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Current Trends in the Definition of ‘Perpetrator’ by the International Criminal Court: From the Decision on the Confirmation of Charges in the Lubanga case to the Katanga judgment***

Published online by Cambridge University Press:  24 April 2015

ALICIA GIL GIL  and
ELENA MACULAN
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Abstract

The jurisprudence of the International Criminal Court (ICC) up to the Lubanga judgment showed definite interpretive trends on the modes of principal liability. This article aims first to make a critical assessment of these trends by focusing on methodological and substantive aspects. On the one hand, the practice of having resort to theories derived from Continental legal systems, albeit legitimate, is based on a methodology that raises some concerns as to the selection and (mis)interpretation of such theories. On the other hand, the Court has clearly adopted a wide interpretation of some critical elements in which the different modes of principal liability are grounded. This choice has caused a significant expansion of the scope of principal liability as well as a breach of the principles of legality and of individual criminal responsibility. In our opinion, the underpinning of these interpretations is a flawed understanding of the criteria for distinguishing between principals and accessories.

This perspective has been overturned by the Katanga judgment, on which the second part of this article will focus. This judgment correctly argues that the distinction between perpetrators and accomplices is grounded only on the autonomous or vicarious character of their contribution to the offence. Furthermore, it follows a partly different approach as to both the methodology and the interpretation of the constitutive elements of principal liability. In our view, this approach better fits both the relevant statutory provision and the basic principles of criminal law.

Keywords

control over the crimeco-perpetrationindirect perpetrationKatangaLubanga
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Information
Leiden Journal of International Law , Volume 28 , Issue 2 , June 2015 , pp. 349 - 371
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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Footnotes

***

This article is the result of research conducted in the framework of the research project ‘Criminal responsibility in International Criminal Law. Modes of liability for international crimes’ (reference: DER2009-07236) funded by the Ministry of Economy and Competitiveness (Spain) and directed by Prof. Alicia Gil Gil. The results of the project are collected in A. Gil Gil, (dir.), E. Maculan (coord.), Intervención delictiva y Derecho penal internacional: Reglas de atribución de responsabilidad en crímenes internacionales (2013).

References

1 Lubanga was convicted by the ICC as a co-perpetrator of the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities: Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Art. 74 of the Statute, ICC-01/04-01/06-2842, T.Ch. I, 14 March 2012. The judgment and the sentencing judgment have been upheld on appeal: Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, A. Ch., and Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the ‘Decision on Sentence pursuant to Article 76 of the Statute’, ICC-01/04-01/06-3122, A. Ch., both of 1 December 2014. Katanga was indicted before the ICC for a number of crimes committed during the attack against the village of Bogoro on 24 February 2003 by the Ngiti militia of the rebel group of Walendu-Bindi and Lendu. He was finally convicted for the crime against humanity of murder and for the war crimes of murder, attacking a civilian population, and destruction of property and pillaging; however, he was acquitted of the charges of rape and sexual slavery (both as war crimes and crimes against humanity) as well as of the charge of using children under 15 to participate actively in hostilities: Le Procureur c. Germain Katanga, Jugement rendu en application de l'article 74 du Statut, ICC-01/04-01/07, T.Ch. II, 7 Mars 2014. He was sentenced to 12 years’ imprisonment. The judgment and the sentencing judgment have become final following the discontinuation of the appeals. Katanga's co-defendant, Mathieu Ngudjolo Chui, had already been acquitted of all of the charges after the severing of his case from Katanga's case: see Prosecutor v. Mathieu Ngudjolo Chui, Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-3, T. Ch. II, 18 December 2012.

2 Weigend, T., ‘Problems of Attribution in International Criminal Law’, (2014) 12 JICJ 253Google Scholar.

3 See the comparative study of Sieber, U. and Cornils, K. (eds.), Nationales Strafrecht in rechtsvergleichender Darstellung (2010)Google Scholar.

4 Werle, G. and Burghardt, B., ‘Coautoría mediata: ¿desarrollo de la dogmática jurídico penal alemana en el Derecho penal internacional?’, (2011) 28 Revista penal 197Google Scholar, at 198–9.

5 Judge Fulford criticizes the idea of an existing division between the modes of liability encompassed in Art. 25(3) ICC Statute; he argues instead that these concepts ‘will often be indistinguishable in their application vis-à-vis a particular situation’: Separate Opinion of Judge Fulford, attached to the Lubanga judgment, supra note 1, para. 7 [hereinafter Separate Opinion Fulford].

6 Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, ICC-01/04-01/06-803, P.-T. Ch. I, 29 January 2007, paras. 332, 346 et seq. [hereinafter Lubanga DCC].

7 For the main criticisms of this theory, see, inter alia, Ohlin, J. D., ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’, (2007) 5 JICJ 69Google Scholar; K. Ambos, Treatise on International Criminal Law (2013), Vol. I, at 172–6; Badar, M. E., ‘“Just Convict Everyone!” – Joint Perpetration: From Tadić to Stakić and Back Again’, (2006) 6 ICLR 293Google Scholar; Gutiérrez Rodríguez, M., ‘Joint Criminal Enterprise ¿una especie jurídica en vías de extinción en el derecho penal internacional?’, in Gil, A. and Maculan, E. (eds.), Intervención delictiva y Derecho penal internacional: Reglas de atribución de responsabilidad en crímenes internacionales (2013), at 413Google Scholar. Yet, JCE is still applied by other international and hybrid criminal courts. The ECCC, for example, have accepted JCE in its first two variants (however, rejecting JCE III); see Gustafson, K., ‘ECCC Tackles JCE’, (2010) 8 JICJ 1323Google Scholar; Marsh, L. and Ramsden, M., ‘Joint Criminal Enterprise: Cambodia's Reply to Tadic’, (2011) 11 ICLR 137Google Scholar.

8 A similar view is held by Cupido, M., ‘Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration’, in van Sliedregt, E. and Vasiliev, S. (eds.), Pluralism in International Criminal Law (2014)Google Scholar. The author argues that the interpretation of both forms of liability in relevant case law ends up making them an autonomous crime, similar to the crime of participation in a criminal organization. In contrast, Ohlin points out the inconsistencies of both the JCE and the control theory as applied by the ICC, and concludes by asserting the need for a new, alternative rationale to ground individual responsibility for collective criminal action. He develops a proposal based on the concept of joint or shared intentions; see: J. D. Ohlin, ‘Joint Intentions to Commit International Crimes’, Paper 169 Cornell Law Faculty Publications (2011), available at <http://scholarship.law.cornell.edu/facpub/169> (accessed 29 January 2014).

9 This tendency is also followed in the jurisprudence of domestic courts in Latin American countries when dealing with international crimes: see E. Maculan, ‘La fertilización cruzada jurisprudencial y los modelos de responsabilidad’, in Gil and Maculan, supra note 7, 69.

10 See Section 2.2.2., infra.

11 Jessberger, F. and Geneuss, J., ‘On the Application of a Theory of Indirect Perpetration in Al Bashir. German Doctrine at The Hague?’, (2008) 6 JICJ 853Google Scholar; van Der Wilt, H. G., ‘The Continuous Quest for Proper Modes of Criminal Responsibility’, (2009) 7 JICJ 307Google Scholar; Weigend, T., ‘Intent, Mistake of Law, and Co-Perpetration in the Lubanga Decision on Confirmation of Charges’, (2008) 6 JICJ 471Google Scholar, at 479.

12 The ICC adopts this concept as developed by C. Roxin, Täterschaft und Tatherrschaft (2000); see also Roxin, C., ‘Crimes as Part of Organized Power Structures’, (2011) 9 JICJ 193Google Scholar.

13 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, P.-T.Ch. I, 30 September 2008, paras. 500–39, although later modified [hereinafter Katanga and Ngudjolo DCC]; Prosecutor v. Abdullah Al-Senussi, Warrant of Arrest, ICC-01/11-01/11-4, 30 June 2011, at 11.

14 This mode of liability has been applied in the Lubanga case (see Lubanga DCC, paras. 317 et seq.; Lubanga Judgment, para. 978), in the Banda and Jerbo case (Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Corrigendum of the Decision on the confirmation of charges, ICC-02/05-03/09-121-Corr-Red, 7 March 2011), and in Prosecutor v. Omar Hassan Ahmad Al Bashir, Warrant of Arrest, ICC-02/05-01/09-1, P.-T.Ch. I, 4 March 2009, paras. 210 et seq.

15 Although recalling that doctrine and case law have also developed other theories to define indirect perpetration, the Court has argued that ‘the cases most relevant to international criminal law are those in which the perpetrator behind the perpetrator commits the crime through another by means of “control over an organisation”’: Katanga and Ngudjolo DCC, para. 498. The possibility of labelling an individual as an indirect perpetrator even if the direct perpetrator is criminally responsible is expressly envisaged in the ICC Statute, in so far as Art. 25(3)(a) states: ‘regardless of whether that other person is criminally responsible’.

16 Roxin, Täterschaft, supra note 12, at 242. The constitutive elements on which Roxin bases this construction are: first, an organization whose hierarchical structure and number of members ensure automatic compliance with the orders given by the leader; second, the requirement that the organized power structure as a whole must operate outwith the law; third, the leader's effective power to give orders; fourth – and most importantly – the interchangeability of subordinates with respect to the compliance with orders (and, similarly, with respect to the execution of the crimes). This doctrine has given rise to a great debate in Germany, Spain, and Portugal; for an overview see K. Ambos, Der Allgemeine Teil des Völkerstrafrectcht (2002), at 590; P. Faraldo Cabana, Responsabilidad penal del dirigente en estructuras jerárquicas (2003), at 88.

17 E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), at 169.

18 See Weigend, supra note 2, at 258 et seq., welcomes this novel mode of ‘cross liability’. He also argues that it had already been developed in German jurisprudence and literature, despite being controversial within that system.

19 Katanga and Ngudjolo DCC, para. 525. Judge Van den Wyngaert rejects this construction because it goes beyond the terms of the Statute, therefore amounting to a violation of the principle of legality enshrined in Art. 22: see Concurring Opinion of Judge Christine Van den Wyngaert, attached to the Ngudjolo Chui Judgment (hereafter Conc. Opinion Van den Wyngaert), paras. 7 and 58–64.

20 On the case law applying this figure, see H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (2009), at 302, and, more recently, H. Olásolo, Tratado de Autoría y Participación en Derecho Penal Internacional (2013) at 563.

21 See section 3, infra.

22 McAuliffe de Guzman, M., ‘Article 21’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), at 708Google Scholar–11.

23 Lubanga DCC, paras. 330 et seq. The only American scholar mentioned is G. Fletcher, Rethinking Criminal Law (2000), at 639. Fletcher argues that virtually all of the legal systems recognize the principal responsibility of the individual who commits a crime using another as an instrument (‘perpetration by means’), but refers only to cases where the use was made of an innocent or non-responsible agent. One may wonder, therefore, if this reference is in itself sufficient to support the notion that the wide concept of control over the crime as employed by the Court (namely, including the use of a criminally responsible agent) finds recognition in common law systems. A similar remark is made by Manacorda, S. and Meloni, C., ‘Indirect Perpetration versus Joint Criminal Enterprise’, (2011) 9 JICJ 159Google Scholar, at 170.

24 Katanga and Ngudjolo DCC, para. 504.

25 Ibid., note 666. The Court quotes German, Peruvian, Chilean, Argentinean, and Spanish jurisprudence. For an overview of this jurisprudence, see Muñoz Conde, F. and Olásolo, H., ‘The Application of the Notion of Indirect Perpetration through Organized Structures of Power in Latin America and Spain’, (2011) 9 JICJ 113Google Scholar; Maculan, supra note 9. Van Sliedregt points out that, since the Spanish and Latin-American approach is highly influenced by the German one, in the end only the latter system lies at the basis of the control theory: van Sliedregt, E., ‘Perpetration and participation in Article 25(3) of the Statute of the International Criminal Court’, in Stahn, C. (ed.), The Law and Practice of the International Criminal Court (2015)Google Scholar, available at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492710> (accessed 29 January 2015), at 12.

26 See Sieber and Cornils (eds.), supra note 3, demonstrate that many countries do not recognize indirect perpetration: e.g., the Chinese criminal code applies a wide concept of direct perpetration (at 7); under the French criminal code, the indirect perpetrator is punished as an instigator (at 79). They also note that within several criminal systems indirect perpetration is admitted only with an innocent agent: for instance, in England and Wales (at 55), in the US Model Penal Code, para. 2.06(2)(a), and in Ivory Coast (at 35 and 362).

27 In Peru, a few months after the judgment convicting Fujimori based on Roxin's theory of indirect perpetration through the control over an organization (see infra, note 30), the Supreme Court asserted that indirect perpetration does not apply in cases in which the direct perpetrator is criminally responsible: Corte Suprema de Justicia de Perú, Sala Permanente, Grupo Colina case (RN N. 4104-2010), Judgment of 13 June 2013. It opted instead for the normative concept of perpetration developed by Jakobs; see Jakobs, G., ‘Sobre la autoría del acusado Alberto Fujimori’, in Ambos, K. and Meíni, I. (eds.), La autoría mediata. El caso Fujimori (2010), at 110Google Scholar.

28 The PTC quotes for example a judgment by the Spanish Supreme Court (Tribunal Supremo) of 2 July 1994 as if it applied indirect perpetration by virtue of an organized power apparatus, although in reality it did not apply this theory. The PTC also quotes another Spanish decision (Juzgado Central de Instrucción No. 5 of the Audiencia Nacional (Investigating Judge of the Spanish High Court), Decision of 29 March 2006), in which the judge simply mentions the concept of indirect perpetration as a possible ground for charging the accused, together with the instigation or commission by way of omission. For discussion of these decisions, see Gil, A., ‘El caso español’, in Ambos, K. (ed.), Imputación de crímenes de los subordinados al dirigente (2009), at 87Google Scholar.

29 F.-C. Schröder, Der Täter hinter dem Täter. Ein Beitrag zur Lehre von der mittelbaren Täterschaft (1965).

30 The most relevant case is the conviction of former Peruvian President Alberto Fujimori by the Peruvian Supreme Court: Corte Suprema de Justicia del Perú, Sala Penal Especial, Alberto Fujimori (Exp. No. 19-2001-09-A.V.), Judgment of 7 April 2009, subsequently upheld by Primera Sala Transitoria, Judgment of 30 December 2009. In relation to this case, see Ambos, K., ‘The Fujimori Judgment: A President's Responsibility for Crimes against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, (2011) 9 JICJ 137Google Scholar. This judgment combines the traditional requirements of Roxin's construction with others taken from the doctrine developed by Schröder in order for the judgment to arrive at an ‘integrated’ position. See C. Roxin, ‘Apuntes sobre la sentencia Fujimori de la Corte Suprema del Perú’, in Ambos and Meíni (eds.), supra note 27, at 100–1.

31 See Katanga and Ngudjolo DCC, para. 511: ‘The organization must be composed of sufficient subordinates to guarantee that superiors’ orders will be carried out, if not by one subordinate, then by another. The subordinated are used as “a mere gear in a giant machine”’.

32 See Roxin, Täterschaft, supra note 12.

33 See, e.g., the Fujimori Judgment, supra, note 30. On the contrary, the German Federal Supreme Court has not required this element, see G. Werle and B. Burghardt, ‘The German Federal Supreme Court (Bundesgerichtshof, BGH) on Indirect Perpetration, Introductory Note’, (2011) 9 JICJ, at 210. Latin-American jurisprudence does not show a consistent position on the need for this element (see Maculan, supra note 9).

34 See Section 2.2., infra.

35 See Roxin, Täterschaft, supra note 12, at 292; M. Gutiérrez Rodríguez, La responsabilidad penal del coautor (2001), at 369, with further citations. Accordingly, co-perpetration in England and Wales is limited to cases where ‘both (or more) of the accused act together to produce the actus reus jointly’, see Cryer, R., ‘Imputation and Complicity in Common Law States’, (2014) 12 JICJ 267Google Scholar, at 272–3. The Chamber itself quotes authors in favour and against this idea. However, it does not explain why one solution should be preferred to another.

36 Cassese, A., ‘L'influence de la CEDH sur l'activité des Tribunaux pénaux internationaux’, in Cassese, A. and Delmas-Marty, M. (eds.), Crimes internationaux et juridictions internationales (2002), at 143CrossRefGoogle Scholar. The author contrasts it with the ‘approche sage’ – the approach based on a rigorous legal approach, which recognizes the predominance of the sources of international criminal law and uses the jurisprudence of other bodies and courts as a simple ‘auxiliary means of determination’.

37 This observation is made by Werle and Burghardt, supra note 4, at 201, referring to the efforts of the ICC to assert the international recognition of indirect perpetration by virtue of the control over an organized power apparatus.

38 See Separate Opinion Fulford, para. 10, and Conc. Opinion Van den Wyngaert, para. 5, the latter stating that ‘this direct import from the German legal system is problematic. Considering its universalist mission, the Court should refrain from relying on particular national models, however sophisticated they may be’. Both judges advocate, instead, for a plain reading of Art. 25(3), although with somewhat different proposals.

39 This is what the Appeals Chamber claims to have done in the recent judgment on appeals: Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06 A 5, A. Ch., 1 December 2014 [hereinafter Lubanga Appeal Judgment]. In assessing the argument made by the defendant, that the control over the crime approach followed by the Trial Chamber ‘was first developed in domestic legal doctrine, which is, as such, not applicable at the Court’, the Appeals Chamber states ‘that it is not proposing to apply a particular legal doctrine or theory as a source of law. Rather, it is interpreting and applying Article 25 (3) (a) of the Statute. In so doing, the Appeals Chamber considers it appropriate to seek guidance from approaches developed in other jurisdictions in order to reach a coherent and persuasive interpretation of the Court's legal texts’ (ibid., para. 470).

40 See Section 3.2, infra.

41 See: Lubanga DCC, para. 343; Lubanga Judgment, para. 999. The criterion has also been upheld in the recent Lubanga Appeal Judgment, para. 469. Similarly, Ohlin, J. D., ‘Searching for the Hinterman’, (2014) 12 JICJ 329Google Scholar. The other requirements for co-perpetration are the existence of an agreement or common plan and the mens rea regarding the implementation of the plan.

42 Lubanga Judgment, para 347; in similar terms, Lubanga Appeal Judgment, para. 473. See also: Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373, P.-T.Ch. II, 23 January 2012 , para. 308 [hereinafter Ruto, Kosgei and Sang DCC].

43 Ohlin, J. D., van Sliedregt, E., and Weigend, T., ‘Assessing the Control-Theory’, (2013) 26 LJIL 725CrossRefGoogle Scholar, at 727.

44 Gutiérrez, supra note 35, at 414. See also Wirth, S., ‘Co-Perpetration in the Lubanga Trial Judgment’, JICJ, 10 (2012), 971Google Scholar, at 987, arguing that the test is unhelpful whether it refers to the offence in concreto or in abstracto.

45 Lubanga Judgment, para. 1269. See, in detail, Gil, A., ‘Responsabilidad penal individual en la sentencia Lubanga. Coautoría’, in Ambos, K. and Malarino, E. (eds.), El caso Lubanga. Un análisis de la primera sentencia de la Corte Penal Internacional (2014), 263Google Scholar, at 280. Ohlin et al., supra note 43, at 732, after having criticized the ambiguous ‘essential contribution’ criterion, suggests to look for a ‘cluster of factors’ which indicate a ‘central’ role in a criminal enterprise, and which include both objective and subjective factors.

46 See also K. Ambos, Internationales Strafrecht (2011), at 159. For a criticism, see Fernández Ibáñez, E., ‘¿Constituye la fungibilidad del ejecutor inmediato un presupuesto estructural imprescindible?’, (2005) 1 Revista de Derecho penal, 337Google Scholar, at 361.

47 ‘The Appeals Chamber considers that the most appropriate tool for conducting such an assessment is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission, even if that essential contribution was not made at the execution stage of the crime’ (Lubanga Appeal Judgment, para. 473, emphasis added).

48 Lubanga DCC, para. 348.

49 The decision (ibid., footnote 425) quotes Roxin, Täterschaft und Tatherrschaft (2000), at 294, 299; Mir Puig, Derecho penal. Parte general (2000), at 385; Herzberger, Täterschaft und Teilnahme (1977), at 65 et seq.; Köhler, Strafrecht. Allgemeiner Teil (1997), at 518.

50 Roxin, Täterschaft, supra note 12, at 292; Gutiérrez, supra note 35, at 369.

51 See also for further references: Gutiérrez, supra note 35, at 392.

52 See, e.g., F. Muñoz Conde, ‘¿Cómo imputar a título de autores a las personas que, sin realizar acciones ejecutivas deciden la realización de un delito en el ámbito de la delincuencia organizada y empresarial?’, (2001) Modernas tendencias en la Ciencia del Derecho penal y en la Criminología, 512 (quoted in the decision under discussion).

53 This is the conclusion reached, after a thorough analysis of different positions, by E. Fernández Ibáñez, La autoría mediata en aparatos organizados de poder (2006), at 283.

54 Separate Opinion Fulford, para. 12, and Conc. Opinion Van den Wyngaert, paras. 41–2. Judge Fulford instead adopts the test of a causal, ‘operational’ link between the individual's contribution and the crime (ibid., para. 15), whereas Judge Van den Wyngaert proposes the criterion of direct contribution for a person to be labelled as a (co-)perpetrator, i.e. that the contribution has ‘an immediate impact on the way in which the material elements of the crimes are realized’ (ibid., para. 46) regardless of the physical presence of the joint perpetrator on the scene of the crime.

55 The same remark is made in Separate Opinion Fulford, para. 11.

56 This is the definition reflected in Art. 28 of the Spanish criminal code.

57 See M. Díaz y García Conlledo, La autoría en Derecho penal (1991), at 677, 689. For a view on the discussion on the German and Spanish literature on this question, see Ambos, supra note 16, at 562; V. García Del Blanco, La coautoría en Derecho penal (2006).

58 See Vest, H., ‘Problems of Participation. Unitarian, Differentiated Approach, or Something Else?’, (2014) 12 JICJ 295Google Scholar, at 301, with further citations, and Cryer, supra note 35.

59 Rule 145(1)(c) of the ICC Rules of Procedure and Evidence (‘Determination of the sentence’) provides that the Court should consider every relevant factor, inter alia, ‘the degree of participation of the convicted person’. On this point, see Vest, supra note 58, at 300, 303.

60 See further section 2.3.infra.

61 For instance, in the Ruto, Kosgey and Sang DCC, para. 301, the Court required the inclusion of the crime in the common plan: ‘The first objective element for indirect co-perpetration is the existence of a common agreement or a plan among those who fulfil the elements of the crime through another person. As established in the jurisprudence of the Court, the agreement or plan must include an element of criminality, meaning that it must involve the commission of a crime with which the suspect is charged’ (emphasis added).

62 Lubanga Judgment, para. 984; Katanga and Ngudjolo DCC, paras. 566–7 and 569.

63 Lubanga Trial Judgment, para. 984.

64 Ambos, K., ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’, (2012) 12 ICLR 115Google Scholar, at 140. A similar position can be found in Conc. Opinion Van den Wyngaert, para. 31: ‘By focusing on the realization of a common plan, the mens rea and actus reus requirements are now linked to the common plan instead of to the conduct of the actual physical perpetrators of the crime . . . the Statute does not contain a form of criminal responsibility that is based on the mere acceptance of a risk that a crime might occur as the consequence of personal or collective conduct’ (emphasis added).

65 See Katanga and Ngudjolo DCC, paras. 567–9. Judge Ušacka, in her Dissenting Opinion to this Decision, found that the prosecution failed to present sufficient evidence to establish that the suspects were really aware that their conduct would certainly result in the commission of those crimes; see Partly Dissenting Opinion of Judge Anita Ušacka, paras. 19–23. Both defendants were finally acquitted of these charges. Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, P.-T.Ch. II, 23 January 2012, para. 415, found that ‘Muthaura and Mr. Kenyatta knew that rape was a virtually certain consequence of the implementation of the common plan’, thereby labelling them as co-perpetrators of that offence.

66 For more detail about this problem, see Gil, A., ‘Mens Rea in Co-Perpetration and Indirect Perpetration according to Article 30 of the Rome Statute. Arguments against Punishment for Excesses Committed by the Agent or the Co-perpetrator’, (2014) 14 ICLR 82Google Scholar.

67 The same view is held by Ohlin et al., supra note 43, at 17–8.

68 In the same sense, Ambos, supra note 16, at 558, with further quotations.

69 See Roxin, Täterschaft, supra note 12, § 24, at 244 et seq.; Gil, supra note 66, at 109 et seq.

70 See Gil, supra note 66, at 90. The difference between the two conducts is pointed out also by Ohlin, supra note 8, at 748.

71 See Gil, supra note 66, at 109 et seq.

72 Lubanga Judgment, paras. 1221–2, 1267, 1270.

73 Ibid., para. 1006 (emphasis added).

74 Conc. Opinion Van den Wyngaert, para. 34.

75 Ibid., para. 35.

76 Recently the ICC Chambers have applied other modes of liability provided for in the Statute. In the Bemba case, the initial charge as a perpetrator was later modified into superior responsibility under Art. 28. In the Ruto and Sang case, the ICC charged the second defendant as a participant based on Art. 25(3)(d) (Ruto, Kosgey and Sang DCC, paras. 350 et seq.). The same mode of liability is applied in Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Al Abd-Al-Rahman (‘Au Kushayb’), Warrants of Arrest against Ahmad Harun, ICC-02/05-01/07-2 (para. 12), and in Warrant of Arrest for Ali Kushayb, ICC-02/05-01/07-3-Corr, both by P.-T.Ch. I, 27 April 2007 (para. 13), together with accessory liability under Art. 25(3)(b), in the first case, and with liability as a perpetrator, in the second case.

77 Vest, supra note 58, at 307. Van Sliedregt also points out that this feature contributes to the fading of the distinction between unitary and differentiated systems of criminal participation: Van Sliedregt, supra note 17, at 73–4 and 85.

78 For example, the former President of Liberia, Charles Taylor, was convicted by the Special Court for Sierra Leone (SCSL) for both aiding and abetting and for planning the commission of a number of war crimes and crimes against humanity. Yet, despite having labelled him as an accomplice, the SCSL imposed upon him a sentence of imprisonment for a term of 50 years, which is much harsher than the sentence imposed by the ICC on Lubanga for co-perpetration. See SCSL, Prosecutor v. Charles Taylor, Judgment, SCSL-03-01-T, T. Ch. II, 18 May 2012, and Sentencing Judgment, SCSL-03-01-T, 30 May 2012. The sentence was upheld by the Appeals Chamber (Judgment, SCSL-03-01-A, A. Ch., 26 September 2013). Similarly, an interesting study on ICTY sentencing practice shows that the higher penalties were imposed on defendants who were convicted for planning or instigating the crimes, which is accomplice liability: see Holá, B., Smeulers, A., Bijleveld, C., ‘Is ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice’, (2009) 22 LJIL 79CrossRefGoogle Scholar, at 91.

79 The same view is held by van Sliedregt, E., ‘The Curious Case of International Criminal Liability’, (2012) 10 JICJ 1172Google Scholar, at 1184–5.

80 However, both Separate Opinion Fulford (paras. 6–9) and Conc. Opinion Van den Wyngaert (paras. 22–4) expressly reject the idea that Art. 25(3) sets a hierarchy of blameworthiness. For an overview of this debate, see Ohlin et al., supra note 43, at 740–5.

81 Lubanga Trial Judgment, para. 999. The recent judgment on appeals in the same case has confirmed this view: ‘a person who is found to commit a crime him- or herself bears more blameworthiness than a person who contributes to the crime of another person or persons’ (Lubanga Appeal Judgment, para. 462).

82 Ibid., para. 998.

83 This criterion has been applied in the Katanga Judgment: see section 3.1., infra. In agreement with this view, see Van Sliedregt, supra note 25, at 21.

84 Scholars have expressed diverging opinions as to what marks the beginning of an attempt in cases of indirect perpetration. For an overview of these different proposals, see C. Roxin, ‘Der Anfang des beendeten Versuchs. Zugleich ein Beitrag zur Abgrenzung von Vorbereitung und Versuch bei den unechten Unterlassungsdelikten’, in Festschrift für Reinhart Maurach zum 70. Geburtstag, Karlsruhe (1972), at 213–3. In our opinion, the indirect perpetrator performs the objective elements of the crime (execution stage) from the moment when he/she, by issuing an order, sets in motion a course of events that, from that moment, unfolds automatically, i.e. without further contributions on his/her part.

85 See Katanga and Ngudjolo DCC, para. 460: ‘in order for an attempt to commit a crime to be punished, it is necessary to infer the intent to further an action that would cause the result intended by the perpetrator, and the commencement of the execution of the act’ (emphasis added).

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

87 Minority Opinion of Judge Christine Van den Wyngaert, ICC-01/04-01/07-3436-AnxI, paras. 19, 43–5 and 58. The majority decision was nevertheless upheld by the Appeals Chamber, which confirmed (Judge Tarfusser dissenting) that Regulation 55 allowed a change in the applicable mode of liability from principal to accessory, but also requested the Trial Chamber to assess whether this re-characterization prejudiced the defendant's right to a fair trial: Prosecutor v. Germain Katanga, Judgment on the appeal of Mr. Germain Katanga against the decision of Trial Chamber II of 21 November 2012, ICC-01/04-01/07 OA 13, A. Ch., 27 March 2013.

88 Katanga Judgment, paras. 1383 et seq.

89 Ibid., para. 1392.

90 Ibid., para. 1382.

91 Ibid., para. 1404 et seq.

92 Ibid., para. 1386 (authors’ translation).

93 Ibid., para. 1384.

94 Ibid., para. 1385 (authors’ translation).

95 Ibid.

96 This criterion was recognized by the Lubanga Trial Judgment, although it also pointed out, albeit not clearly enough, the hierarchy of blameworthiness that exists between principals and accessories.

97 Katanga Judgment, para. 1396.

98 Ibid., para. 1395 (authors’ translation).

99 Ibid., paras. 38 et seq.

100 Ibid., para. 55. Stahn points out that this principle is not really complied with by the Chamber itself, in that it later makes ‘far-reaching interpretations’ of the modes of liability, thereby following the tradition of ‘progressive development of the law’ which it itself criticizes. See Stahn, C., ‘Justice Delivered or Justice Denied? The Legacy of the Katanga Judgment’, (2014) 12 JICJ 809Google Scholar, at 816.

101 The opposite opinion is maintained by Stahn, who argues that it would have been preferable to make a more thorough comparative analysis to check the reception and potential criticism of Roxin's theory in domestic systems: Stahn, supra note 100, at 825.

102 Katanga Judgment, paras. 1408–12. In addition, the Chamber recalls the mens rea requirement, which under this mode of liability includes not only the mental element of the crime with which the defendant is charged, but also the knowledge of the circumstances that allow him/her to have control over the crime, i.e. his/her position in the apparatus and the automatic functioning thereof (paras. 1413–5). The Court does not engage in the analysis of the form of indirect co-perpetration.

103 Ibid., para. 1411.

104 Ibid., para. 1412.

105 Ibid. (authors’ translation).

106 Ibid., para. 1420.

107 Ibid., para. 1630 (authors’ translation).

108 Art. 25(3)(d) makes reference to the concept of ‘common purpose’, but the Trial Chamber recognizes the existence of a common plan as an indicator of that element, although it requires something more than a mere plan. The reasoning concerning this element of accessory liability (common purpose) can therefore be applied, mutatis mutandis, to co-perpetration based on the existence of a common plan, which simply sets a higher threshold.

109 See Katanga Judgment, para. 1632.

110 On the other hand, concerning the charge as a direct co-perpetrator of the war crime of using children under the age of fifteen years to actively participate in hostilities, the Chamber focused only on the performance of the objective elements of this crime by the defendant and concluded that there was no sufficient evidence thereof. Ibid., para. 1086 et seq.

111 See Katanga Judgment, paras. 317–20. Judge Van den Wyngaert already reached this conclusion in her Minority Opinion appended to the decision severing charges, supra note 87.

112 See Stahn, supra note 100, at 815.

113 In this respect, we cannot but agree with Judge Van den Wyngaert's statement that: ‘Courts of criminal justice cannot claim to protect an accused's fundamental rights to a fair trial while making expansive interpretations of articles that define modes of liability’. Conc. Opinion Van den Wyngaert, para. 68.

114 Van Sliedregt argues that the previous Katanga and Ngudjolo DCC was instead ‘blinded by the beauty of Dogmatik and lost sight of the African reality’: van Sliedregt, supra note 25, at 23.

115 Additionally, Art. 28 of the Statute envisages a mode of liability based on a failure to act, which is intended for military and civilian superiors.