International Law Modes of Participation
by
Kai Ambos
  • LAST REVIEWED: 16 November 2016
  • LAST MODIFIED: 25 June 2013
  • DOI: 10.1093/obo/9780199796953-0068

Introduction

Subjects of international law were, originally, merely the states. The first international criminal law instruments were limited to certain crimes (e.g., piracy) and did not create supranational crimes but only imposed on states the obligation to penalize the respective conduct. The rules concerning individual criminal responsibility, including the modes of participation, were not included in these international sources. Such rules existed only in the national legal systems. International criminal law operated only on a horizontal level— that is, between states. With the establishment of the International Criminal Tribunals in Nuremberg and Tokyo, individuals were for the first time tried at the inter- and supranational level for breaches of international law. Thus, international criminal law started to operate on a vertical level. Yet, at that time, international criminal law provided very few provisions concerning individual criminal responsibility. The development of more detailed rules was—on purpose—left to the judges, and even today the jurisprudence is refining the elements of individual criminal responsibility. In this process, domestic legislation and doctrine has proven to be an important source of inspiration. International criminal law deals with macro or system-criminality, which differs considerably in its nature from ordinary criminality because its main focus is or at least should be on the “system” or organization behind the criminal acts. Given limited personal and other resources, the prosecution policy of international tribunals focuses on the “most responsible” for international crimes (i.e., the senior political and military leaders). Most defendants—given their status and rank—do not commit the crimes by themselves and therefore cannot be considered direct perpetrators in a physical sense. As a consequence, international criminal law must put a special emphasis on modes of participation that include the leaders and other high-level perpetrators who normally act in the background. These modes of participation are co-perpetration/joint criminal enterprise, indirect perpetration/perpetration by means, and command responsibility.

General Overviews

Given the fragmentation in international criminal law and justice, in terms of the great number of different courts and codifications, there is no uniform approach with respect to the modes of participation. Broadly speaking, as concisely outlined in van Sliedregt 2012, one can distinguish two approaches: One is based on the Rome Statute of the International Criminal Court (ICC Statue) and another on the Statutes of the UN Ad Hoc Tribunals established by the UN Security Council, in particular the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute), analyzed in Boas, et al. 2007. Article 25(3) of the ICC Statute contains different modes of participation in paragraphs (a) to (d): committing a crime individually, jointly, or through another person; ordering, soliciting, or inducing a crime; aiding, abetting, and otherwise assisting a crime; and contributing to a group crime. Article 7(1) of the ICTY Statute provides criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of a crime. Following Olásolo 2009, it is clear from these statutory approaches that the ICC Statute overcomes the unitarian approach of the ICTY Statute and replaces it by a (at least terminologically) differentiated approach. The ICC case law has so far accepted the control over/domination of the act theory (Tatherrschaftslehre) as the fundamental conceptual tool to distinguish between perpetration (participation as a principal) and complicity (secondary, derivative participation). Eser 2002, Ambos 2008, and Ambos 2013 try to grasp the intricacies contained in the different subparagraphs of Article 25, while Swart 2009 as well as Burghardt 2010 set Article 25 into a larger context of theoretical inquiries concerning the fundamental systemic character of international crimes. The following text starts from Article 25(3) of the ICC Statute as the basis of the analysis of the modes of responsibility and adds a section of joint criminal enterprise as a particularly relevant form of responsibility not (explicitly) provided for by Article 25. Subparagraph (a) refers to three forms of perpetration as forms of principal responsibility: perpetration on one’s own, as a co-perpetrator, or through another person (traditionally also called perpetration by means, mittelbare Täterschaft). Subparagraphs (b) and (d) provide forms of secondary participation, employing different terms that can be best captured by the umbrella terms Encouragement, Assistance, and Contribution to a Group Crime (for further explanation of the terms principal/secondary participation, see Modes of Participation in Comparative Criminal Law). A special form of participation (command responsibility) in crime is provided for in Article 28 of the ICC Statute.

  • Ambos, Kai. “Article 25: Individual Criminal Responsibility.” In Commentary on the Rome Statute of the International Criminal Court. 2d ed. Edited by Otto Triffterer, 743–770. Munich: C. H. Beck, 2008.

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    Displays the complex structure of Article 25 and analyzes the origins and meaning of each subparagraph. Special emphasis is paid to the doctrine of indirect perpetratorship embodied in subparagraph (a) as well as to questions of delimitation between the subparagraphs.

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    • Ambos, Kai. “Individual Criminal Responsibility.” In Treatise on International Criminal Law. Vol. 1, Foundations and General Part. By Kai Ambos, 102–179. Oxford: Oxford University Press, 2013.

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      Chapter 4 of this book provides an in depth analysis of the historical origins and the recent developments of individual criminal responsibility in international criminal law. A special focus is laid on the various modes of participation set out in Article 25 ICC Statute.

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      • Boas, Gideon, James L. Bischoff, and Natalie L. Reid. Forms of Responsibility in International Criminal Law. International Criminal Law Practitioner Library 1. Cambridge, UK: Cambridge University Press, 2007.

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        The book contains a critical analysis of the objective and subjective elements of the modes of participation as set out in the statutes and jurisprudence (with particular reference to ICTY and International Criminal Tribunal for Rwanda [ICTR] case law) of the international criminal tribunals.

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        • Burghardt, Boris. “Modes of Participation and their Role in a General Concept of Crimes under International Law.” In The Review Conference and the Future of the International Criminal Court. Edited by Christoph Burchard, Otto Triffterer, and Joachim Vogel, 81–94. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2010.

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          The author defines the functions of the different modes of participation in the structure of the crime with a view to a general theory of crime under international law. In his eyes, the two eminent functions are, first, their precise description of the criminalized conduct and, second, their application as criteria for ascribing a certain degree of responsibility.

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          • Eser, Albin. “Individual Criminal Responsibility.” In The Rome Statute of the International Criminal Court: A Commentary. Vol. 1. Edited by Antonio Cassese, Paola Gaeta, and John R. W. D. Jones, 767–822. New York: Oxford University Press, 2002.

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            An eloquent and concise study of the Article 25 regime, in particular with interesting considerations concerning the accomplice threshold in subparagraphs (c) and (d).

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            • Olásolo, Héctor. The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes. Oxford: Hart, 2009.

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              The subject of this book is a critical discussion of the common purpose doctrine and control over the act doctrine, which are considered best suited to grasp the central role played by senior political and military leaders in campaigns of large scale and systematic commission of international crimes.

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              • Rome Statute of the International Criminal Court. UN Treaty Series 2187. UN Secretary General, 1 July 2002.

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                The ICC Statute contains 128 articles dealing with questions of substantive law (Articles 6–10, 22–33), procedural law (Articles 5, 11–21, 53–85, 103–111), and the organization of the court and other statute bodies (Articles 1–4, 34–52, 112–118) as well as international cooperation (86–102).

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                • Statute of the International Criminal Tribunal for the Former Yugoslavia. Security Council Resolution 827 (1993). Last amended by Security Council Resolution 1837, 28 September 2008.

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                  The ICTY Statute contains thirty-four articles dealing with questions of substantive law (Articles 2–7, 24), procedural law (Articles 1, 8–10, 18–23, 25–30), as well as the organization of the court (Articles 11–17, 31–34).

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                  • Swart, Bert. “Modes of International Criminal Liability.” In The Oxford Companion to International Criminal Justice. Edited by Antonio Cassese, 82–93. New York: Oxford University Press, 2009.

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                    Portrays the different modes with a special focus on the principle of legality. For Swart, the actus reus of joint criminal enterprise (JCE) in particular poses difficulties in light of the principle of legality (fair warning) given that it is not clearly foreseeable which contribution to a JCE amounts to a punishable contribution.

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                    • van Sliedregt, Elies. Individual Criminal Responsibility in International Law. New York: Oxford University Press, 2012.

                      DOI: 10.1093/acprof:oso/9780199560363.001.0001Save Citation »Export Citation »E-mail Citation »

                      The study comprehensively delineates the modes of attribution adopted in the jurisprudence of the ad hoc tribunals. It provides a good, critical insight into the doctrine of joint criminal enterprise; an in-depth analysis of the doctrine of superior responsibility; and a section dealing with incitement and conspiracy in genocide. The second part of the book deals with grounds excluding criminal liability.

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                      Judicial Decisions

                      While we can find a settled and consolidated jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the case law of the International Criminal Court (ICC) is still a work in progress. This section deals with the landmark decisions in the field of the modes of participation.

                      ICTY Case Law

                      For groundbreaking decisions related to the ICTY, see Prosecutor v. Tadic, Prosecutor v. Furundzija, Prosecutor v. Stakic, Prosecutor v. Vasiljević,Prosecutor v. Stakic, and Prosecutor v. Brdanin.

                      • Prosecutor v. Brdanin. IT-99-36-A, Appeals Chamber Judgment, 3 April 2007.

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                        The chamber confirmed that joint criminal enterprise must be strictly separated from guilt by association and that only the fulfillment of both actus reus (a significant contribution to the common plan) and the respective mens rea gives rise to criminal responsibility.

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                        • Prosecutor v. Furundzija. IT-95-17/1-A, Appeals Chamber Judgment, 21 July 2000.

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                          The Appeals Chamber had to deal with the concept of co-perpetration. The Tribunal specified essential requirements for this mode of participation. With regard to the “common plan” requirement, the Tribunal ruled that the plan could also be developed during the execution of the crime.

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                          • Prosecutor v. Stakic. IT-97-24-T, Trial Chamber Judgment, 31 July 2003.

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                            The ICTY had previously adopted the joint criminal enterprise doctrine as a conceptual basis for the mode of participation. The Trial Chamber instead invoked the control over the act doctrine as a theory to delimitate perpetration from secondary participation. The Tribunal for the first time introduced the notion of indirect co-perpetration as an alternative approach to capture the criminal responsibility of high-level perpetrators.

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                            • Prosecutor v. Stakic. IT-97-24-A, Appeals Chamber Judgment, 22 March 2006.

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                              The judgment overruled the Trial Chamber judgment rejecting co-perpetration and the underlying theory of functional control over the act. The Appeals Chamber adhered to the settled case law and upheld the joint criminal enterprise doctrine.

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                              • Prosecutor v. Tadic. IT-94-1-A, Appeals Chamber Judgment, 15 July 1999.

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                                The Tadic case, in all its variations, is fundamental for the development of international criminal law. In our context it is particularly important to mention the joint criminal enterprise doctrine, introduced and defined by this judgment.

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                                • Prosecutor v. Vasiljević. IT-98-32-A, Appeals Chamber Judgment, 25 February 2004.

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                                  The Appeals Chamber confirmed the application of the joint criminal enterprise doctrine and held that a member of the enterprise could be considered a “co-perpetrator” of the crime. In addition, the judgment introduced a higher objective barrier for “aiding and abetting” (substantiality of the contribution) than for co-perpetration in a joint criminal enterprise (in some way furthering the common design).

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                                  ICC Case Law

                                  For groundbreaking decisions related to the ICC, see Prosecutor v. Thomas Lubanga Dyilo 2007, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Prosecutor v. Omar Hassan Ahmad Al Bashir, Prosecutor v. Jean-Pierre Bemba Gombo, Prosecutor v. Callixte Mbarushimana, and Prosecutor v. Thomas Lubanga Dyilo 2012.

                                  • Prosecutor v. Callixte Mbarushimana. ICC-01/04–01/10-465, Pre-Trial Chamber I, Decision Declining to Confirm the Charges, 16 December 2011.

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                                    In this important ruling, a pretrial chamber (PTC) for the first time examined the objective threshold of Article 25(3)(d) and introduced the standard of a “significant”—as opposed to an “essential”—contribution. In essence, it found that the organization of media campaigns and the releasing of press statements by the defendant did not suffice to hold him responsible for the alleged crimes by the respective armed group.

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                                    • Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. ICC-01/04–01/07, Pre-Trial Chamber I, Decision on the Confirmation of Charges, 30 September 2008.

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                                      This confirmation decision further refined the control over the act doctrine and for the first time combined co-perpetration with indirect perpetration, thus establishing the notion of indirect co-perpetration (mittelbare Mittäterschaft). Two co-perpetrators (Katanga and Chui), independently leading two separate armed groups, acted through their respective subordinates, and these acts were to be attributed to the respective other co-perpetrator on the basis of their common criminal plan.

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                                      • Prosecutor v. Jean-Pierre Bemba Gombo. ICC-01/05–01/08, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009.

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                                        The PTC in essence followed Lubanga as to the control over the act theory and the requirements for co-perpetration.

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                                        • Prosecutor v. Omar Hassan Ahmad Al Bashir. ICC-02/05–01/09, Pre-Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009.

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                                          In this decision, the PTC I introduced the new concept of joint indirect perpetration, to be distinguished from the concept of indirect co-perpetration established by the ICC in Katanga/Chui. Joint indirect perpetration is applicable whenever there is one group of subordinates controlled by several leaders.

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                                          • Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04–01/06, Pre-Trial Chamber I, Decision on the Confirmation of Charges, 29 January 2007.

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                                            The first confirmation decision of the ICC was groundbreaking in the field of interest here. The PTC established the control over the act theory as conceptual basis for the modes of the participation and thus distanced itself from the previously dominating ICTY/ICTR approach based on a unitarian understanding of perpetration and especially relying on the common purpose/joint criminal enterprise doctrine.

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                                            • Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04–01/06, Trial Chamber I, Judgment Pursuant to Article 74 of the Statute, 14 March 2012.

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                                              In this first judgment of the ICC, the Trial Chamber basically followed the PTC’s confirmation decision and convicted the accused as a co-perpetrator. The majority of the Chamber (Judge Fulford dissenting) also confirmed the general interpretation of Article 25(3) as a differentiated, hierarchical system of modes of participation and interpreted co-perpetration, in line with the previous case law, taking recourse to the functional control over the act theory.

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                                              Analysis

                                              The case law of the International Criminal Tribunals, as analyzed in Ambos 2004 (which contains, after a methodological introduction, a comprehensive analysis of the national and international case law on the general part and of the important codifications as well as the respective theorization), Ambos 2012, and Badar 2011, has tried to clarify and further develop the modes of participation. See also Osiel 2005.

                                              • Ambos, Kai. Der allgemeine Teil des Völkerstrafrechts: Ansätze einer Dogmatisierung. 2d ed. Berlin: Duncker & Humblot, 2004.

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                                                In this postdoctoral study (Habilitation), the author undertakes a systematization and theorization (Dogmatisierung) of the general part of international criminal law (i.e., the rules on imputation, including the modes of participation). Spanish version: La parte general del derecho penal internacional (Montevideo, Uruguay: Temis, 2005). Portuguese version: A parte general do direito penal internacional (São Paulo, Brazil: Editora Revista dos Tribunais, 2008).

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                                                • Ambos, Kai. “The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues.” International Criminal Law Review 12.2 (2012): 115–153.

                                                  DOI: 10.1163/157181212X639644Save Citation »Export Citation »E-mail Citation »

                                                  The author analyzes, inter alia, the controversy between Judges Blattmann and Odio Benito, on the one hand, and Judge Fulford, on the other hand, with regard to the interpretation of Article 25(3) and the co-perpetration mode. Available online for purchase or by subscription.

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                                                  • Badar, Mohamed Elewa. “Participation in Crimes in the Jurisprudence of the ICTY and ICTR.” In Routledge Handbook of International Criminal Law. Edited by William A. Schabas and Nadia Bernaz, 247–269. London: Routledge, 2011.

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                                                    The author conducts a systematic analysis of the jurisprudence of the ICTY and ICTR in order to identify and examine the objective and subjective requirements of the different modes of participation.

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                                                    • Osiel, Mark J. “Modes of Participation in Mass Atrocity.” Cornell International Law Journal 38 (2005): 793–822.

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                                                      The first part focuses on the disadvantages of the doctrine of JCE, recalling that it is likely to invoke the unfortunate concepts of conspiracy and guilt by association. In a second part, Osiel points to some problematic issues concerning command responsibility, such as the effective control criterion and the “but for” causation test.

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                                                      Modes of Participation in Comparative Criminal Law

                                                      As to the modes of participation in crime, national legal systems, as very well displayed in Fletcher 2000 and Pradel 2008, can be classified, a grosso modo, either as unitarian (unified) or differentiated systems. The unitarian model of participation is based on the equivalence theory, which considers every person as perpetrator/principal who contributes in a causal way to the criminal result. Unitarian systems generally do not make any distinction between different forms of participation at the level of attribution/imputation but only ask for the causal contribution of each participant to the criminal result. The responsibility of each participant is established separately; each participant commits his own crime, and in consequence each has to be considered as a perpetrator. The different degree or form of contribution to the criminal result is taken into account at the sentencing level. Unitarian systems of participation exist in common-law countries and in some civil-law countries, such as Denmark and Italy. Some unitarian systems, such as the Polish and Austrian, distinguish between different forms of participation with the view to the different functions of participants. These systems are called functional unitarian systems. Stewart 2012 argues that they would be best suited for the complex system of participation in international criminal law. The differentiated model of participation is characterized by a distinction between principals/perpetrators and accessories/secondary participants according to their relative contribution to the crime. This distinction is theoretically most convincingly explained by the already mentioned theory of the control over/domination of the act (Tatherrschaftslehre). Accordingly, the perpetrator may be considered only the person who commits the crime either by himself (direct perpetrator), jointly with one or several others (co-perpetrator), or through another by means of a predominant influence (indirect perpetrator). Other parties to the crime are considered accomplices or (secondary) participants, distinguishing between those who encourage (induce/solicit/abet) and those who merely assist or aid. Normally, the secondary participants can be held liable only if the principal has at least attempted the main crime. Thus, their responsibility is (at least factually) derived from that of the principal perpetrator (i.e., accessorial). The differentiated model of participation (see Sieber and Cornils 2010) prevails in the Franco-German systems, extending in particular to continental Europe, Latin America, and parts of Africa and Asia.

                                                      • Fletcher, George P. Rethinking Criminal Law. New York: Oxford University Press, 2000.

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                                                        Originally published in 1978 (Boston: Little, Brown). In this fundamental work, George Fletcher is concerned with a critical analysis of Anglo-American system of criminal law and its conceptual foundations. Fletcher undertakes a comparative approach, especially referring to US-American and German law. The book also contains a comparative analysis of participation in common law and civil law doctrine.

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                                                        • Pradel, Jean. Droit pénal comparé. 3d ed. Paris: Dalloz, 2008.

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                                                          Droit pénal comparé is a truly seminal work in the field of comparative criminal law—the book is far more than a collection of national reports of different authors. Pradel presents and comparatively evaluates information in the field of criminal law. In this context he also refers to modes of participation, taking into account different jurisdictions.

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                                                          • Sieber, Ulrich, and Karin Cornils, eds. Nationales Strafrecht in rechtsvergleichender Darstellung: Allgemeiner Teil. Teilband 4. Berlin: Duncker & Humblot, 2010.

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                                                            This book is part of a multivolume study on national criminal law systems from a comparative perspective within the framework of a Max-Planck project, which started in 2004. This volume treats the modes of participation and corporate criminal liability.

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                                                            • Stewart, James G. “The End of ‘Modes of Liability’ for International Crimes.” Leiden Journal of International Law 25.1 (2012): 165–219.

                                                              DOI: 10.1017/S0922156511000653Save Citation »Export Citation »E-mail Citation »

                                                              The author demonstrates that Article 25 is heavily influenced by national criminal law doctrine and thus suffers from the same inconsistencies. He calls for leaving all existing “modes” behind and creating a totally new system based on a unitary theory, whose general foundations are, however, yet to be elaborated. Available online for purchase or by subscription.

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                                                              Direct Perpetration and Co-perpetration

                                                              Direct perpetration means that the perpetrator acts on his or her own without relying on or using another person. He or she has total (physical) control of the act (Handlungsherrschaft) and, following Mettraux 2005, directly and personally executes the crime. The characterization of direct perpetration as committing a crime “as an individual” in Article 25(3)(a) of the International Criminal Court (ICC) Statute does not make this sufficiently clear. As it stands, the formulation only repeats the principle of individual responsibility. While the original French version of the statute (à titre individuel) was more precise, the new one (individuellement) is identical to the English and Russian (индивидуально) one; the Chinese version (单独) can be understood as both “individual” and “alone”; only the Spanish (por sí solo) and Arabic (سواء بصفته الفردية) versions more explicitly reflect the direct and personal way of perpetration. The concept of co-perpetration as employed by the ICC is, as outlined in Werle 2009, based on the German doctrine of “functional control over the act” (funktionelle Tatherrschaf”). Accordingly, co-perpetration can be characterized as a functional division of the criminal tasks between the different (at least two) co-perpetrators, who are normally interrelated by a common plan or agreement. Every co-perpetrator fulfills a certain task that contributes to the commission of the crime and without which it would not be possible. The common plan or agreement forms the basis of a reciprocal or mutual attribution of the different contributions holding every co-perpetrator responsible for the crime as a whole. Following van der Wilt 2009, on an objective level two requirements must be established, namely, the existence of an agreement or common plan between two or more persons and a coordinated essential contribution by each co-perpetrator resulting in the realization of the objective elements of the crime. On the subjective side, as well explained in Weigend 2008, it is necessary that all suspects are mutually aware and mutually accept that implementing their common plan may result in the realization of the objective elements of the crime; they must be aware of the factual circumstances enabling them to jointly control the crime. This last subjective condition, however, is controversial (see Ambos 2009). Generally, under the ICC Statute, there is a general provision (Article 30) providing for the subjective requirements. It also applies to the modes of participation.

                                                              • Ambos, Kai. “Critical Issues in the Bemba Confirmation Decision.” Leiden Journal of International Law 22.4 (2009): 715–726.

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                                                                Examines some inconsistencies in the Chamber’s definition of co-perpetration (especially regarding the mental element) and further reveals the Chamber’s interesting approval of the theory of risk increase concerning command responsibility. Available online for purchase or by subscription. Spanish version: “Aspectos problemáticos de la decisión de confirmación de cargos de la corte penal internacional en el caso Bemba,” Revista Penal 25 (2010): 12–21.

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                                                                • Mettraux, Guénaël. International Crimes and the Ad Hoc Tribunals. New York: Oxford University Press, 2005.

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                                                                  Provides a useful, albeit descriptive, account of the Tribunals’ most important judicial rulings, including the modes of participation.

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                                                                  • van der Wilt, Harmen. “The Continuous Quest for Proper Modes of Criminal Liability.” Journal of International Criminal Justice 7.2 (2009): 307–314.

                                                                    DOI: 10.1093/jicj/mqp033Save Citation »Export Citation »E-mail Citation »

                                                                    This article exhibits the ongoing struggle of the ICC to find the best mode of attribution for those most responsible of international crimes. Van der Wilt analyzes the control over the act doctrine as well as the merger of co-perpetration and indirect perpetration into the notion of indirect co-perpetration, with special focus on the Al Bashir case. Available online for purchase or by subscription.

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                                                                    • Weigend, Thomas. “Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges.” Journal of International Criminal Justice 6.3 (2008): 471–487.

                                                                      DOI: 10.1093/jicj/mqn034Save Citation »Export Citation »E-mail Citation »

                                                                      Weigend criticizes that the Chamber’s definition of intent focuses on the subjective attitude of the defendant, neglecting the objective risk envisaged. He strikes for a definition of mens rea that does not entail a verbal, highly subjective “expressed acceptance” of a risk but should infer acceptance from the actions or omissions of the defendant. Available online for purchase or by subscription.

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                                                                      • Werle, Gerhard. Principles of International Criminal Law. 2d ed. The Hague: TMC Asser, 2009.

                                                                        DOI: 10.1007/978-90-6704-559-9Save Citation »Export Citation »E-mail Citation »

                                                                        In this groundbreaking treatise, the author spans the bridge from the origins of international criminal law to its modern development at the Tribunals and the ICC. The section concerning modes of participation depicts the most important historical and jurisprudential facts and also provides a concise summary of the superior responsibility doctrine.

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                                                                        Joint Criminal Enterprise

                                                                        As demonstrated by a series of works, for example Bogdan 2006, Hamdorf 2007, and Barthe 2009, the joint criminal enterprise (JCE) mode of liability has become part of the consolidated case law of the ICTY and ICTR since the Tadic Appeals Judgment of 15 July 1999 (paras. 185–233; see Judicial Decisions). The case law distinguishes three forms of JCE. The first is the basic form, where the participants act on the basis of a common design or common purpose and with a common intention regarding the crimes to be committed or furthered by the JCE. Second is the systemic form, such as the so-called concentration camp cases where crimes are committed by persons as members of the military or administrative units such as those running concentration or detention camps on the basis of a common plan (“common purpose”). Third is the so-called extended joint enterprise where acts going beyond the common plan or purpose are imputed to the members of the JCE because these acts constitute, in an objective and subjective sense, a “natural and foreseeable consequence” of the realization of the plan. This third form, as inter alia Haan 2008, Olásolo 2009, and Ambos 2009 point out, might infringe fundamental principles of general criminal law, in particular the principle of culpability. From a doctrinal perspective, following for example van der Wilt 2009, the doctrine serves to impute certain criminal acts or results to persons on the basis of their participation in a collective (“joint”) criminal enterprise. The “criminal enterprise” is defined by a common—explicit or tacit—agreement or understanding to commit certain criminal acts for an ultimate criminal objective or goal (e.g., in the case of a genocidal enterprise, the ultimate destruction of the targeted group). Such a global or broad enterprise may consist of various smaller (“subsidiary”) subenterprises (e.g., the running of concentration or prison camps for the members of the targeted group, the local or regional organized persecution of members of the group, etc.). The participants in the enterprise are bound together by their common will to achieve the ultimate goal by all necessary means, namely, by the crimes that must be committed on the road to the ultimate criminal goal. The underlying rationale of a JCE, its core feature, is the combined, associated, or common criminal purpose of the participants in the enterprise. The common purpose is the collective element of the JCE doctrine that links the members to each other and turns it into a theory of collective responsibility based on an institutional-participatory or systemic model of imputation or attribution. As Badar 2006 shows, JCE at the ICTY has clearly prevailed over the theory of control over the act.

                                                                        • Ambos, Kai. “Amicus Curiae Brief in the Matter of the Co-prosecutors’ Appeal of the Closing Order Against Kaing Guek Eav ‘Duch’ Dated 8 August 2008.” Criminal Law Forum 20.2–3 (2009): 353–388.

                                                                          DOI: 10.1007/s10609-009-9102-4Save Citation »Export Citation »E-mail Citation »

                                                                          After explaining the JCE doctrine by referring to modern case law and its purpose and conceptual structure, the author inquires whether JCE can be applied retroactively to the crimes committed during 1975 to 1979.

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                                                                          • Badar, Mohamed Elewa. “‘Just Convict Everyone!’—Joint Perpetration: From Tadić to Stakić and Back Again.” International Criminal Law Review 6.2 (2006): 293–302.

                                                                            DOI: 10.1163/157181206778050679Save Citation »Export Citation »E-mail Citation »

                                                                            The paper is concerned with a critical analysis of the Stakić Appeals Judgment. The author examines both the Stakić Trial and Appeals Judgments and rejects the extended form of JCE because of its infringement of the principle of culpability. Available online for purchase or by subscription.

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                                                                            • Barthe, Christoph. Joint Criminal Enterprise (JCE): Ein (originär) völkerstrafrechtliches Haftungsmodell mit Zukunft? Berlin: Duncker & Humblot, 2009.

                                                                              DOI: 10.3790/978-3-428-12937-9Save Citation »Export Citation »E-mail Citation »

                                                                              Barthe explores the origins of the JCE doctrine, its development and its forms. He demonstrates that the references of the Tadic Appeals Chamber to the Nuremberg and post-Nuremberg case law are not entirely accurate.

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                                                                              • Bogdan, Attila. “Individual Criminal Responsibility in the Execution of a ‘Joint Criminal Enterprise’ in the Jurisprudence of the Ad Hoc International Tribunal for the Former Yugoslavia.” International Criminal Law Review 6.1 (2006): 63–120.

                                                                                DOI: 10.1163/157181206777066727Save Citation »Export Citation »E-mail Citation »

                                                                                The paper describes and critically analyzes the development of JCE in the case law of the ICTY, in particular the methodology employed by the Tadic Appeals Chamber. In addition, the author explores the similarities between JCE and US conspiracy law and whether the application of JCE at the ICTY interferes with the principle of legality. Available online for purchase or by subscription.

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                                                                                • Haan, Verena. Joint Criminal Enterprise: Die Entwicklung einer mittäterschaftlichen Zurechnungsfigur im Völkerstrafrecht. Berlin: Duncker & Humblot, 2008.

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                                                                                  Haan analyzes the JCE doctrine from different theoretical perspectives and identifies the theoretical shortcomings of this mode of liability. She proposes an interpretation with a view to accommodate JCE liability with fundamental principles of criminal law and therefore rejects the third variant of JCE.

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                                                                                  • Hamdorf, Kai. “The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law.” Journal of International Criminal Justice 5.1 (2007): 208–226.

                                                                                    DOI: 10.1093/jicj/mql084Save Citation »Export Citation »E-mail Citation »

                                                                                    The paper examines the compatibility of the JCE concept with English and German concepts of participation in a crime and its compliance with general principles of criminal law such as legality and individual criminal responsibility. Available online for purchase or by subscription.

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                                                                                    • Olásolo, Héctor. “Joint Criminal Enterprise and Its Extended Form: A Theory of Co-perpetration Giving Rise to Principal Liability, a Notion of Accessorial Liability, or a Form of Partnership in Crime?” Criminal Law Forum 20.2–3 (2009): 263–287.

                                                                                      DOI: 10.1007/s10609-009-9098-9Save Citation »Export Citation »E-mail Citation »

                                                                                      The article addresses problems with regard to the third form of JCE. The author discusses whether the extended form of JCE gives rise to principal liability or accessorial liability or is merely a form of partnership in crime. He also explores its compatibility with fundamental principles of criminal law, especially the principle of legality. Available online for purchase or by subscription.

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                                                                                      • van der Wilt, Harmen. “Joint Criminal Enterprise and Functional Perpetration.” In System Criminality in International Law. Edited by André Nollkaemper and Harmen van der Wilt, 158–182. Cambridge, UK: Cambridge University Press, 2009.

                                                                                        DOI: 10.1017/CBO9780511596650Save Citation »Export Citation »E-mail Citation »

                                                                                        This contribution focuses on the nuanced division of tasks within the joint enterprise and elaborates on the objective threshold for acts to incur criminal liability as a perpetrator of a JCE. It additionally distinguishes JCE from liability for mere membership in a criminal group of persons.

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                                                                                        Indirect Perpetration

                                                                                        The notion underpinning the concept of indirect perpetration, as set out in Roxin 2006 (perpetration by means or through another person), is that principals to a crime are not limited to those who physically carry out the objective elements of the offense but also extend to those who, in spite of being away from the scene of the crime, control or mastermind its commission because they decide whether and sometimes even how the offense will be committed. Perpetration through another person presupposes, as outlined in Fletcher 1998 and Olásolo and Pérez Cepeda 2004, in its classical form that the person who commits the crime (intermediary, intermédiaire, Tatmittler) can be used as an instrument or tool by the indirect perpetrator (auteur médiat) as the mastermind or “man in the background” (Hintermann). He or she is normally an innocent agent, not responsible for the criminal act. A typical example is the case where the individual agent or instrument acts erroneously or is not culpable because he or she is a minor or because of a mental defect. The perpetrator through another person is also considered a principal in common law. However, indirect perpetration in the sense of the International Criminal Court (ICC) Statute must be strictly distinguished from the doctrine of JCE, as emphasized in Manacorda and Meloni 2011.

                                                                                        • Fletcher, George P. Basic Concepts of Criminal Law. New York: Oxford University Press, 1998.

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                                                                                          Fletcher identifies twelve characteristics that are, despite all disparities in detail, common to the main criminal law systems of the world. He thus further develops his comparative studies conducted in Rethinking Criminal Law. With regard to the modes of participation, for example, Fletcher compares the US-American and German concepts of complicity.

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                                                                                          • Manacorda, Stefano, and Chantal Meloni. “Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?” Journal of International Criminal Justice 9.1 (2011): 159–178.

                                                                                            DOI: 10.1093/jicj/mqq074Save Citation »Export Citation »E-mail Citation »

                                                                                            The article is concerned with the explanation and analysis of the two modes of participation most frequently used by international criminal tribunals to address the criminal responsibility of the most senior perpetrators. Available online for purchase or by subscription.

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                                                                                            • Olásolo, Héctor, and Ana Pérez Cepeda. “The Notion of Control of the Crime and Its Application by the ICTY in the Stakić Case.” International Criminal Law Review 4.4 (2004): 475–526.

                                                                                              DOI: 10.1163/1571812043020088Save Citation »Export Citation »E-mail Citation »

                                                                                              The first part of the paper discusses the development of the concept of control over the crime in general and of “the perpetrator behind the perpetrator” and functional control in particular. The second part deals with the question of how the two latter concepts can be applied jointly. Available online for purchase or by subscription.

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                                                                                              • Roxin, Claus. Täterschaft und Tatherrschaft. 8th ed. Berlin: de Gruyter, 2006.

                                                                                                DOI: 10.1515/9783110921861Save Citation »Export Citation »E-mail Citation »

                                                                                                Täterschaft und Tatherrschaft—Roxin’s postdoctoral thesis—is a seminal work in the area of modes of participation. In this book, Roxin set out his theory of “domination” or “control of/over the act” (Tatherrschaft), which is the basis to distinguish, from an objective perspective, principal from secondary participation. As already mentioned, the theory has been adopted by the ICC since the Lubanga Confirmation Decision. Spanish version: Autoría y Dominio del Hecho en Derecho Penal (Madrid: Marcial Pons, 2000).

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                                                                                                Organisationsherrschaft

                                                                                                In the field of macrocriminality (i.e., systematic or mass criminality organized, supported, or tolerated by the state or by powerful nonstate actors), the direct perpetrator or executor normally performs the act with full responsibility. Thus, the question arises whether the Hintermann (“man in the background”) can also in cases with a fully responsible direct perpetrator be responsible as an “(indirect) perpetrator behind the (direct) perpetrator” (Täter hinter dem Täter). This has, following Roxin 2011 (summarizing the influence of his theory; Schünemann 2011), indeed been affirmed for cases in which the Hintermann dominates the direct perpetrators by way of a hierarchical organizational structure (i.e., where he or she dominates the commission by way of an organization [Organisationsherrschaft]). The key issue of this doctrine, as shown in Jessberger and Geneuss 2008 and Osiel 2010, is whether the mastermind is able to exercise effective control over the (fully responsible) direct perpetrators by means of the organizational apparatus possibly created and in any case dominated by him or her. While the Hintermann will hardly be able to completely control the direct perpetrators, this lack of control may be compensated by the control of the apparatus, which produces an unlimited number of potential willing executors. In other words, as Ambos 2011a explains, although direct perpetrators acting with full criminal responsibility cannot be considered mere “interchangeable mediators of the act” (fungible Tatmittler) as such, the “system” provides for a practically unlimited number of replacements and thereby for a high degree of flexibility as far as the personnel necessary to commit the crimes is concerned. While such a concept rests on the assumption that the apparatus operates hierarchically from top to bottom and one may rightly question the applicability of this assumption to all kinds of criminal organizations, a too naturalistic or mechanical perspective distorts the normative basis of this theory. Ambos 2011b and Muñoz-Conde and Olásolo 2011 show that the doctrine of Organisationsherrschaft, albeit not uncontroversial (for a reply to critics, see Roxin 2012), has been widely recognized internationally by a series of national tribunals.

                                                                                                • Ambos, Kai. “The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus.” Journal of International Criminal Justice 9.1 (2011a): 137–158.

                                                                                                  DOI: 10.1093/jicj/mqq059Save Citation »Export Citation »E-mail Citation »

                                                                                                  The article gives a brief overview of the background of the case against the former Peruvian President Fujimori and then moves on to analyze Fujimori’s responsibility from a national and international criminal law perspective, focusing in particular on the evidentiary issues and the five requirements of Organisationsherrschaft set out by the Peruvian Supreme Court. Available online for purchase or by subscription.

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                                                                                                  • Ambos, Kai. “Zur ‘Organisation’ bei der Organisationsherrschaft.” In Strafrecht als Scientia Universalis: Festschrift für Claus Roxin zum 80. Geburtstag am 15. Mai 2011. Edited by Bernd Schünemann, Christian Jäger, Manfred Heinrich, et al., 837–852. Berlin: de Gruyter, 2011b.

                                                                                                    DOI: 10.1515/9783110255287Save Citation »Export Citation »E-mail Citation »

                                                                                                    The paper tries to contribute to a better and more comprehensive understanding of the concept of organization within the framework of Organisationsherrschaft. The author advocates for a broader concept of organization that goes beyond a mere formal-bureaucratic model and thus welcomes the approach undertaken by the ICC. It is acknowledged that the organization is the sole or most important point of reference of imputation. Spanish version: “Sobre la ‘organización’ en el dominio de la organización,” InDret (Revista para el análisis del derecho) 3 (2011).

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                                                                                                    • Jessberger, Florian, and Julia Geneuss. “On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?” Journal of International Criminal Justice 6.5 (2008): 853–869.

                                                                                                      DOI: 10.1093/jicj/mqn073Save Citation »Export Citation »E-mail Citation »

                                                                                                      Apart from critically discussing the application of a theory of indirect perpetration in the Al Bashir case, the authors also query whether the concept of indirect perpetration has a chance of becoming a key mode of participation in international criminal law. Moreover, they explore the place of a theory of indirect perpetration in international law and its origins in German criminal law. Available online for purchase or by subscription.

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                                                                                                      • Muñoz-Conde, Francisco, and Héctor Olásolo. “The Application of the Notion of Indirect Perpetration through Organized Structures of Power in Latin America and Spain.” Journal of International Criminal Justice 9.1 (2011): 113–135.

                                                                                                        DOI: 10.1093/jicj/mqq076Save Citation »Export Citation »E-mail Citation »

                                                                                                        Muñoz-Conde and Olásolo deal with the application of Roxin’s theory by the courts in Latin America and Spain. The paper contains an overview of the relevant case law and is, therefore, of particular value for non-Spanish speakers. Available online for purchase or by subscription.

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                                                                                                        • Osiel, Mark. “Ascribing Individual Liability within a Bureaucracy of Murder.” In Collective Violence and International Criminal Justice. Edited by Alette Smeulers, 105–130. Antwerp, Belgium: Intersentia, 2010.

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                                                                                                          Mark Osiel critically analyzes Claus Roxin’s “Organisationsherrschaftslehre.” Osiel is especially critical of Roxin’s concept of organization for being too strongly based on a formal-bureaucratic concept of organization in the Weberian sense and therefore not applicable to the increasing number of informal criminal organizations.

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                                                                                                          • Roxin, Claus. “Crimes as Part of Organized Power Structures.” Journal of International Criminal Justice 9.1 (2011): 193–205.

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                                                                                                            This paper is concerned with the case of Adolf Eichmann, who organized the deportation and thus extermination of millions of Jews during the Nazi regime. Roxin explains and applies his concept of indirect perpetration by means of control over an organized power structure. He argues that persons who dominate the direct perpetrators by way of a hierarchical organizational structure shall be considered perpetrators rather than merely as secondary participants (accomplices). Translated from “Straftaten im Rahmen organisatorischer Machtapparate,” Goltdammer’s Archiv für Strafrecht 110 (1963): 193–207. Available online, along with an introductory note by Gerhard Werle and Boris Burghardt, for purchase or by subscription.

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                                                                                                            • Roxin, Claus. “Zur neusten Disskussion über die Organisationsherrschaft.” Goltdammer’s Archiv für Strafrecht 159.7 (2012): 395–415.

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                                                                                                              This contribution essentially contains Roxin’s reply to criticism against his theory. The paper starts with a brief overview over the current state of the doctrine’s application in international and national criminal law. Roxin then summarizes the recent views on his theory and deals with its requirements. Roxin affirmatively addresses the new concept of indirect-co-perpetration.

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                                                                                                              • Schünemann, Bernd. “Schrumpfende Basis, wuchernder Überbau?—Zum Schicksal der Tatherrschaftsdoktrin nach 50 Jahren.” In Strafrecht als Scientia Universalis: Festschrift für Claus Roxin zum 80. Geburtstag am 15 Mai 2011. Edited by Bernd Schünemann, Christian Jäger, Manfred Heinrich, et al., 799–817. Berlin: de Gruyter, 2011.

                                                                                                                DOI: 10.1515/9783110255287.799Save Citation »Export Citation »E-mail Citation »

                                                                                                                Schünemann demonstrates how Roxin’s theory has been continuously adapted in national legal doctrines and eventually employed by the International Criminal Court. He sees on the one hand a fading influence of the theory in German criminal law but on the other an unstoppable ascent of the theory in international criminal law.

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                                                                                                                Indirect Co-perpetration

                                                                                                                Indirect co-perpetration was, as Olásolo 2010 and Weigend 2011 show, introduced by the Katanga/Chui confirmation decision. In fact, indirect co-perpetration constitutes a combination of individual responsibility for indirect perpetration and mutual attribution among co-perpetrators. In Katanga/Chui, the Chamber applied this mode to two indirect co-perpetrators (the suspects as paramilitary leaders) acting through the members of two paramilitary groups (organizations) controlled by them respectively. Apparently, the Chamber imputes the acts committed by the group members (direct perpetrators) to both indirect perpetrators on the basis of their criminal agreement, which turns them into co-perpetrators. Thus, each indirect perpetrator is responsible for the crimes committed not only by his or her own group members but also by the members of the other indirect perpetrator’s group. This has rightly been criticized by Werle and Burghardt 2010, which distinguishes indirect co-perpetration (mittelbare Mittäterschaft), as in Katanga/Chui, from indirect perpetration in co-perpetration (mittelbare Täterschaft in Mittäterschaft) where, as in Al Bashir, there is only one organization with its members as direct perpetrators controlled by a group of leaders bound together as co-perpetrators (the “junta model”). In the former case, an imputation of the crimes committed by one organization to the leader of the other organization is acceptable only if the two groups have carried out the crimes jointly, since only then can one speak of a relevant contribution of the other leader through his or her organization.

                                                                                                                • Olásolo, Héctor. “El Desarrollo de la Coautoria Mediata en Derecho Penal Internacional.” In Estudios de derecho penal internacional. Edited by Héctor Olásolo, 75–112. Mexico City: Instituto Nacional de Ciencias Penales, 2010.

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                                                                                                                  The author provides a valuable summary of the notions of co-perpetration and indirect perpetration and demonstrates how the ICC merged these two modes of liability. He predicts that the ICC will continue to develop and refine the requirements and that the notion of indirect perpetration will definitely prevail over the JCE approach of the Ad Hoc Tribunals.

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                                                                                                                  • Weigend, Thomas. “Perpetration through an Organization: The Unexpected Career of a German Legal Concept.” Journal of International Criminal Justice 9.1 (2011): 91–111.

                                                                                                                    DOI: 10.1093/jicj/mqq077Save Citation »Export Citation »E-mail Citation »

                                                                                                                    Weigend gives a summary of the academic debate about the concept of Organisationsherrschaft and its application in Germany. He demonstrates that Organisationsherrschaft is not at all uncontroversial and disapproves of a further application of the organizational element in international criminal law. Instead, he strikes for a case-by-case analysis and a return to the “simple” mode of indirect perpetration. Available online for purchase or by subscription.

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                                                                                                                    • Werle, Gerhard, and Boris Burghardt. “Die mittelbare Mittäterschaft—Fortentwicklung deutscher Strafrechtsdogmatik im Völkerstrafrecht?” In Gerechte Strafe und legitimes Strafrecht: Festschrift für Manfred Maiwald zum 75. Geburtstag. Edited by René Bloy and Manfred Maiwald, 849–864. Berlin: Duncker & Humblot, 2010.

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                                                                                                                      This concisely written paper focuses on the new concepts of “indirect co-perpetration” and “indirect perpetration in co-perpetration” introduced by the ICC. The paper contains an in-depth analysis of both concepts and displays their roots in German doctrine. The authors predict that indirect co-perpetration might emerge as the mode of liability to tackle those most responsible for committing international crimes. Spanish version: “Co-autoría mediata: Desarollo de la dogmática jurídico penal alemana en el derecho penal internacional?” Revista Penal 28 (2011): 197–206.

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                                                                                                                      Organizational Domination in Stages

                                                                                                                      A system of “organizational domination in stages” (stufenweise Organisationsherrschaft) goes back to the Dencker 1996 developed model Zurechnungsprinzip Gesamttat (i.e., a concept of imputation that focuses on the criminal act or enterprise as a whole and results from the modification of the system of individual attribution commonly used for cases of ordinary criminality). Thus, the central feature of this notion is that the criminal enterprise or organization as a whole serves as the entity upon which attribution of criminal responsibility is based. Thereby, as Vest 2002 argues, it is intended to develop a doctrine of imputation that better corresponds to the needs of international criminal law, that is, to create and develop a mixed system of individual–collective responsibility. In this same direction, Vest 2011 proposes a three-tiered hierarchical model of different levels of systemic domination of the act with the corresponding forms of participation and domination/control. Such a system of “organizational domination in stages” takes up the distinction between main perpetrators and secondary participants (accomplices) and distinguishes three levels of participation: The first and highest level is composed of those (main) perpetrators who take the key decisions with regard to the criminal events and as such belong to the leadership level (Führungstäter); at the second level we find those (still main) perpetrators of at least the midlevel of the hierarchy who exercise some form of control over a part of the organization by organizing and concretely planning the decision of the top level (Organisationstäter); the third level consists of the physical perpetrators who merely execute the crimes (Ausführungstäter) and thus may be considered, in a normative sense and with regard to the overall criminal context, as mere secondary participants (accomplices). Fletcher 2011 supports this unique international criminal law approach and militates against a return to useless national law doctrines by the ICC.

                                                                                                                      • Dencker, Friedrich. Kausalität und Gesamttat. Berlin: Duncker & Humblot, 1996.

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                                                                                                                        The first part of this monograph deals with traditional concepts of attribution for collective criminality. In the second part, the author presents his alternative concept of attribution for collective criminal settings, the so-called Zurechnungsprinzip Gesamttat. The book is concisely written and constitutes a theoretical milestone for the future development of accurate doctrines of imputation.

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                                                                                                                        • Fletcher, George P. “New Court, Old Dogmatik.” Journal of International Criminal Justice 9.1 (2011): 179–190.

                                                                                                                          DOI: 10.1093/jicj/mqq080Save Citation »Export Citation »E-mail Citation »

                                                                                                                          Fletcher critically examines the evolvement of newly created forms of attribution such as JCE or the recently developed indirect co-perpetratorship. He strongly encourages future international criminal law scholarship to create a unique own doctrine based on the universal principles of legality, culpability, and individual criminal responsibility. Available online for purchase or by subscription.

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                                                                                                                          • Vest, Hans. Genozid durch organisatorische Machtapparate: An der Grenze von individueller und kollektiver Verantwortlichkeit. Baden-Baden, Germany: Nomos, 2002.

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                                                                                                                            This study is concerned with an examination of the scope and limitations of the (traditional) modes of individual liability in international criminal law (e.g., in case of genocide). Then the author explores whether the traditional approach toward individual criminal liability complemented by collective elements in the sense of Dencker’s conception would be better suited to dealing with criminal liability at the international level.

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                                                                                                                            • Vest, Hans. Völkerrechtsverbrecher verfolgen: Ein abgestuftes Mehrebenenmodell systemischer Tatherrschaft. Bern, Germany: Stämpfli Verlag, 2011.

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                                                                                                                              The author contributes significantly to the interpretation and delineation of the different subparagraphs of Article 25 ICC Statute but also calls for upholding the JCE doctrine in its basic form (while rejecting the extended form). The study is dedicated to an elaboration of his graded or hierarchical model of systemic domination of the act (abgestuftes Modell systemischer Tatherrschaft).

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                                                                                                                              Forms of Accessorial Liability

                                                                                                                              Accessoryship is not a crime in itself but a mode of secondary liability. The accessorial contribution is at least factually dependent on a main act or crime; that is, accessorial liability is a form of derivative liability (emprunt de la criminalité, accesoriedad de la participación, Akzessorietät). There are basically two forms of accessorial liability: encouraging and assisting a (main) crime.

                                                                                                                              Encouragement

                                                                                                                              The 8th Edition of Black’s Law Dictionary states that inducing entails the “enticement or urging of another person to commit a crime,” while soliciting a crime means, inter alia, “urging, advising, commending, or otherwise inciting another to commit a crime.” Thus, both terms basically refer to a situation where a person is encouraged or influenced by another to commit a crime. There is no clear delimitation between soliciting/encouraging and inducing, although this is contested by Militello 2007. In substance, in both cases a person is caused to commit a crime. Such “causal” influence is normally of a psychological nature (persuasion) but may also take the form of physical pressure (coercion) within the meaning of vis compulsiva. It may also occur in a chain; that is, a person induces another to induce a third person to commit a crime. In contrast to cases of “ordering,” a superior–subordinate relationship is not necessary. With regard to the mens rea, it is necessary that the person inducing the perpetrator knows that, as a consequence of this act, there is a “substantial likelihood” that the crime will be committed. The ICC Statue mixes up “ordering” with forms of encouraging a crime. A person who orders a crime is not a mere accomplice but rather an indirect perpetrator or, at least, an instigator, abusing his or her position of authority to force (indirect perpetration) or “persuade” (instigation) a subordinate to commit a crime. As Cryer, et al. 2010 shows, referring to the Akayesu judgment, “ordering implies a superior–subordinate relationship” whereby “the person in a position of authority uses it to convince (or coerce) another to commit an offence” (p. 378). Such a—at least de facto—“superior–subordinate relationship” is also the first and basic requirement of command or superior responsibility as confirmed by the ICTY and adopted by the subsequent case law of the Ad Hoc Tribunals, as demonstrated by Zahar and Sluiter 2007. Consequently, the first alternative in Article 25(3)(b) ICC Statute (“[o]rders”) complements the command responsibility provision (Article 28 ICC Statute): In the latter case, the superior is liable for an omission; in the case of an order, the superior is liable for a positive act. In conclusion, the first alternative in subparagraph (b) structurally belongs to the forms of perpetration provided for in subparagraph (a), being a form of commission “through another person.” It is not required that the person is present in the crime scene when giving the order.

                                                                                                                              • Cryer, Robert, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst. An Introduction to International Criminal Law and Procedure. 2d ed. Cambridge, UK: Cambridge University Press, 2010.

                                                                                                                                DOI: 10.1017/CBO9780511760808Save Citation »Export Citation »E-mail Citation »

                                                                                                                                The book covers the material and procedural aspects of international criminal law. As to the modes of participation, it elaborates on the Hintermann doctrine as well as on JCE, complicity, conspiracy, and superior responsibility.

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                                                                                                                                • Militello, Vincenzo. “The Personal Nature of Individual Criminal Responsibility and the ICC Statute.” Journal of International Criminal Justice 5.4 (2007): 941–952.

                                                                                                                                  DOI: 10.1093/jicj/mqm039Save Citation »Export Citation »E-mail Citation »

                                                                                                                                  Militello analyzes Article 25 ICC Statute and finds that it is rather finely drafted in comparison to other, less precise provisions of the Statutes of the Ad Hoc Tribunals. Available online for purchase or by subscription.

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                                                                                                                                  • Zahar, Alexander, and Göran Sluiter. International Criminal Law: A Critical Introduction. New York: Oxford University Press, 2007.

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                                                                                                                                    This book provides an easily readable, first critical, albeit selective, insight into the complex world of international criminal law and is therefore highly recommended to criminal law students. Special focus is put on a concise and descriptive section dealing with the modes of liability.

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                                                                                                                                    Assistance

                                                                                                                                    Assistance as the weakest form of secondary participation covers any act that contributes to the commission or attempted commission of a crime. The old couple of “aiding and abetting” mixes up mere assistance (aiding) and inducement/encouragement (abetting) and should therefore—despite Article 25(3)(c) of the ICC Statute—no longer be used. The difficult task is to determine the minimum requirements of this mode of complicity. Article 2(3)(d) of the 1996 Draft Code requires that it should be “direct and substantial”; that is, the contribution should facilitate the commission of a crime in “some significant way.” The ICTY referred to these criteria in Prosecutor v. Tadic (paras. 688 and 692) and held that the act in question must constitute a direct and substantial contribution to the commission of the crime. The inclusion of the subsidiary mode “assist otherwise” by Article 25(3)(c) seems to entail an even lower threshold. Still, in line with the case law, one should consider the substantial effect of the assistance on the main crime as an independent constituting element of all forms of assistance liability, notwithstanding the term “otherwise” in “otherwise assists”; this view is also shared by Vest 2010 and Burchard 2010. The assistant to the crime must act “for the purpose of facilitating” the commission of the crime. By this wording a subjective threshold is introduced that goes beyond the ordinary mens rea requirement within the meaning of Article 30 of the ICC Statute. The expression “for the purpose of facilitating” is, as Dubber 2007 demonstrates, borrowed from the Model Penal Code. While this requirement was controversial within the American Law Institute, it is clear that “purpose” generally implies a specific subjective requirement that goes, in its volitional dimension, beyond mere knowledge. The formula, therefore, sets aside the jurisprudence of the ICTY and ICTR, since this jurisprudence holds that the “aider and abettor” must only know, as Obote-Odora 2002 points out, that his or her acts will assist the principal in the commission of an offense. On the other hand, the word “facilitating” confirms that a direct and substantial assistance is not necessary and that the act of assistance need not be a conditio sine qua non of the crime. It is crucial to delineate accomplice liability from JCE, an endeavor undertaken by Olásolo 2009 and Doria 2009 and ICTY in Prosecutor v. Vasiljević (para. 192).

                                                                                                                                    • Burchard, Christoph. “Ancillary and Neutral Business Contributions to ‘Corporate–Political Core Crime’: Initial Enquiries Concerning the Rome Statute.” In Special Issue: Transnational Business and International Criminal Law. Edited by Florian Jessberger and Julia Geneuss. Journal of International Criminal Justice 8.3 (2010): 919–946.

                                                                                                                                      DOI: 10.1093/jicj/mqq033Save Citation »Export Citation »E-mail Citation »

                                                                                                                                      This interesting paper focuses on the highly delicate question of how at first sight harmless acts could constitute criminal contributions under the ICC Statute. Burchard refers to the Nuremberg economic cases and heralds that some regulatory offenses should be established in order to further delineate noncriminal from criminal contributions. Available online for purchase or by subscription.

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                                                                                                                                      • Doria, José. “The Relationship between Complicity Modes of Liability and Specific Intent Crimes in the Law and Practice of the ICTY.” In The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko. Edited by José Doria, Hans-Peter Gasser, and M. Cherif Bassiouni, 141–159. Leiden, The Netherlands: Nijhoff, 2009.

                                                                                                                                        DOI: 10.1163/ej.9789004163089.i-1122.37Save Citation »Export Citation »E-mail Citation »

                                                                                                                                        The article begins with the explanation of the structure of crime under the ICTY statute. Subsequently, the author discusses accomplice modes of liability in the law and practice of the ICTY. The last part of the contribution deals with the particular nature of mens rea for accomplice liability.

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                                                                                                                                        • Dubber, Markus D. “Criminalizing Complicity: A Comparative Analysis.” Journal of International Criminal Justice 5.4 (2007): 977–1001.

                                                                                                                                          DOI: 10.1093/jicj/mqm038Save Citation »Export Citation »E-mail Citation »

                                                                                                                                          Dubber compares the ruling of the ICC Statute for accomplice liability with the US-American and German doctrine. He concludes that the statute rather adopts the approach of the Model Penal Code than that of the German concept of Tatherrschaft (control over the act). Available online for purchase or by subscription.

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                                                                                                                                          • Obote-Odora, Alex. “Complicity in Genocide as Understood through the ICTR Experience.” International Criminal Law Review 2.4 (2002): 375–408.

                                                                                                                                            DOI: 10.1163/156753602761061824Save Citation »Export Citation »E-mail Citation »

                                                                                                                                            The author provides an insightful study of the mens rea implications regarding complicity in genocide. He argues that the aider/abettor does not necessarily have to share the specific additional intent of the main perpetrator but must only know of the main perpetrator’s intent. Available online for purchase or by subscription.

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                                                                                                                                            • Olásolo, Héctor. “Developments in the Distinction between Principal and Accessorial Liability in Light of the First Case Law of the International Criminal Court.” In The Emerging Practice of the International Criminal Court. Edited by Carsten Stahn and Göran Sluiter, 339–359. Leiden, The Netherlands: Nijhoff, 2009.

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                                                                                                                                              The gist of the contribution is the difficult delimitation between co-perpetration and forms of secondary liability. In this regard, Olásolo analyzes the criteria following from the doctrines of JCE and (joint) control over the act.

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                                                                                                                                              • Prosecutor v. Tadic. IT-94-1-T, Trial Chamber II, Opinion and Judgment, 7 May 1997.

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                                                                                                                                                In this judgment the ICTY sets out general conditions for “aiding and abetting.” With respect to the objective element, the ICTY requires that the “participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident” (para. 692). With respect to the subjective element, the ICTY demands that the defendant “knowingly participated in the commission of an offence” (para. 102).

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                                                                                                                                                • Prosecutor v. Vasiljević. IT-98-32-A, Appeals Chamber, Judgment, 25 February 2004.

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                                                                                                                                                  This judgment deals with the issue of delimitating “aiding and abetting” and JCE. In regards to the actus reus, the Appeals Chamber only requires the member of the JCE “to perform acts that in some way are directed to the furtherance of the common design” (para. 102). In contrast, the aider and abettor “carries out acts specifically directed to assist, encourage or lend moral support to the perpetration” (para. 692).

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                                                                                                                                                  • Vest, Hans. “Business Leaders and the Modes of Individual Criminal Responsibility under International Law.” Journal of International Criminal Justice 8.3 (2010): 851–872.

                                                                                                                                                    DOI: 10.1093/jicj/mqq032Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                    Vest examines subparagraphs (c) and (d) of Article 25(3), with a particular focus on business activities. With respect to the requirement of “with the purpose of facilitating” in subparagraph (c), Vest takes the view that this threshold does not differ from the normal mens rea requirements set out in Article 30 ICC Statute. Available online for purchase or by subscription.

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                                                                                                                                                    Contribution to a Group Crime

                                                                                                                                                    Article 25(3)(d) ICC Statute establishes criminal responsibility for “any other contribution” to a group crime. The provision establishes, on the one hand, a low objective threshold for participation encompassing a conduct that in “any other way” contributes to a crime. While the Prosecutor v. Ruto, Kosgey, and Sang confirmation decisions see this as the lowest objective threshold, in the Mbarushimana confirmation decision, a “significance” standard was introduced. On the other hand, however, subparagraph (d) only refers to “a crime by a group of persons acting with a common purpose”; that is, it provides for objective (group crime) and subjective (common purpose) limitations of attribution that—at first glance—seem to delimitate subparagraph (d) from (c). Indeed, in Prosecutor v. Furundzija, the ICTY held that these provisions confirm that international (criminal) law recognizes a distinction between participation in a common criminal plan and aiding and abetting a crime as “two separate categories of liability for criminal participation . . .—co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other” (para. 216). In fact, the higher subjective threshold in subparagraph (c) (“for the purpose of facilitating”) encourages viewing subparagraph (d) as a rescue clause for cases in which the purpose cannot be established. In sum, subparagraph (d), as well illustrated in Ohlin 2009, provides for a double objective element (i.e., the individual contribution and the existence of a group crime). Further, a triple subjective element is required—that is, the common purpose of the group, the general intent regarding the contribution, and the specific alternative requirement regarding the group (purpose of furthering the criminal activity or knowledge about the group intention). In light of the principle of culpability, it is vital to pay close attention to the possible impact of the defendant’s contributions with regard to the final harmful outcome; this has recently been emphasized in Prosecutor v. Mbarushimana.

                                                                                                                                                    • Ohlin, Jens David. “Joint Criminal Confusion.” New Criminal Law Review 12 (2009): 406–419.

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                                                                                                                                                      The article deals with Article 25(3)(d) of the ICC Statute. Ohlin compares this provision with JCE and presents a fundamental critique. In his eyes, Article 25 is inconsistent insofar as it provides for co-perpetration in subparagraph (a) but still maintains the notion of JCE in subparagraph (d). This might be reconciled only by newly drafting the whole article. Available online for purchase or by subscription.

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                                                                                                                                                      • Prosecutor v. Callixte Mbarushimana. ICC-01/04–01/10-465, Pre-Trial Chamber I, Decision on the Confirmation of Charges, 16 December 2011.

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                                                                                                                                                        This confirmation decision is the first in which the ICC had to deal profoundly with Article 25(3)(d). The Chamber developed the objective threshold of significance, but it eventually exculpated the defendant since it could not be proved that his press releases and media campaigns had a measurable impact on the committed crimes in the Democratic Republic of Congo.

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                                                                                                                                                        • Prosecutor v. Furundzija. IT-95-17/1-T, Trial Chamber Judgment, 10 December 1998.

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                                                                                                                                                          The judgment defines the concept of assistance. Accordingly, assistance may be provided “in either physical form or in the form of moral support” (para. 231). The Tribunal deals also with the meaning of the term “abet,” including in it exhortation or encouragement.

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                                                                                                                                                          • Prosecutor v. Ruto, Kosgey, and Sang. ICC-01/09–01/11, Pre-Trial Chamber II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012.

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                                                                                                                                                            The Chamber held, with a view to subparagraph (d), that the objective threshold should be categorized as “lower than substantial” (and thus, implicitly, confirmed the significance threshold of Mbarushimana). With respect to Ruto and Kosgey, the decision confirmed the applicability of the notion of joint indirect perpetratorship developed in Al-Bashir.

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                                                                                                                                                            Command Responsibility

                                                                                                                                                            Command responsibility provides for individual criminal responsibility of commanders or superiors who fail to prevent or punish crimes committed by their subordinates. In contrast to the other modes of liability, command responsibility does not incriminate “active” conduct but establishes liability for omissions; this is well set out in Mettraux 2009 and Meloni 2010. Command responsibility can be either regarded as an additional mode of participation or a distinct crime. Whereas at the Ad Hoc Tribunals, as Burghardt 2008 analyzes, command responsibility was incorporated in the provision dealing with the modes of participation, the ICC Statute opted for creating a separate provision, which is Article 28. The doctrine’s origins can, according to Ambos 2013, be traced back to the 15th century, but it was finally with the Yamashita case in the aftermath of World War II that it entered the world stage. Subsequently, command responsibility was enacted in Articles 86 and 87 of Additional Protocol I to the Geneva Conventions of 1977. Article 86(1) holds that a superior can only be held liable if he or she failed to take action against grave breaches (of the Conventions) committed by his or her subordinates and if the superior had a legal duty to do so. In sum, according to the Geneva Law, three conditions must be met for a superior to incur criminal liability in the form of command responsibility: (1) the breach must have been committed by one of the superior’s subordinates; (2) the superior knew or had information that should have enabled him or her to conclude that a breach was being or was going to be committed; (3) the superior did not take the measures within his or her power to prevent or repress the breach. This approach, creating a liability for omission, was, as shown in Darcy 2007, implemented in the Statutes of the Ad Hoc Tribunals and of the Mixed Tribunals and applied in their case law. Article 28 of the ICC Statute, well explained in Arnold and Triffterer 2008, also explicitly distinguishes between the responsibility of military commanders and those of other civilian superiors, thus rendering the title “superior responsibility” more accurate. While JCE (as co-perpetration) is characterized by the horizontal cooperation between the perpetrators, command responsibility necessarily presupposes an element of verticality as to the relation between the commander/superior and the subordinates. However, a combined use of both doctrines seems highly useful in cases of complex criminal organizations. The same is true for command responsibility and the doctrine of control over an organization.

                                                                                                                                                            • Ambos, Kai. “Omission, in Particular Command Responsibility.” In Treatise on International Criminal Law, Vol. 1, Foundations and General Part. By Kai Ambos, 180–232. Oxford: Oxford University Press, 2013.

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                                                                                                                                                              This book chapter comprehensively analyzes the structure of command responsibility. It starts out by briefly summarizing the history of this mode of responsibility and then turns to the jurisprudence of the ad hoc and mixed tribunals. The main part elaborates on the objective and subjective requirements of Article 28 ICC Statute with a special focus on the “should have known” standard.

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                                                                                                                                                              • Arnold, Roberta, and Otto Triffterer. “Article 28: Responsibility of Commanders and Other Superiors.” In Commentary on the Rome Statute of the International Criminal Court. 2d ed. Edited by Otto Triffterer, 795–843. Munich: C. H. Beck, 2008.

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                                                                                                                                                                This contribution starts with an introductory part covering the historic roots and providing some guidelines for investigating and prosecuting commanders. It continues with an analysis of the elements. Interestingly, the authors consider Article 28 not as a distinct crime but rather as a mode of liability. With regard to Article 25, Article 28 is considered a subsidiary provision.

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                                                                                                                                                                • Burghardt, Boris. Die Vorgesetztenverantwortlichkeit im völkerrechtlichen Straftatsystem: Eine Untersuchung zur Rechtsprechung der internationalen Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda. Berlin: BMV, 2008.

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                                                                                                                                                                  The author deals with the antecedents of command responsibility and seeks to decipher its roots not only in written treaty law but also in unwritten customary international law. He thoroughly examines the Ad Hoc Tribunals’ jurisprudence and reveals some flagrant inconsistencies.

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                                                                                                                                                                  • Darcy, Shane. Collective Responsibility and Accountability under International Law. Leiden, The Netherlands: Transnational, 2007.

                                                                                                                                                                    DOI: 10.1163/ej.9781571053763.i-398Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                    This monograph begins with an illustrative history from collective punishment to conspiracy, followed by an analysis of joint criminal enterprise liability and membership liability. The last part concisely summarizes the command responsibility doctrine and provides some interesting point of views, such as the idea that the opening clause of Article 30 ICC Statute would pave the way for recklessness or negligence as provided for by Article 28.

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                                                                                                                                                                    • Meloni, Chantal. Command Responsibility in International Criminal Law. The Hague: TMC Asser, 2010.

                                                                                                                                                                      DOI: 10.1007/978-90-6704-605-3Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                      Meloni’s book is one of the most recent comprehensive studies on the doctrine. She pays great attention to the historic precedents and provides a detailed overview of the Ad Hoc Tribunals’ jurisprudence, also elaborating on its difficulties in rightly assessing the doctrine’s character. Point-by-point analyzing the elements of Article 28, she simultaneously refers to the ICC case law on the matter.

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                                                                                                                                                                      • Mettraux, Guénaël. The Law of Command Responsibility. New York: Oxford University Press, 2009.

                                                                                                                                                                        DOI: 10.1093/acprof:oso/9780199559329.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                        The monograph gives a comprehensive and profound overview of all aspects of the doctrine. Mettraux advocates a wider understanding of causality, equating it with the “substantial effect” test of the aider and abettor. Interpreting Article 28’s “should-have-known” standard, he encourages the ICC to apply it in the same way as the Ad Hoc Tribunals did with its “had-reason-to-know” standard.

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                                                                                                                                                                        Objective Requirements

                                                                                                                                                                        First and foremost, command responsibility requires the defendant to assume a position of superiority versus his or her subordinates. In this context, De Preux 1987 illustrates the post–WW II case law that focused on the leadership or the policy level but did not explicitly exclude commanders below this level. The differences are well outlined in Vetter 2000. A lack of administrative control or operational control, according to Bantekas 1999, does not foreclose or preclude the obligation to take any other measures at his or her disposal. In cases where subordinates do no longer obey the orders of their superiors, as in instances of crimes committed in excess, the control criterion is no longer met and criminal liability of the superior thus precluded. The repetition of “effective control” in Article 28(b)(ii) demonstrates that the requirement of effective control is particularly important for nonmilitary superiors. From this wording, it may also be inferred that the drafters wanted to limit the liability of a civilian compared to a military superior on the objective level. In this context it must be taken into consideration that, in general, control in civilian hierarchies is less strict than in military ones. Following Wu and Kang 1997, a delegation of the duty of supervision does not exculpate the defendant from superior responsibility; rather this duty is converted into a duty of proper selection, which might eventually lead to responsibility for wrong or bad selection. In a next step, command responsibility presupposes an unjustified but not necessarily unexcused crime within the jurisdiction of the ICC, be it committed by a positive act or by omission, as stated by the Prosecutor v. Orić Trial Chamber II. The crimes must, contrary to the approach of the ICTY case law, constitute a causal consequence or result of the superior’s failure to prevent or punish the crimes. Finally, the superior must have failed, as van Sliedregt 2009 illustrates, to prevent crimes that are going to be or yet being committed, or he or she must have failed to repress (i.e., take punitive measures) crimes that already have been committed. The superior must dispose of both the legal competence and the material possibility to prevent or repress the crimes. Regarding the latter, as Weigend 2004 emphasizes, a commander is also obligated to punish the crimes that have been committed before his or her assuming the command position but that have become known to him or her.

                                                                                                                                                                        • Bantekas, Ilias. “The Contemporary Law of Superior Responsibility.” American Journal of International Law 93.3 (1999): 573–595.

                                                                                                                                                                          DOI: 10.2307/2555261Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                          This contribution summarizes the state of the doctrine as of 1999. Bantekas elaborates on the superior-position criterion and upholds the Celebici judgment’s wording of “chain of command,” indicating that a superior’s responsibility depends strictly on his or her position within the hierarchy. The only exception to the requirement of subordination exists in cases of executive commanders in occupied territories. Available online for purchase or by subscription.

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                                                                                                                                                                          • De Preux, Jean. “Commentary on Articles 86 and 87.” In Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Edited by Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann, 1005–1023. Geneva, Switzerland: Nijhoff, 1987.

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                                                                                                                                                                            De Preux provides a profound commentary on the Additional Protocols’ articles governing the concept of command responsibility. He focuses on practical information and problems, for example, that preventive actions must usually be taken before the commencement of hostile activities.

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                                                                                                                                                                            • Prosecutor v. Orić. T-03-68-T, Trial Chamber II, Judgment, 30 June 2006.

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                                                                                                                                                                              The Trial Chamber deals in detail with the concept of superior criminal responsibility under the ICTY Statute. The court sets out four requirements constituting the liability under Article 7(3) of the ICTY Statute.

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                                                                                                                                                                              • van Sliedregt, Elies. “Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense?” New Criminal Law Review 12.3 (2009): 420–432.

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                                                                                                                                                                                Van Sliedregt raises awareness as to the yet unresolved character of the superior responsibility doctrine. She thoroughly disapproves of the separation into military and nonmilitary superiors and favors instead an amendment of the statute, defining command responsibility as a mode of liability in cases of knowledge and intent and as a distinct offense of “dereliction of duty” in cases of the defendant acting only negligently. Available online for purchase or by subscription.

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                                                                                                                                                                                • Vetter, Greg. “Command Responsibility of Non-military Superiors in the International Criminal Court.” Yale Journal of International Law 25 (2000): 89–143.

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                                                                                                                                                                                  The article focuses on the particularities of nonmilitary superiors. According to Vetter, the two most important distinctions between military and nonmilitary commanders are (1) the superior–subordinate relationship and (2) the knowledge element. Vetter further examines a third distinguishing factor, namely, the new nexus element in Article 28(2)(b) (“result of his or her failure to exercise control properly”), additionally limiting the scope of a nonmilitary commander’s responsibility. Available online for purchase or by subscription.

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                                                                                                                                                                                  • Weigend, Thomas. “Bemerkungen zur Vorgesetztenverantwortlichkeit im Völkerstrafrecht.” Zeitschrift für die gesamte Strafrechtswissenschaft 116.4 (2004): 999–1027.

                                                                                                                                                                                    DOI: 10.1515/zstw.2004.116.4.999Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                    Weigend demonstrates that the doctrine’s roots in the post–world war jurisprudence remain rather vague. Concerning the doctrine’s characterization, he militates for the “separate offense of omission” approach. Concerning the doctrine’s foundations, he argues that the superior’s duty to intervene rests on the potential danger (caused by his or her subordinates) he or she must control and eventually prevent. Weigend criticizes the normative attribution theory of risk increase. Available online for purchase or by subscription.

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                                                                                                                                                                                    • Wu, Timothy, and Yong-Sung Kang. “Criminal Liability for the Actions of Subordinates—The Doctrine of Command Responsibility and Its Analogues in United States Law.” Harvard International Law Journal 38 (1997): 272–297.

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                                                                                                                                                                                      The authors start with portraying the doctrine’s evolvement at the ICTY. They first focus on the controversial question of the necessary mens rea threshold of the superior with respect to the subordinates’ crimes calling for a “reduced mens rea approach.” As to the formal status for a superior position, the authors argue that formality is not sufficient but that a de facto commander status is also necessary.

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                                                                                                                                                                                      Subjective Requirements

                                                                                                                                                                                      The mens rea side of command responsibility, requiring either positive knowledge or a “should-have-known” aspect with respect to the crimes committed by the subordinates, contains some intricacies that are unique and do not arise in the context of other modes of attribution. The undisputed element, according to Nerlich 2007 and Meloni 2007, is that of positive knowledge of the subordinates’ crimes: It is applicable to both military and civilian leaders. The knowledge element must be interpreted in the light of Article 30(3) of the ICC Statute (“awareness that a circumstance exists or a consequence will occur in the ordinary course of events”). The awareness must encompass all objective requirements set out in this article, particularly the effective control, and also the objective elements of the crime. Awareness must also be established with respect to the special intent of the perpetrators; that is, the commander does not have to possess such a special intent. The second variant, the “should-have-known” standard, sometimes also confusingly called “constructed knowledge,” is different, as Karsten 2009 explains. It applies to both military and civilian leaders. A common denominator and at the same time confusing consequence is that this standard, amounting to some sort of negligence, results in negligence liability (of the commander) for intentional acts (the crimes committed intentionally by the subordinates). Given the logical inconsistency of such a construction, one must conceive the negligence form of command responsibility as a separate offense of “failure of proper supervision,” a crime that deserves a more lenient punishment than the “intentional” omission of a preventive or punitive intervention. The negligence standard for military leaders, as Eboe-Osuji 2010 critically observes, while subjectively defined, must be inferred from the objective circumstances, in particular from the existence of information that enables the superior to know or “should have known” of the subordinates’ crimes. If the information that clearly indicates the occurrence of crimes is accessible to the commander and he or she ignores it, he or she incurs criminal responsibility. This failure might be either negligent (the commander fails to perceive the risk he or she should perceive) or reckless (the commander perceives the risk but consciously disregards it). The “negligence standard” for nonmilitary leaders, as provided for in Article 28(b)(i) of the ICC Statute, is higher and only met when the defendant “consciously disregarded information that clearly indicated . . . such crimes.” This formulation presents a threshold of “willful blindness” that is situated between positive knowledge and recklessness. A concise interpretation of willful blindness is provided in Bonafé 2007. While the military leader must take any information into account, the civilian leader must pay attention only to information “clearly indicating the crimes,” setting a higher evidentiary threshold for the prosecution.

                                                                                                                                                                                      • Bonafé, Beatrice I. “Finding a Proper Role for Command Responsibility.” Journal of International Criminal Justice 5.3 (2007): 599–618.

                                                                                                                                                                                        DOI: 10.1093/jicj/mqm030Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                        The contribution focuses on the ICTY’s and ICTR’s restrictive approach to the doctrine of command responsibility and highlights that the tribunals favored a double imputation, connecting command responsibility with JCE. Bonafé also pays attention to some critical objective and subjective issues of the doctrine, such as the importance of the “effective control” criterion. Available online for purchase or by subscription.

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                                                                                                                                                                                        • Eboe-Osuji, Chile. “Rape and Superior Responsibility: International Criminal Law in Need of Adjustment.” In Protecting Humanity. Essays in International Law and Policy in Honour of Navanethem Pillay. Edited by Chile Eboe-Osuji, 141–164. Leiden, The Netherlands: Nijhoff, 2010.

                                                                                                                                                                                          DOI: 10.1163/ej.9789004183780.i-882.38Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                          The author criticizes that Article 28 would de lege lata not oblige superiors to take reasonable countermeasures at all times but only in those cases when sufficient information for the “should-have-known” standard existed. She examines the value of the doctrines of JCE and ordering, planning/instigating, and aiding and abetting in order to compensate for the lacunae of the command responsibility doctrine.

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                                                                                                                                                                                          • Karsten, Nora. “Distinguishing Military and Non-military Superiors: Reflections on the Bemba Case at the ICC.” Journal of International Criminal Justice 7.5 (2009): 983–1004.

                                                                                                                                                                                            DOI: 10.1093/jicj/mqp071Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                            Karsten undertakes an attempt to properly separate the two different categories of military and nonmilitary superiors. In this context, she strives for the differentiating criterion of belonging to a group that is serving as a party to the armed conflict (resulting in the military function of the commander) or to a group that does not pursue this objective. Available online for purchase or by subscription.

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                                                                                                                                                                                            • Meloni, Chantal. “Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?” Journal of International Criminal Justice 5.3 (2007): 619–637.

                                                                                                                                                                                              DOI: 10.1093/jicj/mqm029Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                              Meloni examines the character of the crime embodied in Article 28 and reads it as a responsibility sui generis. She stresses the importance of differentiating between military and nonmilitary commanders and studies the objective and subjective elements for attribution, such as the necessary causality nexus to the crimes and the conscious negligence standard for nonmilitary commanders. Available online for purchase or by subscription.

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                                                                                                                                                                                              • Nerlich, Volker. “Superior Responsibility under Article 28 ICC Statute: For What Exactly Is the Superior Held Responsible?” Journal of International Criminal Justice 5.3 (2007): 665–682.

                                                                                                                                                                                                DOI: 10.1093/jicj/mqm033Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                Nerlich inquires the point of reference of the superior’s responsibility under Article 28. He distinguishes two different concepts: In case of the superior’s knowledge of the crimes, he or she is directly liable for the subordinates’ crimes; if knowledge is lacking, the superior is responsible for his or her failure to properly control or supervise the subordinates. Available online for purchase or by subscription.

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