thomas weigend - perpetration through an organization

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Perpetration through an

OrganizationThe Unexpected Career of a German Legal Concept

Thomas Weigend*

Abstract

Indirect perpetration is a rather novel concept in international criminal law, men-

tioned explicitly for the first time in Article 25(3)(a) of the International Criminal

Court (ICC) Statute. In its Katanga and Chui decision, ICC Pre-Trial Chamber I

interprets the concept of indirect perpetration in a particular manner. Citing

German legal doctrine, the Pre-Trial Chamber regards as an indirect perpetrator, a

person who uses a hierarchically structured organization to induce others to

carry out a criminal act. It is questionable whether this doctrine is helpful in analys-

ing the cases of indirect perpetration in the context of systemic crime; it might be

preferable to ask what it takes to control the will of another person to such an

extent as to make him commit a crime. The existence of an organization controlled

by the perpetrator may be no more than one factor relevant for answering that

question.

1. Introduction

In its decision on the confirmation of charges against Germain Katanga andMathieu Ngudjolo Chui,1 the International Criminal Court (ICC) Pre-Trial

Chamber I addresses a substantial number of difficult legal issues, some of

them for the first time. One of the most interesting passages of the decision

deals with the question of perpetration through another person under Article

25(3)(a) ICC Statute. Expanding on the analysis of Article 25(3) in its decision

in Lubanga,2 the Chamber develops the contours of this novel concept of

* Professor of Criminal Law, University of Cologne (Germany); Member of the Board of Editors ofthisJournal. [[email protected]]

1 Decision on the Confirmation of Charges, Prosecutor v. Germain Katanga and Mathieu Ngudjolo

Chui(ICC- 01/04-01/07), Pre-Trial Chamber I, 30 September 2008 (Katanga and Chui).

2 Decision on the Confirmation of Charges, Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/

06), Pre-Trial Chamber I, 29 January 2007 (Lubanga),xx 328et seq., 332, 333.

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Journal of International Crimi nal Justice9 (2011), 91^111 doi:10.1093/jicj/mqq077Advance Access publication 29 December 2010

Oxford University Press, 2010, All rights reserved. For permissions, please email: [email protected]

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international criminal law. In doing so, the Chamber draws heavily on theories

developed in German legal doctrine and jurisprudence, creating the impression

that these theories are generally recognized in Germany and beyond, and can

thus provide a reliable basis for international criminal law. In what follows, I

will not deal with the methodological question as to how the law under theICC Statute is to be found, and what role comparative analysis can play in

this endeavour. Instead, I will explain how and to what extent German law

has adopted the idea that a person can perpetrate a crime by using an organ-

ization; to what extent that theory is subject to criticism; and finally, what op-

tions the ICC has to accept, reject, or limit the concept presented by Pre-Trial

Chamber I.

2. Indirect Perpetration in the Pre-Trial ChamberDecision in Katanga and Chui

The accused Germain Katanga and Mathieu Ngudjolo Chui were leaders of

military groups connected with different ethnic groups in the Eastern Congo

region of Ituri. In February 2003, Katanga and Chui developed the common

plan to wipe out the village of Bogoro, and their respective troops carried out

that plan in a joint action. In the course of this action, the troops killed many

members of the civilian population of Bogoro and committed other atrocities

amounting to war crimes and crimes against humanity. The prosecutorcharged Katanga and Chui as co-perpetrators pursuant to Article 25(3)(a) ICC

Statute, based on the theory that they exercised joint control over the crimes

committed.3 Since the defendants did not personally take part in the raid,

their control over the acts committed by their soldiers could not be based on

their presence at the place where the offences were committed; instead, the

Pre-Trial Chamber declared that they jointly committed the war crimes

through other persons under their command, thus combining the modalities

of co-perpetration and perpetration through another person, both contained

in Article 25(3)(a) of the Statute.4

Following the lead of its Lubanga decision, the Chamber defines control as

the criterion for distinguishing principal perpetrators (covered by Article

25(3)(a) of the Statute) from mere accessories. In Lubanga,5 the Pre-Trial

3 Katanga and Chui,supranote 1,x 473. The prosecutor charged the defendants, in the alternative,

as accessories under Art. 25(3)(b) ICCSt. for ordering the crimes committed by the militia

members. The Chamber decided that accessorial liability was rendered moot by a f inding of li-

ability as principals under Art. 25(3)(a) and hence did not further pursue the alternative of

accessorial liability; ibid., xx470^471. The Chamber thus sidestepped the question whether itis permissible for the prosecutor to present alternative charges although Reg. 52(c) of the ICC

Regulations requires [a] legal characterization of the facts to accord both with the crimes

under articles 6, 7 or 8 and the precise form of participation under articles 25 and 28.

4 Ibid., xx 491^494.

5 Lubanga, supranote 2, x 330.

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Chamber had declared that principals to a crime are not limited to those who

physically carry out the objective elements of the offence but also include

those who, in spite of being removed from the scene of the crime, control or

mastermind its commission because they decide whether and how the offence

will be committed. In the present decision, the Chamber follows up on thisstatement, interpreting the control or mastermind formula to include the situ-

ation where a person has control over the will of those who carry out the ob-

jective elements of the offence.6 Since Article 25(3)(a) ICC Statute explicitly

declares to be irrelevant whether the person through whom the crime is com-

mitted himself acts culpably or not, the Chamber concludes that control over

the immediate actor can also be exerted by means of an organization:

:::the cases most relevant to international criminal law are those in which the perpetrator

behind the perpetrator commits the crime through another by means of control over an

organisation (Organisationsherrschaft).7

Since the crimes covered by the ICC Statute will almost inevitably concern

collective or mass criminality, the Chamber continues, the Statute must be

understood to encompass organizational control as a form of perpetratorship:

::: by specifically regulating the commission of a crime through another

responsible person, the Statute targets the category of cases which involves a

perpetrators control over the organization.8 The Pre-Trial Chamber then

defines the necessary elements of an organization by which the perpetrator

can control the will of his subordinates:

The Chamber finds that the organisation must be based on hierarchical relations between

superiors and subordinates. The organisation must also be composed of suff icient subordin-

ates to guarantee that superiors orders will be carried out, i f not by one subordinate, then

by another. These criteria ensure that orders given by the recognized leadership will gener-

ally be complied with by their subordinates.9

In such an organization, the Chamber claims, the orders of the leader will be

carried out automatically; if one member should refuse to obey, another

member will take over.10 The Chamber points out that one way of installing

such a strict system of command and obedience is through intensive, strict,

and violent training regimens.11 The Chamber further explains that perpetra-

tion by means of an organization can also be committed jointly by several lead-

ers acting in concert, provided that each leader supplies a contribution

necessary for the fruition of the common plan.12

Applying these standards to the case before it, the Chamber concludes that

there is sufficient evidence to show that defendants Katanga and Chui in fact

6 Katanga and Chui, supra note 1, x 488.

7 Ibid., x 498.8 Ibid., x 501.

9 Ibid., x 512.

10 Ibid., xx 515^517.

11 Ibid., x 518.

12 Ibid., xx 524^526.

Perpetration through an Organization 93

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co-perpetrated the crimes in question through their respective troops since

compliance with their orders was ensured, and both leaders were aware of

that fact as well as of the crimes to be committed in the course of wiping out

the village of Bogoro.13

3. The German Sources of the Pre-Trial Chambers

Theory

A. The Perpetrator behind the Perpetrator

The Pre-Trial Chamber has based its concept of perpetration through an or-

ganization on amply documented legal writings and court opinions from vari-

ous legal systems.14 The Chambers crown witness is the influential andinternationally renowned German criminal law scholar Claus Roxin, who first

published a theory of perpetration by means of an organization in 1963.15

Three decades later, Roxin saw his theory applied by the German Federal

Court of Appeals (Bundesgerichtshof) when it had to adjudicate human rights

violations committed in the context of the lethal border regime installed by

the leadership of the German Democratic Republic (GDR).16

When Roxin wrote his seminal article in 1963, the criteria for distinguishing

between perpetratorship17 (which in Germany has always included the concept

of indirect perpetratorship by the use of another person) and accessorial liabil-ity were at the centre of a lively debate between adherents of an objective

theory and followers of a subjective theory. The courts have, since the end of

the 19th century, consistently taken a subjective approach. They maintained

that principals as well as accessories provided causal contributions to the

criminal act, and since one could not distinguish between more causal and

less causal contributions, the only way to tell perpetrators and accessories

13 Ibid., xx 540 et seq. With respect to sexual crimes committed by t he militia, the majority of the

judges held that the defendants knew that in the ordinary course of events, the implementationof the common plan would inevitably result in the rape or sexual enslavement of civilian

women (ibid., atx 551). Judge Usacka, in dissent, wrote that there was insufficient evidence to

link the defendants to these offences (idem, ibid., Partly Dissenting Opinion of Judge Usacka, x

27).

14 See e.g. the large number of writers cited in note 647 to the Courts opinion in Katanga and

Chui, supra note 1, x 485.

15 C. Roxin, Straftaten im Rahmen organisatorischer Machtapparate, Goltdammers Archiv fur

Strafrecht(1963), at 193; for an (abridged) translation of Roxins article see infra, in this issue of

the Journal. A similar concept was proposed almost contemporaneously by F.C. Schroeder,

Der Tater hinter dem Tater(Berlin: Duncker & Humblot, 1965).

16 Bundesgerichtshof (Federal Court of Appeals), judgment of 26 July 1994, in 40 Entscheidungendes Bundesgerichtshofes in Strafsachen (1995) 218^240, at 236 et seq. For an (abridged) transla-

tion of the judgment see infra, in this issue of theJournal.

17 Since, under German law, aiders and abettors are to be punished less severely than perpetra-

tors, it is necessary for the courts to distinguish between these two forms of participating in a

criminal act.

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According to Roxins theory, the hallmark of perpetration through another

person alternatively named indirect perpetration (mittelbare Taterschaft)

is the perpetrators domination of the human instrument who actually carries

out the criminal act. Domination can take various forms. For example, the in-

direct perpetrator can create a misconception about relevant facts, he canexert strong psychological pressure (duress) upon the actor, or he can employ

a person who, because of mental illness or immaturity is unable to realize

what he is doing. Under this theory, domination necessarily presupposes that

the person to be dominated lacks an element that would make him fully

responsible, under the criminal law, for what he does. If the immediate actor

enjoys complete autonomy in his decision to carry out the criminal act and is

therefore fully responsible, he cannot at the same time be the mere instrument

of another person.22 Consequently, many German scholars have proposed the

so-called autonomy principle: indirect perpetration is not possible if theperson who carries out the act is an autonomous, criminally responsible

actor.23 In other words, the fact that the actor can be punished for his criminal

act shields the person in the background from liability as a perpetrator; he

can only be punished for instigation or for aiding and abetting.

Faithful to his theory of domination, Claus Roxin would have to subscribe to

the autonomy principle. So he did, but he recognized that there may be excep-

tions from the principle that there can be no perpetrator behind a fully respon-

sible perpetrator. The case that made Roxin wonder was that of Adolf

Eichmann. Could it be true that Adolf Eichmann, who gave the orders leadingto the killing of millions of Jews, was not a perpetrator of mass murder but

only an instigator, a mere accessory? Since the persons who operated the con-

centration camps and the gas chambers evidently were criminally responsible

for their acts, the autonomy principle would indeed shield Eichmann (as well

as Adolf Hitler and Josef Stalin) from full responsibility as a principal.

Considering this consequence, Roxin came to the conclusion that there must

exist a further category of domination, one that does not rely on the immediate

actors lack of criminal responsibility. He suggested that a person who is in

charge of a hierarchically structured criminal organization whose members

cannot be treated as a mere accessory, even if his subjective wish is only to help others to

commit the offence.

22 For an early statement of this view, see W. Gallas, Die moderne Entwicklung der Begriffe

Taterschaft und Teilnahme im Strafrecht, in Sonderheft (special issue) Zeitschrift f ur die gesamte

Strafrechtswissenschaft (1957) 3; for a more recent version, see R.D. Herzberg, Mittelbare

Taterschaft und Anstiftung in formalen Organisationen, in K. Amelung (ed.), Individuelle

Verantwortung und Beteiligungsverhaltnisse bei Straftaten in burokratischen Organisationen des

Staates, der Wirtschaft und der Gesellschaft (Sinzheim: Pro Universitate Verlag, 2000) 33, at 43;see also, R. Bloy, Grenzen der Taterschaft bei fremdha ndiger Tatausfu hrung, Goltdammers

Archiv fur Strafrecht(1996) 424, at 437 et seq.

23 For a good overview, see B. Schu nemann, in H.W. Laufhu tte, R. Rissing-van Saan, and

K. Tiedemann (eds), Strafgesetzbuch. L eipziger Kommentar(12th edn., Berlin: Walter de Gruyter

Verlag, 2007), at x 25, notes 62^64.

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carry out orders without asking questions can rightly be said to dominate

the criminal acts committed by his subordinates, even though these subordin-

ates are themselves perpetrators of the crimes.24 The perpetrator behind the

desk, Roxin argues, differs from an instigator in that he need not look out for

a principal offender but already has at hand people willing to commit theoffence.

Roxin maintains that domination of the commission of a crime is as strict

and absolute when the perpetrator works through an organization as when

he uses an irresponsible human instrument. In order to make sure that the

perpetrator behind the desk is capable of imposing his will on his subordinates,

Roxin posits three additional conditions: the organization must have a tight

hierarchical structure, members of the organization must be easily replaceable,

and the organization must (at least partially) operate outside the legal order.

Only if these conditions are fulfilled, Roxin argues, can the leaders of the or-ganization be certain that their orders will be carried out under all circum-

stances. He emphasizes the necessity that members of the organization be

fungible, that is, any member unwilling or unable to carry out the leaders

orders can immediately be replaced by another subordinate, so that the leader

knows that the crimes will be committed regardless of the individual wishes

of any particular member of the organization.25 If the criminal task requires

a specialist who is difficult to replace, Roxin concludes, the head of the organ-

ization should not be held responsible as a principal but only as an instigator,

with the specialist being the sole perpetrator of the crime.26

Unquestioningobedience to the leaders orders is not guaranteed, according to Roxins view,

when the organization operates within the bounds of the law; if that is the

case, he argues, a subordinate faced with an unlawful order might well

choose obedience to the law and refuse to commit the crime. If, on the other

hand, an organization like the mafia or the SS operates outside the law, its

members will have no incentive to abide by any norm other than those set by

the leadership.27 The perpetrator at the highest echelon of the organization,

therefore, does not have to fear any interference when he orders a crime to be

committed.

24 For a recent statement of this view, see C. Roxin, Organisationsherrschaft und

Tatentschlossenheit, Zeitschrift fur internationale Strafrechtsdogmatik (2006) 293, available

online at www.zis-online.com (visited 1 December 2010).

25 Roxin,supra note 24, at 295, argues that the victim would not benefit if one member of the or-

ganization refused to carry out the order to commit the crime because as a rule the criminal

act would then be carried out by another member. Roxin obviously has in mind tight-knit

large organizations such as the SS or the GDRs Peoples Army.26 Roxin,supranote 24, at 297.

27 In order to make his concept applicable to the GDR regime which evidently did not operate

outside the lawin most aspects of life Roxin claims that it is sufficient that an organization

has distanced itself from the law in those areas where the crimes in question are being

committed. Roxin, supranote 24, at 297.


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B. The German Courts Version of Roxins Theory

Somewhat surprisingly, the Federal Court of Appeals, the highest German

court in criminal matters, has embraced Roxins concept of perpetration

through an organization and actually expanded it beyond what Roxin himselfwould have imagined. Never having fully abandoned the subjectivist approach,

the German courts had in the 1980s moved toward a mixed test for distin-

guishing principals from accessories, emphasizing that that distinction

depended on an overall evaluation of the facts of each case, including both ob-

jective and subjective factors.28 After the end of the German Democratic

Republic, German courts were faced with a host of novel legal questions. One

of them concerned the responsibility for the death of hundreds of GDR citizens

who were shot or lost their lives in the mine fields as they attempted to cross

the border to the West. Some of the border guards who had actually fired

deadly shots were convicted of intentional homicide, and their claims of

duress as well as mistake of law were rejected.29 Subsequently, some of the

highest political and military leaders of the GDR were accused of murder for

instituting and maintaining the border regime, which included strict orders

to border guards to prevent, by all means, any illegal defection from the GDR.

These cases squarely confronted the Federal Court of Appeals with the ques-

tion whether the leaders of the relevant GDR institutions could be punished

as principal perpetrators even though the border guards had already been con-

victed as perpetrators of the border killings. The Federal Court of Appeals, rely-

ing on the theory of perpetration through an organization developed by

Roxin many years earlier, held in 1994 that the leaders of the GDR regime

were not mere instigators but perpetrators of homicide.30 In this decision, the

Federal Court of Appeals took the objectivist approach of asking who domi-

nated the criminal act (i.e. the shooting of fugitives). The Court conceded that

normally a responsible actor who fires the fatal shot dominates the unlawful

killing, which would preclude any domination by other persons. But the Court

recognized an exception for situations where the activity of a person in the

background almost automatically brings about the result (i.e. the death of fu-

gitives) because that person makes use of organizational structures and rules

and thus, sets into motion rule-determined processes (regelhafte Ablaufe).31 In

a seemingly irrelevant but intentionally placed dictum, the Court indicated

28 For an analysis and extensive documentation of the jurisprudence, see W. Joecks, in B. von

Heintschel-Heinegg (ed.), Munchener Kommentar zum Strafgesetzbu ch, Vol. 1 (Munich: C.H. Beck,

2003), comments on x 25, notes 15^29; C. Roxin, Die Abgrenzung von Taterschaft und

Teilnahme in der ho chstrichterlichen Rechtsprechung, in C. Roxin and G. Widmaier (eds),50

Jahre Bundesgerichtshof^ Festgabe aus der Wissenschaf t, Vol. 4 (Munich: C.H. Beck, 2000), at 177;

Schu nemann,supra note 23, at 17^31.

29 Bundesgerichtshof, judgment of 3 November 1992, in 39Entscheidungen des Bundesgerichtshofesin Strafsachen (1994) 1^36; Bundesgerichtshof, judgment of 25 March 1993, in 39

Entscheidungen des Bund esgerichtshofes in Strafsachen(1994) 168^195.

30 Bundesgerichtshof, judgment of 26 July 1994, in 40 Entscheidungen des Bundesgerichtshofes in

Strafsachen (1995) 218^240.

31 Ibid., at 236.

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that perpetration through an organization might occur not only in

state-sponsored organizations but also in mafia-like criminal organizations

and indicated further that the problem of responsibility for leading business

enterprises could also be solved that way.32 In a series of later decisions, it

became apparent that the Federal Court of Appeals had intended to incon-spicuously lay the groundwork for a broad extension of Roxins original doc-

trine to all kinds of enterprises, thus making the leading staff of business

enterprises responsible as principals for business-related offences committed,

with their knowledge, by subordinate employees.33 This broad reading of per-

petration through an organization has been widely criticized by legal scholars,

mainly because a business enterprise lacks all the main characteristics (tight

hierarchical structure, general lawlessness, fungibility of members) that

might justify the imposition of liability as a perpetrator to the leaders of a mili-

tary or political organization.34

4. Critical Views

Even the narrower original version of Roxins theory has not escaped criticism.

The question has been raised why only the leader of a lawless organization

can be a perpetrator, as Roxin proposes organizations that claim to operate

on a legal foundation (such as the GDR) can exert even stronger pressure on

32 Ibid., at 237 (Auch das Problem der Verantwortlichkeit b eim Betrieb wirtschaftlicher Unternehmen

lat sich so losen). The presiding judge of the Courts panel who coined this phrase later re-

vealed that the Court intentionally used this formulation in order to extend the notion of per-

petration through an organization to business enterprises; see A. Nack, Mittelbare Taterschaft

durch Ausnutzung regelhafter Abla ufe, Goltdammers Archiv fur Strafrecht (2006) 342, at

343^344.

33 See e.g. Bundesgerichtshof, judgment of 13 September 1994, in 40 Entscheidungen des

Bundesgerichtshofes in Strafsachen (1995) 257, at 268^272; Bundesgerichtshof, judgment of 6

June 1997, in 43 Entscheidungen des Bundesgerichtshofes in Strafsachen (1998) 219, at 232;

Bundesgerichtshof, judgment of 11 December 1997, in Neue Zeitschrift fur Strafrecht(1998) 568;Bundesgerichtshof, judgment of 2 November 2007, in Neue Z eitschrift fur Strafrecht(2008) 89.

34 See e.g. K. Ambos, Tatherrschaft durch Willensherrschaft kraft organisatorischer

Machtapparate, Goltdammers Archiv f ur Strafrecht (1998) 226, at 239^240; V. Haas, Die Theorie

der Tatherrschaft und ihre Grundlagen (Berlin: Duncker & Humblot, 2009), at 107^109; F.

Mun oz Conde, Willensherrschaft kraft organisatorischer Machtapparate im Rahmen

Nichtrechtsgelo ster Organisationen? in B. Schu nemann et al. (eds), Festschrift fur Claus

Roxin zum 70. Geburtstag am 15. Mai 2001 (Munich: de Gruyter Verlag, 2001) 609, at 623;

H. Olasolo, The Criminal Responsiblity of Senior Political and Military Leaders as Principals to

International Crimes (Oxford: Hart Publishing, 2009), at 134; T. Rotsch, Tatherrschaft kraft

Organisationsherrschaft? 112 Z eitschrift f ur die gesamte Strafrechtswissenschaft (2000) 518, at

553^556; B. Schu nemann, Die Rechtsfigur des Taters hinter dem Tater und das Prinzip derTatherrschaftsstufen, in A. Hoyer, H.E. Mu ller, M. Pawlik and J. Wolter (eds), Festschrift fur

Friedrich-Christian Schroeder z um 70. Geburtstag (Munich: C.F. Mu ller, 2006) 401, at 413;

Zaczyk, supra note 19, at 414. But see the defence of the approach of the Federal Court of

Appeals by R. Hefendehl, Tatherrschaft in Unternehmen vor kriminologischer Perspektive,

Goltdammers Archiv fur Strafrecht(2004) 575, at 578 et seq.


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their members to comply with orders given from above.35 A more fundamental

criticism concerns the issue of domination. Some authors have asserted that

even the leader of a tightly knit organization does not have sufficient actual

control over the individual criminal act for which he is to be held responsible.36

Instead of relating the perpetrators domination to a particular criminalact, these critics claim, Roxins theory only manages to explain that the end

result e.g. that a person who tried to cross the border of the GDR without

permission is now dead can be traced back to the persons who installed

the border regime.37 The fact that members of an organization can easily be

replaced does not resolve this problem: if the leader of the organization orders

subordinate A to commit the crime on day X, and A refuses, then the fact that

subordinate B commits a similar crime on day Y cannot make the leader the

principal of either act because the chain of events shows that he does not

dominateany particular criminal act but only the end result.38

The fault may lie even deeper. If one regards control or domination of the

criminal act as the hallmark of perpetratorship, it remains unclear whether

domination is a factual or a normative concept. Those who like Roxin

emphasize the necessity of factual control face the difficulty that the question

whether someone dominates a certain event is not a yes or no issue but a

matter of degree. One can say that Adolf Eichmann to a certain degree domi-

nated the killing of Jews sent from Hungary to concentration camps, and

even that his influence may have been greater (or lesser) than that of the per-

sons actually operating the gas chambers; but it makes little sense to maintainthat Adolf Eichmann and no one else dominated those killings. Hence, to

make the distinction between perpetratorship and accessorial liability depend

on the issue of factual domination of the criminal act leads to unpredictable

results depending on the existence of other actors and the relative degree of

their domination.39 Domination thus remains a vague term, and as the

35 See Ambos, supra note 34, at 242^243; Herzberg, supra note 22, at 36^37; J. Schlo sser, Soziale

Tatherrschaft(Berlin: Duncker & Humblot, 2004), at 151^155.

36 Haas,supra note 34, at 56; H. Otto, Taterschaft kraft Organisatorischen Machtapparates, Jura(2001) 753, at 755^756; T. Rotsch, Anmerkung zu BGH Urt. v. 3.7.2003, 2004, Juristische

Rundschau(2004) 248, at 249; Zaczyk, supra note 19, at 414. For an alternative explanation of

dominance through social organizations, see Schlo sser,supra note 35, at 212et seq.

37 T. Rotsch, Neues zur Organisationsherrschaft, Neue Zeitschrift fur Strafrecht (2005) 13, at 16.

Roxin emphasizes the fact that the result (Erfolg) is certain when the perpetrator makes use of

an organization under his command, neglecting the question of how exactly that result

comes about; see Roxin, supra note 24, at 296^297. (Similarly, Roxins student B. Schu nemann

equates perpetratorship with dominance over the result and therefore sees no problem in re-

garding the key person of an organization as a perpetrator); see Schu nemann, supra note 23,

x25, note 127; Schu nemann,supra note 34, at 411.

38 See Herzberg, supra note 22, at 37^38; J. Renzikowski, Restriktiver Taterbegrif f und fahrlassigeBeteiligung (Tu bingen: Mohr Siebeck, 1997), at 87^89; T. Rotsch, Einheitstaterschaft statt

Tatherrschaft(Tu bingen: Mohr Siebeck, 2009), at 326^331.

39 For similar criticism, see Haas, supra note 34, at 38, 41; H. Radtke, Mittelbare Taterschaft kraft

Organisationsherrschaft im nationalen und internationalen Strafrecht, Goltdammers Archiv

fur Strafrecht (2006) 350, at 354^355.

100 JICJ9 (2011), 91^111

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discussion above has shown, Roxins attempt to give domination through an or-

ganization stronger contours by adding empirical criteria opens up new lines

of attack due to the arbitrariness involved in choosing these criteria (and not

others).

It is likely that the concept of domination through an organization owes itsexistence more to policy considerations than to strict theoretical consistency.40

Its invention can best be understood as a reaction to the phenomenon of sys-

temic crime a phenomenon that has massively spread since the 1930s.

Systemic crime defies the categories of traditional criminal law doctrine.41

Events such as mass atrocities or the large-scale pollution of the environment

by business enterprises may make it necessary to devise new grounds for, and

new forms of, criminal responsibility, and the special type of perpetratorship

developed by Claus Roxin may be a response to that need. In the following sec-

tion, I will pursue the question whether it is indeed necessary to employ thisspecial variant of indirect perpetratorship, or whether criminal law and

international criminal law in particular might be better off without it.

5. Is there a Need for Perpetration through anOrganization?

The first question one might ask is whether it is necessary to create a new form

of perpetratorship for persons who would in any event be liable to be punishedas instigators. In response to Claus Roxins invention of a perpetrator behind

the perpetrator, several authors have insisted that one should stick to the

autonomy principle, punishing even those at the very top of a criminal

organization for instigating the crimes committed by their criminally

responsible subordinates.42 Roxin has responded by pointing out that the

leader of an organization bears greater responsibility than a mere instigator

because the subordinate within an organization cannot substantially deviate

from the orders given by the leader,43 and Bernd Schu nemann has added that

the leader of the organization does not submit to the decision of the immediate

40 See Rotsch, supra note 38, at 462; Schlo sser, supra note 35, at 193 et seq. (citing statements ex-

pressing emotional dissatisfaction with treating the perpetrators behind the desk as mere

accessories).

41 For a useful analysis, see G. Heine, Taterschaft und Teilnahme in staatlichen Machtapparaten,

55 Juristenzeitung (2000) 920 (calling a chimera the classification of perpetrators and acces-

sories in systemic crime by using the traditional categories; ibid., at 926). See also Ambos,

supra note 34, at 234; K. Marxen, Beteiligung an schwerem systematischen Unrecht, in

K. Lu derssen (ed.),Aufgeklarte Kriminalp olitik oder Kampf gegen das B ose?, Vol. 3 (Baden-Baden:

Nomos, 1998) 220, at 234^235.

42 See e.g. Herzberg,supranote 22, at 48^49; Renzikowski, supra note 38, at 89^90; Rotsch, supranote 34, at 561^562; Zaczyk, supra note 19, at 414. G. Jakobs, Strafrecht Allgemeiner Teil

(2nd edn., Berlin: de Gruyter Verlag, 1991), note 21/103; Mun oz Conde, supra note 34, at 623;

and Otto, supra note 36, at 758^759, would convict the leader of the organization not as an

instigator but as a co-perpetrator of the crimes carried out by his subordinate.

43 Roxin, supranote 24, at 295.


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actor, and therefore, cannot be treated as a mere instigator.44 These arguments

correctly refer to typical features of organizational crime, but these features

are not necessarily distinctive: it is easy to imagine one-on-one situations

where the same conditions apply, and yet the person giving the order would

universally be regarded as a mere instigator. For example, a domineering hus-band who asks his wife to steal certain items from a store because he wants

to sell them would be treated as an instigator when the wife, fearing her

husbands wrath if she failed to comply, carries out the theft. It may satisfy

our sense of judicial aesthetics to see Adolf Eichmann and the big mafia boss

convicted as principals; but there is no doctrinal need for doing so.45

Nor does sentencing law force us to upgrade a person from instigator to per-

petrator in order to be able to impose a sanction proportionate to his personal

guilt. In almost all legal systems, instigators can receive the same amount of

punishment as principal perpetrators. In principle, this is also true with re-spect to international crimes. According to Articles 77 and 78 ICC Statute, the

Court can impose any sentence up to lifelong imprisonment, taking into ac-

count the gravity of the crime and the individual circumstances of the con-

victed person, and there is no distinction made among the various forms of

responsibility listed in Article 25(3).46 However, Rule 145(1)(c) ICC Rules of

Procedure and Evidence lists the degree of participation of the convicted

person among several factors to be taken into account in sentencing, and this

may well reflect the fact that the International Criminal Tribunal for the

former Yugoslavia (ICTY) has established that the form and degree of the par-ticipation of the accused in the crime is a determinant factor of the gravity of

the crime and hence, of the sentence.47 It has convincingly been argued that

the inherently collective nature of international crimes makes it particularly

important to ascertain the specific role of each participant and to have the

verdict and sentence reflect that particular role.48 The distinction between

44 Schu nemann,supra note 34, at 410.

45 Cf. J. Vogel, Individuelle Verantwortlichkeit im Vo lkerstrafrecht, 114 Zeitschrift fur die gesamte

Strafrechtswissenschaft (2002) 403, at 427 (claiming that the introduction of a perpetratorbehind the perpetratoronly leads to fruitless discussions about distinguishing between instiga-

tion and perpetration).

46 Nor is any particular form of participation listed among the mitigating and aggravating circum-

stances in Rule 145(2) of the ICC RPE.

47 Judgment, Kupreskic (IT-95-16-T), Trial Chamber, 23 October 2001, x 852. For a thorough

documentation of ICTY and ICTR jurisprudence in this regard, see B. Burghardt, Die

Vorgesetztenverantwortlichkeit im volkerrechtlichen Straftatsystem (Berlin: Berliner

Wissenschafts-Verlag, 2008), at 383, 389^392 (the fact that the Appeals Chamber deemed the

defendant guilty of a different form of responsibility sometimes led to an increase or reduction

of the sentence).

48 Cf. F. Zorzi Giustiniani, The Responsibility of Accomplices in the Case-Law of the ad hocTribunals, 20 Criminal Law Forum (2009) 417, at 419; see also C. Kre, Claus Roxins Lehre

von der Organisationsherrschaft und das Vo lkerstrafrecht, Goltdammers Archiv fur Strafrecht

(2006) 304, at 308 (claiming a need in international criminal law to express a persons main re-

sponsibility on the level of conviction rather than sentencing); G. Werle and B. Burghardt,

Die mittelbare Mittaterschaft ^ Fortentwicklung deutscher Strafrechtsdogmatik im

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principals and accessories, though not technically necessary, may be a useful

tool of expressing that distinction.

If perpetration through an organization is one way of aptly characterizing

the specific character of organizational crime, are there doctrinal objections

to applying that label as a form of perpetratorship? One problem with Roxinstheory may be that it contains a self-contradiction: critics maintain that the

front man committing the criminal act cannot at the same time be criminally

liable for his acts as a free agent and be a mere instrument in the hands of

the leader of an organization.49 Two arguments have been made to resolve

that seeming contradiction: the fact that the actor is part of a tight organiza-

tion, it has been said, makes him so dependent that his autonomy no longer

exists;50 another author distinguishes between the self-concept of the actor

(who conceives of himself as autonomous and can therefore be held respon-

sible) and the objective situation of dependency (which permits the law toregard the leader of the organization as the principal due to his actual power

over the commission of the criminal act).51 Both arguments raise further ques-

tions,52 but the seeming self-contradiction in Roxins theory still is not a fatal

flaw: since the ascription of (criminal) responsibility is not a yes/no question

of logic but a normative issue,53 it is logically possible to accept a situation

where the person at the back and the person at the front, both and

independently of each other possess enough autonomous influence over

the criminal act as to hold each of them liable as perpetrator.

The vagueness of the concept of dominance is a more troubling issue. Thereseems to be agreement that domination exists when a person uses a clearly

irresponsible person (a child, an insane person, or a person acting under the

influence of a relevant mistake of fact) for the commission of a criminal act,

Vo lkerstrafrecht? in R. Bloy et al. (eds), Gerechte Strafe und legitimes Strafrecht. Festschrift fur

Manfred Maiwald zum 75. Geburtstag (Berlin: Duncker & Humblot, 2010) 849, at 852; but see,

contra, Vogel,supra note 45, at 425.

49 Seesupra, note 22; see further L. Kutzner,Die Rechtsfigur des Taters hinter dem Tater un d der Typus

der mittelbaren Taterschaft (Frankfurt: Peter Lang Verlag, 2004), at 250; Schlo sser, supra note 35,at 170. The Pre-Trial Chamber in Katanga and Chui, supra note 1, x499 note 660, put the prob-

lem thus: Essentially, the possibility that a person may so control the will of another that he

can be said to perpetrate a crime through that other, seems incompatible with a meaningful

notion of that other as a fully responsible actor.

50 See the notion of social dominance (sozialeTatherrschaft) developed by Schlo sser,supranote 35,

at 287et seq.

51 This is the solution proposed by Olasolo,supra note 34, at 119^122.

52 In the theory proposed by Schlo sser, supra note 35, at 287 et seq., the question arises whether

(and if so, why) the person performing the criminal act as a member of an organization can

be held criminally responsible. Olasolos suggestion raises the question why a person should

be held responsible on the basis of a mereillusion of being an autonomous agent we wouldcertainly not convict an insane man who claims to be totally normal and wishes to accept

responsibility for what he did.

53 Cf. Radtke, supra note 39, at 356; K. Rogall, Bewa ltigung von Systemkriminalitat, in C. Roxin

and G. Widmaier (eds),50 Jahre Bundesgerichtshof. Festgabe aus der Wissenschaft, Vol. 4 (Munich:

C.H. Beck, 2000) 383, at 426; Vogel, supranote 45, at 405^409.


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and most legal systems recognize perpetratorship through an innocent agent.

But when it comes to perpetrating an offence through a responsible person,

we look in vain for an empirical or normative bright line between merely influ-

encing (punishable as instigation or aiding and abetting) and dominating a

person. In cases of individual crime, the impossibility of reliably distinguishingbetween degrees of psychological influence has led to the doctrine that there

can be no indirect perpetration when the immediate actor is fully responsible,

and that holds true even where the actor is particularly gullible or personally

dependent on the person in the background.54 To look at things differently

when a group or organization is involved may coincide with our intuition con-

cerning group pressure or the power of organizations, but there is no rational

grounds for holding the leader of an organization a prioriresponsible as a prin-

cipal perpetrator where an individual exerting similarly strong influence

would be regarded as a mere instigator. Nor are there any inter-subjectivelypersuasive factors that make some organizations more prone than others to

create perpetrators behind the perpetrator. There may exist in our minds

ideal types of an oppressive, authoritarian organization, but as the debate

over the distinguishing factors posited by Roxin and the Federal Court of

Appeals (see supra) shows, our images differ from each other and it seems im-

possible to achieve agreement on those factors even within a single legal cul-

ture. Even if we were able to identify an ideal type of organization where the

activities of each member are so tightly controlled by the leaders that we

would be prepared to hold the leaders responsible as perpetrators, we wouldstill have to recognize that not every aspect of a group members activity is

controlled to the same degree, and would consequently have to ask whether a

particular criminal act was covered by the level of organizational control

required for allocating principal responsibility to the leadership level.

In sum, Roxins concept of indirect perpetration through an organization

draws its lifeblood from the intuitive persuasiveness of holding the leaders of

National-Socialist organizations such as the SS responsible as perpetrators

of the mass atrocities committed by the members of these organizations.

But that intuition is a shaky ground on which to build a legal theory.

54 For a borderline German case, see Bundesgerichtshof, judgment of 15 September 1988, in 35

Entscheidungen des Bundesgerichtshofes in Strafsachen (1989) 347^356: A couple (A and B) made

their very gullible friend F believe that their enemy X needed to be killed in order to satisfy

the evil cat king (a devilish demon invented by A and B) who would otherwise kill millions of

people. F eventually tried to kill X with a knife, believing that he was justified in killing one

person in order to save millions of others. The Federal Court of Appeals held F responsible for

attempted murder because his honest mistake of law could have been avoided. The Court never-

theless convicted A and B as perpetrators of attempted murder, arguing that they had made F

totally dependent and had thus induced him to commit the act. The Court rejected a strict ap-plication of the autonomy principle which would have precluded the Court from convicting

A and B as principals and declared that the distinction between perpetration and mere insti-

gation in cases such as the one before the Court depended on the kind and intensity of the

actors mistake as well as the intensity of the influence exerted by the person in the background

(ibid., at 352^353).

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Since criminal liability for ordering or instigation is a sufficient basis for

imposing severe sentences on responsible figures in the background of the

actual crimes, adopting the notion of perpetration through an organization

may create more problems than it solves.

6. Working with Perpetration through Another Personin Article 25(3)(a) ICC Statute

A. Roxins Theory as Part of International Law?

Whatever may be the validity of the result of the considerations submitted

above, the authors of the Courts Statute have left no doubt that commission

of a crime through another person is possible regardless of whether thatother person is criminally responsible (Article 25(3)(a) ICC Statute),55 and

have equally clearly separated this form of criminal liability from ordering, so-

liciting, or inducing a crime as listed in Article 25(3)(b) of the Statute.56 We

have to conclude that the Statute neither ties perpetration to the physical car-

rying out of the criminal act57 nor recognizes the autonomy principle that

would negate indirect perpetration when the front man is fully responsible

for his act. That insight, however, still leaves several options as to the interpret-

ation of the phrase commits ::: through another person in the context of the

ICC Statute.The Pre-Trial Chamber inKatanga and Chui, as we have seen, chose to follow

rather closely the concept developed by Claus Roxin, emphasizing the defend-

ants control over an organization.58 The Chamber gave three reasons for

taking this approach: (i) it has been incorporated into the framework of the

Statute; (ii) it has been increasingly used in national jurisdictions; and (iii) it

has been addressed in the jurisprudence of the international tribunals.59 The

evidence the Chamber presents for this claim, however, is not overly strong.

The list of numerous national jurisdictions that are claimed to be in favour of

the concept of perpetration through an organization is limited to five(Argentina, Chile, Germany, Peru, Spain), in one of which (Argentina) the

Supreme Court had overturned a lower court judgment proposing this

theory.60 International tribunals have indeed addressed the issue but so far

have preferred to employ the joint criminal enterprise (JCE) doctrine to convict

organizers and other figures further removed from the scene of the actual

55 SeeKatanga and Chui, supra note 1, x 499.

56 Cf.Werle and Burghardt, supranote 48, at 850, pointing out that Art. 25(3)(a) through (d) ICCSt.

contains a model of participation that distinguishes by degrees of responsibility.

57 SeeLubanga, supranote 2, xx 332^333, 339.58 See Katanga and Chui, supra note 1, x 498; As Olasolo, supra note 34, at 120, has correctly

observed, the Pre-Trial Chamber has not adopted Roxins requirement that the organization

must operate outside the law.

59 SeeLubanga, supranote 2, x 500.

60Katanga and Chui, supra note 1, xx 502, 504.


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crime.61 Most importantly, the ICC Statute provides for the commission of a

crime through another person but does not mention perpetration through an

organization. The Chamber in Katanga and Chui supports its argument by

claiming that since the crimes covered by the ICC Statute will almost inevit-

ably concern collective or mass criminality, the Statute must be understoodto target the category of cases which involves a perpetrators control over the

organisation.62 That may well be but the fact that the Statute targets mass

criminality does not determine exactly in which way its authors expected the

judges to address this phenomenon. In spite of the Pre-Trial Chambers asser-

tion that it has presented a compelling case for its approach to criminal liabil-

ity,63 I would regard the issue as still open. There is certainly nothing to even

remotely suggest that the concept of perpetration through an organization is

a form of criminal liability recognized as customary international law.64

7. Options in Interpreting Perpetration through

Another Person

What, then, are the options the ICC has in interpreting the commission

through another personclause of Article 25(3)(a) of its Statute?

I see four possibilities of approaching this issue: the Court can (i) follow the

lead of Pre-Trial Chamber I and extend the wording (another person) to cer-

tain organizations; (ii) adopt the even broader version preferred by the

German Federal Court of Appeals and extend the clause to all organizations

including business enterprises; (iii) attempt to harmonize its jurisprudence

with that of the ICTY and interpret the clause such that it reflects some or all

forms of JCE; and (iv) apply the clause as it is written, that is, require personal

dominance over the individual who carries out the criminal act.

The first two options do not have much to recommend them. As we have

seen, Roxins version of the perpetration through an organization concept suf-

fers from the fact that it has been devised ad hoc under the impression of

large-scale state-organized atrocities and therefore, contains elements that

61 See e.g. Judgment,Stakic (IT-97-24-A), Appeals Chamber, 22 March 2006,x 62 (discussing status

of indirect perpetration in international criminal law and rejecting a combination of indirect

perpetration and co-perpetration as suggested by the Trial Chamber in the same case).

Another attempt of Judge Schomburg to introduce indirect perpetration as a concept of inter-

national criminal law failed in Judgment, Simic (IT-95-9-A), Appeals Chamber, 28 November

2006 (Dissenting Opinion of Judge Schomburg, xx18^21). This is not the place to discuss the

merits of the JCE doctrine, which has dominated the jurisprudence of ICTY and ICTR; for a

recent thorough discussion, see V. Haan,Joint Criminal Enterprise (Berlin: Duncker & Humblot,2008). It seems clear that Pre-Trial Chamber I of the ICC intends to distance itself from the

JCE doctrine; cf.Lubanga, supra note 2, xx 334^337.


63 Ibid., at x 510.

64 Accord,Werle and Burghardt, supra note 48, at 854^855.

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seem accidental rather than essential. Even if its applicability were reduced to

inherently violent organizations,65 thus emphasizing the element of irresistible

control over its members, this concept lacks both an empirical and a theoretic-

al basis other than the fact that the leaders of some organizations can, under

certain conditions, be fairly certain that their commands will be carried outeven if these commands involve the commission of a criminal offence.

Moreover, Roxins concept may fit orderly, bureaucratic dictatorships such as

that of the National-Socialists in Germany or the Socialist Unity Party in the

GDR; it hardly lends itself to be applied to vaguely organized militias or rebel

armies where the authority of a leader or group of leaders may be accepted

only as long as they are successful in providing material goods and military

success. It is a sign of this weakness that the Pre-Trial Chamber in Katanga

and Chui felt compelled to ad hoc add rigorous training methods as a further

possible tool of controlling organization members.66

The Chamber may havesensed that Roxins original model was not conceived for an African environ-

ment and attempted to make up for the lack or stringent institutional organiza-

tion of the militias in question by adding new elements it found in the facts of

the particular case.67

One way out of the constraints of Roxins model would be to interpret the

notion of control as broadly as does the German Federal Court of Appeals,

which requires no more than the existence, within an organization, of

rule-determined processes that the perpetrator uses for his purposes.68 But

such an open-ended approach to indirect perpetration would worsen the con-cepts problems of vagueness and overreach: there is no good reason to hold

the manager of a business enterprise with 10 employees responsible as a princi-

pal for acts suggested by the manager and committed by one of the employees,

while he would be a mere accessory if he asked 10 of his close friends to

commit the same offence. The myth of rule-determined processes certainly

is not sufficient to establish a general rule of perpetratorship for leading

members of business firms.

The option of interpreting commission through another person in a way

similar to JCE would have the great advantage of avoiding a rift between thejurisprudence of the United Nations ad hoc tribunals and the ICC. Such an in-

terpretation would also reflect the fact that indirect perpetration at least in

65 As suggested by Schu nemann,supra note 34, at 412.

66Katanga and Chui, supra note 1, at x 518.

67 For a more benevolent interpretation of the Trial Chambers adaptation of Roxins concept, see

H.G. van der Wilt, The Continuous Quest for Proper Modes of Criminal Responsibility, 7

Journal of International Criminal Justice (2009) 307, at 312: Such a flexible approach, geared to

the specific circumstances, may prove the versatility of the concept and its resilience against

the wear and tear of time.68 See text at supra notes 31, 32. The German high courts approach has resonated in Lubanga,

supra note 2, x 330, where the Pre-Trial Chamber defined control simply as the ability of a per-

petrator to decide whether and how the offence will be committed. InKatanga and Chui, supra

note 1, xx 512^517, the Pre-Trial Chamber abandoned the loose approach taken in Lubanga

and instead required the organization to have certain specific features as suggested by Roxin.


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the form of perpetration through an organization and JCE both aspire to ac-

commodate the special problems of systemic crime, where responsibility

cannot easily be ascribed along the links of immediate causation, and where

specific difficulties of proof arise.69 As is well known, the notion of JCE has

been based on the idea that committinga crime includes those modes of parti-cipating in the commission of crimes which occur where several persons

having a common purpose embark on criminal activity that is then carried

out either jointly or by some members of this plurality of persons.Whoever con-

tributes to the commission of crimes by the group of persons or some members

of the group, in execution of a common criminal purpose, may be held to be

criminally liable:::.70 In many situations, leaders liability under JCE and

under the concept of indirect perpetration will indeed produce the same re-

sults, as for example with respect to commanders of concentration camps

where prisoners are maltreated or killed by lower level guards. With respect tothose in authority of the camp, the second variant of JCE provides for responsi-

bility as principals because of their objective position of authority within the

concentration camp system.71 Applying the theory of perpetration through

an organization, one could reach the same result by stating that the command-

er of the camp perpetrated murder and maltreatment through the guards

who were part of the organization that ran the concentration camp.

Yet, there are two major obstacles to simply equating indirect perpetration

under Article 25(3)(a) ICC Statute and JCE. One problem is the mens rea, that

is, the defining element of JCE: any JCE requires a common criminal design72

or a common purpose involving the commission of a crime73 among all par-

ticipants. There is no such requirement for indirect perpetration, even when

the person who performs the criminal act is himself culpable of a crime. Only

the perpetrator in the background needs to have the requisite mens rea for the

offence of which he is to be convicted, and there is no requirement that he

ever communicates with the person at the front. On the other hand, the third

variant of JCE applies when the immediate actor performs a criminal act that

the other members of the JCE did not foresee but which nevertheless was a nat-

ural and foreseeable consequence of effecting the common purpose.74 That

situation cannot be qualified as a case of indirect perpetration because the per-

petrator behind the perpetrator to be criminally liable must have the full

intent required by the crime in question; it is not sufficient that he only could

foresee what the person at the front might do. In addition to these discrepan-

cies concerning mens rea, the structure of Article 25(3) ICC Statute makes it

unlikely that its authors could have intended to equate JCE and commission

through another person. If they had, there would have been no good reason

to include Article 25(3)(d) of the Statute, which describes a somewhat

69 Cf. Marxen, supranote 41, at 233; Vogel, supra note 45, at 409^410, 420^421.70 Judgment, Tadic(IT-94-1-A), Appeals Chamber, 15 July 1999, x 190.

71 Ibid., x203.

72 Ibid., x 191.

73 Judgment, Kvoc ka et al. (IT-98-30/1-A), Appeals Chamber, 28 February 2005, x 81.

74 Tadic, supranote 70, x 204.

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watered-down version of JCE.75 It is likely that the authors of the ICC Statute

wished to accept both JCE (in a modified form) and perpetration through

another person, thus making it necessary to find for both forms of criminal

liability their specif ic fields of application.

That leaves the option of a narrow, literal interpretation of commissionthrough another person. At the starting point of its discussion, the Pre-Trial

Chamber in Katanga and Chui defines a principal as one who has control over

the will of those who carry out the objective elements of the offence.76 The

wisest course to take may be to leave that definition as it is. In order to have a

defendant convicted of indirect perpetration in accordance with Article

25(3)(a) ICC Statute, the prosecution would then have to prove that he in fact

controlled the willof the person performing the criminal act. There exist vari-

ous ways of doing so: exercising strong physical or psychological pressure;

creating a misconception concerning the relevant facts; or manipulating theother person such that he thinks that what he does is beneficial to the victim

or to mankind.77 The existence of an oppressive organization in which the

actor is a subordinate member may well be instrumental in bringing strong

pressure to bear and thus, in a particular situation, to control the subordinates

will; but the fact that the defendant is the leader of an organization cannot by

itself be conclusive evidence of his having control over the will of all members

of the organization. The clause regardless of whether that other person is

criminally responsible referring to indirect perpetration in Article 25(3)(a)

ICC Statute remains meaningful even if given the minimalistic interpretation

proposed here: that clause clarifies that one can control the will of another

person even if that person remains responsible under the criminal law.

What amount of control is necessary to turn a background person (and

possible instigator) into a principal remains an open question to be resolved in

each case. It seems better to permit courts to address that question directly

and to inductively develop criteria appropriate to the specific subject-matter of

international crimes than to tie their decision to particular factual elements

such as the existence of an organization. Importantly, under the approach

suggested here, control needs to be proved upon the particular facts concern-

ing the relationship between the persons involved, and the prosecution does

not satisfy its burden of proof by merely establishing the existence of an organ-

ization (with whatever qualities). That interpretation may make life a bit

harder for the prosecution, but it has rightly been said that legality and fair

trial principles prohibit the expansion of any theory of criminal liability in

order to circumvent a lack of evidence.78 Upon the facts described in the

Katanga and Chui decision, one would not expect great difficulty in finding

sufficient evidence of a controlling role of the defendants over the soldiers

75 Cf. H. Olasolo,Joint Criminal Enterprise and its Extended Form, 20Criminal Law Forum(2009)263, at 277. For various problems posed by the formulation of Art. 25(3)(d) ICCSt., see J.D.

Ohlin, Joint Criminal Confusion, 12New Criminal Law Review(2009) 406.


77 For the latter situation, cf. the cat kingcase citedsupra, note 54.

78 Olasolo,supra note 75, at 266.


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committing the atrocities, but the details are eventually for the Trial Chamber

to establish. If it followed the approach suggested here, fact-finding would

not need to concentrate on the organizational quality of the militias led by

the defendants but on their personal influence on those who committed

the crimes.

8. Concluding Note: Indirect Co-Perpetration

One of the puzzling issues of the Katanga and Chui decision is the combination

of co-perpetration and indirect perpetration: defendants Katanga and Chui

are said to have joined forces and thereby co-perpetrated war crimes through

other persons.79 The Pre-Trial Chamber notes that co-perpetration requires a

coordinated essential contribution made by each co-perpetrator resulting inthe realisation of the objective elements of the crime,80 and that this contribu-

tion can also consist in activating the mechanisms which lead to the auto-

matic compliance with their orders and, thus, the commission of the crimes.81

The actual activities of the co-perpetrators (for example, designing the attack

as well as coordinating and monitoring the activities of troops) can be carried

out long before the actual commission of the criminal acts by subordinates.82

The Pre-Trial Chamber thus returns to a line of analysis employed by the

ICTY Trial Chamber in Stakic.83

Although joint indirect perpetration has been called a fourth manifestationof the notion of control over the crime84 it is in fact not another new legal in-

vention but simply a factual coincidence of two recognized forms of perpetra-

tion. Co-perpetrators can contribute in various ways to the commission of the

crime, and one contribution can be to provide a human instrument under

the control of the co-perpetrator. If, for example, A and B carry out their

common plan to bring their young children (As son X and Bs daughter Y) to-

gether in someones abandoned house, give them matches and instruct them

to make a nice f ire, there can be no doubt that A and B are co-perpetrators of

arson: they jointly use X and Y as their human tools to achieve the desiredeffect. In this hypothetical, A would arguably be liable as a co-perpetrator of

arson even if he could prove that only Y actually caused the fire, because his

participation (bringing in X as Ys play mate) was an essential

thomas weigend - perpetration through an organization

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