18 - Roberta Spiteri

Roberta Spiteri Auctores Intellectuales: A critical analysis of ICC jurisprudence on the concept of coperpetration

Roberta Spiteri is a Bachelor of Laws graduate, currently pursuing her Master of Advocacy at the University of Malta. Her legal interests lie mainly in public international law, human rights law and international criminal law. She intends to pursue an LL.M specialising in these fields, and is set to sit for her warrant exam in January 2021.

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1. Introduction

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ince the adoption of the Statute of the International Criminal Court (hereafter ‘the Statute’ or ‘Rome Statute’) by 60 States, which established the permanent International Criminal Court (hereafter ‘ICC’ or ‘the Court’) on 1 July 2002, the Court has had jurisdiction over ‘the most serious crimes of concern to the international community as a whole’, namely genocide, crimes against humanity, war crimes, and aggression.1 These crimes typically occur in the context of a widespread and collective system of criminality, whereby the execution is planned and put into action by a number of senior political or military leaders, but physically perpetrated by one or several subordinates.2 Difficulties are presented as issues of collective responsibility arise and it becomes more challenging to find the right balance between the objective actus reus and the subjective requirement of mens rea. An effective justice system allows for attribution of individual responsibility to the guilty perpetrator/s.

Due to the geographic remoteness of these leaders from the scene of the crime, Prosecutors have struggled to gather proof which directly links the leaders to the commission of the crime, so as to hold them individually criminally responsible as principal perpetrators under Article 25(3)(a) of the Statute (hereafter ‘Article 25(3)(a)’). This provision applies when an individual ‘commits’ a crime either ‘as an individual’ (direct perpetration), ‘jointly with another person’ (co-perpetration), or ‘through another person’ (indirect perpetration, or perpetration-by-means).3 Sub-paragraphs (b) - (d) outline other forms of accessorial participation.

As a result, the ICC could no longer keep applying the traditional modes of criminal liability from which it could often only be concluded that they were only liable as accessories. Such application would properly reflect neither the magnitude of their involvement as auctores intellectuales (i.e intellectual perpetrators or masterminds) nor their degree of blameworthiness in the commission of these atrocities. The careful application of the appropriate mode of liability hence becomes the most important consideration to be made by the Court during these trials. To this end, it has had to develop theories of liability which are distinct from those applied domestically.

1 United Nations General Assembly, Rome Statute of the International Criminal Court (last amended 2010), A/Conf.183/9, 17 July 1998 (Rome Statute), Article 5.

2 See Prosecutor v. Tadić, Appeals Chamber Judgment, IT-94-1A, Appeals Chamber, 15 July 1999 (‘Tadić’), para 191.

3 Rome Statute, Article 25(3)(a).

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In Lubanga, the ICC interpreted Article 25(3)(a) to include co-perpetration by means of control over the crime - that mode of liability which horizontally links the accused to other political or military leaders, who may also be responsible for the crimes committed by the direct perpetrator. The judges in Katanga and Ngudjolo elaborated further and held that such control over crime can also consist in organisational control.

The Pre-Trial Chamber (PTC) adopted a novel interpretation of indirect perpetration - that mode of liability which vertically links the accused leader with an organisation that extends down to the direct perpetrator from the leadership level. It created the concept of indirect co-perpetration in response to a situation of remote collective crime by senior political or military leaders. The development of this doctrine sheds light on the main challenges regarding the interpretation and the application of the modes of liability under Article 25(3)(a) that are faced by the ICC. This article focuses primarily on the formation and adoption by the ICC of direct and indirect co-perpetration, their elements and whether they are consistent with a strict interpretation of Article 25(3)(a). The question arises whether indirect co-perpetration attributes liability more adequately to senior political or military leaders, or whether a more suitable path forward exists for the Prosecution to attach liability to such intellectual perpetrators.

This article also explores interrelated questions such as why the ICC distinguishes between principal and accessorial liability under Article 25(3), and what sort of approach should the ICC be adopting when attributing liability to intellectual perpetrators.

There is certainly no clear answer to all these questions. In fact, the Trial Chambers in two of the Court’s Judgments have had conflicting views, as shall be seen. While the constitutive elements of co-perpetration were interpreted broadly in the ICC’s first conviction, the expansive interpretation was rejected in its latest one. Particular attention is given to the ICC Cases of Lubanga, Katanga and Ngudjolo, and Katanga, and the position at law is considered as of 30 April 2019.

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2. The Origins of Co-Perpetration 2.1 Rejection of the Doctrine of JCE by the ICC The International Criminal Tribunal for the former Yugoslavia (ICTY) has relied heavily upon the Anglo-American doctrine of JCE4, which is based on a subjective approach to distinguish between principals and accessories, to hold senior political and military leaders responsible for their crimes. In search of a more accurate approach of charging such leaders, the ICC has strayed from this doctrine, interpreting Article 25(3)(a) as embodying the German notion of ‘control over the crime’, and created the notion of indirect co-perpetration. Naturally, the Court had its reasons for rejecting the doctrine of JCE. This doctrine had been claimed to be ‘firmly established in customary international law’,5 although it was also criticised for being incompatible with the general principles of law, particularly those of legality and culpability.

The ICC has doubted the value of precedent of some of the cases that JCE was founded upon and does not believe that a simple transfer of the case law of the ad hoc tribunals to the ICC is the best way forward. In its view, the Statute should always be applied first before customary law, which applies only as a subsidiary source of international law. The Court has in fact affirmed that Article 21 of the Statute disregards the necessity of JCE.6

2.2 Roxin’s Control Theory The foundation for the ‘control over the crime’ theory as developed by the German criminal law scholar Claus Roxin in the 1960s,7 was laid down in the case of Lubanga. The PTC interpreted ‘committed’ in Article 25(3) (a) as constituting the notion of ‘control over the crime’.8 Roxin’s theory of Tatherrschaft (‘dominion over the act’) extends principal liability to those who, despite not being physically involved in committing the offence, possess 4 Joint Criminal Enterprise 5 Tadic (n 2), para 220.

6 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04–01/07–717, PTC I, DCC, 30 September 2008 (Katanga and Ngudjolo), para 508.

7 Claus Roxin, Täterschaft und Tatherrschaft (De Gruyter, 2006) 242-52, 704-17.

8 See Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-803, PTC I, Decision on the Confirmation of Charges (DCC), 29 January 2007 (Lubanga), para 330.

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control over the acts of the physical perpetrators.9 The notion of control over crime has since been embraced by the majority of German and Spanish jurists and the ICC later adopted it as if it were its own.

It appears to have both a restrictive as well as an expansive effect on the concept of joint perpetration.10 The concept finds its limitation with respect to those participants in the criminal enterprise without whose contribution the criminal plan would not have been realised. At the same time, the scope of perpetration has been broadened to also include perpetrators who despite never physically exercising any of the constituting acts of the offence in question, exercise control, albeit from afar. The control theory may be credited for fairer labelling of the accused as principal perpetrator or accessory accordingly.11 Nevertheless, it remains controversial at the ICC. It has been criticised on the basis that indirect perpetration cannot possibly be claimed when the person carrying out the act is autonomous and criminally responsible.12 Counter-critique has however pointed out that it is perfectly possible to hold the person behind the scenes responsible together with the person who physically committed the act, since both possessed sufficient control over the criminal act, albeit independently of each other.13 While Judge Fulford and Judge van den Wyngaert strongly disagrees with the Court’s reliance on German theory, Ohlin does not view this as problematic. On the contrary, he considers it to be an independent exercise to develop an international criminal law theory. Van Sliedregt meets these views half-way and considers that although the control theory may be regarded as ‘subsumed under Article 25(3)(a)’, due to its recognition of the functional perpetrator, Roxin’s theory should still be approached with caution.14 Notwithstanding the varying views, the ICC continues to apply the control theory to all the forms of perpetration in Article 25(3)(a), as well as the subsequently created notion of indirect co-perpetration.

9 Gerhardt Werle, Boris Burghardt, ‘Claus Roxin on Crimes as part of Organized Power Structures’ (2011) 9 JICJ 191-205.

10 Jens Ohlin, Elies van Sliedregt, Thomas Weigend, ‘Assessing the Control-Theory’ (2013) 26 Leiden JIL 725, 728.

11 Elies van Sliedregt, ‘The Curious Case of International Criminal Liability’, (2012) 10 JICJ 1171, 1183.

12 Elies van Sliedregt, ‘Perpetration and Participation in Article 25(3)’, Chapter 20 of Carsten Stahn (ed), The Law And Practice Of The International Criminal Court (OUP 2015) 508.

13 Thomas Weigend, ‘Indirect Perpetration’ Chapter 22 of Stahn (ed) (n 11) 552.

14 van Sliedregt, ‘Perpetration and Participation in Article 25(3)’ (n 10) 507-8.

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3. Direct and Indirect Co-Perpetration in the Jurisprudence of the ICC 3.1 Direct Co-perpetration: Interpretation in ‘Lubanga’ 3.1.1 Objective and Subjective Elements of Co-Perpetration based on the Notion of Joint Control over the Crime The PTC adopted the liability mode of co-perpetration for the first time in its narrow sense in the case of Lubanga and relied on Roxin’s doctrine of ‘functional control over the act’ (‘funktionelle Tatherrschaft’),15 enabling a clear distinction between perpetrators and accessories: The concept of co-perpetration based on joint control over the crime is rooted in the principle of the division of essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task.16 In order to establish co-perpetration based on joint control, two objective elements are required: 1) the existence of an agreement or common plan between two or more persons,17 and 2) a coordinated essential contribution by each co-perpetrator resulting in the realisation of the actus reus of the crime/s.18 Thus, the key element of this mode of liability is shared control between all of the co-perpetrators, and any co-perpetrator has the power to disrupt the implementation of the common plan and the execution of the crime at any given time, simply by withholding their contribution to the crime. That being 15 Lubanga (n 7), para 341; See also Katanga and Ngudjolo (n 5), para 521.

16 Ibid (n 7) para 342 with reference to the detailed analysis of co-perpetration in Prosecutor v Milomir Stakić, IT-97-24-T, TrCh II, 31 July 2003 (Stakić), para 440; See also Ibid (n 5), paras 521, 525.

17 Ibid (n 7), paras 343-5; Ibid (n 5), paras 522-3.

18 Ibid (n 7) paras 346-8; Ibid (n 5) paras 524-5.

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said, collecting evidence to prove the ‘essential’ nature of the contribution and the ability to frustrate the commission of the crime can be an arduous task for the prosecution, as this requires speculation as to how the sequence of events would have unfolded without the suspect’s contribution.19 As for the mental element, an elevated degree of mens rea is not necessary. The PTC simply requires from the accused: 1) fulfilment of the subjective elements of the crime in question, including any ulterior intent or dolus specialis,20 2) mutual awareness and acceptance together with the other co-perpetrators that the realisation of the objective elements of the crime will result, if the common plan is implemented,21 and; 3) awareness of the factual circumstances enabling him or her to jointly control the crime.22

3.1.1.1 Interpretation of ‘Agreement or Common Plan’ The importance of this element relies on the interdependence of the coperpetrators, who must necessarily reach an agreement in a coordinated manner in order to jointly execute the crime.23 A contribution made by a senior political or military leader without any agreement with the other coperpetrators does not qualify him as a principal co-perpetrator. At best, he may be labelled an accessory. This is because such a leader would not be aware of the interdependent relationship between the co-perpetrators, and so the contributions made by them cannot be attributed to him.

The agreement must essentially contain ‘an element of criminality’,24 although it may have been originally directed at the attainment of a legal goal. Such element may result: a) if certain conditions are met, or b) if the co19 Thomas Weigend ‘Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 JICJ 471, 480.

20 Ibid (n 7), paras 349-60.

21 ibid paras 361-5.

22 ibid paras 366-7.

23 Lubanga (n 7), para 343; Katanga and Ngudjolo (n 5), para 522.

24 Ibid (n 7) para 344.

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perpetrators, being aware of the risk that implementing the common plan will result in the commission of the crime, accept such an outcome.25 That said, some controversy seems to have arisen regarding the nature of the common plan.

At the Trial Chamber, the defence insisted that criminal liability on the basis of co-perpetration is established only where the common plan is ‘intrinsically criminal’,26 as it would otherwise be incapable of realising the objective element of criminal co-perpetration. The Chamber, following the PTC, adopted the broad view that intrinsic criminality does not need to be proven, nor is evidence required to prove that the common plan was targeted specifically at committing the crime in question.27 It requires, at the very least, the establishment of a ‘critical element of criminality’28 included in the common plan that sufficiently risks the commission of a crime throughout the ordinary course of action.29 Ambos30 agrees with the Trial Chamber that the plan should always be interpreted keeping the co-perpetrators’ original will in mind. Yet he fails to be convinced that a mere critical element of criminality is enough to create the common plan forming the basis of a joint commission of crime.31 The essential element for Ambos in order to prove mutual attribution of the alleged co-perpetrators is that the plan contains a somewhat defined crime to be committed.

Under the pretence of establishing the statutory scope of the plan by reflecting it in the mental element, the Chamber invokes a combined reading of Articles 25(3)(a) and 30, and concludes that ‘committing the crime in question does not need to be the overarching goal of the co-perpetrators.’32 It also held that: 25 ibid.

26 Prosecutor v Lubanga, Judgement pursuant to Article 74 of the Statute, ICC-01/0401/06-2842, TrCh I, 14 March 2012 (Lubanga Judgment), para. 983.

27 ibid paras 983-4.

28 ibid para 984.

29 ibid paras 984, 987, 1012.

30 Ambos, ‘The First Judgment Of The International Criminal Court (Prosecutor V Lubanga): A Comprehensive Analysis Of The Legal Issues’ (2012) 12 International Criminal Law Review (ICLR) 115, 140 31 Ambos, ‘The First Judgment Of The International Criminal Court (Prosecutor V Lubanga): A Comprehensive Analysis Of The Legal Issues’ (2012) 12 International Criminal Law Review (ICLR) 115, 140.

32 Lubanga Judgement (n 25), para 985.

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the mental requirement that the common plan included the commission of a crime will be satisfied if the co-perpetrators knew that, in the ordinary course of events, implementing the plan will lead to that result.33 This very wide interpretation of ‘common plan’ has inevitably created a few issues. To begin with, it is effectively incompatible with the rule of strict interpretation. If the plan does not project the commission of physical crime, no agreement would exist that could be mutually attributed.34 Secondly, it arguably amounts to an infringement of the principle of individual criminal responsibility, insofar as it suggests that the defendant may be charged with crimes not originally included in the common plan.

Furthermore, the interpretation does not co-exist with the theory of control over the crime. It does not follow that the party acting within the scope of the agreement has joint control over an offence falling outside the scope of the agreement that was individually perpetrated by another.35 Thirdly, the principle of proportionality is violated where the Chamber considers equal the joint commission of the crime and the mere creation of the risk of a person taking advantage of another’s contribution to commit an excess crime.36 The latter conduct is evidently less morally blameworthy than the former - such equation is disproportionate.

This mode of liability may also be applied to senior political and military leaders who join the common plan, after the commencement of the realisation of the actus reus of the crime.37 Those who join at the execution stage will only be considered co-perpetrators, if they share essential control over the continuing realisation of the objective elements, together with the original co-perpetrators. They will only be criminally liable as co-perpetrators for that part of the common plan which they jointly controlled, although they could potentially be held responsible as accessories, if the circumstances permit.38 33 ibid para 986.

34 Alicia Gil Gil, Elena Maculan, ‘Current Trends In The Definition Of ‘Perpetrator’ By The International Criminal Court: From The Decision On The Confirmation Of Charges In The Lubanga Case To The Katanga Judgment’ (2015) 28 Leiden JIL 360.

35 ibid.

36 ibid.

37 Hector Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (2010), 276.

38 ibid.

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3.1.1.2 Interpretation of ‘Essential Contribution’ Despite the fact that co-perpetrators have joint control over the crime, each co-perpetrator is still in control of his own free and conscious contribution. A contribution is essential in the sense that, the only way one may frustrate the implementation of the common plan is by refusing to carry out their contribution.39 The assignment of an essential task in the implementation of a common plan is, therefore, an indispensable requisite for co-perpetratorship to be attributed to a senior political or military leader.

If unfulfilled, such leader will have no real control over the crime.

Since the co-perpetrator carries the same responsibility for the crime as the physical or the indirect perpetrator, the co-perpetrator’s contribution in the commission of the crime must be of similar weight in the realisation of the common plan.40 This contrasts with the notion of JCE whereby an accused’s contribution ‘need not be, as a matter of law, necessary or substantial’,41 but should at least be significant in order to be able to hold senior political and military leaders responsible as co-perpetrators, provided the common criminal purpose is still shared.42 Because the Majority has argued in favour of the hierarchical structure of the modes of participation contained in Article 25(3),43 lowering the contribution threshold to anything less than ‘essential’ would ‘deprive the notion of principal liability of its capacity to express the blameworthiness of those persons who are the most responsible for the most serious crimes of international concern.’ 44

Lubanga Judgment (n 25) 39 Lubanga (n 7) para 347; paras 999, 1006; Katanga and Ngudjolo (n 5), para 525.

40 Gerhardt Werle and Boris Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in Elies van Sliedregt and Sergey Vasiliev (eds), Pluralism in International Criminal Law (2014) 962.

41 Prosecutor v Ante Gotovina et al, IT-06-90-T, TrCh I, 15 April 2011, para 1953(iii).

42 Olásolo (n 35) 277.

43 See Sections 3.1.2.2 , 3.1.2.3 and 3.1.2.4 below.

44 (Lubanga Judgement n.25) para 999.

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3.1.1.3 Interpretation of the Subjective Elements The requirement of the essential contribution detailed above must be fulfilled together with the subjective elements required by the crimes in question. This includes any requisite ulterior motive (or dolus specialis).45 PTC I46 interprets the cumulative requirement of ‘intent and knowledge’ of Article 30 of the Statute as embracing the notion of dolus as a general subjective element of the international core crimes, which includes dolus directus in the first degree, dolus directus in the second degree and the ICTY notion of dolus eventualis.47 In the latter type of dolus, the accused must carry out his/her contribution with the aim of committing the crimes agreed upon in the common plan and with certainty that the crimes will be executed as a logical consequence of the implementation of the common plan. Failing this, the accused must, at the very least, be aware of the risk of the commission of the crime resulting from the implementation of the common plan and reconcile himself with such a result.48 Where the chance of the crime occurring in the ordinary course of events is substantial, the suspect’s acceptance of the probability may be inferred from the fact that they carry out their contribution, having little to no regard of the high risk level.49 Where the level of risk is low, implicit acceptance of the above-mentioned probability is not enough - it must be clear and express.50 The PTC has required two additional subjective elements for coperpetration based on joint control. The accused and the other coperpetrators must mutually: (a) be aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and (b)

accept such a result by reconciling themselves with it

45 Lubanga (n 7), para 349.

46 Pre-Trial Chamber I 47 Olásolo (n 35) 281; Lubanga (n 7), para 351-2 with reference to the definition of dolus eventualis in Stakić (n 16), para 587.

48 Lubanga (n 7), para 353.

49 ibid para 353-4.

50 ibid para 354, with reference to Stakić (n 16), para 587.

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or consenting to it.51 The importance of this element for this mode of liability stems from the fact that the contributions made by the other co-perpetrators can be attributed to the senior political and military leaders who had no physical presence throughout the commission of the crime, yet controlled it remotely.

That said, that is only possible if all of the co-perpetrators carry out their contributions to the implementation of the common plan and mutually accept the likely outcome of the commission of the crime.52 The final subjective element required, unknown to the notion of JCE, considers irrelevant the level of control of the accused over the commission of a crime and his awareness of the factual circumstances giving rise to such level of control. It requires the senior political or military leader to be aware: (i) that his/her role is essential to the implementation of the common plan and hence in the commission of the crime, and (ii) that s/he can – by reason of the essential nature of his/her task – frustrate the implementation of the common plan, and hence the commission of the crime, by refusing to perform the task assigned to him/her.53

3.1.2 Considering the Applicable Mode of Liability: Principal Responsibility under Article 25(3)(a) 3.1.2.1 The Prosecution and the Defence The prosecution separated the concept of co-perpetration within the meaning of Article 25(3)(a) from that of co-perpetration based on the existence of a JCE.54 It maintained that an individual is considered a coperpetrator of crime only when s/he has joint control over the crime as a result of the contribution attributed to them, which must, above all else, be 51 52 53 54

Ibid para 361. ibid para 362.

Lubanga (n 7), para 367; Katanga and Ngudjolo (n 5), paras 538-9.

Lubanga (n 7), para 323.

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essential to the commission of the crime.55 Contrarily, the defence challenged the prosecutor’s interpretation arguing that the concept of co-perpetration exceeds the terms of co-perpetration and indirect perpetration set out in the Statute, and is supported neither by customary international law nor by general principles of law derived from domestic legal systems.56

3.1.2.2 The Pre-Trial Chamber The concept of co-perpetration as a mode of criminal liability is interpreted by the PTC in a dualistic light: when the sum of the co-ordinated individual contributions of a plurality of persons results in the realisation of all the objective elements of a crime, any person making a contribution can be held vicariously responsible for the contributions of all the others and, as a result, can be considered as a principal to the whole crime.57 The PTC evaluates and considers the distinguishing factors between principals and accessories to crime in terms of three different approaches:58 1. The objective approach i.e. the realisation of one or more of the objective elements of the crime; 2. The subjective approach, which is inherent to the notion of JCE (or the common purpose doctrine) and 3. The control over the crime approach.

The PTC rejects the first two approaches, deeming them irreconcilable with the Statute and exclusively supports the latter approach.59 It represents 55 56 57 58 59

ibid paras 322, 346. ibid para 324. ibid para 326.

Lubanga (n 7) paras 328-330; See also Katanga and Ngudjolo (n 5), para 480.

Ibid para 330.

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a dogmatic approach where the control theory is believed to equip the Court with the theoretical grounding of Article 25, which is then expected to reflect subtle differences in the way that responsibility is measured. As a result of the hierarchical distinction of the four modes of liability, the approach also seeks to demonstrate that Article 25(3) establishes several degrees of blameworthiness.60 The PTC seems to be moving away from the concept of co-perpetration within the meaning of Article 25(3)(a) and closer to that in Article 25(3) (d) wherein the concept is defined as a ‘contribution to the commission or attempted commission of a crime by a group of persons acting with a common purpose … with the aim of furthering the criminal activity of the group or in the knowledge of the criminal purpose’.61 The Chamber claims that had the drafters of the Statute wanted to opt for a subjective approach, the ICTY concept of JCE would have been a more appropriate basis for the concept of co-perpetration in accordance with Article 25(3)(a).62 The PTC interprets Article 25(3)(d) as providing a residual form of accessory liability that enables those contributions not falling within the meaning of Article 25(3)(b) or (c) to be criminalised by reason of the essential contributions made to the commission of the crime.63 To conclude, the concept of coperpetration as expressed in Article 25(3)(a) compliments the notion of joint control over the crime as the main criterion distinguishing principals from accessories.

3.1.2.3 The Trial Chamber The Chamber’s Majority affirmed and followed the PTC’s interpretation of co-perpetration based on the ‘control over crime’ approach.64 It directs its main emphasis regarding criminal liability for co-perpetration towards the element of ‘essential contribution’. The control over the crime is exercised collectively and not individually.65 This presupposes that ‘the accused does not need to be present at the scene of the crime, so long as he exercised, 60 61 62 63 64 65

Ohlin, van Sliedregt, Weigend (n 9) 740-5.

Lubanga (n 7), para 334; Rome Statute, Article 25(3)(d). ibid para 335. ibid paras 337, 341.

(Lubanga Judgement n. 25) para 978. ibid para 994.

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jointly with others, control over the crime.’ 66 With regards to the distinction between co-perpetration and the other forms of liability in Article 25, the Trial Chamber notes that the co-perpetrator’s contribution must be significantly greater than that of individuals held responsible under sub-paragraphs (c) and (d).67 Therefore, the PTC’s conclusion that the essential nature of the contribution is decisive was confirmed.68 This view reflects the Statute’s differentiation between principal and accessorial liability. The Chamber Majority supports this valuebased distinction, unlike Judge Fulford who adopts a radically different interpretation.69

3.1.2.4 The Appeals Chamber The Appeals Chamber confirmed the ICC’s first conviction and reinforces the distinction between principals and accessories.70 It also embraces the control theory to interpret Article 2571 and upholds the PTC’s and the Trial Chamber’s view that Article 25(3)(a) presents different degrees of blameworthiness.72 It follows with an explanation of how a normative assessment of the accused’s role should be carried out.73

3.1.3 Judge Fulford’s Separate Opinion Judge Fulford affirmatively rejected Roxin’s control theory and disagrees with the Court’s reliance on German law, mainly for two reasons.74 Firstly, 66 ibid para 1005.

67 ibid paras 996-7.

68 ibid paras 989, 999, 1000, 1006.

69 See Section 3.1.3 below.

70 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06A A 5, Appeals Chamber, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, 1 December 2014 (Lubanga Appeal Judgment).

71 ibid para 469.

72 ibid paras 467-8.

73 ibid paras 467-73.

74 Prosecutor v Thomas Lubanga Dyilo, ICC-0l/04-01/06, Separate Opinion of Judge Adrian Fulford to the Trial Chamber I, Judgement pursuant Article 74 of the Statute, 14 March 2012 (Separate Opinion Judge Fulford), para 6-12.

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the theory has not gained customary international law or general principle status, and therefore finds no ranking as a source of law under Article 21 of the Statute.75 Secondly, the control theory is not supported by the Rome Statute and a plain-text reading of Article 25(3)(a) is in fact required. This is arguably a more pragmatic approach. He fundamentally disagrees with the view that the theory is necessary to clearly distinguish between principal liability and accessory liability.76 He is unconvinced that accessories in sub-article (c) are more blameworthy than those who contribute to a common criminal endeavour under sub-article (d). In Ohlin’s words, the latter provision ‘seems to fit the paradigm of history of collective atrocities, so it seems odd to reduce it to the lowest step on the ladder of culpability’.77 Steffen Wirth has argued that Fulford’s dissent regarding the Statute’s dualist approach is unconvincing, and his view is in fact difficult to reconcile with Article 25.78 To his mind, it was never the drafters’ intention to imply that the various modes of commission under the four sub-articles of Article 25 are to be considered mutually exclusive to one another.79 Article 25(3) does not establish any ‘hierarchy of seriousness as regards the various forms of participation in a crime’.80 Thus, due to the fact that no sentencing range exists in the Statute that is in line with the degree of participation,81 an ‘unnecessary and unfair burden’82 was imposed on the prosecution. To this effect, he re-interprets the constitutive elements of co-perpetration in terms of a plain text reading of Article 25(3)(a): a. The involvement of at least two individuals. b. Coordination between those who commit the offence, which may take the form of an agreement, common plan or joint understanding, express or implied, to commit a crime or to undertake action that, in the ordinary course of events, will lead to the commission of the crime.

75 76 77 78 79 80 81 82

van Sliedregt, ‘Perpetration and Participation in Article 25(3)’ (n 11) 507. ibid.

Ohlin (n 13) 528.

Steffen Wirth , ‘Co-perpetration in the Lubanga Trial Judgment’, (2012) 10 JICJ 971-97.

Separate Opinion Judge Fulford (n 71), para 7. ibid para 8. ibid para 9. ibid para 3.

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c. A contribution to the crime, which may be in/direct, provided, either way, there is a causal link between the individual’s contribution and the crime. d. Intent and knowledge, as defined in Article 30 of the Statute, or as ‘otherwise provided’ elsewhere in the Court’s legal framework. […]83 The third element aims to avoid ‘an investigation as to how events might have unfolded without the accused’s involvement’.84 Fulford further argues that the requirement of ‘essential’ contribution of each co-perpetrator holds no water under sub-paragraph (a), as it would set the liability threshold too high.85 The contribution must be intense enough to fall within the realm of criminality, but need not be essential for the objective elements of coperpetration to be satisfied. Although he accepted the general test that was employed by the Chamber, for the sake of fairness to the accused, he believes that a ‘lesser’ test should have been applied.86 Fulford concluded that this re-constructed interpretation of coperpetration is the correct one and the ICC should in future cases replace the joint control theory when considering the applicable mode of liability to attribute to senior political and military leaders. The Court should first base itself on a plain, ordinary meaning of Article 25(3)(a) and interpret it in light of its object and purpose. Only when this interpretation does not yield a useful result should a reference to a specific doctrine taken from a specific domestic context be made.

3.2 Indirect Co-Perpetration: Intepretation in Katanga and Ngudjolo 3.2.1 Objective and Subjective Elements of Indirect CoPerpetration Indirect co-perpetration has ‘distinct requirements’87 and requires proof of 83 84 85 86 87

ibid para 16. ibid para 17; Ohlin, van Sliedregt, Weigend (n 9) 728. ibid para 15. ibid para 21.

Katanga and Ngudjolo (n 5), para 494.

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the objective and subjective elements of both co-perpetration and indirect perpetration. The PTC combines the application of joint control and organised structures of power (OSP) and puts forward five objective elements for this mode of liability. It first analyses three objective elements for perpetrationby-means in terms of Article 25(3)(a): 1) control over the organisation,88 2) organised and hierarchical apparatus of power89 and 3) execution of the crimes secured by almost automatic compliance with the orders.90 Next, it interprets the other two objective elements belonging to joint perpetration of a crime. These are the same as those explained in Lubanga: 4) existence of an agreement or common plan between two or more persons91 and 5) coordinated essential contribution by each co-perpetrator resulting in the realisation of the objective elements of the crime.92 The subjective elements are identical to those in Lubanga.

3.2.2 Considering the Applicable Mode of Liability: Principal Responsibility under Article 25(3)(a) 3.2.2.1 The Prosecution and the Defence The prosecution charged Katanga and Ngudjolo with criminal responsibility as co-perpetrators of a common plan under Article 25(3)(a) or alternatively, under sub-article (b), for ordering the commission of war crimes and crime against humanity.93 On the other hand, the Defence claimed that the definition of coperpetration based on joint control under Article 25(3)(a) was inconsistent with the intention of the drafters of the Statute and that it was not supported by domestic, customary or international law.94 They also objected to the theory as developed in Lubanga because: (i) it merged the liability modes of co-perpetration and indirect 88 89 90 91 92 93 94

ibid paras 500-10. ibid paras 511-4. ibid paras 515-8. ibid paras 522-3. ibid paras 524-6. ibid paras 469-70. ibid para 474.

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perpetration; (ii) it defined the common plan in a broad and imprecise manner and (iii) incorporated the concept of dolus eventualis.95

3.2.2.2 The Combination of Modes of Liability by the PreTrial Chamber Despite the Court’s efforts to address the collective and systematic nature of international crimes, situations have still arisen whereby senior political or military leaders fell outside the scope of both co-perpetration and indirect perpetration in order to be held principally liable. The ICC sought to solve this problem by amalgamating the two modes of liability to hold such leaders responsible as indirect co-perpetrators. The use of this form of perpetration has since featured in a number of ICC cases.96 The Chamber interpreted the connective ‘or’ in Article 25(3)(a) as deriving two possible meanings - one known as weak or inclusive, the other as strong or exclusive.97 The former disjunction means ‘either one or the other and possibly both’, while the latter means ‘either one or the other, but not both’.98 It concluded that: there are no legal grounds for limiting the joint commission of the crime solely to cases in which the perpetrators execute a portion of the crime by exercising direct control over it.

Rather, through a combination of individual responsibility for committing crimes through other persons together with the 95 ibid.

96 Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-15, PTC III, Warrant of Arrest for Jean-Pierre Bemba Gombo replacing the Warrant of Arrest issued on 23 May 2008, 10 June 2008; Prosecutor v Omar Hassan Ahmad Al Bashir, Decision of the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, 4 March 2009; Prosecutor v Francis Kirimi Muthaura et al, ICC-01/09-02/11-382-Red, PTC II, DCC Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012; Prosecutor v Dominic Ongwen, ICC02/04-01/15, PTC II, DCC, 23 March 2016.

97 Katanga and Ngudjolo (n 5), para 491.

98 ibid.

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mutual attribution among the co-perpetrators at the senior level, a mode of liability arises which allows the Court to assess the blameworthiness of “senior leaders” adequately.99 The PTC has accepted that in the case of this form of perpetration, the control over crime amounts to ‘control over the organisation’ and applied Roxin’s theory of Organisationsherrschaft.100 The theory regulates simultaneously the horizontal relationship between members of the leadership and the vertical dimension of system criminality. It presupposes dominance over a hierarchical OSP that continues to operate regardless of any loss of one or several individual/s:101 […] While [the perpetrator’s] power of control over his own actions is unquestionable, the perpetrator is nonetheless, at the same time, a mere gear in the wheel of the machinery of power who can be replaced at any time, and this dual perspective places the intellectual author alongside the perpetrator at the heart of events.102 The PTC in Katanga and Chui has highlighted the notion of co-perpetration based on joint control in a similar way to the interpretation in Lubanga.103 The Court combined the two modes of liability in response to a complication that it faced regarding mutual attribution of crimes. The subordinates in this case belonged to groups of different ethnic origin.104 This meant that they would only execute orders if given to them directly by a superior commander of the same ethnicity.105 Consequently, the success of the attack was dependent on the joint and coordinated action between both leaders.

Co-perpetration based on joint control of the crime was therefore considered unsuitable for application. Neither member of the common plan had directly committed the crimes in question. They simply controlled the outcome of the crime through an organised apparatus of power. The evidence brought before the PTC did not prove that Katanga and Ngudjolo 99 ibid para 492.

100 ibid paras 498-9.

101 Herman G. van der Wilt, ‘The Continuous Quest for Proper Modes of Criminal Responsibility’, (2009) 7 JICJ 307, 309.

102 Roxin (n 6) 245, quoted in Katanga and Ngudjolo (n 5), para 515.

103 Katanga and Ngudjolo (n 5), para 521; See also Lubanga (n 7), para 342.

104 ibid para 519.

105 ibid para 560.

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entered the village before the attack was concluded. Thus, the PTC applied the notion of indirect co-perpetration based on OSP and joint control, with the aim of making it easier to capture complex forms of collective violence and to charge and prosecute such leaders as principal perpetrators under Article 25(3)(a) for crimes committed by their subordinates:106 The leader’s ability to secure this automatic compliance with his orders is the basis for his principal - rather than accessorial - liability. The highest authority does not merely order the commission of a crime, but through his control over the organisation, essentially decides whether and how the crime would be committed. 107

3.2.3 Judge Van den Wyngaert’s Concurring Opinion Judge Christine Van den Wyngaert rejects the hierarchy of modes of participation under this provision.108 Similarly to Judge Fulford, she distances herself from the ‘control theory’ of liability for perpetration, stating inconsistency with the text of Article 25(3)(a) as her justification.109 She also does not distinguish between the blameworthiness of accessorial liability and that of principal liability for commission.110 In her view, this is primarily due to the fact that the accused’s guilt is dependent upon the factual circumstances of the case and not upon abstract categories.111 She interprets the common plan requirement as pertaining to the subjective, rather than to the objective element of co-perpetration.112 Contrary to the Trial Chamber’s view in Lubanga, she believes that a combined reading of Articles 25(3)(a) and 30 suggests that the commission of the crime in question is in fact, the overarching goal of the co-perpetrators. The test should be whether there is ‘voluntary coordination of action by each of the 106 Olásolo (n 35) 319-20.

107 Katanga and Ngudjolo (n 5), para 518.

108 Prosecutor v Mathieu Ngudjolo Chui, ICC-01/04-02/12-4, TrCh II, Concurring Opinion of Judge Van den Wyngaert to Judgement Pursuant to Article 74 of the Statute, 18 December 2012 (Concurring Opinion Judge Van den Wyngaert) para 6.

109 ibid.

110 ibid paras 22, 24.

111 ibid paras 24, 26.

112 ibid para 32.

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co-perpetrators’,113 resulting from a shared intent to bring about a particular consequence. Moreover, they must all be at least mutually aware that the consequences of their joint actions will, in the ordinary course of events, result in this conclusion.114 Van den Wyngaert is troubled by the PTC’s turning of the ‘common plan’ into an objective element in Lubanga and Katanga and Ngudjo. This shifts the focus onto the accused’s role in implementing the common plan, as opposed to the manner in which the accused’s conduct impacts the commission of the crime.115 The shift from the crime to the common plan shows that the notion of ‘joint perpetration’ has not been interpreted in a manner that is consistent with a strict interpretation of Article 25(3)(a). She proposes, like Fulford, a plain interpretation of this provision and concludes: (a) that there is no requirement for an ‘objective’ common plan (although this may be an element of proof of shared criminal intent) and (c) that the Statute does not contain a form of criminal responsibility that is based on the mere acceptance of a risk that a crime might occur as the consequence of personal or collective conduct.116 With regard to the essential contribution requirement, she agrees with Fulford’s criticism that this requirement finds no support in the Statute.117 However, rather than a causal link between the individual’s contribution and the crime,118 she believes that what is essential for joint perpetration is for there to be “a direct contribution to the realisation of the material elements of the crime”.119 She therefore places the emphasis of the commission of a crime on the realisation of its material elements.120 Van den Wyngaert is also critical of the PTC’s formation of ‘indirect coperpetration’.121 She disagrees that this concept should be inferred from 113 114 115 116 117 118 119 120 121

ibid. ibid. ibid para 34. ibid para 39. ibid para 42.

Separate Opinion Judge Fulford (n 71), para 16(c).

Concurring Opinion Judge Van den Wyngaert (n 105), paras 44, 46. ibid. ibid para 7.

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Article 25(3)(a . The creation of a new mode of liability from a combination of already existing modes of liability leads to a radical expansion of Article 25(3) (a) and violates the legality principle found in Article 22(2) of the Statute.122 The judge concludes that the notion of indirect co-perpetration is inconsistent with this provision and thus ‘has no place under the Statute as it is currently worded.’123

4. Katanga: Principal or Accessory?

At the trial stage in Katanga and Ngudjolo, indirect co-perpetration as a mode of liability under Article 25(3)(a) proved unsuccessful, in respect of both accused. To establish the truth without qualification of the facts as accepted by the Prosecution and the PTC, the Chamber Majority re-characterised the facts and based Katanga’s conviction on common purpose liability under Article 25(3)(d)(ii): complicity in the commission of a crime by a group of persons acting with a common purpose.124 Meanwhile, Ngudjolo was acquitted due to insufficient evidence beyond a reasonable doubt, at the failure of at least two elements of indirect perpetration.125 In its analysis of Article 25(3)(a), the Trial Chamber unanimously rejected the view that Article 25(3) constitutes a hierarchy of modes of liabilities. It correctly reasons that neither the Statute nor the Rules of Evidence and Procedure offer a mitigation of punishment for the accessorial modes of liability, and so there is no reason why an accessory should be afforded a lighter penalty than a principal perpetrator or be considered less reprehensible: ‘[t]he Chamber underscores that Article 25 […] adverts not to the guilt of accused persons but to their individual criminal responsibility.’126 The Chamber essentially agrees that principal liability is autonomous in that it does not depend on the liability of a third person.127 Unlike in Lubanga, 122 ibid paras 6, 63-4.

123 ibid para 64.

124 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, TrCh II, Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons, 21 November 2012.

125 Prosecutor v Mathieu Ngudjolo Chui, ICC-01/04-02/12, TrCh II, Judgment pursuant to Article 74 of the Statute, 18 December 2012.

126 Prosecutor v Katanga, Judgment pursuant to Article 74 of the Statute, ICC-01/0401/07, TrCh II, 7 March 2014 (Katanga), para 1386.

127 ibid paras 1385-6.

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the Majority in this case refused to associate the ‘control over the crime’ theory with a higher degree of guilt. This interpretation highlights the clear divide and conflicting approaches present in the jurisprudence of the ICC regarding the question of hierarchy in Article 25(3). It is therefore being questioned whether this interpretation is the best way forward for the delivery of justice or otherwise.

The Chamber lists 5 elements that are presumed to be satisfied in the implementation of Article 25(3)(d)(ii).128 Interestingly, under the second element, in interpreting the notion of a group acting with a common purpose, the Chamber relied on the ad hoc tribunal concept of JCE.129 The ICC has affirmed that common purpose liability establishes ‘the lowest objective threshold for participation according to article 25’130 and that the accused need not share the group’s intentions to commit the crime.131 Considering the leniency of these standards, it is unsurprising that the Court views Article 25(3)(d) as a residual mode of liability that is less blameworthy than other modes such as co-perpetration.

It has also been argued that ‘contribution to the commission of a crime’ under Article 25(3)(d) could replace (in)direct co-perpetration.132 In Mbarushimana, the PTC admitted that common purpose liability will impose an excessive burden if the slightest contribution satisfies the contribution requirement of Article 25(3)(d),133 which must ‘[i]n any other way’ be less than that required for liability under Article 25(3)(a)-(c). Under the third element, the Chamber clarifies that the contribution made must be significant, in the sense that it must crucially be ‘connected to the commission of the crime and not solely to the activities of the group in a general sense.’134 This standard sets a lower threshold of participation than the essential contribution standard of co-perpetration as set out in Lubanga.135 The 128 ibid para 1620.

129 ibid para 1625.

130 Prosecutor v William Ruto and Joshua Sang, DCC, ICC-01-09-01/11, PTC II, 23 January 2012, para 354.

131 Katanga (n 123), para 1638.

132 Maria Aksenova, ‘The Modes Of Liability at the ICC: The Labels that Don’t Always Stick’, (2015) 15 ICLR 645.

133 Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10, PTC I, DCC, 16 December 2011, paras 276-7.

134 Katanga (n 123), para 1632.

135 Marjolean Cupido, ‘Common Purpose Liability versus Joint Perpetration: A Practical View on the ICC’s Hierarchy of Liability Theories’ (2016) 29 LJIL 897, 903.

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Chamber noted that a case-by-case analysis is required in order to determine whether an accused influenced the occurrence of the crime,or not.136 It was concluded that ‘a direct nexus between the conduct of the accessory and that of the physical perpetrator need not be established.’137 The researcher considers this interpretation as a step in the right direction, as it makes it much easier for the prosecution to attribute criminal responsibility to intellectual perpetrators. The accused was held liable as an accessory under Article 25(3)(d) and still sentenced to 12 years’ imprisonment - only two years less than the sentence given to Lubanga, who was held liable as a co-perpetrator under Article 25(3)(a). Future ICC judges would do well to follow this path and continue to further develop this perspective.

5. Final Observations and Concluding Remarks Why does the ICC insist on distinguishing between principal and accessorial liability under Article 25(3)? The answer to this valid question can be found in the Court’s pursuit of expressive justice. It mainly aims to achieve this by sending a condemning message in its decisions. It is certainly vital that the intellectual perpetrator is clearly shown to be just as culpable as the physical perpetrator of the crime. Typically, this has been done by referring to them as a ‘principal’ who ‘commits’ crimes, so as to communicate to victims and the international community as a whole who the ‘real’ culprit was.138 The first judgment of the ICC convicted the accused as a co-perpetrator under Article 25(3)(a). Prior to Lubanga, the ICC had interpreted the ‘essential contribution’ and the ‘common plan’ elements of co-perpetration broadly.

This interpretation assumed that the label of ‘principal’ reflects a higher degree of blameworthiness than that of ‘accessory’, and it arguably violates the principles of legality and individual criminal responsibility.139 The Appeals Chamber in Lubanga has since confirmed this view stating that ‘a person who is found to commit a crime him or herself bears more blameworthiness than a person who contributes to the crime of another person or persons’.140 136 Katanga (n 123), para 1634.

137 ibid para 1635.

138 Ohlin, van Sliedregt, Weigend (n 14) 745; van Sliedregt, ‘Perpetration and Participation in Article 25(3)’ (n 11) 511.

139 Gil Gil, Maculan (n 32) 369.

140 Lubanga Appeal Judgment (n 67), para 462.

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At the same time, the Court has held that secondary liability is dependent on whether the perpetrator acts and that principal liability is not the subject of such dependence.141 This point was rightly affirmed in Katanga, whereby the expansive interpretation was rejected and it was held that the derivative nature of the contribution (‘significant’ as opposed to ‘essential’) made by the accused is a more appropriate criterion to distinguish between the modes of liability under Article 25(3).142 This approach is preferred in that it respects a strict reading of the constitutive elements of Article 25(3)(a). Before an accused can be charged as a perpetrator, it must first be proven that he had close and effective control over the realisation of the actus reus of the crime. This requirement ensures that this mode of liability is not unduly expanded as was the case in the past. In this sense, the researcher is in full agreement with Judge Van den Wyngaert: Courts of criminal justice cannot claim to protect an accused’s fundamental rights to a fair trial while making expansive interpretations of articles that define modes of liability.143 The jurisprudence considered in this article widens the scope of principal liability and effectively renders some of the elements incompatible with a strict interpretation of Article 25(3)(a) of the Statute. This has created some issues which can, however, be prevented. For instance, the issues arising from the broad interpretation of the element of ‘agreement or common plan’ could have been averted if co-perpetration liability covered only crimes forming part of the common plan or agreement and similarly, if indirect perpetration liability required the criminal mastermind to have directed the commission of the crime. Provided all members of the common plan may be held responsible as co-perpetrators for committing crimes that were not agreed upon in the common plan, all may be charged for merely contributing to the common plan, even though it may not be intrinsically criminal.144 In cases of strict superior-subordinate relationships, as can be seen in Katanga and Ngudjolo, the theory of joint control over the crime may not be the most appropriate. This is mainly because the level of mutual 141 Lubanga Judgment (n 25), para 998.

142 Katanga (n 123), para 1632.

143 Concurring Opinion Van den Wyngaert (n 105), para 68.

144 Lubanga Judgement (n25), paras 1221-2, 1267, 1270.

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dependency greatly restricts the scope of co-perpetratorship. Moreover, the researcher agrees with Judge Fulford’s rejection of Roxin’s theory of control over the crime as a basis for the mode of co-perpetration. Fulford believes that this was neither required by Article 25 nor supported by any of the other legal sources under Article 21. It seems as though the Court has not done enough to justify the foundation of the doctrine of co-perpetration on imported domestic criminal law theory within a general theory of sources of international law.145 Co-perpetration as a mode of liability is generally limited to attributing the conduct of a co-perpetrator to an accused. However, in those cases where the intellectual perpetrators are senior leaders, as was Lubanga, there is also an important element of indirect perpetration. Thus, the mode of indirect co-perpetration could arguably provide a more appropriate way to impute criminal responsibility.146 It can be rightly stated that the creation of indirect co-perpetration based on the notions of OSP and joint control, better reflects the horizontal and vertical relationships bringing about the commission of the crimes and liability as attached more appropriately to senior political and military leaders. Despite all this, such innovation still leaves much to be desired.

For instance, hardly any thought has been given to the manner in which and under what circumstances ad hoc combinations of modes of liability can or should be made. Pending clarification on this point by the Court, the researcher is in agreement with Judge van den Wyngaert’s opinion that indirect co-perpetration radically expands Article 25(3)(a) and that it violates the legality principle to the point that it ‘has no place under the Statute as it is currently worded.’147 The researcher proposes therefore that the ICC first formally develops a doctrine of ‘indirect perpetration by an organisation’ that attributes liability to horizontal relationships, before attaching at will novel modes of liability that are inconsistent with a strict interpretation of Article 25(3)(a). When such doctrine has been established and put into practice, the ICC may then wish to consider revising the wording of Article 25(3)(a) to include ‘indirect co-perpetration’ as another principal mode of liability.

While it is perhaps worth it for the Court to consider amending the Statute to include a mode of liability that is specifically aimed at senior political and 145 146 147

Ohlin (n 72) 517.

Wirth (n 73) 995.

Concurring Opinion Judge Van den Wyngaert (n 105), para 64.

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military leaders, a more suitable path forward could be for the Prosecution to attach the mode of liability that is easiest to prove when considering the circumstances and facts of the case. This may be an accessory mode of liability, as was the case in Katanga, which would enable the prosecution to prove more easily the undeniable liability of a senior political or military leader and ensure that justice is served.

The ICC should then, in its decision, clearly demonstrate that such auctores intellectuales is culpable as if he were the physical perpetrator (principal). This can be ensured in two steps. First, by punishing him as though he physically perpetrated the crime himself, so as to adequately reflect the magnitude of his involvement in its commission. By accepting a hierarchy of blameworthiness, the Appeals Chamber in Lubanga implied that categorising principals and accessories, and sentencing, are now linked.148 However, in this regard, the researcher completely agrees with van Sliedregt’s statement that ‘[t]here is no rule or theory that links accessorial liability to a mitigated form of criminal responsibility’.149 While Article 25(3) reflects a differential model, the sentencing provisions in the Statute provide for a unitary range of punishment.150 Secondly, if the idea of Article 25(3) constituting a hierarchy is rejected, the label of ‘principal’ should be extended on a case-by-case basis to those who are to be considered ‘most responsible’, even if they were convicted under any of the accessorial modes of liability. This is to ensure that the condemning message is passed on clearly, and that the accused is labelled fairly. The accused’s guilt should depend upon the factual circumstances of the case and not upon abstract categories.151 Additionally, nothing holds the ICC back from labelling in its decision or judgment, senior political or military leaders who are charged as accessories as ‘auctores intellectuales’, in order to further strengthen this message.

The ICC’s hierarchical structure of Article 25(3) is weak. There needs to be a movement ‘away from preserving a misguided assumption that accessories are inherently less blameworthy than principals and that the blameworthiness of political and military leaders can therefore only be fully 148 Lubanga Appeal Judgement (n 67), para 469.

149 van Sliedregt, ‘Perpetration and Participation in Article 25(3)’ (n 11) 513.

150 Hans Vest, ‘Problems of Participation. Unitarian, Differentiated Approach, or Something Else?’, (2014) 12 JICJ 295, 307.

151 Concurring Opinion Judge Van den Wyngaert (n 105), paras 24, 26.

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captured by treating them as principals.’152 The ICC should be considering each case as unique and should focus on a strict interpretation of the wording of the Statute. It should be noted, however, that one can only begin to understand the scope of the criminal responsibility and the importance of distinguishing the different modes of liability in light of jurisprudence, of which to date, there has not been much. Hence, there is certainly room for future research to critically observe the manner in which the ICC applies liability theories in practice.

The approaches and interpretations that have been analysed in this article expose the ever-present disagreement on the issue of which mode of liability best attributes responsibility to intellectual perpetrators. Although the Rome Statute does not preach the doctrine of precedent, precedents may still be applied in subsequent decisions pursuant to Article 21(2) of the Statute. That said, the inconsistency in the ICC decisions that have been put forward to date, weakens the predictability of the jurisprudence of the Court.

It is imperative that the Court now strives to reach a consensus on such a fundamental issue.

152

ibid para 70.

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