On the application of a theory of indirect perpetration in Al Bashir: German doctrine at the Hague?

Journal of International Criminal Justice

Volumn 6, Issue 5, 2008, Pages 853-869

  Jessberger, Florian ^a   Geneuss, Julia ^a  

^a HUMBOLDT UNIVERSITY   (Germany)

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[No Author keywords available]

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EID: 60349124084     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqn073     Document Type: Note

References (104)

1. See The Office of the Prosecutor (OTP), Summary of the Case, Prosecutor's Application for Warrant of Arrest under 58 Against Omar Hassan Ahmad Al Bashir, 14 July 2008, available at http://www.icc-cpi.int/library/organs/otp/ ICC-OTP-Summary-20081704-ENG.pdf (visited 30 October 2008). The Application itself is available in redacted form since 12 September 2008; see Public Redacted Version of Prosecutor's Application under Art. 58 filed on 14 July 2008, Situation in Darfur, Sudan (ICC-02/05-157), 12 September 2008.
2. See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, at 4, available at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (visited 13 October 2008). The Commission was established pursuant to UN Security Council Resolution 1564 (2005). The commission stated that some individuals, including government officials, may have committed acts with genocidal intent, but that no genocidal policy has been implemented by the government authorities.
3. The Court's jurisdiction is based on UN Security Council Resolution 1593 (2005), referring the situation in Darfur to the ICC. This is the second case initiated by the Prosecutor with regard to the Darfur situation; see also the decisions of Pre-Trial Chamber I on arrest warrants against Ahmad Harun and Ali Kushayb, both of 27 April 2007 (ICC-02/05-01/07).
4. See Public Redacted Version of Prosecution's Application, supra note 1, §39.
5. See K. Ambos, 'Article 25', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn. München: C.H. Beck, 2008), marginal no. 10.
6. A. Eser, 'Individual Criminal Responsibility', in Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 793
7. E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: TMC Asser Press, 2003), 68.
8. Notably, the Prosecutor explicitly refers to German jurisprudence in his application, see Public Redacted Version of Prosecution's Application, supra note 1, §247, footnote 307.
9. Since the time the Prosecutor submitted the application, the need for academic debate has become even more urgent given that Pre-Trial Chamber I of the ICC has based criminal responsibility on the concept of (joint) indirect perpetration in its recent Decision on Confirmation of Charges, Katanga and Chui (ICC-01/04-01/07), 30 September 2008, §§ 466 et seq.
10. See e.g. G. Werle, Principles of International Criminal Law (The Hague: TMC Asser Press, 2005), marginal no. 338.
11. It has occasionally been argued that the traditional modes of participation fail in this context. See, e.g. the proposal of H. Vest, Genozid Durch Organisatorische Machtapparate (Baden-Baden: Nomos, 2002), 240 et seq.
12. see also K. Ambos, Der Allgemeine Teil des Völkerstrafrechts (Berlin: Duncker and Humblot, 2002), 614 et seq.
13. J. Vogel, 'Individuelle Verantwortlichkeit im Völkerstrafrecht', 114 Zeitschrift für die gesamte Strafrechtswissenschaft (2002), 403, 420.
14. See G. Boas, J. Bischoff and N. Reid, Forms of Responsibility in International Criminal Law, Vol. 1 (Cambridge: Cambridge University Press, 2007), 9.
15. See Arts 7(3) ICTYSt. and 6(3) ICTRSt., respectively.
16. Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, § 188.
17. See, e.g. Judgment, Kvočka et al. (IT-98-30/1), Appeals Chamber, 28 February 2005, §99
18. Judgment, Brdanin (IT-99-36), Appeals Chamber, 3 April 2007, § 427.
19. Judgment, Stakić (IT-97-24), Trial Chamber, 31 July 2003, §§ 439 et seq., 741, 818.
20. See also K. Ambos, 'Joint Criminal Enterprise and Command Responsibility', 5 Journal of International Criminal Justice (2007)159, 182, who argues that perpetration-by-means can be read into the statutes of the ad hoc tribunals by a broader construction of 'committed'.
21. Judgment, Stakić (IT-97-24), Appeals Chamber, 22 March 2006, §62: 'This mode of liabiliy, as defined and applied by the Trial Chamber, does not have support in customary international law or in the settled jurisprudence of this Tribunal.' The Chamber goes on by saying, that 'by way of contrast, joint criminal enterprise is a mode of liability which is "firmly established in customary international law" and is routinely applied in the Tribunal's jurisprudence'.
22. See also Decision on Ojdanic's Motion Challenging Jurisdiction: Indirect Co-perpetration, Milutinović (IT-05-87-PT), Trial Chamber, 22 March 2006, §40; Judgment, Seromba (ICTR-2001-66-A), Appeals Chamber, 12 March 2008, Dissenting Opinion of Judge Liu, §8 et seq
23. See e.g. Art. 7(1) ICTYSt.: 'A person who planned, instigated, committed or otherwise aided or abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be criminally responsible for the crime.'
24. See Eser, supra note 6, at 793.
25. See Decision on Ojdanic's Motion Challenging Jurisdiction: Indirect Co-perpetration, Milutinović supra note 16, §31. For the first time, the present wording of Art. 25(3)(a) ICCSt. and specifically the element 'regardless of whether that person is criminally responsible' appeared in a text presented by the Chairman of the Working Group on General Principles of Criminal Law and Penalties on 19 February 1997; see Preparatory Committee on the Establishment of an International Criminal Court, Working Group on General Principles of Criminal Law and Penalties, Chairman's Text (A/AC.249/1997/WG.2/CRP.2/Add.2). Initially, indirect perpetration, but still expressly limited to the concept of perpetration-by-means of an innocent agent, had been introduced into the drafting process by the Preparatory Committee in 1996; see Preparatory Committee on the Establishment of an International Criminal Court, Informal Group on General Principles of Criminal Law, Proposal of 26 August 1996 (A/AC.249/CRP.13), Art. B Proposal: '[A] person shall be deemed to be a principal where that person commits the crime through an innocent agent who is not aware of the criminal nature of the act committed such as a minor, a person of defective mental capacity or a person acting under mistake of fact or otherwise acting without mens rea.'
26. See van Sliedregt, supra note 6, at 68.
27. See e.g. Model Penal Code §2.06(2)
28. for details on the theory of innocent agent, see G.P. Fletcher, Rethinking Criminal Law (2nd edn, Oxford: OUP, 2000), 639.
29. G. Werle, 'Individual Criminal Responsibility in Article 25 ICC Statute', 5 Journal of International Criminal Justice (2007)953, 963. The notion of 'classic' perpetration-by-means is recognized inter alia in Australian, Canadian, Spanish, Portuguese, Polish, Croatian and Russian criminal law (see e.g. Art. 28 Spanish Código Penal; Art. 18 §1 Polish Criminal Code); in France this form of liability is not codified but recognized for some offences including genocide
30. see Ambos, supra note 10, at 568 et seq.
31. R. Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2007), 303.
32. Se e Eser, supra note 6, at 793.
33. Apart from the concept of the 'Organisationsherrschaft' which is discussed in detail in this article other scenarios where the doctrine of the 'perpetrator behind the perpetrator' might be applicable are the ones where the direct perpetrator is criminally responsible himself, but where the degree of criminal responsibility is substantially diminished (cf. Rule 145(II)(a)(i) ICC RPE). However, these groups of cases seem to be of lesser importance for international criminal law. See C. Kreß, 'Claus Roxins Lehre von der Organisationsherrschaft und das Völkerstrafrecht', 153 Goltdammers Archiv für Strafrecht (2006), 304, 307 et seq.
34. Decision on the Confirmation of Charges, Lubanga (ICC-01/04-01/ 06), Pre-Trial Chamber I, 29 January 2007, §318.
35. Ibid., §339.
36. Ibid. Notwithstanding, in the Lubanga case another form of individual liability - co-perpetration - was used to allocate the defendant's responsibility as principal offender of the committed crimes.
37. Decision concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, Lubanga (ICC-01/04-01/06-1US-Exp-Conf), Pre-Trial Chamber I, 24 February 2006, §96, 110.
38. See also Decision on the Confirmation of Charges, supra note 25, footnote 406.
39. See Decision on Confirmation of Charges Katanga and Chui, supra note 8, §§ 489 et seq. The Pre-Trial Chamber used a combination of indirect perpetration and co-perpetration: If one of the co-perpetrators acts jointly with another individual who controls a person used as an instrument, then these crimes can be attributed to him on the basis of mutual attribution (§493). The Chamber argues that '[t]hrough a combination of individual responsibility for committing crimes through other persons together with the 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' (§492). This peculiar mode of liability shall not be analysed within the scope of this comment. However, it is important to note that the Pre-Trial Chamber explicitly acknowledges the theory of the 'perpetrator behind the perpetrator' (§499) and perpetration-by-means of control over an organization (§§ 500 et seq.).
40. Ibid., §§ 481, 508.
41. Ibid., §508.
42. Translation by M. Osiel, 'The Banality of Good: Aligning Incentives Against Mass Atrocity', 105 Columbia Law Review (2005), 1715, 1831.
43. C. Roxin, 'Straftaten im Rahmen organisatorischer Machtapparate', Goltdammer's Archiv für Strafrecht (1963) 193.
44. Fletcher, supra note 20, at 639.
45. It is interesting to note that the mode which Pre-Trial-Chamber I applied in Lubanga and Katanga and Chui to distinguish principals from accessories comes very close to the German doctrine; see Decision on the Confirmation of Charges, supra note 25, §338 and Decision on the Confirmation of Charges, supra note 8, y §§ 480 et seq.
46. See for details T. Weigend 'Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges', 6 Journal of International Criminal Justice (2008), 471.
47. See Eser, supra note 6, at 793.
48. C. Roxin, Täterschaft und Tatherrschaft (8th edn. Berlin: De Gruyter, 2006), 245.
49. Roxin, supra note 33.
50. See Ambos, supra note 5, marginal no. 11. Furthermore, Roxin argues that the entire apparatus under control of the indirect perpetrator must act in disregard of the legal norms, i.e. outside the legal order, at least concerning the crimes which are aimed to be committed ('Re chtsgelöstheit'): As long as the persons within the organization generally feel bound to the norms of the autonomous legal order the 'man in the background' cannot rely on the execution of his illegal instructions and therefore has no control over the perpetration of the crime. According to Roxin, this requirement is normally fulfilled in cases of commission of international crimes by the state apparatus or state-like organizations. However, this aspect is discussed in cases in which the respective organization is private, pursuing economic objectives and generally acting in compliance with the legal order.
51. On this discussion see C. Roxin, Strafrecht Allgemeiner Teil II (München: C.H. Beck, 2003), §25, marginal note 129 et seq. and Ambos, supra note 10, at 592 et seq., both with further references.
52. This requirement is contested by a number of scholars who argue that it is not the fungibility that leads to the automatic execution of the crime, but the deficit of autonomy on the part of the subordinates. See J. Schlösser, Soziale Tatherrschaft (Berlin: Duncker and Humblot, 2004).
53. The reasons for the individual executor to comply with the orders must be based on a specific 'organizational willingness' to commit the crimes in question either for reasons of conformity pressure, resignation ('If I don't do it, another will.'), or assimilation (career).
54. Bundesgerichtshof (5 StR 98/94), 26 July 1994; 40 Entscheidungssammlung des Bundesgerichtshofs in Strafsachen, 218, marginal no. 81.
55. Eser, supra note 6, at 794.
56. See, inter alia, R. Herzberg, 'Mittelbare T äterschaft und Anstiftung in formalen Organisationen', in K. Amelung (ed.), Individuelle Verantwortung und Beteiligungsverhältnisse bei Straftaten in bürokratischen Organisationen des Staates, der Wirtschaft und der Gesellschaft (Sinzheim: Pro-Universitate-Verlag, 2000), 33
57. R. Zazcyk, 'Die "Tatherrschaft kraft organisatorischer Machtapparate" und der BGH', 153 Goltdammer's Archiv für Strafrecht (2006), 411
58. H.-H. Jescheck and T. Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil (5th edn, Berlin: Duncker und Humblot, 1996) §62, II marginal no. 8
59. T. Rotsch, 'Neues zur Organisationsherrschaft', 25 Neue Zeitschrift für Strafrecht (2005), 13. It is argued that if the person who carries out the crime is fully criminally responsible as direct perpetrator, it cannot be assumed that the 'man in the background' has full control over the crime. Therefore he cannot be regarded as indirect perpetrator, but could be charged - depending on the facts - on the basis of co-perpetration, for ordering or instigating, or - especially in international criminal law - on the basis of superior responsibility. It may be argued, however, that this dispute does not need to be resolved in the context of international criminal law given that, unlike in German legislation [Section 25(1) of the German Penal Code reads as follows: 'Whoever commits the crime himself or through another shall be punished as a perpetrator.'], the concept of the 'perpetrator behind the perpetrator' is explicitly acknowledged in Art. 25(3)(a) ICCSt.,
60. see also Werle, supra note 21, at 953.
61. Bundesgerichtsh of supra note 42.
62. See Federal Criminal Court of Appeals for the Federal District of Buenos Aires, Case No. 13/84 (Juntas Trial), Judgment, 9 December 1985, 8 Human Rights Law Journal, 415 et seq.
63. Public Redacted Version of Prosecution's Application, supra note 1, §§ 248 et seq.; footnotes omitted.
64. See Public Redacted Version of Prosecutions Application, supra note 1, footnote. 309.
65. In Lubanga, the Chamber hold implicitly that perpetration-by means would require inter alia (i) that a 'hierarchically organized... group' exists, including a 'hierarchical relationship' between the direct and the indirect perpetrator; (ii) that the indirect perpetrator had 'the final say about the adoption and implementation of the policies/ practices' of this group; and (iii) that the indirect perpetrator was 'aware of his unique role' within this group: See Decision on the Prosecutor's Application for a warrant of arrest, Art. 58, Lubanga (ICC-01104-01106), Pre-Trial Chamber I, which was reclassified as public on 24 February 2006 (ICC-01/04-01/06-8-Corr 17-03-2006), §§ 94-96.
66. As has been mentioned, after the Prosecutor submitted his application for the issuance of a warrant of arrest against Al Bashir, Pre-Trial Chamber I specified the elements for the commission of a crime through an apparatus of power, see Decision on the Confirmation of Charges, supra note 8, §§ 495-581.
67. In Katanga and Chui, the Chamber finds that (i) the organization must be based on a hierarchical relation between superiors and subordinates. (ii) The leader of the organization must exercise and use authority and control over the apparatus; his authority and control must be manifest in subordinates' compliance with his orders. (iii) The organization must be composed of sufficient subordinates to guarantee the replaceability, and so (iv) any subordinate who does not comply may simple be replaced by another who will (fungibility of the actual perpetrators) to produce the criminal result 'automatically'.
68. See Art. S8(1) ICCSt.
69. See Public Redacted Version of Prosecution's Application, supra note 1, §25 et seq. and §250 et seq.
70. See supra note 27 and accompanying text.
71. See, Vogel, supra note 10, at 427, especially footnote 112 arguing that the acceptance of indirect perpetration would just bring about a series of fruitless questions of differentiation between the forms of individual responsibility.
72. See also Cryer et al, supra note 22, at 303.
73. This is of course not to say that the appropriateness of the regulation in Art. 25(3) itself and of the Pre-Trial-Chamber's decisions may not be contested. Our analysis of the Prosecutor's Application is, however, based on a somewhat positivistic approach that accepts the provisions of the Statute and the findings of the ICC as starting points.
74. See also Weigend, supra note 35, at 478.
75. See for the elements of co-perpertration. Confirmation of Charges. supra note 25. §§ 342 et seq.
76. See also Ambos, supra note 5, marginal no. 11.
77. Ordering may, however, be the appropriate mode as regards mid-level perpetrators; see Kreß, supra note 24, at 309. Arguing for co-perpetration instead of ordering K. Ambos, Internationales Strafrecht (München: C.H. Beck, 2006), §7, marginal no. 34.
78. However, it appears as if the Prosecutor in Al Bashir also considered superior responsibility when he explains in the Summary of the Case, supna note 1, at 8: 'Al Bashir protects, promotes and provides impunity to his subordinates, in order to secure their willingness to continue committing crimes. He could authorize investigations of members of the armed and security forces, but the only officers investigated are those who refused to participate in crimes. ... [T]hese are all clear indications of Al Bashir's complete protection of those who committed genocidal acts under his direct orders.' See also Public Redacted Version of Prosecution's Application, supra note 1, §267: '... All Bashir [sic] has always addressed the issue of criminal. responsibility of his subordinates without deference to the judiciary, repeatedly stating that Ahmad Harun in particular "was not guilty" and vetoing a decision by then Minister of Justice Al Mardi in 2007 to re-investigate Harun following the Court's decision.' (footnote omitted).
79. See Art. 30 ICCSt. on the one hand and, e.g. ICTY, Judgment, Blaškić (IT-95-14-A), Appeals Chamber, 29 July 2004, §41 et seq. ('substantial likelihood').
80. See also Judgment, Gacumbitsi (ICTR-2001-64), Appeals Chamber, 7 July 2006, Dissenting Opinion Schomburg, §21.
81. See Cryer et al., supra note 22, at 303.
82. See Werle, supra note 21, at 954.
83. Ibid., at 964.
84. See Werle, supra note 21, at 953, 974.
85. For case law of the ad hoc tribunals see Judgment, Vasiljević (IT-98-32). Appeals Chamber, 25 February 2004, §182
86. Judgment, Krstić (TT-98-33). Appeals Chamber, 19 April 2004, §268
87. Judgment, Semanza (ICTR-97-20), Appeals Chamber, 20 May 2005. §§ 355 et seq.
88. For details see B. Burghardt, Die Vorgesetztenveruntwortlichkeit im völkerrechtlichen Straftatsystem (Berlin: Berliner Wissenschafts-Verlag, 2007).
89. Judgment, Brdanin, supra note 14, §432, where the Appeals Chamber recognized that the concept of joint criminal enterprise 'offers no formal distinction between joint criminal enterprise members who make overwhelmingly large contributions and joint criminal enterprise members whose contributions, though significant, are not as great'.
90. See also Kreß, supra note 24, at 308.
91. See Decision on Confirmation of Charges, supra note 8, §§ 466 et seq.
92. See Werle, supra note 9, marginal no. 3SS and footnote 196.
93. See also Ambos, supra note 5, marginal no. 11
94. Eser, supra note 6, at 795
95. Werle, supra note 21, at 964.
96. See Ambos, supra note 5, marginal no. 10
97. Werle, supra note 21, at 964.
98. Judgment, Gacumbitsi (ICTR-2001-64), Appeals Chamber, 7 July 2006, Dissenting Opinion Judge Schomburg, §21.
99. See supra note 21.
100. See van Sliedregt, supra note 6, at 70
101. see also Kreß, supra note 24, at 306.
102. Before this background, the following statement in the Prosecutor's application appears to be audacious indeed: 'This form of liability [perpetration-by-means of an organization] has been applied by many national courts'; see Public Redacted Version of Prosecution's Application, supra note 1, §247.
103. See also Decision on Confirmation of Charges, supra note 8, § 510. '...the acceptance of the notion of "control over an organized apparatus of power" in modern legal doctrine, its recognition in national jurisdictions, ...present a compelling case for the Chamber's allowing this aooroach to criminal liability for the purposes of this Decision.' (footnotes omitted).
104. See, e.g. Werle, supra note 9, marginal no. 269 et seq.