Indirect co-perpetration: a useful prosecutorial tool or an excessive amplification of individual liability?

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In seeking to escape its predecessor’s reputation, the ICC rejected the ‘mechanical’ import of the JCE doctrine and decided to apply a normative approach and Roxin’s theory of the control over the crime in interpreting liability under Article 25(3) of the Rome Statute (‘RS’). However, as a result of this decision, the ICC was confronted with the issue of ‘combining vertical and horizontal modes of liability’ when determining the liability of those on top of criminal organizations.

To address the challenge, the ICC has resorted to the ‘novel’ concept of indirect co-perpetration. In this sense, the Court has combined two modes of liability previously imported to its jurisprudence: (i) co-perpetration or the joint control over the crime, and (ii) indirect perpetration or perpetration through another.

The first time the Court had to explain the reasons behind this  joint application was in Katanga and Ngudjolo. The Pre-Trial Chamber I challenged the defense’s argument against applying the modes jointly, considering that the connective “or” in Article 25(3)(a) might confer two meanings under a strict textualist interpretation: one weak or inclusive and another, strong or exclusive. According to the Chamber, while the inclusive disjunction referred to ‘either one or the other, and possibly both’, the exclusive disjunction referred to ‘either one or the other, but not both’. Therefore, in the Court’s view, an individual’s responsibility could be, according to the RS, based upon ‘the joint commission of a crime through one or more persons.’

Furthermore, the Chamber found that no legal grounds limited joint commission of the crime only to those cases in which the perpetrators executed a portion of the crime by exercising direct control over it; ‘Rather, through a combination of individual responsibility for committing crimes through other persons together with the mutual attribution among the co-perpetrators at the senior level, a mode of liability arises which allows the Court to assess the blameworthiness of “senior leaders” adequately.’

But what are the advantages of this novel mode?

Indirect co-perpetration solves problems arising from applying the control theory to cases where the perpetrators are a group of leaders materially distanced from the crime and whose main contributions are the ‘creation’ and ‘direction’ of a plan carried out by subordinates acting within an organization under their control.

In this sense, it covers three different situations. First, circumstances where each indirect perpetrator cooperates at the leadership level to combine various organizations under their control that will materially perpetrate the crimes (vertical organizations are separated and uncoordinated, with the top-level leadership being the only coordinated element). Second, cases where the high-ranking officials collaborate in directing branches of the State to implement a common plan jointly. Third, situations where a horizontal group of military and political leaders each controls a vertical branch of governmental authority but where only some vertical branches are engaged in the material perpetration of crimes.

Hence, according to some scholars, indirect co-perpetration theory may adequately reflect the combination of horizontal and vertical relationships usually present behind the commission of international crimes generally perpetrated by several individuals or organizations in a complex manner. Thus, its necessity and usefulness have been argued on the basis that joint control is required over crimes, mainly because a single individual will only exceptionally be able to accumulate such a degree of control to coordinate the commission of offenses.

The theory also appears to be essential if one considers that as a last resort court, the ICC is devoted to hearing high-rank cases, often dealing with multiple governmental or similarly organised structures employed to commit the atrocities planned at the top.

Are there any risks in its application? 

According to the ‘control theory,’ participants and accessories are distinguished based on their functional domain over the crime: their possibility of determining whether and how the crimes will be committed. However, despite being repeatedly invoked in the ICC’s jurisprudence, thistheory has been widely critiqued for its breadth, complexity, poor reflection of reality, and applicability in the international arena.

In the Lubanga case, Judge Fulford stated that the distinction between perpetrators and accessories was unnecessary and could not be read into the RS and that joint commission under the Statute did not require an essential contribution by each perpetrator. Likewise, Judge Van den Wyngaert in her concurring opinion in the Ngudjolo case, stated that the control theory was not consistent with the ordinary meaning of Article 25(3)(a) RS and that the Article didn’t create a blameworthiness’ hierarchy.

To some, the most problematic issue is that the importation of a hierarchy thesis has no basis in the text of the RS nor in travaux préparatoires, as Article 25(3) RS doesn’t indicate a greater degree of responsibility for those perpetrating crimes under paragraph (a) than those in paragraphs (b)-(d). Some consider that the hierarchy thesis doesn’t correspond with the sentencing regime, according to which the Court may impose any sentence considering the gravity of the crime and the defendant’s individual circumstances.

Furthermore, and regarding the second manifestation of the ‘control theory,’ some question whether it is needed at the international level, arguing that Article 25(3) RS only covers perpetration through another person. Thus, they insist on sticking to the autonomy principle that punishes commanders and leaders at the top of organizations for instigation. In the same vein, some have highlighted the apparent contradiction in the theory: those physically committing the acts cannot at the same time be criminally responsible for their acts as free agents and be mere instruments of their leaders.

However, it is also possible to find certain imprecisions in the concept of indirect co-perpetration. Firstly, in the cases applied so far, the ICC has not considered or entirely developed the concept of dolus eventualis.It is not clear if indirect co-perpetration requires the crimes to be at least a necessary consequence of the execution of the common plan or if its conception is broader, including the possible awareness of the defendant that the crimes will occur in the natural course of events.

Secondly, indirect co-perpetration allows the conviction for crimes committed by an organization under another defendant’s control. Suppose we add the element of dolus eventualis to this form. In that case, the conviction will be possible even if the co-perpetrators do not agree upon the specific crimes in the common criminal plan. Substantially, the result will be the same as using JCE III.  Both co-perpetrators of the crimes are considered principals, although their attitude and participation in the crime are different, and their mens rea may also be different. One controlled the organization and had full intent to commit the violations, while the other might not have desired the commission of the crimes but realised that they might occur. However, both are convicted as principals of the offense and may have the same sentence and blameworthiness imposed. Therefore, this mode might open the possibility to reintroduce the feared JCE III where negligent actions or risky behaviours are equally punishable as direct offenses.

So, is this mode of liability really necessary?

The cases covered by indirect co-perpetration could be resolved by applying different modes of liability: mainly a combination of indirect perpetration and instigation.

As described by the Ad Hoc Tribunals, instigation refers to behaviors that promote, urge, or encourage another to commit a crime. Likewise, at the ICC, this mode has been understood as referring to actions/omissions that cause or induce another person to commit a crime.

In this regard, if leader (A) agrees for the crimes to be perpetrated through its organization in collaboration with Leader (B), who at the time controls a different organization; leader (A) will be: (i) indirectly responsible for the crime committed by its subordinates acting within the organization under his control; and (ii) liable as an instigator concerning the crimes committed by leader (B) through his organization. This because of the different degrees in control and nature of his role in both organizations and crimes. Regarding the crimes committed by his organization, leader (A) controls the crime. Thus, he perpetrates them indirectly through the organization under his direction. However, regarding the crimes committed by Leader (B)’s organization, he does not hold any control and does not contribute essentially to their commission: he merely influences Leader (B)        to commit the offences through the organization under his control.

This double solution allows us to keep the distinction between the intention, mens rea, and level of participation of the leaders regarding two different organizations. Furthermore, it enables us to avoid prosecuting persons for risky behaviours while keeping the option to hold them responsible for creating and promoting the commission of crimes.

The theory of indirect co-perpetration can be a useful tool in prosecuting complex cases and covering situations that might be excluded by the individual application of each of the control theory elements or the textual reading of the Statute. This theory plays a pivotal role in understanding the real nature of international crimes and attributing responsibility to those on top of the organizations. Nevertheless, it also represents a high and even undesirable risk for the rights of the accused as it constitutes a needless amplified mode of liability.

The lack of clear criteria to determine which kinds of organizations are covered, the degree of control necessary for its application, and the absence of a straightforward approach towards the dolus eventualis make the theory too broad. This allows prosecutors to ‘cover all’ while disregarding the specific elements of each mode of commission in determining an individual’s responsibility. The implications indirect co-perpetration has on the accused’s due process rights, including the right to a fair trial, are more than evident.

Likewise, the association and similarity of the theory with problematic old ideas makes it hard for the Court to resort to the theory. As witnessed in the Appeal ruling in Ntaganda, judges and scholars are still puzzled.

Finally, the risks of applying indirect co-perpetration theory may be unnecessary. By applying an empirical system of top-down responsibility, the benefits of using the indirect co-perpetration theory could still be achieved: those on top of the organization will be liable as instigators rather than as co-perpetrators, but the blameworthiness would be the same.