Reflections on the treatment of the notions of control of the crime and joint criminal enterprise in the Stakić appeal judgement

International Criminal Law Review

Volumn 7, Issue 1, 2007, Pages 143-162

  Olásolo, Héctor ^a,b,c  

^a International Criminal Court ^*  (Netherlands)

^b UTRECHT UNIVERSITY   (Netherlands)

^c International Criminal Court

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EID: 34547624480     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/156753607X181587     Document Type: Review

References (103)

1. Trial Chamber, The Prosecutor v. Milomir Stakić, Judgement (hereinafter "Stakió Trial Judgement"), IT-92-24-T, 31 July 2003.
2. The public version of PTC I Decision of 10 February 2006 can be found in Annex I to the PTCs I Decision of 24 February 2006 entitled Decision concerning Pre Trial Chamber's I Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo.
3. See paragraph 78. See also Decisión sur la confirmation des charges, The Prosecutor v. Thomas Lubanga Dyilo, Case Num. ICC-01/04-01/06, 29 January 2007 (hereinafter "Decision on the confirmation of the charges in the Lubanga case"), paragraph 320.
4. Ibid, paragraph 96.
5. See also Decisión on the confirmation of the charges in the Lubanga case, paragraphs 333 to 339. The unitary notion of perpetration is applied in countries such as Italy or Austria. For instance, article 110 of the Italian Penal Code states that "when a plurality of persons participate in the crime, each of them will be imposed the sentence attached to such crime, unless the following articles provide otherwise". Moreover, according to section 12 of the Austrian Penal Code, "nicht nur der unmittelbare Täter begeht die strafbare Handlung sondern auch jeder, der einen anderen dazu bestimmt, sie auszuführen, oder sonst zu ihrer Ausführung beiträgt.".
6. See also Dell'Andro, La fattispecie plurisoggettiva in Diritto penale, 1957, p. 77 et seq
7. and Kienapfel, Erscheinungsformen der Einheitstäterschaft, in Müller-Dietz (Ed.): Strafrech tsdogmatik und Kriminalpolitik, 1971, p. 25 et seq.
8. See also Decisión on the confirmation of the charges in the Lubanga case, paragraphs 338 and 339. Roxin, C., Täterschaft und Tatherrschaft, 7th ed., 2000, p. 122 et seq.
9. Olásolo, H./Perez Cepeda, A., The Notion of Control of the Crime in the Jurisprudence of the ICTY: The Stakić Case, 4 International Criminal Law Review 474 (2004), p. 485.
10. Roxin, C, supra n. 5, p. 122 et seq.
11. As. Oláolo, H./Perez Cepeda, A., have put it, supra n. 6, p. 488-489: "The direct or immediate perpetrator is the person who physically, and with the requisite mens rea, carries out the actus reus of the crime. He has the control of the crime because he controls the action as he physically carries the actus reus. Thus, the physical execution of the actus reus of the crime is the criterion of objective attribution which entails the qualification of a given contribution to the crime as perpetration [. . .] In the case of indirect perpetration, someone, who does not physically carry out the actus reus of the crime, indirectly commits the crime by using the direct perpetrator as an "instrument" or a "tool" who is controlled by his dominant will. In these cases the notion of control of the crime is denominated "control of the will" because, unlike in those cases of "control of the action", the indirect perpetrator commits the crime although he does not physically carries out the actus reus of the crime. Thus, the indirect perpetrator's control of the crime is not derived from the physical execution of the actus reus of the crime, but it is derived from the power of his dominant will. The most common variant of indirect perpetration is the use of a person who is not fully criminally liable, commonly referred to as the "innocent agent", as a tool to have the crime committed. However, another way of carrying out the actus reus of the crime through the use of another person, referred, to in this paper as PBPA, is the use by superiors of organised structures of power which they control, characterised by the replaceable character of their members, to secure the commission of the crimes. This variant of indirect perpetration, elaborated on for the first time by Roxin, is based on the consideration that an organised structure of power has a life of its own, irrespective of the identity of its replaceable members. Therefore, the person who controls it can (in general) be certain that his wishes will be carried out by his subordinates, and does not need to bother about who will carry them out. In addition, the person who controls an organised structure of power does not need to resort to coercion or deception of the direct perpetrators/actors because he knows that should a member of his organisation refuse to carry out his instructions, someone else would replace him and carry them out."
12. Finally, concerning co-perpetration based on functional control, H. Oldsolo/Perez Cepeda, A., have indicated, supra n. 6, pp. 498-499: "In accordance with the notion of functional control, the contribution of several people to the commission of a crime amounts to the co-performance on the basis of the principle of divisions of casks. As a. result, the sum of the individual contributions considered as a whole amount to the completion of the actus reus of the crime. The control of each co-perpetrator over the crime is based on die division of functions without which it would be impossible to complete the actus reus of the crime. The co-perpetrators can only implement the common plan in as much as they act jointly, and each co-perpetrator may ruin the implementation of the common plan by withholding his contribution to the crime. This key position of each co-perpetrator is the basis of their shared control of the crime. The key element of functional control is that, due to the division of the essential functions for the commission of the crime, none of the co-perpetrators alone controls the execution of the crime, but all co-perpetrators share such control. Therefore, they depend on one another, and only if all of them carry out their contributions in a co-ordinated manner, the actus reus of the crime will be completed (beatings will only occur if one person holds the victim while a second person, acting in co-ordination with the first one, inflicts the beatings upon the victim. Likewise, an old mosque would only be destroyed if an observation officer communicates to the artillery squad the necessary corrections for the next rounds). As a result, any co-perpetrator has the power to ruin the performance of the actus reus of the crime (the value of the observation officer's corrections is null if the artillery squad stops the shelling. Likewise, should the observation officer fail to communicate his corrections to the artillery squad, the latter could continue shelling the old mosque for a week without hitting it). Thus, one can conclude that each co-perpetrator controls more than his part of the crime, but, at the same time, he only directs the commission of the crime jointly with the other co-perpetrators. In this sense, functional control of the crime is inherent to the essential function of each co-perpetrator in the implementation of the overall common plan. Therefore, in principle, co-perpetrators are only those persons who make a contribution which is essential for the performance of the actus reus of the crime because, without it, such a performance would be ruined. There can be, however, many additional tasks which are performed at the preparatory and execution stages and which are not essential for the performance of the actus reus of the crime (e.g. encouraging the beater while he is beating the victim, confirming to the artillery squad that it can use the anticipated ammunition, or advising the artillery squad not to stop the shelling of the old mosque)."
13. This view have been supported, by inter alia Ambos, K, Article 25. Individual Criminal Responsibility, in Triffterer, O.: Commentary on the Rome Statute of the International Criminal Court, Nomos, 1999, pp. 475-492, p. 479
14. and, to a lesser extent, by Eser, A., Individual Criminal Responsibility, in Cassese, A./Gaeta, P./Jones, J.RW.D.: The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, pp. 767-822, p. 793.
15. Muñoz Conde, F./García Arán, M., Derecho Penal: Parte General, Third Edition, Tirant lo Blanch, 1998, p. 481.
16. In this regard, the ICC Prosecution, in the Submission of the Document Containing the Charges pursuant to Article 61(3)(a) and of the List of Evidence pursuant to Rule 121(3), filed on 28 August 2006 in the case of The Prosecution vs Thomas Lubanga Dyilo, ICC-01/04-01/06-356, stated at pp. 5 and 6: "In the Document Containing the Charges, the Prosecution submits that Thomas LUBANGA DYILO is criminally responsible as a joint perpetrator pursuant to Article 25(3)(a). The Pre-Trial Chamber found, upon review of the Arrest Warrant Application-which relied on many of the same factual allegations as the Document Containing the Charges-that indirect co-perpetration was also potentially a viable theory of criminal responsibility. Based on the facts as detailed in the Document Containing the Charges, the Office of the Prosecutor believes that "common purpose" in terms of Article 25(3)(d) could properly be considered as a third applicable mode of criminal liability." See also Decisión on the confirmation of the charges in the Lubanga case, paragraphs 337 to 341.
17. In this regard, it should, be kept in mind that when the Appeals Chamber of the ad hoc Tribunals in the Tadic case stated, for the first time, that the notion of joint criminal enterprise was part of customary international law, it highlighted that "[. . .] the Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating 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 contributes 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, subject to the certain conditions, which are specified, below." (Prosecutor v. Dusko Tadic, Appeal Judgement (hereinafter "Tadic Appeal Judgement"), Case Num. IT-94-1-A, 15 July 1999, paragraph 190). In the same judgement at paragraph 191, the Appeals Chamber underscored that "[. . .] the crimes [international crimes that are committed most commonly in wartime situations] are often carried out by groups of individuals acting in pursuance of a. common criminal design. Although some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc . . .), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less-or indeed no different-from that of those actually carrying out the acts in question." On this basis, the Appeals Chamber concluded at paragraph 192 that "[u]nder these circumstances to hold criminally liable as perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made possible for the perpetrator physically to carry out that criminal act."
18. More recently, the Appeals Chamber in the Milutinovic' et al. case has affirmed: "[. . .] joint criminal enterprise is to be regarded, not as a form of accomplice liability, but as a form of 'commission' and that liability stems not, as claimed by the Defence, from mere membership of an international organisation, but from participating in the commission of a crime as part of a criminal enterprise." (Prosecutorv. Milan Milutinović, Nikola Sainović and Dragoljub Ojdanić, Decision on Interlocutory Appeal (hereinafter "Decision on jurisdiction concerning the common purpose doctrine in the Ojdanić case"), Case Num. IT-99-37-AR72.2, 12 May 2004, paragraph 31.) In the same decision at paragraph 20, the Appeals Chamber added, "[. . .] it would seem therefore that the Prosecution charges co-perpetration in a joint criminal enterprise as a form, of 'commission' pursuant to Article 7(1) of the Statute, rather than as a form of accomplice liability. The Prosecution's approach is correct to the extent that, insofar as a participant shared the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated."
19. Appeals Chamber, The Prosecutor v. Milomir Stakiać, Judgement, (hereinafter "Stakić Appeal Judgement"), IT-92-24-A, 22 March 2006, paragraph 62.
20. Stakić Trial Judgement, supra n. 1, paragraphs 468 et seq.
21. 15 as a form of "committing"." As a consequence, in Judge Schomburg's view (paragraph 22), "[a]s an international criminal court, it is incumbent upon this Tribunal not to turn a blind eye to these developments in modern criminal law and to show open-mindedness by accepting internationally recognized legal interpretations and theories such as the notions of co-perpetration and indirect perpetration."
22. Ibid, paragraphs 439, 741-743, 774, 818, 822 and 826. This variant of the notion of indirect perpetration has been expressly included in article 25 (3) (a) RS by adding the expression "regardless of whether that other person is criminally responsible" to the notion of commission of crimes "through another person". See also Decisión on the confirmation of the charges in the Lubanga case, paragraph 339.
23. 17 The leaders of each of them were in control of their respective organised structure of power. These leaders knew that their orders would be implemented by their subordinates, and that they had the power to stop at any time the commission of crimes by their subordinates. Thus, the members at the lowest levels of the three organised structures of power existing in Prijedor in 1992, including the direct perpetrators/actors, were interchangeable, and, as a result, the top leaders had control of the will regarding their subordinates and, ultimately, over the aimes. For the Stakić Trial Chamber, the core crime committed, in Prijedor was a campaign of persecution. Such a campaign could only be carried out through the joint action of all diree organised structures of power existing in Prijedor in 1992. The civil administration headed by Stakić was mainly in charge of providing logistics and financial assistance to the other two organised structures of power. In addition to that, Stakić co-ordinated the co-operation of the three organised structures of power. Although the members of the civil administration did not carry out the actus reus of the crime, the other two organised structures of power could not have carried out the campaign of persecution by themselves. Therefore, their leaders were dependent on one another to implement it. Indeed, the leaders of the three organised structures of power existing in Prijedor in 1992 had divided the essential functions for the performance of the campaign of persecution among themselves, and, any of them could have disrupted, the execution of the persecutorial campaign by not having carried, out his essential function. Thus, unlike in the German Border Case and the Juntas trial, the direct perpetrators/actors did not belong to the structure of power controlled by Stakić, but to the other two structures of power. Therefore, the Trial Chamber could not base Stakić's criminal liability as a perpetrator only on the notion of indirect perpetration in its variant of the PBPA. In fact, given the vertical structure of the notion of PBPA, such a notion could not properly reflect the horizontal relationship between Stakić and his fellow co-perpetrators. On the other hand, due to the fact, that, apart from the accused's co-ordinating role, the accused and his fellow co-perpetrators carried out their respectively essential contributions to the implementation of the common plan through the use of the organised structures of power that they controlled, the Trial Chamber could not apply the notion of co-perpetration based on functional control as such. In fact, given the horizontal structure of functional control, such a notion could not properly reflect the vertical relationship between, on the one hand, the accused and his fellow co-perpetrators, and, on the other hand, their subordinates who physically carried out the actus reus of the crimes. As a result, the Trial Chamber, as shown in more detail in section four, decided not to apply indirect perpetration or functional control alone. Instead, it jointly applied both notions so as to adequately reflect the horizontal relationship between the accused and his fellow co-perpetrators, and the vertical relationship between them and their subordinates who physically carried out the actus reus of the crimes. Thus, Stakić, the highest political authority in Prijedor, was convicted for his essential contribution in the implementation of the plan agreed upon by the highest political, military and police authorities of Prijedor, and consisting of co-ordinately directing the civilian administration, the police and the military at securing the carrying out of a campaign of persecution against the non-Serbs of Prijedor during the spring and summer of 1992. In addition, the Trial Chamber also took into account the co-ordinating role played by Stakić."
24. Article 28 of the Spanish Penal Code of 1995 defines perpetration as committing a. crime as an individual, joindy with others or through another person. Besides, the instigators and the co-called necessary (as opposed to non-necessary) aidors and abettors shall also be considered perpetrators for the purpose of punishment.
25. This approach is taken for instance in the Judgements of the Spanish Supreme Court of 22 February 1985, 31 May 1985 and 13 May 1986.
26. See e.g., Judgements of the Spanish Supreme Court of 24 February 1989 and 4 October 1994. For additional jurisprudence of the Spanish Supreme Court applying the notion of control of the crime, see Diazy Garcia Conlledo, La autoría, en Derecho Penal, 1991, footnotes 116-121, p. 564 et seq.
27. German jurisprudence has often applied the notion of control of the crime. See, for instance, the judgement of the German Federal Supreme Court in the German Border Case (Entscheidungen des Bundesgerichtshofs in Strafsachen 40, p. 218 et seq).
28. See also Entscheidungen des Bundesgerichtshofs in Strafsachen 2, p. 151; 9, p. 393; 19, pp. 138 et seq). Moreover, apart from Roxin, a number of German audiors have also embraced (though with certain particularities) the notion of control of the crime.
29. See for instance Gallas, Täterschaft und Teilnahme, Materiálen zum Strafrechtsreform, Teil 1, Gutachten der Strafrechtslehrer, 1954, p. 152 et seq.
30. Lange, Der moderne Täterbergriff und der deutsche Strafgesetzentwurf, 1935, p. 32
31. Niese, Die finale Handlungslehre und ihre praktische Bedeutung, Deutsche Richterzeitung, 1952, pp. 21-24 et seq.
32. Sax, Dogmatische Streifzüge durch den Entwurf des Allgemeinen Teils eines Strafgesetzbuches nach den Beschlüssen der Großen Strafrechtskommission, Zeitschrift für die gesamte Strafrechtswissenschaft, 69, 1957, p. 412 et seq.
33. von Weber, Der s trafrechtliche Schutz des Urheberrechts, 1976, p. 65 et seq.
34. Jescheck/Weigend, Strafrecht Allgemeiner Teil, 5th ed. 1996 pp. 897 et seq.
35. Bockelmann, Strafrechtliche Untersuchungen, 1957, pp. 31 et seq.
36. Baumann, Mittelbare Täterschaft oder Anstiftung bei Fehlvorstellungen über den Tatmittler?, Juristenzeitung, 19.58, pp. 230 et seq
37. Jakobs, Strafrecht. Allgemeiner Teil, 2nd ed., 1991, pp. 611 et seq.
38. Maurach/Gässel/Zipf, Strafrecht Allgemeiner Teil, Vol. II, 6th ed., 1984, pp. 208 et seq.
39. and Hoyer in Systematischer Kommentar zum Strafgesetzbuch, 2003, §25 Nos. 10 et seq.
40. Stakić Appeal Judgement, supra, n. 13, paragraph 62.
41. Idem.
42. Idem.
43. Oläsolo, H, The Triggering Procedure of the International Criminal Court, Martinus Nijhoff Publishers, 2005, p. 25.
44. See also, Triffterer, O., Article 10, in Triffterer, O.: Commentary to the Rome Statute of the International Criminal Court, Triffterer, O. (Ed.), Nomos, 1999, pp. 315-321, pp. 318-319.
45. Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case Num., IT-94-1-AR72, 2 October 1995, paragraph 143. There the Appeals Chamber concluded that the ICTY is also authorized to apply conventional law when the tw following conditions are met: (i) the adherence of all parties to the conflict to the relevant international treaty at the moment when the alleged criminal conduct takes place; and (ii) the consistency between the content of the conventional norms at hand and international norms of ius cogens (which include most of the laws and customs of the war).
46. See, inter alia, Prosecutor v. Pavle Strugar, Decision on Interlocutory Appeal, Case Num. IT-01-42-AR72, 22 November 2002, paragraphs 9, 10 and 13
47. Decision on jurisdiction concerning the common purpose doctrine in the Ojdanić case, supra n. 12, paragraph 9; and Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (hereinafter "Decision on jurisdiction concerning superior responsibility in the Hadzihasanović case"), Case Num. IT-01-47-AR72, 16 July 2003, paragraph 32.
48. See also, Appeal Judgement, Prosecutor v. Stanislav Galiá, Case Num. IT-98-29-A, 30 November 2006.
49. Decision on jurisdiction concerning the common purpose doctrine in the Ojdanić case, supra n. 12, paragraph 21; and Decision on jurisdiction concerning superior responsibility in the Hadzihasanovic case, supra n. 27, paragraphs 32-36.
50. Decision on jurisdiction concerning the common purpose doctrine in the Ojdanić case, supra n. 12, paragraph 21.
51. Stakić Appeal Judgment, supra n. 13, paragraph 62.
52. See Decision of PTC I of 10 February 2006, supra, n. 2, paragraphs 78 and 96. See also Decisión on the confirmation of the charges in the Lubanga case, paragraphs 337 to 341.
53. In the negotiation process, the adoption of the notion of control of the crime as the controlling criteria to define the concepts of perpetration and. co-perpetration was not controversial. Indeed, since the third session of the Preparatory Committee held in February 1997, the wording of current Art. 25.3(a) remained substantially unchanged.
54. Article II (a) of the International Convention on the Suppression and Punishment of the Crime of Apartheid; and article 3(c)(iv) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1998)) See, e.g., Art. 25 of the Statute of the International Criminal Court and Art. 11 of the 2000 Corpus Juris).
55. Article 11 of the 2000 Corpus Juris.
56. An exception are those conventions that expressly refer to the notion of joint criminal enterprise, such as article 2(3)(c) of the Convention for the Suppression of Terrorist Bombing (1997) and article 2(5)(c) of the International Convention for the Suppression of the Financing of Terrorism (1999).
57. It is unlikely that another result is reached through the application of the criteria of interpretation contained in the Vienna. Convention on the Law of the Treaties.
58. In this regard, a number of international and regional conventions (see, for instance, article 6(2)(b) of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United. Nations Convention Against Transnational Crime (2001); article 5(2)(c) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (2000); article 2(3)(b) of the Convention for the Suppression of Terrorist Bombing (1997); and article 1(2)(c) of die European Convention on the Suppression of Terrorism (ETS No. 190)) refers to: (i) Committing a crime; (ii) Attempting to commit a crime; (iii) Participating as an accomplice; and (iv) Organizing or directing other persons to commit a crime. This formulation distinguishes between complicity and "organizing and directing other persons to commit a crime", and, thus, adopts the notion of control of the crime by dominating the will of the direct perpetrator (indirect perpetration). Indeed, some national criminal laws, such as article 18 of the Polish Criminal Code, use similar terms when referring to indirect perpetration (see Ber, Individual Criminal Responsibility, supra, n. 9, p. 793).
59. Besides, article 11 of the 2000 Corpus Juris expressly recognises indirect perpetration (see, Vogel in Delmas-MartylVervaele (Eds.), The Implementation of the Corpus Juris in the Member States, vol. 1, 2000, p. 271).
60. Rush/Yeo, Criminal Law Sourcebook, 2000, p. 662
61. and. Waller/Williams, Criminal Law Text and Cases, 2001, p. 560.
62. The phrase "actually commits it" in section 21(1)(a) of the Canadian Criminal Code includes a case in which the defendant causes the offence to be committed by an innocent agent under his or her direction (Tremeear's Criminal Code, Statutes of Canada Annotated, 2003, p. 61)
63. Snyman, Criminal Law, 1995, pp. 246-247.
64. Regina v. Leak [1976] QB 217
65. Stringer [1991] 94 Cr. App. R. 13, cited by Read/Seago, Criminal Law, 1999, p. 123, footnote 17
66. and DPP v. K & B [1997], cited by Smith/Hogan, Criminal Law, 9th ed., 1999, p. 123, footnote 19.
67. Model Penal Code section 2.06(1)-(4). See also State v. Ward, 396 A.2d 1041, 1046 (Md. 1978)
68. and Dressler, Understanding Criminal Law, 2nd, ed., 1995, §30.03[A].
69. a, 10/11/1987; JA 1988-III-299
70. Tribunal Nacional Oral Criminal, No. 7, 3/11/1998; JA 2002-I-síntesis. See also, Fontan Balestra, Tratado de Derecho Penal, Parte General, Lexis No. 1503/001660, 1995, §49; and Cuello Calon, Derecho Penal, 9th ed., p. 5.
71. a, 22/05/2002) (Case No. 13/84). See also, Sancinetti/Ferrante, El Derecho Penal en la Protección de los Derechos Humanos, La protección de los derechos humanos mediante el derecho penal en las transiciones democráticas, 1999, pp. 204-212.
72. French jurisprudence has also applied the notion of control of the crime to convict as a perpetrator the person who uses an innocent agent to commit a crime. See inter alia Cour de Cassation, chambre criminelle 6 mars 1964, Dalloz 1964, p. 562.
73. See also Rassat, Droit Pénal Général, 2nd ed., 1999, No. 325. When defining genocide, article 211(1) of the French Penal Code refers to a similar notion with the expression "faire commettre". But even regarding offences for which faire commettre' is not foreseen, the jurisprudence has held liable as a perpetrator of the offence the employer who gave the order to his employees to commit a certain offence. (Larguier, Chronique de jurisprudence, Droit pénal général, Revue des Sciences Criminelles, 1976, pp. 410 et seq.).
74. Finally, in order to determine whether a person is a co-perpetrator or an accomplice, French jurisprudence also relies on the importance of the role played during the commission of the crime. See for instance Cour de Cassation, chambre criminelle 25 January 1962, Bulletin Criminel No. 68. See also Salvage, Juris-Classeur, ed. 1998, Code Pénal Art. 121-6 et 121-7, Complicité, No. 86.
75. German jurisprudence has applied, the notion of control of the crime to convict as a perpetrator the person who uses an innocent agent to commit a crime. See for instance, Bundesgerichtshof, Entscheidungen des Bundesgerichtshofs in Strafsachen 32, p. 41; 35, p. 351. The German Supreme Court has also applied the notion of control of the crime to convict as a perpetrator the person who uses a fully responsible person as an instrument to commit a crime. See the German Border Case, Bundesgerichtshof, Neue Juristische Wochenschrift 1994, 2307 and in other subsequent cases (Bundesgerichtshofs StR 98/94 of 26 July 1997; and Bundesgerichtshof 5 StR 176/98 of 28 October 1998. See also Kühl, Strafrecht Allgemeiner Teil, 4th ed., 2002, §20 No. 73; and Tröndle/Fischer, Strafgesetzbuch, Kommentar, 51st ed. 2003, §25 No. 3c. Finally, German jurisprudence has also occasionally embraced the notion of co-perpetration based on functional control (Entscheidungen des Bundesgerichtshofs in Strafsachen 37, p. 291; 38, p. 319; Bundesgerichtshof, Strafverteidiger 1994, p. 241.).
76. Article 28 of the Spanish Penal Code has embraced the notion of control of the crime to hold, criminally responsible as a perpetrator the person who uses an innocent agent to commit a crime ("Son autores quienes realizan el hecho por si solos, conjuntamente or por medio de otro del que se sirven como instrumento").
77. See also, Diezy Garcia Conlledo, La Autoría en Derecho Penal, 1991
78. and Gonzalez Rus, Autoría Única Inmediata, Autoría Mediata y Coautoría, in Cuadernos de Derecho Judicial, No. XXXIX. Ed. Consejo General del Poder Judicial, 1994.
79. Spanish Jurisprudence has also applied the notion of control of the crime to convict as a perpetrator the person who uses a fully responsible person as an instrument to commit a crime. Especially relevant is the judgement of the Spanish Supreme Court of 14 October 1999 (Judge Joaquiń Martin Canivell presiding), where control of the crime via an organised structure of power was applied to convict some leaders of the terrorist organisation ETA.
80. Co-perpetration based on functional control has also been applied by the Spanish Supreme Court (see for instance the Judgement of the Spanish Supreme Court of 13 December 2002).
81. Swiss jurisprudence has applied the notion of control of the crime to hold responsible as a. perpetrator the person who uses an innocent agent to commit a crime. See e.g., Entscheidungen des Schweizerischen Bundesgerichts 101 IV 310; and Entscheidungen des Schweizerischen Bundesgerichts 85 IV 23.
82. See also Trechsel/Noll, Schweizerisches Strafrecht, Allgemeiner Teil I, Allgemeine Voraussetzungen der Strafbarkeit, 5th ed., 1998, p. 199. The Swiss Supreme Court has also applied co-perpetration based on functional control. See for instance Entscheidungen des Schweizerischen Bundesgerichts 118 IV 399, 120 IV, 142, and Entscheidungen des Schweizerischen Bundesgerichts 120 IV 272.
83. Other civil law jurisdictions have also embraced some of the manifestations of the notion of control of the crime. For instance, Chilean Courts have applied this notion to convict Generals Contreras and Espinoza as perpetrators for the murdering of the former Chilean Minister of Foreign Affairs, Orlando Letelier (Published in the Review Fallos del Mes, year XXXV, November 1993, ed. Suplementaria, p. 154). Furthermore, article 29 (1) of the Penal Code of Colombia also embraces this notion (Law 599 of 24 July 2000: "Es autor quien realice la conducta punible por si mismo o utilizando a otro como instrumento").
84. See also the recent judgement of the Supreme Court of Peru of 13 October 2006 in the case against Abimael Guzmán (former leader of Sendero Luminoso).
85. On the other hand, for some authors the question as to whether the notion of control of the crime is part of customary international law at the time the crimes alleged in the indictment have taken place is not necessarily the controlling criteria. In this regard, Judge Schomburg's Separate Opinion in the Appeals Judgement in the Gacumbitsi case, ICTR-2001-64-A, 7 July 2006, paragraph 24, states as follows: "The concept of joint criminal enterprise is established, ICTY jurisprudence in order to deal with allegations of "committing" by way of acting in concert with others based on a common purpose or design. Nevertheless, when interpreting the meaning of "committing" based on imputed liability, it is the noble obligation of an international criminal tribunal to merge and harmonize the major legal systems of the world and, to accept also other recognized, developments in criminal law over the past decades."
86. For a more comprehensive explanation of the application of the traditional notion of joint criminal enteprise by the jurisprudence of the ICTY see Haan, V., The Development of the Concept of Joint Criminal Enteprise at the Internationational Criminal Tribunal for the Former Yugoslavia, 5 International Criminal Law Review 267 (2005), pp. 176-194
87. and Bogdan, A., Individual Criminal Responsibility in the Execution of a. "Joint Criminal Enterprise"in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia", 6 International Criminal Law Review 63 (2006), pp. 79-108.
88. See also Ambos, K., Joint Criminal Enterprise and Command Responsibility, in Journal of Internacional Criminal Justice, Vol 2007/1. pp. 1 et seq.
89. See Elewa Badar, M., Just Convict Everyone!-Joint Perpetration from Tadić to Stakić and Back Again, 6 International Criminal Law Review 293 (2006), p. 302.
90. As the Appeals Chamber put it at paragraph 228 in fine of the Tadić Appeal Judgement, supra n. 12: "[.. .] With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk."
91. Tadić Appeal Judgement, supra n. 12, paragraph 227.
92. Ibid, paragraph 228.
93. Idem.
94. According to the Appeals Chamber, the Trial Chamber had defined the associates of the accused as including the authorities of the self-proclaimed Assembly of the Serbian People in Prijedor Municipality, the SDS, the Prijedor Crisis Staff, the Territorial Defence and the police and military, and in particular: (i) the Chief of Police, Simo Drljaca; (ii) prominent members of the military such as Colonel Vladimir Arsic and Major Radmilo Zeljaja: (iii) the president of the Executive Committee of Prijedor Municipality, Dr. Milan Kovacević; and (iv) the Commander both of the Municipal Territorial Defence Staff and the Trnopolje camp, Slobodan Kuruzovic. See Stakić Appeal Judgement, supra n. 13, paragraph 68, referring to paragraph 469 of the Stakić Trial Judgement.
95. The Appeals Chamber pointed out that, according to the indictment, the following individuals participated in the joint criminal enterprise in which Stakić had allegedly participated: "[n] umerous individuals participated in this joint criminal enterprise, including Milomir STAKIĆ, Milan KOVACEVIĆ, Simo DRLJACA, other members of the Prijedor Crisis Staff, members of the Assembly of the Serbian People in Prijedor Municipality and Assembly's Executive Committee, Radoslav BRDANIN, General Momir TALIĆ and Stojan ZUPLJANIN, other members of the ARK Crisis Staff, the leadership of the Serbian republic and the SDS, including Radovan KARADZIĆ, Momcilo KRAJISNIK and Biljana PLAVSIC, members of the Assembly of the ARK and the Assembly's Executive Committee, the Serb Crisis staffs of the ARK municipalities, members of the VRS, Serb and Bosnian Serb paramilitary forces and others." See Stakić Appeal Judgement, supra n. 13, paragraph 68.
96. Stakić Appeal Judgement, supra n. 13, paragraph 69.
97. Ibid, paragraph 73.
98. Ibid, paragraphs. 80 to 83.
99. Ibid, paragraph 84.
100. Ibid, paragraph 79.
101. Ibid, paragraph 90.
102. Ibid, paragraph 92.
103. Ibid, paragraphs 93 to 97.