces could not have been carried out for several years without the • agreement and support of the then president of the Republic of Uruguay.43

3. Conclusion When Roxin defined the notion of indirect perpetration through structures of power for the first time in 1963, he had in mind an un,fm·tunal:e< and unique chapter in the history of the twentieth century: the holocaust and the network of Nazi concentration and extermination camps. At the top of the Nazi organization were Adolf Hitler and Heinrich Rimmler. However, the effective functioning of the Nazi organization required coordinated action of thousands of additional members of this organization who, according to a strict chain of command, operated at different levels of the Nazi organization. The notion of indirect perpetration through organized structures of power strongly put into question those attempts to portray the criminal liability of senior Nazi political and military leaders, as well as mid-level superiors of the Nazi organization, as mere accessories to the crimes comn1itted in execution of the infamous 'Final Solution'.

Despite the initial reluctance of national and international courts to resort to the notion of indirect perpetration through organized structures of power, the situation has, to a very important extent, changed over time. This is the result of a growing perception that the application, in this type of cases, of notions of accessorial liability, such as instigation or necessary contribution, even if it may have no impact on the penalty. relegates superiors to a secondary role, which does not correspond to their actual relevance.

Moreover, although Latin American and Spanish courts remain, to a cer.-. tain extent, divided on the determination of the specific notion of principal liability to be resorted to in these cases (indirect perpetration through

43 Citing Welzel and Bacigalupo, the Tribunal highlighted that the application of the notion of co-perpetration requires that the contribution of the accused (i) takes place during the stage of execution of the crime; and (ii) is essential because, without it, the crime could not have been committed. Only if these requirements are met, it can be stated that the accused had joint control (shared with the other co-perpetrators) over the commission of the crime and, therefore, decided to move forward with its completion.

!lpplimtion of the Notion of [mlirecl Pcrpctmtion BS

br!\anLiZ<'d structures of power vis-a-vis co-perpetration based on joint control), cases analysed in the present article show how, today, the notion of indirect

has come to play a key role in portraying the criminal liability senior political leaders and high military commanders who make use of organizations that they control to effect the com1nission of crimes.