perpetrationthroughan organization · three decades later, roxin saw his theory applied by the...

Perpetration through anOrganization

The Unexpected Career of a German Legal Concept

Thomas Weigend*

AbstractIndirect perpetration is a rather novel concept in international criminal law, men-tioned explicitly for the first time in Article 25(3)(a) of the International CriminalCourt (ICC) Statute. In its Katanga and Chui decision, ICC Pre-Trial Chamber Iinterprets the concept of indirect perpetration in a particular manner. CitingGerman legal doctrine, the Pre-Trial Chamber regards as an indirect perpetrator, aperson who uses a hierarchically structured organization to induce others tocarry out a criminal act. It is questionable whether this doctrine is helpful in analys-ing the cases of indirect perpetration in the context of systemic crime; it might bepreferable to ask what it takes to control the will of another person to such anextent as to ‘make him’ commit a crime. The existence of an organization controlledby the perpetrator may be no more than one factor relevant for answering thatquestion.

1. IntroductionIn its decision on the confirmation of charges against Germain Katanga andMathieu Ngudjolo Chui,1 the International Criminal Court (ICC) Pre-TrialChamber I addresses a substantial number of difficult legal issues, some ofthem for the first time. One of the most interesting passages of the decisiondeals with the question of perpetration through another person under Article25(3)(a) ICC Statute. Expanding on the analysis of Article 25(3) in its decisionin Lubanga,2 the Chamber develops the contours of this novel concept of

* Professor of Criminal Law, University of Cologne (Germany); Member of the Board of Editors ofthis Journal. [[email protected]]

1 Decision on the Confirmation of Charges, Prosecutor v. Germain Katanga and Mathieu NgudjoloChui (ICC-01/04-01/07), Pre-Trial Chamber I, 30 September 2008 (‘Katanga and Chui’).

2 Decision on the Confirmation of Charges, Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), Pre-Trial Chamber I, 29 January 2007 (‘Lubanga’), xx 328 et seq., 332, 333.

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Advance Access publication 29 December 2010

� Oxford University Press, 2010, All rights reserved. For permissions, please email: [email protected]

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international criminal law. In doing so, the Chamber draws heavily on theoriesdeveloped in German legal doctrine and jurisprudence, creating the impressionthat these theories are generally recognized in Germany and beyond, and canthus provide a reliable basis for international criminal law. In what follows, Iwill not deal with the methodological question as to how the law under theICC Statute is to be ‘found’, and what role comparative analysis can play inthis endeavour. Instead, I will explain how and to what extent German lawhas adopted the idea that a person can perpetrate a crime by using an organ-ization; to what extent that theory is subject to criticism; and finally, what op-tions the ICC has to accept, reject, or limit the concept presented by Pre-TrialChamber I.

2. Indirect Perpetration in the Pre-Trial ChamberDecision in Katanga and Chui

The accused Germain Katanga and Mathieu Ngudjolo Chui were leaders ofmilitary groups connected with different ethnic groups in the Eastern Congoregion of Ituri. In February 2003, Katanga and Chui developed the commonplan to ‘wipe out’ the village of Bogoro, and their respective troops carried outthat plan in a joint action. In the course of this action, the troops killed manymembers of the civilian population of Bogoro and committed other atrocitiesamounting to war crimes and crimes against humanity. The prosecutorcharged Katanga and Chui as co-perpetrators pursuant to Article 25(3)(a) ICCStatute, based on the theory that they exercised ‘joint control’ over the crimescommitted.3 Since the defendants did not personally take part in the raid,their control over the acts committed by their soldiers could not be based ontheir presence at the place where the offences were committed; instead, thePre-Trial Chamber declared that they jointly committed the war crimes‘through other persons’ under their command, thus combining the modalitiesof co-perpetration and perpetration through another person, both containedin Article 25(3)(a) of the Statute.4

Following the lead of its Lubanga decision, the Chamber defines ‘control’ asthe criterion for distinguishing principal perpetrators (covered by Article25(3)(a) of the Statute) from mere accessories. In Lubanga,5 the Pre-Trial

3 Katanga and Chui, supra note 1, x 473. The prosecutor charged the defendants, in the alternative,as accessories under Art. 25(3)(b) ICCSt. for ‘ordering’ the crimes committed by the militiamembers. The Chamber decided that accessorial liability was ‘rendered moot’ by a finding of li-ability as principals under Art. 25(3)(a) and hence did not further pursue the alternative ofaccessorial liability; ibid., xx 470^471. The Chamber thus sidestepped the question whether itis permissible for the prosecutor to present alternative charges although Reg. 52(c) of the ICCRegulations requires ‘[a] legal characterization of the facts to accord both with the crimesunder articles 6, 7 or 8 and the precise form of participation under articles 25 and 28’.

4 Ibid., xx 491^494.5 Lubanga, supra note 2, x330.

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Chamber had declared that ‘principals to a crime are not limited to those whophysically carry out the objective elements of the offence but also includethose who, in spite of being removed from the scene of the crime, control ormastermind its commission because they decide whether and how the offencewill be committed’. In the present decision, the Chamber follows up on thisstatement, interpreting the ‘control or mastermind’ formula to include the situ-ation where a person ‘has control over the will of those who carry out the ob-jective elements of the offence’.6 Since Article 25(3)(a) ICC Statute explicitlydeclares to be irrelevant whether the person through whom the crime is com-mitted himself acts culpably or not, the Chamber concludes that ‘control’ overthe immediate actor can also be exerted by means of an organization:

::: the cases most relevant to international criminal law are those in which the perpetratorbehind the perpetrator commits the crime through another by means of ‘‘control over anorganisation’’ (Organisationsherrschaft).7

Since the crimes covered by the ICC Statute ‘will almost inevitably concerncollective or mass criminality’, the Chamber continues, the Statute must beunderstood to encompass organizational control as a form of perpetratorship:‘::: by specifically regulating the commission of a crime through anotherresponsible person, the Statute targets the category of cases which involves aperpetrator’s control over the organization.’8 The Pre-Trial Chamber thendefines the necessary elements of an ‘organization’ by which the perpetratorcan control the will of his subordinates:

The Chamber finds that the organisation must be based on hierarchical relations betweensuperiors and subordinates. The organisation must also be composed of sufficient subordin-ates to guarantee that superiors’ orders will be carried out, if not by one subordinate, thenby another. These criteria ensure that orders given by the recognized leadership will gener-ally be complied with by their subordinates.9

In such an organization, the Chamber claims, the orders of the leader will becarried out ‘automatically’; if one member should refuse to obey, anothermember will take over.10 The Chamber points out that one way of installingsuch a strict system of command and obedience is ‘through intensive, strict,and violent training regimens’.11 The Chamber further explains that perpetra-tion by means of an organization can also be committed jointly by several lead-ers acting in concert, provided that each leader supplies a contributionnecessary for the fruition of the common plan.12

Applying these standards to the case before it, the Chamber concludes thatthere is sufficient evidence to show that defendants Katanga and Chui in fact

6 Katanga and Chui, supra note 1, x 488.7 Ibid., x 498.8 Ibid., x501.9 Ibid., x512.10 Ibid., xx515^517.11 Ibid., x518.12 Ibid., xx524^526.

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co-perpetrated the crimes in question through their respective troops sincecompliance with their orders was ‘ensured’, and both leaders were aware ofthat fact as well as of the crimes to be committed in the course of ‘wiping out’the village of Bogoro.13

3. The German Sources of the Pre-Trial Chamber’sTheory

A. The ‘Perpetrator behind the Perpetrator’

The Pre-Trial Chamber has based its concept of ‘perpetration through an or-ganization’ on amply documented legal writings and court opinions from vari-ous legal systems.14 The Chamber’s ‘crown witness’ is the influential andinternationally renowned German criminal law scholar Claus Roxin, who firstpublished a theory of perpetration by means of an organization in 1963.15

Three decades later, Roxin saw his theory applied by the German FederalCourt of Appeals (Bundesgerichtshof) when it had to adjudicate human rightsviolations committed in the context of the lethal border regime installed bythe leadership of the German Democratic Republic (GDR).16

When Roxin wrote his seminal article in 1963, the criteria for distinguishingbetween perpetratorship17 (which in Germany has always included the conceptof indirect perpetratorship by the use of another person) and accessorial liabil-ity were at the centre of a lively debate between adherents of an ‘objective’theory and followers of a ‘subjective’ theory. The courts have, since the end ofthe 19th century, consistently taken a subjective approach. They maintainedthat principals as well as accessories provided causal contributions to thecriminal act, and since one could not distinguish between ‘more causal’ and‘less causal’ contributions, the only way to tell perpetrators and accessories

13 Ibid., xx 540 et seq.With respect to sexual crimes committed by the militia, the majority of thejudges held that the defendants knew that in the ordinary course of events, the implementationof the common plan would inevitably result in the rape or sexual enslavement of civilianwomen (ibid., at x 551). Judge Us› acka, in dissent, wrote that there was insufficient evidence tolink the defendants to these offences (idem, ibid., Partly Dissenting Opinion of Judge Us› acka, x27).

14 See e.g. the large number of writers cited in note 647 to the Court’s opinion in Katanga andChui, supra note 1, x 485.

15 C. Roxin, ‘Straftaten im Rahmen organisatorischer Machtapparate’, Goltdammer’s Archiv fu« rStrafrecht (1963), at 193; for an (abridged) translation of Roxin’s article see infra, in this issue ofthe Journal. A similar concept was proposed almost contemporaneously by F.C. Schroeder,Der Ta« ter hinter demTa« ter (Berlin: Duncker & Humblot, 1965).

16 Bundesgerichtshof (Federal Court of Appeals), judgment of 26 July 1994, in 40 Entscheidungendes Bundesgerichtshofes in Strafsachen (1995) 218^240, at 236 et seq. For an (abridged) transla-tion of the judgment see infra, in this issue of the Journal.

17 Since, under German law, aiders and abettors are to be punished less severely than perpetra-tors, it is necessary for the courts to distinguish between these two forms of participating in acriminal act.

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apart was by considering their subjective attitude: if a person has the mind of aperpetrator (animus auctoris), he will be treated as a principal regardless of theimportance of his factual contribution; if he only wishes to help anotherperson commit the crime (animus socii), he will be convicted as an aider andabettor even if he personally fulfils every element of the definition of thecrime.18 Under this theory, perpetration through another person could be com-mitted by anyone who had the ‘mind of a perpetrator’ and caused anotherperson to carry out the act constituting the offence; at least in theory, it madeno difference whether the ‘front man’could himself be held liable as a perpetra-tor. Writers who embraced the subjective approach therefore saw no majorproblem in recognizing a ‘perpetrator behind the perpetrator’ (Ta« ter hinter demTa« ter), that is, a person committing a crime by using another responsibleperson.19

The great majority of German law scholars rejected the courts’ subjectivistapproach because it lacked a rational criterion for distinguishing between prin-cipals and accessories, leaving everything to the court’s assessment of the de-fendant’s attitude. Based on the writings of earlier authors, it was ClausRoxin’s variant of the ‘objectivist’ theory20 which eventually carried the day.According to Roxin, a perpetrator is a person who ‘dominates’ (beherrscht) thecommission of the criminal offence, in that he has the power to determinewhether or not the relevant acts are done. Domination of the act(Tatherrschaft) can occur when a person does the relevant act himself, does itjointly with others, or uses another person as his tool.When the German legis-lature reformed the General Part of the Penal Code in the late 1960s, it moreor less transferred Roxin’s theory into the formulation of the relevant provi-sion,21 and it is not difficult to discover traces of this theory in the terminologyof Article 25(3)(a) ICC Statute as well.

18 Reichsgericht (Imperial Court), judgment of 7 January 1881 in 3 Entscheidungen desReichsgerichts in Strafsachen (1881) 181^183, at 182^183. In the famous ‘bathtub case’ decided bythe Imperial Court, a woman had given birth to a child out of wedlock. The woman asked hersister (S) to drown the baby in the bathtub, and S did so. The Imperial Court reversed the con-viction of S for murder and suggested that she should be convicted of aiding and abetting in-fanticide because she wanted only to help her sister and had no personal interest in havingthe baby killed; see Reichsgericht, judgment of 19 February 1940, in 74 Entscheidungen desReichsgerichts in Strafsachen (1940) 84.

19 See e.g. E. Kohlrausch and R. Lange, Strafgesetzbuch (43rd edn., Berlin: de Gruyter & Co, 1961),x 47, note I.5.B. For a modern analysis, see R. Zaczyk, ‘Die ‘‘Tatherrschaft kraft organisatorischerMachtapparate’’ und der BGH’, Goltdammer’s Archiv fu« r Strafrecht (2006) 411, at 413.

20 The seminal work was C. Roxin,Ta« terschaft undTatherrschaft (8th edn., Berlin: de GruyterVerlag,2006). The first edition of this monograph was published in 1963. For a more recent summaryof Roxin’s views on this topic, see C. Roxin, Strafrecht Allgemeiner Teil, Vol. 2 (Munich:C.H. Beck, 2003), at 46 et seq.

21 Cf. x 25 German Penal Code: ‘(1) Whoever commits the offence himself or through anotherperson shall be punished as a perpetrator. (2) If several persons jointly commit the offence,each of them shall be punished as a perpetrator (co-perpetrator).’ Instigation as well as aidingand abetting are defined separately in the following paragraphs. Although the Code’s terse for-mulation leaves many questions open to interpretation, it seems clear that the Code does notespouse a purely subjective approach: under x 25(1), a person who ‘commits the offence’ himself


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According to Roxin’s theory, the hallmark of perpetration through anotherperson ç alternatively named indirect perpetration (mittelbare Ta« terschaft) çis the perpetrator’s domination of the human ‘instrument’ who actually carriesout the criminal act. Domination can take various forms. For example, the in-direct perpetrator can create a misconception about relevant facts, he canexert strong psychological pressure (duress) upon the actor, or he can employa person who, because of mental illness or immaturity is unable to realizewhat he is doing. Under this theory, domination necessarily presupposes thatthe person to be dominated lacks an element that would make him fullyresponsible, under the criminal law, for what he does. If the immediate actorenjoys complete autonomy in his decision to carry out the criminal act and istherefore fully responsible, he cannot at the same time be the mere instrumentof another person.22 Consequently, many German scholars have proposed theso-called autonomy principle: indirect perpetration is not possible if theperson who carries out the act is an autonomous, criminally responsibleactor.23 In other words, the fact that the actor can be punished for his criminalact shields the person ‘in the background’ from liability as a perpetrator; hecan only be punished for instigation or for aiding and abetting.Faithful to his theory of domination, Claus Roxin would have to subscribe to

the autonomy principle. So he did, but he recognized that there may be excep-tions from the principle that there can be no perpetrator behind a fully respon-sible perpetrator. The case that made Roxin wonder was that of AdolfEichmann. Could it be true that Adolf Eichmann, who gave the orders leadingto the killing of millions of Jews, was not a perpetrator of mass murder butonly an instigator, a mere accessory? Since the persons who operated the con-centration camps and the gas chambers evidently were criminally responsiblefor their acts, the autonomy principle would indeed shield Eichmann (as wellas Adolf Hitler and Josef Stalin) from full responsibility as a principal.Considering this consequence, Roxin came to the conclusion that there mustexist a further category of domination, one that does not rely on the immediateactor’s lack of criminal responsibility. He suggested that a person who is incharge of a hierarchically structured criminal organization whose members

cannot be treated as a mere accessory, even if his subjective wish is only to help others tocommit the offence.

22 For an early statement of this view, see W. Gallas, ‘Die moderne Entwicklung der BegriffeTa« terschaft und Teilnahme im Strafrecht’, in Sonderheft (special issue) Zeitschrift fu« r die gesamteStrafrechtswissenschaft (1957) 3; for a more recent version, see R.D. Herzberg, ‘MittelbareTa« terschaft und Anstiftung in formalen Organisationen’, in K. Amelung (ed.), IndividuelleVerantwortung und Beteiligungsverha« ltnisse bei Straftaten in bu« rokratischen Organisationen desStaates, derWirtschaft und der Gesellschaft (Sinzheim: Pro Universitate Verlag, 2000) 33, at 43;see also, R. Bloy, ‘Grenzen der Ta« terschaft bei fremdha« ndiger Tatausfu« hrung’, Goltdammer’sArchiv fu« r Strafrecht (1996) 424, at 437 et seq.

23 For a good overview, see B. Schu« nemann, in H.W. Laufhu« tte, R. Rissing-van Saan, andK. Tiedemann (eds), Strafgesetzbuch. Leipziger Kommentar (12th edn., Berlin: Walter de GruyterVerlag, 2007), at x 25, notes 62^64.

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carry out orders without asking questions can rightly be said to ‘dominate’the criminal acts committed by his subordinates, even though these subordin-ates are themselves perpetrators of the crimes.24 The ‘perpetrator behind thedesk’, Roxin argues, differs from an instigator in that he need not look out fora principal offender but already has at hand people willing to commit theoffence.Roxin maintains that ‘domination’ of the commission of a crime is as strict

and absolute when the perpetrator works through an organization as whenhe uses an irresponsible human instrument. In order to make sure that theperpetrator behind the desk is capable of imposing his will on his subordinates,Roxin posits three additional conditions: the organization must have a tighthierarchical structure, members of the organization must be easily replaceable,and the organization must (at least partially) operate outside the legal order.Only if these conditions are fulfilled, Roxin argues, can the leaders of the or-ganization be certain that their orders will be carried out under all circum-stances. He emphasizes the necessity that members of the organization be‘fungible’, that is, any member unwilling or unable to carry out the leader’sorders can immediately be replaced by another subordinate, so that the leaderknows that the crimes will be committed regardless of the individual wishesof any particular member of the organization.25 If the criminal ‘task’ requiresa specialist who is difficult to replace, Roxin concludes, the head of the organ-ization should not be held responsible as a principal but only as an instigator,with the specialist being the sole perpetrator of the crime.26 Unquestioningobedience to the leader’s orders is not guaranteed, according to Roxin’s view,when the organization operates within the bounds of the law; if that is thecase, he argues, a subordinate faced with an unlawful order might wellchoose obedience to the law and refuse to commit the crime. If, on the otherhand, an organization like the ‘mafia’ or the SS operates outside the law, itsmembers will have no incentive to abide by any norm other than those set bythe leadership.27 The perpetrator at the highest echelon of the organization,therefore, does not have to fear any interference when he orders a crime to becommitted.

24 For a recent statement of this view, see C. Roxin, ‘Organisationsherrschaft undTatentschlossenheit’, Zeitschrift fu« r internationale Strafrechtsdogmatik (2006) 293, availableonline at www.zis-online.com (visited 1 December 2010).

25 Roxin, supra note 24, at 295, argues that the victim would not benefit if one member of the or-ganization refused to carry out the order to commit the crime because ‘as a rule’ the criminalact would then be carried out by another member. Roxin obviously has in mind tight-knitlarge organizations such as the SS or the GDR’s People’s Army.

26 Roxin, supra note 24, at 297.27 In order to make his concept applicable to the GDR regime ç which evidently did not operate

‘outside the law’ in most aspects of life ç Roxin claims that it is sufficient that an organizationhas distanced itself from the law in those areas where the crimes in question are beingcommitted. Roxin, supra note 24, at 297.


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B. The German Courts’ Version of Roxin’s Theory

Somewhat surprisingly, the Federal Court of Appeals, the highest Germancourt in criminal matters, has embraced Roxin’s concept of perpetrationthrough an organization and actually expanded it beyond what Roxin himselfwould have imagined. Never having fully abandoned the subjectivist approach,the German courts had in the 1980s moved toward a ‘mixed’ test for distin-guishing principals from accessories, emphasizing that that distinctiondepended on an overall evaluation of the facts of each case, including both ob-jective and subjective factors.28 After the end of the German DemocraticRepublic, German courts were faced with a host of novel legal questions. Oneof them concerned the responsibility for the death of hundreds of GDR citizenswho were shot or lost their lives in the mine fields as they attempted to crossthe border to the West. Some of the border guards who had actually fireddeadly shots were convicted of intentional homicide, and their claims ofduress as well as mistake of law were rejected.29 Subsequently, some of thehighest political and military leaders of the GDR were accused of murder forinstituting and maintaining the border regime, which included strict ordersto border guards to prevent, by all means, any illegal defection from the GDR.These cases squarely confronted the Federal Court of Appeals with the ques-tion whether the leaders of the relevant GDR institutions could be punishedas principal perpetrators even though the border guards had already been con-victed as perpetrators of the border killings. The Federal Court of Appeals, rely-ing on the theory of ‘perpetration through an organization’ developed byRoxin many years earlier, held in 1994 that the leaders of the GDR regimewere not mere instigators but perpetrators of homicide.30 In this decision, theFederal Court of Appeals took the objectivist approach of asking who ‘domi-nated’ the criminal act (i.e. the shooting of fugitives). The Court conceded thatnormally a responsible actor who fires the fatal shot ‘dominates’ the unlawfulkilling, which would preclude any domination by other persons. But the Courtrecognized an exception for situations where the activity of a person in thebackground ‘almost automatically’ brings about the result (i.e. the death of fu-gitives) because that person makes use of organizational structures and rulesand thus, sets into motion ‘rule-determined processes’ (regelhafte Abla« ufe).31 Ina seemingly irrelevant but intentionally placed dictum, the Court indicated

28 For an analysis and extensive documentation of the jurisprudence, see W. Joecks, in B. vonHeintschel-Heinegg (ed.), Mu« nchener Kommentar zum Strafgesetzbuch, Vol. 1 (Munich: C.H. Beck,2003), comments on x 25, notes 15^29; C. Roxin, ‘Die Abgrenzung von Ta« terschaft undTeilnahme in der ho« chstrichterlichen Rechtsprechung’, in C. Roxin and G.Widmaier (eds), 50Jahre Bundesgerichtshof^ Festgabe aus derWissenschaft, Vol. 4 (Munich: C.H. Beck, 2000), at 177;Schu« nemann, supra note 23, at 17^31.

29 Bundesgerichtshof, judgment of 3 November 1992, in 39 Entscheidungen des Bundesgerichtshofesin Strafsachen (1994) 1^36; Bundesgerichtshof, judgment of 25 March 1993, in 39Entscheidungen des Bundesgerichtshofes in Strafsachen (1994) 168^195.

30 Bundesgerichtshof, judgment of 26 July 1994, in 40 Entscheidungen des Bundesgerichtshofes inStrafsachen (1995) 218^240.

31 Ibid., at 236.

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that perpetration through an organization might occur not only instate-sponsored organizations but also in ‘mafia-like’ criminal organizationsand indicated further that ‘the problem of responsibility for leading businessenterprises could also be solved that way’.32 In a series of later decisions, itbecame apparent that the Federal Court of Appeals had intended to incon-spicuously lay the groundwork for a broad extension of Roxin’s original doc-trine to all kinds of enterprises, thus making the leading staff of businessenterprises responsible as principals for business-related offences committed,with their knowledge, by subordinate employees.33 This broad reading of ‘per-petration through an organization’ has been widely criticized by legal scholars,mainly because a business enterprise lacks all the main characteristics (tighthierarchical structure, general lawlessness, fungibility of members) thatmight justify the imposition of liability as a perpetrator to the leaders of a mili-tary or political organization.34

4. Critical ViewsEven the narrower original version of Roxin’s theory has not escaped criticism.The question has been raised why only the leader of a ‘lawless’ organizationcan be a perpetrator, as Roxin proposes ç organizations that claim to operateon a legal foundation (such as the GDR) can exert even stronger pressure on

32 Ibid., at 237 (‘Auch das Problem der Verantwortlichkeit beim Betrieb wirtschaftlicher Unternehmenla« �t sich so lo« sen’). The presiding judge of the Court’s panel who coined this phrase later re-vealed that the Court intentionally used this formulation in order to extend the notion of per-petration through an organization to business enterprises; see A. Nack, ‘Mittelbare Ta« terschaftdurch Ausnutzung regelhafter Abla« ufe’, Goltdammer’s Archiv fu« r Strafrecht (2006) 342, at343^344.

33 See e.g. Bundesgerichtshof, judgment of 13 September 1994, in 40 Entscheidungen desBundesgerichtshofes in Strafsachen (1995) 257, at 268^272; Bundesgerichtshof, judgment of 6June 1997, in 43 Entscheidungen des Bundesgerichtshofes in Strafsachen (1998) 219, at 232;Bundesgerichtshof, judgment of 11 December 1997, in Neue Zeitschrift fu« r Strafrecht (1998) 568;Bundesgerichtshof, judgment of 2 November 2007, in Neue Zeitschrift fu« r Strafrecht (2008) 89.

34 See e.g. K. Ambos, ‘Tatherrschaft durch Willensherrschaft kraft organisatorischerMachtapparate’, Goltdammer’s Archiv fu« r Strafrecht (1998) 226, at 239^240; V. Haas, Die Theorieder Tatherrschaft und ihre Grundlagen (Berlin: Duncker & Humblot, 2009), at 107^109; F.Mun‹ oz Conde, ‘Willensherrschaft kraft organisatorischer Machtapparate im Rahmen‘‘Nichtrechtsgelo« ster’’ Organisationen?’ in B. Schu« nemann et al. (eds), Festschrift fu« r ClausRoxin zum 70. Geburtstag am 15. Mai 2001 (Munich: de Gruyter Verlag, 2001) 609, at 623;H. Ola¤ solo, The Criminal Responsiblity of Senior Political and Military Leaders as Principals toInternational Crimes (Oxford: Hart Publishing, 2009), at 134; T. Rotsch, ‘Tatherrschaft kraftOrganisationsherrschaft?’ 112 Zeitschrift fu« r die gesamte Strafrechtswissenschaft (2000) 518, at553^556; B. Schu« nemann, ‘Die Rechtsfigur des ‘‘Ta« ters hinter dem Ta« ter’’ und das Prinzip derTatherrschaftsstufen’, in A. Hoyer, H.E. Mu« ller, M. Pawlik and J. Wolter (eds), Festschrift fu« rFriedrich-Christian Schroeder zum 70. Geburtstag (Munich: C.F. Mu« ller, 2006) 401, at 413;Zaczyk, supra note 19, at 414. But see the defence of the approach of the Federal Court ofAppeals by R. Hefendehl, ‘Tatherrschaft in Unternehmen vor kriminologischer Perspektive’,Goltdammer’s Archiv fu« r Strafrecht (2004) 575, at 578 et seq.


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their members to comply with orders given from above.35 A more fundamentalcriticism concerns the issue of ‘domination’. Some authors have asserted thateven the leader of a tightly knit organization does not have sufficient actualcontrol over the individual criminal act for which he is to be held responsible.36

Instead of relating the perpetrator’s ‘domination’ to a particular criminalact, these critics claim, Roxin’s theory only manages to explain that the endresult ç e.g. that a person who tried to cross the border of the GDR withoutpermission is now dead ç can be traced back to the persons who installedthe border regime.37 The fact that members of an organization can easily bereplaced does not resolve this problem: if the leader of the organization orderssubordinate A to commit the crime on day X, and A refuses, then the fact thatsubordinate B commits a similar crime on day Y cannot make the leader theprincipal of either act because the chain of events shows that he does not‘dominate’any particular criminal act but only the end result.38

The fault may lie even deeper. If one regards control or domination of thecriminal act as the hallmark of perpetratorship, it remains unclear whether‘domination’ is a factual or a normative concept. Those who ç like Roxin çemphasize the necessity of factual control face the difficulty that the questionwhether someone ‘dominates’ a certain event is not a ‘yes’ or ‘no’ issue but amatter of degree. One can say that Adolf Eichmann to a certain degree ‘domi-nated’ the killing of Jews sent from Hungary to concentration camps, andeven that his influence may have been greater (or lesser) than that of the per-sons actually operating the gas chambers; but it makes little sense to maintainthat Adolf Eichmann and no one else ‘dominated’ those killings. Hence, tomake the distinction between perpetratorship and accessorial liability dependon the issue of factual ‘domination’ of the criminal act leads to unpredictableresults depending on the existence of other actors and the relative degree oftheir ‘domination’.39 ‘Domination’ thus remains a vague term, and as the

35 See Ambos, supra note 34, at 242^243; Herzberg, supra note 22, at 36^37; J. Schlo« sser, SozialeTatherrschaft (Berlin: Duncker & Humblot, 2004), at 151^155.

36 Haas, supra note 34, at 56; H. Otto, ‘Ta« terschaft kraft Organisatorischen Machtapparates’, Jura(2001) 753, at 755^756; T. Rotsch, ‘Anmerkung zu BGH Urt. v. 3.7.2003, 2004’, JuristischeRundschau (2004) 248, at 249; Zaczyk, supra note 19, at 414. For an alternative explanation ofdominance through social organizations, see Schlo« sser, supra note 35, at 212 et seq.

37 T. Rotsch, ‘Neues zur Organisationsherrschaft’, Neue Zeitschrift fu« r Strafrecht (2005) 13, at 16.Roxin emphasizes the fact that the result (Erfolg) is certain when the perpetrator makes use ofan organization under his command, neglecting the question of how exactly that resultcomes about; see Roxin, supra note 24, at 296^297. (Similarly, Roxin’s student B. Schu« nemannequates perpetratorship with ‘dominance over the result’ and therefore sees no problem in re-garding the key person of an organization as a perpetrator); see Schu« nemann, supra note 23,x 25, note 127; Schu« nemann, supra note 34, at 411.

38 See Herzberg, supra note 22, at 37^38; J. Renzikowski, Restriktiver Ta« terbegriff und fahrla« ssigeBeteiligung (Tu« bingen: Mohr Siebeck, 1997), at 87^89; T. Rotsch, ‘Einheitsta« terschaft’ stattTatherrschaft (Tu« bingen: Mohr Siebeck, 2009), at 326^331.

39 For similar criticism, see Haas, supra note 34, at 38, 41; H. Radtke, ‘Mittelbare Ta« terschaft kraftOrganisationsherrschaft im nationalen und internationalen Strafrecht’, Goltdammer’s Archivfu« r Strafrecht (2006) 350, at 354^355.

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discussion above has shown, Roxin’s attempt to give ‘domination through an or-ganization’ stronger contours by adding empirical criteria opens up new linesof attack due to the arbitrariness involved in choosing these criteria (and notothers).It is likely that the concept of ‘domination through an organization’ owes its

existence more to policy considerations than to strict theoretical consistency.40

Its invention can best be understood as a reaction to the phenomenon of ‘sys-temic’ crime ç a phenomenon that has massively spread since the 1930s.Systemic crime defies the categories of traditional criminal law doctrine.41

Events such as mass atrocities or the large-scale pollution of the environmentby business enterprises may make it necessary to devise new grounds for, andnew forms of, criminal responsibility, and the special type of perpetratorshipdeveloped by Claus Roxin may be a response to that need. In the following sec-tion, I will pursue the question whether it is indeed necessary to employ thisspecial variant of indirect perpetratorship, or whether criminal law ç andinternational criminal law in particular ç might be better off without it.

5. Is there a Need for ‘Perpetration through anOrganization’?

The first question one might ask is whether it is necessary to create a new formof perpetratorship for persons who would in any event be liable to be punishedas instigators. In response to Claus Roxin’s invention of a ‘perpetrator behindthe perpetrator’, several authors have insisted that one should stick to the‘autonomy principle’, punishing even those at the very top of a criminalorganization for instigating the crimes committed by their ç criminallyresponsible ç subordinates.42 Roxin has responded by pointing out that theleader of an organization bears greater responsibility than a mere instigatorbecause the subordinate within an organization cannot substantially deviatefrom the orders given by the leader,43 and Bernd Schu« nemann has added thatthe leader of the organization does not ‘submit’ to the decision of the immediate

40 See Rotsch, supra note 38, at 462; Schlo« sser, supra note 35, at 193 et seq. (citing statements ex-pressing emotional dissatisfaction with treating the ‘perpetrators behind the desk’ as mereaccessories).

41 For a useful analysis, see G. Heine, ‘Ta« terschaft und Teilnahme in staatlichen Machtapparaten’,55 Juristenzeitung (2000) 920 (calling a ‘chimera’ the classification of perpetrators and acces-sories in systemic crime by using the traditional categories; ibid., at 926). See also Ambos,supra note 34, at 234; K. Marxen, ‘Beteiligung an schwerem systematischen Unrecht’, inK. Lu« derssen (ed.), Aufgekla« rte Kriminalpolitik oder Kampf gegen das Bo« se?, Vol. 3 (Baden-Baden:Nomos, 1998) 220, at 234^235.

42 See e.g. Herzberg, supra note 22, at 48^49; Renzikowski, supra note 38, at 89^90; Rotsch, supranote 34, at 561^562; Zaczyk, supra note 19, at 414. G. Jakobs, Strafrecht Allgemeiner Teil(2nd edn., Berlin: de Gruyter Verlag, 1991), note 21/103; Mun‹ oz Conde, supra note 34, at 623;and Otto, supra note 36, at 758^759, would convict the leader of the organization not as aninstigator but as a co-perpetrator of the crimes carried out by his subordinate.

43 Roxin, supra note 24, at 295.


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actor, and therefore, cannot be treated as a mere instigator.44 These argumentscorrectly refer to typical features of organizational crime, but these featuresare not necessarily distinctive: it is easy to imagine one-on-one situationswhere the same conditions apply, and yet the person giving the order woulduniversally be regarded as a mere instigator. For example, a domineering hus-band who ‘asks’ his wife to steal certain items from a store because he wantsto sell them would be treated as an instigator when the wife, fearing herhusband’s wrath if she failed to comply, carries out the theft. It may satisfyour sense of judicial aesthetics to see Adolf Eichmann and the big mafia bossconvicted as principals; but there is no doctrinal need for doing so.45

Nor does sentencing law force us to ‘upgrade’a person from instigator to per-petrator in order to be able to impose a sanction proportionate to his personalguilt. In almost all legal systems, instigators can receive the same amount ofpunishment as principal perpetrators. In principle, this is also true with re-spect to international crimes. According to Articles 77 and 78 ICC Statute, theCourt can impose any sentence up to lifelong imprisonment, taking into ac-count the gravity of the crime and the individual circumstances of the con-victed person, and there is no distinction made among the various forms ofresponsibility listed in Article 25(3).46 However, Rule 145(1)(c) ICC Rules ofProcedure and Evidence lists the ‘degree of participation of the convictedperson’among several factors to be taken into account in sentencing, and thismay well reflect the fact that the International Criminal Tribunal for theformer Yugoslavia (ICTY) has established that the ‘form and degree of the par-ticipation of the accused in the crime’ is a determinant factor of the gravity ofthe crime and hence, of the sentence.47 It has convincingly been argued thatthe inherently collective nature of international crimes makes it particularlyimportant to ascertain the specific role of each participant and to have theverdict and sentence reflect that particular role.48 The distinction between

44 Schu« nemann, supra note 34, at 410.45 Cf. J. Vogel, ‘Individuelle Verantwortlichkeit im Vo« lkerstrafrecht’, 114 Zeitschrift fu« r die gesamte

Strafrechtswissenschaft (2002) 403, at 427 (claiming that the introduction of a ‘perpetratorbehind the perpetrator’only leads to fruitless discussions about distinguishing between instiga-tion and perpetration).

46 Nor is any particular form of participation listed among the mitigating and aggravating circum-stances in Rule 145(2) of the ICC RPE.

47 Judgment, Kupres› kic¤ (IT-95-16-T), Trial Chamber, 23 October 2001, x 852. For a thoroughdocumentation of ICTY and ICTR jurisprudence in this regard, see B. Burghardt, DieVorgesetztenverantwortlichkeit im vo« lkerrechtlichen Straftatsystem (Berlin: BerlinerWissenschafts-Verlag, 2008), at 383, 389^392 (the fact that the Appeals Chamber deemed thedefendant guilty of a different form of responsibility sometimes led to an increase or reductionof the sentence).

48 Cf. F. Zorzi Giustiniani, ‘The Responsibility of Accomplices in the Case-Law of the ad hocTribunals’, 20 Criminal Law Forum (2009) 417, at 419; see also C. Kre�, ‘Claus Roxins Lehrevon der Organisationsherrschaft und das Vo« lkerstrafrecht’, Goltdammer’s Archiv fu« r Strafrecht(2006) 304, at 308 (claiming a need in international criminal law to express a person’s ‘main re-sponsibility’ on the level of conviction rather than sentencing); G. Werle and B. Burghardt,‘Die mittelbare Mitta« terschaft ^ Fortentwicklung deutscher Strafrechtsdogmatik im

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principals and accessories, though not ‘technically’ necessary, may be a usefultool of expressing that distinction.If ‘perpetration through an organization’ is one way of aptly characterizing

the specific character of organizational crime, are there doctrinal objectionsto applying that label as a form of perpetratorship? One problem with Roxin’stheory may be that it contains a self-contradiction: critics maintain that the‘front man’committing the criminal act cannot at the same time be criminallyliable for his acts as a free agent and be a mere instrument in the hands ofthe leader of an organization.49 Two arguments have been made to resolvethat seeming contradiction: the fact that the actor is part of a tight organiza-tion, it has been said, makes him so dependent that his autonomy no longerexists;50 another author distinguishes between the self-concept of the actor(who conceives of himself as autonomous and can therefore be held respon-sible) and the objective situation of dependency (which permits the law toregard the leader of the organization as the principal due to his actual powerover the commission of the criminal act).51 Both arguments raise further ques-tions,52 but the seeming self-contradiction in Roxin’s theory still is not a fatalflaw: since the ascription of (criminal) responsibility is not a yes/no questionof logic but a normative issue,53 it is logically possible to accept a situationwhere the person at the back and the person at the front, both ç andindependently of each other ç possess enough autonomous influence overthe criminal act as to hold each of them liable as perpetrator.The vagueness of the concept of ‘dominance’ is a more troubling issue. There

seems to be agreement that ‘domination’ exists when a person uses a clearlyirresponsible person (a child, an insane person, or a person acting under theinfluence of a relevant mistake of fact) for the commission of a criminal act,

Vo« lkerstrafrecht?’ in R. Bloy et al. (eds), Gerechte Strafe und legitimes Strafrecht. Festschrift fu« rManfred Maiwald zum 75. Geburtstag (Berlin: Duncker & Humblot, 2010) 849, at 852; but see,contra,Vogel, supra note 45, at 425.

49 See supra, note 22; see further L. Kutzner, Die Rechtsfigur desTa« ters hinter demTa« ter und derTypusder mittelbaren Ta« terschaft (Frankfurt: Peter Lang Verlag, 2004), at 250; Schlo« sser, supra note 35,at 170. The Pre-Trial Chamber in Katanga and Chui, supra note 1, x 499 note 660, put the prob-lem thus: ‘Essentially, the possibility that a person may so control the will of another that hecan be said to perpetrate a crime through that other, seems incompatible with a meaningfulnotion of that other as a fully responsible actor.’

50 See the notion of ‘social dominance’ (sozialeTatherrschaft) developed by Schlo« sser, supra note 35,at 287 et seq.

51 This is the solution proposed by Ola¤ solo, supra note 34, at 119^122.52 In the theory proposed by Schlo« sser, supra note 35, at 287 et seq., the question arises whether

(and if so, why) the person performing the criminal act as a member of an organization canbe held criminally responsible. Ola¤ solo’s suggestion raises the question why a person shouldbe held responsible on the basis of a mere illusion of being an autonomous agent ç we wouldcertainly not convict an insane man who claims to be totally normal and wishes to acceptresponsibility for what he did.

53 Cf. Radtke, supra note 39, at 356; K. Rogall, ‘Bewa« ltigung von Systemkriminalita« t’, in C. Roxinand G.Widmaier (eds), 50 Jahre Bundesgerichtshof. Festgabe aus derWissenschaft, Vol. 4 (Munich:C.H. Beck, 2000) 383, at 426; Vogel, supra note 45, at 405^409.


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and most legal systems recognize perpetratorship through an innocent agent.But when it comes to perpetrating an offence ‘through’ a responsible person,we look in vain for an empirical or normative bright line between merely influ-encing (punishable as instigation or aiding and abetting) and ‘dominating’ aperson. In cases of individual crime, the impossibility of reliably distinguishingbetween degrees of psychological influence has led to the doctrine that therecan be no ‘indirect’ perpetration when the immediate actor is fully responsible,and that holds true even where the actor is particularly gullible or personallydependent on the person in the background.54 To look at things differentlywhen a group or organization is involved may coincide with our intuition con-cerning ‘group pressure’or ‘the power of organizations’, but there is no rationalgrounds for holding the leader of an organization a priori responsible as a prin-cipal perpetrator where an individual exerting similarly strong influencewould be regarded as a mere instigator. Nor are there any inter-subjectivelypersuasive factors that make some organizations more prone than others tocreate ‘perpetrators behind the perpetrator’. There may exist in our mindsideal types of an oppressive, authoritarian organization, but as the debateover the distinguishing factors posited by Roxin and the Federal Court ofAppeals (see supra) shows, our images differ from each other and it seems im-possible to achieve agreement on those factors even within a single legal cul-ture. Even if we were able to identify an ideal type of organization where theactivities of each member are so tightly controlled by the leaders that wewould be prepared to hold the leaders responsible as perpetrators, we wouldstill have to recognize that not every aspect of a group member’s activity iscontrolled to the same degree, and would consequently have to ask whether aparticular criminal act was covered by the level of organizational controlrequired for allocating principal responsibility to the leadership level.In sum, Roxin’s concept of indirect perpetration through an organization

draws its lifeblood from the intuitive persuasiveness of holding the leaders ofNational-Socialist organizations such as the SS responsible as perpetratorsof the mass atrocities committed by the members of these organizations.But that intuition is a shaky ground on which to build a legal theory.

54 For a borderline German case, see Bundesgerichtshof, judgment of 15 September 1988, in 35Entscheidungen des Bundesgerichtshofes in Strafsachen (1989) 347^356: A couple (A and B) madetheir very gullible friend F believe that their enemy X needed to be killed in order to satisfythe evil ‘cat king’ (a devilish demon invented byA and B) who would otherwise kill millions ofpeople. F eventually tried to kill X with a knife, believing that he was justified in killing oneperson in order to save millions of others. The Federal Court of Appeals held F responsible forattempted murder because his honest mistake of law could have been avoided. The Court never-theless convicted A and B as perpetrators of attempted murder, arguing that they had made Ftotally dependent and had thus induced him to commit the act. The Court rejected a strict ap-plication of the ‘autonomy principle’ ç which would have precluded the Court from convictingA and B as principals ç and declared that the distinction between perpetration and mere insti-gation in cases such as the one before the Court depended on the kind and intensity of theactor’s mistake as well as the intensity of the influence exerted by the person in the background(ibid., at 352^353).

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Since criminal liability for ordering or instigation is a sufficient basis forimposing severe sentences on responsible figures in the background of theactual crimes, adopting the notion of ‘perpetration through an organization’may create more problems than it solves.

6. Working with ‘Perpetration through Another Person’in Article 25(3)(a) ICC Statute

A. Roxin’s Theory as Part of International Law?

Whatever may be the validity of the result of the considerations submittedabove, the authors of the Court’s Statute have left no doubt that ‘commission’of a crime through another person is possible ‘regardless of whether thatother person is criminally responsible’ (Article 25(3)(a) ICC Statute),55 andhave equally clearly separated this form of criminal liability from ordering, so-liciting, or inducing a crime as listed in Article 25(3)(b) of the Statute.56 Wehave to conclude that the Statute neither ties perpetration to the physical car-rying out of the criminal act57 nor recognizes the autonomy principle thatwould negate indirect perpetration when the ‘front man’ is fully responsiblefor his act. That insight, however, still leaves several options as to the interpret-ation of the phrase ‘commits ::: through another person’ in the context of theICC Statute.The Pre-Trial Chamber in Katanga and Chui, as we have seen, chose to follow

rather closely the concept developed by Claus Roxin, emphasizing the defend-ants’ control over an organization.58 The Chamber gave three reasons fortaking this approach: ‘(i) it has been incorporated into the framework of theStatute; (ii) it has been increasingly used in national jurisdictions; and (iii) ithas been addressed in the jurisprudence of the international tribunals.’59 Theevidence the Chamber presents for this claim, however, is not overly strong.The list of ‘numerous’ national jurisdictions that are claimed to be in favour ofthe concept of perpetration through an organization is limited to five(Argentina, Chile, Germany, Peru, Spain), in one of which (Argentina) theSupreme Court had overturned a lower court judgment proposing thistheory.60 International tribunals have indeed ‘addressed’ the issue but so farhave preferred to employ the joint criminal enterprise (JCE) doctrine to convictorganizers and other figures further removed from the scene of the actual

55 See Katanga and Chui, supra note 1, x 499.56 Cf.Werle and Burghardt, supra note 48, at 850, pointing out that Art. 25(3)(a) through (d) ICCSt.

contains a model of participation that distinguishes by degrees of responsibility.57 See Lubanga, supra note 2, xx 332^333, 339.58 See Katanga and Chui, supra note 1, x 498; As Ola¤ solo, supra note 34, at 120, has correctly

observed, the Pre-Trial Chamber has not adopted Roxin’s requirement that the organizationmust operate outside the law.

59 See Lubanga, supra note 2, x500.60 Katanga and Chui, supra note 1, xx502, 504.


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crime.61 Most importantly, the ICC Statute provides for the commission of acrime through another person but does not mention perpetration through anorganization. The Chamber in Katanga and Chui supports its argument byclaiming that since the crimes covered by the ICC Statute ‘will almost inevit-ably concern collective or mass criminality’, the Statute must be understoodto ‘target the category of cases which involves a perpetrator’s control over theorganisation’.62 That may well be ç but the fact that the Statute targets masscriminality does not determine exactly in which way its authors expected thejudges to address this phenomenon. In spite of the Pre-Trial Chamber’s asser-tion that it has presented ‘a compelling case’ for its approach to criminal liabil-ity,63 I would regard the issue as still open. There is certainly nothing to evenremotely suggest that the concept of ‘perpetration through an organization’ isa form of criminal liability recognized as customary international law.64

7. Options in Interpreting ‘Perpetration throughAnother Person’

What, then, are the options the ICC has in interpreting the ‘commissionthrough another person’clause of Article 25(3)(a) of its Statute?I see four possibilities of approaching this issue: the Court can (i) follow the

lead of Pre-Trial Chamber I and extend the wording (‘another person’) to cer-tain organizations; (ii) adopt the even broader version preferred by theGerman Federal Court of Appeals and extend the clause to all organizationsincluding business enterprises; (iii) attempt to harmonize its jurisprudencewith that of the ICTYand interpret the clause such that it reflects some or allforms of JCE; and (iv) apply the clause as it is written, that is, require personaldominance over the individual who carries out the criminal act.The first two options do not have much to recommend them. As we have

seen, Roxin’s version of the ‘perpetration through an organization’concept suf-fers from the fact that it has been devised ad hoc under the impression oflarge-scale state-organized atrocities and therefore, contains elements that

61 See e.g. Judgment, Stakic¤ (IT-97-24-A), Appeals Chamber, 22 March 2006, x62 (discussing statusof indirect perpetration in international criminal law and rejecting a combination of indirectperpetration and co-perpetration as suggested by the Trial Chamber in the same case).Another attempt of Judge Schomburg to introduce indirect perpetration as a concept of inter-national criminal law failed in Judgment, Simic¤ (IT-95-9-A), Appeals Chamber, 28 November2006 (Dissenting Opinion of Judge Schomburg, xx 18^21). This is not the place to discuss themerits of the JCE doctrine, which has dominated the jurisprudence of ICTY and ICTR; for arecent thorough discussion, see V. Haan, Joint Criminal Enterprise (Berlin: Duncker & Humblot,2008). It seems clear that Pre-Trial Chamber I of the ICC intends to distance itself from theJCE doctrine; cf. Lubanga, supra note 2, xx 334^337.

62 Katanga and Chui, supra note 1, x501.63 Ibid., at x 510.64 Accord,Werle and Burghardt, supra note 48, at 854^855.

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seem accidental rather than essential. Even if its applicability were reduced toinherently violent organizations,65 thus emphasizing the element of irresistiblecontrol over its members, this concept lacks both an empirical and a theoretic-al basis other than the fact that the leaders of some organizations can, undercertain conditions, be fairly certain that their commands will be carried outeven if these commands involve the commission of a criminal offence.Moreover, Roxin’s concept may fit ‘orderly’, bureaucratic dictatorships such asthat of the National-Socialists in Germany or the Socialist Unity Party in theGDR; it hardly lends itself to be applied to vaguely organized militias or rebelarmies where the authority of a leader or group of leaders may be acceptedonly as long as they are successful in providing material goods and militarysuccess. It is a sign of this weakness that the Pre-Trial Chamber in Katangaand Chui felt compelled to ad hoc add rigorous training methods as a furtherpossible tool of controlling organization members.66 The Chamber may havesensed that Roxin’s original model was not conceived for an African environ-ment and attempted to make up for the lack or stringent institutional organiza-tion of the militias in question by adding new elements it found in the facts ofthe particular case.67

One way out of the constraints of Roxin’s model would be to interpret thenotion of ‘control’ as broadly as does the German Federal Court of Appeals,which requires no more than the existence, within an organization, of‘rule-determined processes’ that the perpetrator uses for his purposes.68 Butsuch an open-ended approach to indirect perpetration would worsen the con-cept’s problems of vagueness and overreach: there is no good reason to holdthe manager of a business enterprise with10 employees responsible as a princi-pal for acts suggested by the manager and committed by one of the employees,while he would be a mere accessory if he asked 10 of his close friends tocommit the same offence. The myth of ‘rule-determined processes’ certainlyis not sufficient to establish a general rule of perpetratorship for leadingmembers of business firms.The option of interpreting ‘commission through another person’ in a way

similar to JCE would have the great advantage of avoiding a rift between thejurisprudence of the United Nations ad hoc tribunals and the ICC. Such an in-terpretation would also reflect the fact that indirect perpetration ç at least in

65 As suggested by Schu« nemann, supra note 34, at 412.66 Katanga and Chui, supra note 1, at x 518.67 For a more benevolent interpretation of the Trial Chamber’s adaptation of Roxin’s concept, see

H.G. van der Wilt, ‘The Continuous Quest for Proper Modes of Criminal Responsibility’, 7Journal of International Criminal Justice (2009) 307, at 312: ‘Such a flexible approach, geared tothe specific circumstances, may prove the versatility of the concept and its resilience againstthe wear and tear of time.’

68 See text at supra notes 31, 32. The German high court’s approach has resonated in Lubanga,supra note 2, x 330, where the Pre-Trial Chamber defined control simply as the ability of a per-petrator to ‘decide whether and how the offence will be committed’. In Katanga and Chui, supranote 1, xx 512^517, the Pre-Trial Chamber abandoned the ‘loose’ approach taken in Lubangaand instead required the organization to have certain specific features as suggested by Roxin.


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the form of perpetration through an organization ç and JCE both aspire to ac-commodate the special problems of systemic crime, where responsibilitycannot easily be ascribed along the links of immediate causation, and wherespecific difficulties of proof arise.69 As is well known, the notion of JCE hasbeen based on the idea that ‘committing’a crime includes ‘those modes of parti-cipating in the commission of crimes which occur where several personshaving a common purpose embark on criminal activity that is then carriedout either jointly or by some members of this plurality of persons.Whoever con-tributes to the commission of crimes by the group of persons or some membersof the group, in execution of a common criminal purpose, may be held to becriminally liable:::’.70 In many situations, leaders’ liability under JCE andunder the concept of indirect perpetration will indeed produce the same re-sults, as for example with respect to commanders of concentration campswhere prisoners are maltreated or killed by lower level guards.With respect tothose in authority of the camp, the second variant of JCE provides for responsi-bility as principals because of their objective ‘position of authority’ within theconcentration camp system.71 Applying the theory of ‘perpetration throughan organization’, one could reach the same result by stating that the command-er of the camp perpetrated murder and maltreatment ‘through’ the guardswho were part of the organization that ran the concentration camp.Yet, there are two major obstacles to simply equating indirect perpetration

under Article 25(3)(a) ICC Statute and JCE. One problem is the mens rea, thatis, the defining element of JCE: any JCE requires a ‘common criminal design’72

or a ‘common purpose involving the commission of a crime’73 among all par-ticipants. There is no such requirement for indirect perpetration, even whenthe person who performs the criminal act is himself culpable of a crime. Onlythe perpetrator in the background needs to have the requisite mens rea for theoffence of which he is to be convicted, and there is no requirement that heever communicates with the person ‘at the front’. On the other hand, the thirdvariant of JCE applies when the immediate actor performs a criminal act thatthe other members of the JCE did not foresee but which nevertheless was a nat-ural and foreseeable consequence of effecting the common purpose.74 Thatsituation cannot be qualified as a case of indirect perpetration because the ‘per-petrator behind the perpetrator’ to be criminally liable must have the fullintent required by the crime in question; it is not sufficient that he only couldforesee what the person ‘at the front’ might do. In addition to these discrepan-cies concerning mens rea, the structure of Article 25(3) ICC Statute makes itunlikely that its authors could have intended to equate JCE and ‘commissionthrough another person’. If they had, there would have been no good reasonto include Article 25(3)(d) of the Statute, which describes a somewhat

69 Cf. Marxen, supra note 41, at 233; Vogel, supra note 45, at 409^410, 420^421.70 Judgment,Tadic¤ (IT-94-1-A), Appeals Chamber, 15 July 1999, x190.71 Ibid., x 203.72 Ibid., x191.73 Judgment, Kvoc› ka et al. (IT-98-30/1-A), Appeals Chamber, 28 February 2005, x81.74 Tadic¤ , supra note 70, x 204.

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watered-down version of JCE.75 It is likely that the authors of the ICC Statutewished to accept both JCE (in a modified form) and perpetration throughanother person, thus making it necessary to find for both forms of criminalliability their specific fields of application.That leaves the option of a narrow, literal interpretation of ‘commission

through another person’. At the starting point of its discussion, the Pre-TrialChamber in Katanga and Chui defines a principal as one who ‘has control overthe will of those who carry out the objective elements of the offence’.76 Thewisest course to take may be to leave that definition as it is. In order to have adefendant convicted of indirect perpetration in accordance with Article25(3)(a) ICC Statute, the prosecution would then have to prove that he in fact‘controlled the will’ of the person performing the criminal act. There exist vari-ous ways of doing so: exercising strong physical or psychological pressure;creating a misconception concerning the relevant facts; or manipulating theother person such that he thinks that what he does is beneficial to the victimor to mankind.77 The existence of an oppressive organization in which theactor is a subordinate member may well be instrumental in bringing strongpressure to bear and thus, in a particular situation, to control the subordinate’swill; but the fact that the defendant is the leader of an organization cannot byitself be conclusive evidence of his having control over the will of all membersof the organization. The clause ‘regardless of whether that other person iscriminally responsible’ referring to indirect perpetration in Article 25(3)(a)ICC Statute remains meaningful even if given the ‘minimalistic’ interpretationproposed here: that clause clarifies that one can control the will of anotherperson even if that person remains responsible under the criminal law.What amount of ‘control’ is necessary to turn a ‘background person’ (and

possible instigator) into a principal remains an open question to be resolved ineach case. It seems better to permit courts to address that question directlyand to inductively develop criteria appropriate to the specific subject-matter ofinternational crimes than to tie their decision to particular factual elementssuch as the existence of an organization. Importantly, under the approachsuggested here, control needs to be proved upon the particular facts concern-ing the relationship between the persons involved, and the prosecution doesnot satisfy its burden of proof by merely establishing the existence of an organ-ization (with whatever qualities). That interpretation may make life a bitharder for the prosecution, but it has rightly been said that legality and fairtrial principles prohibit the expansion of any theory of criminal liability inorder to circumvent a lack of evidence.78 Upon the facts described in theKatanga and Chui decision, one would not expect great difficulty in findingsufficient evidence of a controlling role of the defendants over the soldiers

75 Cf. H. Ola¤ solo, ‘Joint Criminal Enterprise and its Extended Form’, 20 Criminal Law Forum (2009)263, at 277. For various problems posed by the formulation of Art. 25(3)(d) ICCSt., see J.D.Ohlin, ‘Joint Criminal Confusion’, 12 New Criminal Law Review (2009) 406.

76 Katanga and Chui, supra note 1, x 488.77 For the latter situation, cf. the ‘cat king’case cited supra, note 54.78 Ola¤ solo, supra note 75, at 266.


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committing the atrocities, but the details are eventually for the Trial Chamberto establish. If it followed the approach suggested here, fact-finding wouldnot need to concentrate on the organizational quality of the militias led bythe defendants but on their personal influence on those who committedthe crimes.

8. Concluding Note: Indirect Co-PerpetrationOne of the puzzling issues of the Katanga and Chui decision is the combinationof co-perpetration and indirect perpetration: defendants Katanga and Chuiare said to have joined forces and thereby co-perpetrated war crimes ‘throughother persons’.79 The Pre-Trial Chamber notes that co-perpetration requires a‘coordinated essential contribution made by each co-perpetrator resulting inthe realisation of the objective elements of the crime’,80 and that this contribu-tion can also consist in ‘activating the mechanisms which lead to the auto-matic compliance with their orders and, thus, the commission of the crimes’.81

The actual activities of the co-perpetrators (for example, designing the attackas well as coordinating and monitoring the activities of troops) can be carriedout long before the actual commission of the criminal acts by subordinates.82

The Pre-Trial Chamber thus returns to a line of analysis employed by theICTY Trial Chamber in Stakic¤ .83

Although joint indirect perpetration has been called ‘a fourth manifestationof the notion of control over the crime’84 it is in fact not another new legal in-vention but simply a factual coincidence of two recognized forms of perpetra-tion. Co-perpetrators can contribute in various ways to the commission of thecrime, and one contribution can be to provide a human ‘instrument’ underthe control of the co-perpetrator. If, for example, A and B carry out theircommon plan to bring their young children (A’s son X and B’s daughter Y) to-gether in someone’s abandoned house, give them matches and instruct themto make a ‘nice fire’, there can be no doubt that A and B are co-perpetrators ofarson: they jointly use X and Y as their human tools to achieve the desiredeffect. In this hypothetical, A would arguably be liable as a co-perpetrator ofarson even if he could prove that only Y actually caused the fire, because hisparticipation (bringing in X as Y’s play mate) was an essential part of thecommon plan. The situation in Katanga and Chui is structurally similar, if oneassumes that Germain Katanga and Mathieu Ngudjolo Chui exerted control

79 Katanga and Chui, supra note 1, xx520^526, 546^549.80 Ibid., x524.81 Ibid., x525.82 Ibid., x526.83 Judgment, Stakic¤ (IT-97-24-T),Trial Chamber, 31 July 2003, x741. The Appeals Chamber rejected

the Trial Chamber’s approach in favour of JCE; see, Stakic¤ , supra note 61, x62.84 Ola¤ solo, supra note 75, at 268.

110 JICJ 9 (2011), 91^111

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over their respective militias and intended or foresaw them to commit thecrimes they actually perpetrated.85

The joining of separate forces as allegedly practised by Germain Katanga andMathieu Ngudjolo Chui can be distinguished from the ‘junta’ model of joint in-direct perpetratorship, which the ICC Pre-Trial Chamber found to exist in theAl Bashir case.86 In the ‘junta’ scenario, there is just one group of subordinatessubject to control by a group of leaders working together, whereas in Katangaand Chui, there are two separate groups cooperating in one operation basedon an agreement between their respective leaders.87 There is no doctrinal obs-tacle to applying Article 25(3)(a) ICC Statute to either situation. The criticalissue lies not in joining human tools but in what it means to ‘control’ their oper-ation. That is where the ICC may have to dig still deeper in order to lay aproper foundation for dealing with cases of perpetration through anotherperson.

85 Cf. the similar analysis by Ola¤ solo, ibid., at 269, and van der Wilt, supra note 67, at 314. Theissues of mens rea are discussed in Katanga and Chui, supra note 1, xx533^539.

86 Decision, Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad AlBashir, Prosecutor v. Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber I,4 March 2009, xx 213^216.

87 See the precise analysis byWerle and Burghardt, supra note 48, at 860^863.


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perpetrationthroughan organization · three decades later, roxin saw his theory applied by the...

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