1. Introduction
Thomas Lubanga Dyilo and Germain Katanga are the first people convicted by the International Criminal Court (hereinafter ICC) for the crimes committed during the armed conflict that took place in the region of Ituri in the Democratic Republic of the Congo (DRC).Footnote 1 Both convicts were leaders of rebel groups: Lubanga Dyilo was the President of the Force Patriotique pour la Libération du Congo, and Katanga the leader of the Forces de Résistance Patriotique en Ituri.
Leaving aside these common traits between the defendants, the judgments against them by the ICC reflect slightly different approaches to the interpretation and application of modes of liability. This is one of the central issues in international criminal law, since the phenomenology of international crimes poses difficult challenges to the identification of the liability doctrines subject to application in this field.Footnote 2
In this respect, the Court has shown definite trends in interpreting Article 25(3) of the Statute – the provision establishing the bases for attributing individual criminal responsibility within the ICC regime. This is demonstrated by the approach adopted by the ICC chambers in the decisions on the confirmation of charges (hereinafter DCC) in both the Lubanga and the Katanga and Ngudjolo Chui cases and confirmed in the Lubanga trial judgment. However, the Katanga trial judgment partially overturns the previous decisions and proposes a novel and, in our view, more convincing approach.
The aim of this article is to make a critical assessment of interpretive trends in the ICC jurisprudence up to the Lubanga trial judgment as regards the modes of principal liability. It focuses on the Court's resort to liability theories derived from Continental legal systems. This choice, albeit legitimate, is based on a deficient methodology and raises concerns related to (mis)interpretation of such theories in the Court's jurisprudence.
The Court has clearly adopted a wide interpretation of some of the critical elements in which the different modes of principal liability are grounded, namely, the ‘essential contribution’ as a criterion for establishing the control over the crime and the ‘common plan’ as a requirement for co-perpetration. This choice has caused a significant expansion of the scope of principal liability and breached the basic principles of legality and individual criminal responsibility, as affirmed in Articles 22 and 25(2) of the ICC Statute, respectively.
In our opinion, these interpretations are underpinned by a flawed understanding of Article 25(3), especially of the criteria for distinguishing between principal and accessory liabilities. This approach has been expressly overturned by the Katanga trial judgment, on which the second part of this article will focus. Whereas this shows the pending disagreement within the Court on the interpretation of Article 25(3), the Katanga judgment arguably follows a more convincing approach, in that it better fits both the relevant statutory provision and the basic principles of criminal law.
2. ICC interpretation of ‘perpetrator’ up to the Lubanga trial judgment
Article 25(3) provides the applicable modes of liability under which a person may be held responsible before the Court. It sets a clear distinction between the modes of principal liability (letter a of the provision) and accessory liability (letters b, c, and d). This distinction is mostly adopted by domestic criminal systems.Footnote 3 Therefore, the ICC Statute applies a ‘differentiation’ model.Footnote 4 Accordingly, it rejects the unitary approach to criminal responsibility that dominated post-Second World War jurisprudence and is still applied in a few domestic systems, such as Italy. This approach makes no normative distinction between principal and accessory liability; it simply states that anyone who in any way contributes to a crime may be held responsible for it. Nonetheless, the different degrees of contribution and blameworthiness might be taken into account at the sentencing phase.Footnote 5
But Article 25(3) neither provides a criterion to distinguish between principals and accessories, nor does it state explicitly the requirements under which a person may be charged.
In an attempt to elucidate this open-textured provision, the ICC has moved to charge the defendants on the basis of the ‘control over the crime’ doctrine, as opposed to the theory predominantly applied by ad hoc tribunals, that is, the Joint Criminal Enterprise (hereinafter JCE). The DCC in the Lubanga case explicitly stated that the JCE doctrine cannot be applied under the Rome Statute, where the provision on the modes of liability is drafted differently than in the statutes of the ad hoc tribunals.Footnote 6 However, the abandonment of JCE by the ICC is probably also due to the abundance of strident criticism to which it has been subject.Footnote 7
That said, the way the ICC has interpreted the modes of liability up to the Katanga judgment give similar results to those that would have arisen if the JCE doctrine had been applied.Footnote 8 Both are grounded in a broad understanding of the modes of principal liability, as opposed to accessory liability.Footnote 9 Additionally, as will be discussed, the broad interpretation by the ICC of the ‘common plan’ requirement in cases of co-perpetration takes us back to the controversial JCE III.Footnote 10
Another constant in the ICC case law has been the choice for modes of liability originating in Continental legal systems.Footnote 11 In particular, the Court has used the theory of the ‘control over the crime’, according to which the perpetrator is the one who has the final say as to whether the crime will be committed and how it will be carried out.Footnote 12 This theory allows to charge as perpetrators those who physically carry out the actus reus of the offence (commission of the crime in person, or direct perpetration), those who have control over the will of whoever carries out the objective elements of the offence (commission of the crime through another person, or indirect perpetration),Footnote 13 and those who possess, along with others, the control over the offence by reason of the essential task assigned to them (commission of the crime jointly with others, or co-perpetration).Footnote 14 Additionally, the ICC has relied on Roxin's doctrine of control over an organization in order to interpret the concept of perpetration through another person who is criminally responsible.Footnote 15 According to that theory, the responsibility of the perpetrator behind the perpetrator is based on the control over the agent's will within the framework of an organization.Footnote 16
The Court has also developed a new mode of ‘cross-liability’Footnote 17 that in effect merges co-perpetration based on the control over the crime with indirect perpetration.Footnote 18 This form of liability – indirect co-perpetration – appeared for the first time in the Katanga and Ngudjolo DCC.Footnote 19 This construction allows the Court to charge a defendant with crimes committed by individuals who are not their subordinates, but who obey the orders given by another co-perpetrator.Footnote 20 The rationale for charging the defendant in such cases is the mutual attribution of each co-perpetrator's contribution. In respect of Katanga it was later replaced by a mode of accessory liability given the lack of sufficient evidence as to the constitutive elements of ‘cross-liability’.Footnote 21 As the following discussion will show, the choice made by the ICC of these Continental theories is problematic from both a methodological and a substantive perspective.
2.1. Methodological flaws
Given that Article 25(3)(a) does not provide specific definitions of the modes of liability, the Court has defined their constitutive elements by extensive reference to domestic literature and jurisprudence.
The importation of theories developed in certain domestic systems is allowed under Article 21(1)(c), which refers to the ‘general principles of law derived by the Court from national laws of legal systems of the world’, as a subsidiary source of law to which the Court may have recourse. Domestic case law and literature, along with legislation, are therefore the materials from which the Court may glean the general principles of law by means of a comparative exercise. Article 21(1)(c) leaves the judges of the ICC broad discretion in selecting the legal systems on which to rely.Footnote 22
It would be unfair not to acknowledge the extensive research work done by the chambers of the ICC, given the remarkable level of doctrinal and jurisprudential analysis in their judgments. However, their selection and interpretation of domestic sources has not always been methodologically sound.
First, the Court on occasions refers only to those sources that support the theory it has decided to endorse. This selective approach leads to a potential misstatement of the degree of acceptance of a particular theory in domestic jurisdictions. For example, the Lubanga DCC attempted to demonstrate that the criterion of the control over the crime enjoys wide acceptance in many legal systems, whereas in reality it is recognized almost exclusively in German- and Spanish-speaking literature.Footnote 23
Similarly, PTC I in the Katanga and Ngudjolo DCC affirmed that many domestic jurisdictions apply the mode of indirect perpetration based on the control over an organization.Footnote 24 In reality, however, it could only cite five systemsFootnote 25 out of the states parties to the Statute.Footnote 26 In addition, some of the decisions cited by PTC I have subsequently been modified by higher courts in the same country, thus casting doubt on the effective acceptance of the theory even within those systems.Footnote 27
Second, the Court has sometimes misinterpreted not only the degree of acceptance of a certain theory, but also the grounds on which it would be applied. Thus, when quoting national judgments in which courts supposedly applied the theory of indirect perpetration by virtue of an organized power apparatus following Roxin, the Katanga DCC makes reference to specific decisions that do not rely entirely on that theory.Footnote 28 Moreover, the PTC makes reference to domestic precedents that applied a mixture between the theory developed by Roxin and that of F.-C. Schröder.Footnote 29 The latter theory is based on the idea of the direct perpetrator's predisposition to commit the relevant act (Tatgeneigtheit, predisposición al hecho).Footnote 30 However, it fails to take this complementary element into consideration when defining the requirements of indirect perpetration. Instead, the PTC adopts the concept of the interchangeability of direct perpetrators, which is central to Roxin's doctrine.Footnote 31 Nor does the Katanga and Ngudjolo DCC take into account the requirement of the detachment of the organization from the law, which, according to Roxin, is a constitutive element of this mode of liability.Footnote 32 This is also so according to many domestic precedents in which his interpretation has been followed.Footnote 33
Third, the Court follows minority opinions that are highly controversial even within the legal systems from which they stem. In defining co-perpetration, for example, the ICC admits that this label may also apply to a party who is only involved in the preparatory stage of the offence.Footnote 34 By contrast, the majority view reflected in Continental literature is that whoever is involved in the preparatory stage of the offence leaves it to another actor to decide whether or not the offence will be committed.Footnote 35 As a result, one may doubt that this interpretation really amounts to a ‘general principle of law’.
These examples seem to be a manifestation of what Cassese has aptly defined as ‘approche sauvage’.Footnote 36 They are based on a selective and partial use of external references that does not take into account either their representative value or their specific elements.
In our view, when it is not possible to find in comparative law any common principles that offer a satisfactory response to issues raised by the prosecution of international crimes, it is not justified to advocate a particular solution arguing that it has reached the status of a quasi-general principle of law. This approach may be described as ‘a dubious exercise of jurisprudential comparison’.Footnote 37 This remark has also been made by Judge Fulford and Judge Van den Wyngaert in their separate opinions on the Lubanga and the Ngudjolo Chui judgments, respectively.Footnote 38
It is advisable for the Court to apply the ordinary-meaning and systematic methods for interpretation. If the Court applies a theory developed in a domestic system (such as Roxin's doctrine), it should do so because the theory most closely repre-sents Article 25(3).Footnote 39 Such a choice would be an attempt to build an international Dogmatik, but it should not claim to give the theory a spurious status of a general principle of law.
2.2. Expansive interpretation of principal liability
Besides the methodological flaws, the ICC's interpretation of the modes of liability up to the Lubanga trial udgment raises questions as to the concept of perpetration as such. The jurisprudence demonstrates a trend towards the widening of the scope of principal liability, as a result of a broad reading of some of its requirements, namely, the ‘essential contribution’ to the offence and the ‘common plan or agreement’. In our view, this infringes the principles of strict construction and in dubio pro reo under Article 22(2). A similar warning was made, as we shall see, in the Katanga judgment.Footnote 40
2.2.1. Interpretation of ‘essential contribution’
In order to identify which contributions may amount to ‘control over the crime’, as a ground for both co-perpetration and indirect perpetration, the Court in the Lubanga case has opted for the criterion of ‘essential contribution’.Footnote 41
This ambiguous concept has been defined as an element ‘whose absence would have frustrated the common plan to commit the crime’.Footnote 42 However, this interpretation implies a merely ‘negative’ control over the crime,Footnote 43 meaning that the person cannot determine whether the crime will be committed but only whether it will not. Such control is not unique for the perpetrator but is also shared by any participant.Footnote 44
Additionally, in identifying the elements that allow the determination that a contribution has indeed been essential, the Court has not always focused, as it should, on the causal and mental link between the defendant's conduct and the offence. The Lubanga trial judgment has instead inferred the essentiality of the contribution from a number of indications of the defendant's highest-ranking position in the organizational hierarchy.Footnote 45
Such construction entails the risk of holding the defendant accountable solely based on his/her position in the hierarchy and on the dereliction of duties inherent in this status.Footnote 46 Nevertheless, these forms of responsibility do not fall within the scope of Article 25(3), which has clearly opted for grounding principal liability in the defendant's contribution to performing the offence by the use of verbs like commit, order, solicit, induce, and assist. Therefore, this interpretation arguably amounts to a violation of the principle of legality enshrined in Article 22 of the Statute.
It is true that the senior position held by the defendant may give a special significance to his/her contribution to the offence. Yet, in our view, this element should be assessed in sentencing, and not as the sole ground for holding him/her liable.
What is more, the ICC has maintained that the relevant ‘essential contribution’ does not need to be performed at the execution stage of the offence.Footnote 47 It has consequently allowed the charging of an individual as a co-perpetrator even if that individual performs no acts after the preparatory stage. The Lubanga DCC asserts: ‘although some authors have linked the essential character of a task – and hence ability to exercise joint control over the crime – to its performance at the execution stage of the crime, the Statute does not contain any such restriction’.Footnote 48 The decision quotes some German and Spanish scholars who have developed the criterion of ‘essential contribution’ as a ground for the control over the crime. Yet, the Chamber does not fully respect these authors’ views, in so far as it does not follow their claim that a contribution may be deemed as essential only if it was made, or at least reinforced, at the execution stage of the offence.Footnote 49
This limitation is grounded in the consideration that whoever acts only in a preparatory stage does not have control over the crime, since the final decision as to whether and how to commit the offence is left to direct perpetrators.Footnote 50 For a person to be charged as a co-perpetrator, therefore, he/she has to make a contribution at the execution stage. Additionally, this contribution has to be considered as essential in light of the common plan to commit the crime, that is, from an ex ante perspective.Footnote 51
It is true that some scholars recognize that when dealing with organized criminal structures, the leaders may be labelled as perpetrators even if they perform acts only in a preparatory stage.Footnote 52 However, these proposals still represent a minority view,Footnote 53 and the Lubanga DCC does not explain why it considers this interpretation more convincing than the opposite (and more restrictive) one. The decision simply states that the Statute contains no restrictions on this point.
In relation to this rather weak argument, we may recall that the Statute contains no reference at all to the ‘essential contribution’ criterion. The literal meaning of the statutory provision is relied upon by both Judge Fulford and Judge Van den Wyngaert, who reject the applicability of the ‘essential contribution’ criterion.Footnote 54
In addition, in so far as the Statute allows for a substantial judicial discretion at sentencing, labelling a person who performs an act only in a preparatory stage of the offence as an accomplice by no means implies the imposition of a lower sentence. The approach of ascribing control over the crime even to those who perform no acts after the preparatory stage emerged in Germany precisely to overcome the lack of a legal provision within that system allowing the punishment of an accomplice who made a very significant contribution with the same penalty as that imposed on the perpetrator.Footnote 55 Such a provision exists in Spain and in most Latin-American legal systems, which envisage a figure called cooperador necesario: ‘those that provide a contribution to the execution of the crime without which it would not have been committed’.Footnote 56 An accomplice rather than a perpetrator, the cooperador necesario does not undertake acts in the execution of the offence. They only make a contribution, whether at the executive or preparatory stage of the offence. Yet, the importance of their contribution allows the imposition of the same sanction as that imposed on the perpetrator.
In our view, this legislative choice allows the matching of a sanction to the participant's contribution while retaining the concept of perpetrator for non-accessory interventions.Footnote 57 Common law systems, on the other hand, envisage different modes of participation in a crime, although the maximum sentence for accessory liability is generally the same as that for principals.Footnote 58
The same option might be followed, in our opinion, in the ICC system, in which a participant may receive virtually the same penalty as the perpetrator.Footnote 59 Although Article 25(3) of the ICC Statute does not encompass a mode of liability similar to the cooperador necesario, such a form of liability may fall within the scope of Article 25(3)(b) or (c). Therefore, there is no need for enlarging the scope of perpetration to cover an essential contribution made at the preparatory stage. The person who performs his/her act at that moment may be labelled as an accessory and still receive the same sentence as the perpetrator.Footnote 60
2.2.2. Broad definition of the common plan or agreement
Another arena for this expansive interpretation of the modes of principal liability is the concept of common plan or agreement, which is also a requirement for co-perpetration. Although it has shown some inconsistencies in this respect,Footnote 61 the Court has followed a broad reading of this element, by stating that the plan in itself does not need to be criminal.Footnote 62
Accordingly, the ICC deems it sufficient that the common plan implies an ‘element of criminality’. This requirement would be met, as the Lubanga trial judgment affirms, whenever ‘its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed’.Footnote 63
Such a broad understanding of the ‘element of criminality’ is hardly compatible with the rule of strict interpretation, because, if the plan does not envisage the commission of a concrete crime, ‘there is nothing (agreed) what (sic) could be mutually attributed’.Footnote 64 Furthermore, this interpretation infringes on the principle of individual criminal responsibility in so far as it implies the possibility of charging the defendant with crimes that are committed in excess of the common plan. When one of the parties commits a crime not initially included, even implicitly, in the common plan, the adopted broad understanding of the common plan allows the extension of responsibility for that excess to all those who agreed to the plan, provided that they foresaw the (excess) crime as a possible occurrence in the ordinary course of events. Thus, Katanga and Ngudjolo Chui were initially charged as co-perpetrators for the alleged crimes of rape and sexual slavery committed by the militia members during the attack against the village of Bogoro, on the ground of their alleged knowledge that those crimes would occur in the ordinary course of the events as a consequence of the common plan shared by them.Footnote 65 This element of knowledge is not sufficient in itself to charge the defendants with the crimes committed during the attack. The Pre-Trial Chamber should have also identified the respective contribution of each of them to the alleged rapes or acts of sexual slavery committed by their subordinates.
The construction adopted by the Chamber makes the discharge of the burden of proof an easier task for the prosecution, since it is not necessary for it to prove that the crime with which the defendant is charged was part of the agreement. But this solution effectively removes the common intention to commit the crime as an independent requirement, which is both the foundation and the limit for mutual imputation in co-perpetration.
The simple awareness that the plan may lead to the commission of a crime in the ordinary course of events amounts to a lower threshold of mens rea than that required by the Statute. Article 30(2)(a) defines a person as having intent if ‘in relation to conduct, that person means to engage in the conduct’. By following this interpretive path, the ICC considers it sufficient instead that the conduct in which the other participant has engaged, resulting in excess crimes, had been foreseen, and not necessarily intended, by the defendant.Footnote 66
This construction takes us back to the controversial JCE III.Footnote 67 Arguably, it amounts to a violation of the principle of culpability. In addition, it is out of step with the theory of control over the crime, since the party who acts within the scope of the agreement cannot have joint control over an excess offence individually perpetrated by another.Footnote 68 In a similar vein, in situations where indirect perpetration could be applied, the person who masterminded the crimes and had them perpetrated through another individual cannot be held responsible for any excess autonomously committed by the latter.Footnote 69
This interpretation also goes against the principle of proportionality: it equates the joint commission of the crime with the mere creation of the risk of someone else taking one's contribution in order to commit a crime that has not been agreed.Footnote 70 The former conduct is obviously more morally reprehensible and blameworthy than the latter whereby the defendant's action creates the risk that another person would take advantage of the situation to commit a crime that has not been agreed to. To prevent these problematic outcomes, co-perpetration liability should cover only the offences that formed part (even if tacitly or implicitly) of the common plan or agreement. Similarly, in order to charge a defendant as an indirect perpetrator, the main party must have given instructions to commit the crime.Footnote 71
Accordingly, it would suffice that an agreement is reached on the ‘extermination of all terrorists’, to understand that the common plan includes the individual deaths of all of those who have been classified as such by the leaders. However, as held in the Katanga judgment, overturning the approach followed in the DCC in the same case, formulating the plan to defend or attack a territory is not per se sufficient to impose criminal liability for pillage or rapes committed by soldiers during the attack. Such conduct cannot be deemed as implicit in the agreement or in the order, even if such acts occur frequently or are foreseeable in these situations.
Finally, the interpretation based on a broad understanding of the common plan or agreement purported by the ICC, falls short of complying with the requirement of an objective contribution to the specific crime. As long as all of the members of the common plan may be held responsible as co-perpetrators for any excesses committed by one of them, all may be charged simply on the basis of a mere contribution to the common plan, which might in itself not be criminal.Footnote 72 As the majority of the Trial Chamber ruled in the Lubanga judgment, ‘the commission of a crime jointly with another person involves two objective requirements: . . . [one being] that the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime’.Footnote 73
This surreptitious change fails to meet the requirement of an objective contribution to the commission of a specific crime, which is essential for charging any individual with that crime. As Judge Van den Wyngaert correctly asserts:
What troubles me in the Pre-Trial Chamber's interpretation is that . . . the focus of attention has shifted away from how the conduct of the accused is related to the commission of a crime to what role he/she played in the execution of the common plan. Indeed, under the Pre-Trial Chamber's interpretation, it suffices for an accused to make a contribution to the realization of the common plan, even if this contribution has no direct impact on the coming into being of the material elements of a crime.Footnote 74
This outcome breaches the principle of individual criminal responsibility. It does not comply with Article 30(1) of the Statute either, since it does not ensure the sufficient linkage of the mens rea to the carrying out of the material elements of a crime. Because the mental element is linked instead to ‘a contribution towards a broadly defined common plan, as the control theory does, . . . the connection to the crime might be almost entirely lost’.Footnote 75
2.3. The common underpinning of these trends: a hierarchy of blameworthiness
All the interpretive trends just described are underpinned by the Court's aim of charging the defendant on the basis of principal liability.Footnote 76 The rationale for this approach is not the necessity of imposing a more severe penalty, since the ICC Statute does not associate different sentences with the conviction as a ‘principal’ or ‘accessory’. This suggests that ‘while the modes of participation in Article 25(3) ICC Statute reflect a differentiation model, the statutory provisions on sentencing provide for a unitary range of punishment’.Footnote 77 Furthermore, the sentencing practice of international and mixed criminal tribunals shows that other participants have sometimes been imposed harsher penalties than perpetrators, and vice versa.Footnote 78
Instead, the actual reason for which judges tend to bolster the modes of principal liability appears to be the stigmatizing message that the Court aims to send to the international community as a whole, by virtue of the symbolic and expressive function of its decisions.Footnote 79
At the root of this approach is the assumption that principal liability is by definition more blameworthy than any forms of accessory liability, and that Article 25(3) establishes a hierarchy of blameworthiness.Footnote 80 Accordingly, the Lubanga trial judgment argues that the notion of principal liability has the ‘capacity to express the blameworthiness of those persons who are the most responsible for the most serious crimes of international concern’.Footnote 81
Nonetheless, in the previous paragraph of the same judgment the Court apparently focused on a different criterion, rightly asserting that: ‘As such, secondary liability is dependent on whether the perpetrator acts. Conversely, principal liability, which is closer to the violation of the legal interests protected by the norm, is not the subject of such dependence’.Footnote 82
This statement explains, in our view, the most appropriate criterion for distinguishing between these categories of liability, i.e. the autonomous or derivative nature of responsibility. Thus, the contribution made by the principals is in itself criminally relevant, whether as a committed crime or as an attempt thereof. By contrast, accomplice liability is accessorial, meaning that there must be a perpetrator who commits or at least attempts the commission of the offence for the contribution of the accomplice to be punishable.Footnote 83
It is therefore contradictory that the Court, while endorsing this notion of a derivative nature of accessorial liability, allows charging individuals as co-perpetrators even if their contribution is made at the preparatory stage only.Footnote 84 The definition of ‘attempt’ under Article 25(3)(f) requires an action ‘that commences the execution’ of the crime.Footnote 85 A person who acts only at the preparatory stage does not commence the execution of the crime; therefore, he/she does not reach the statutory threshold of the attempt. Since the perpetrator is the one who commits or at least attempts the crime, a person who makes a contribution only at the preparatory stage cannot be labelled as perpetrator. In order for this contribution to be punishable, someone else has, at least, to commence the execution of the crime. A contribution made at the preparatory stage is therefore accessory in nature. Accordingly, it should only be charged under accessory liability.
3. The Katanga judgment: A change of perspective
The Trial Chamber's judgment against Germain Katanga marks a significant shift in the interpretation of Article 25(3), although the DCC against him initially labelled him as an indirect co-perpetrator and reflected the main interpretative approach to that provision as described above.
Nevertheless, at the trial stage, the prosecution could not provide sufficient evi-dence to secure the defendant's responsibility under that label. As a consequence, although Trial Chamber II considered that the case against Ngudjolo Chui was ready for judgment, it decided to continue the trial against Katanga separately, subject to a possible change in the mode of liability under Regulation 55.Footnote 86 It is noteworthy that Judge Van den Wyngaert opposed this decision by arguing that such re-characterization would go beyond the scope of the charges and would therefore infringe upon a number of fair trial standards.Footnote 87 In the view of the majority, however, Katanga's responsibility would more appropriately fall within Article 25(3)(d): participating in a crime committed by a group acting with a common purpose.
In the final judgment, Katanga was indeed convicted as an accessory under Article 25(3)(d) for the charges of murder as a crime against humanity and for the war crimes of wilful killing, directing an attack against a civilian population or against individual civilians, destroying property, and pillaging. The Chamber acquitted him of the charges under Article 25(3)(a).
As regards the interpretation of the modes of liability, the Katanga judgment shows some continuity with the previous approach. First, the Chamber recalls that Article 25 separates principals (letter a) from accessories (letters b, c, and d), thereby implicitly rejecting the criticisms made by Judge Fulford in his dissenting opinion attached to the Lubanga judgment.Footnote 88 Second, the judgment rejects both the objective and subjective concept of perpetrator, deeming those to be incompatible with the Statute.Footnote 89 Third, the Chamber adheres to the theory of the control over the crime.Footnote 90 Fourth, it relies on the doctrine of the Organisationsherrschaft developed by Roxin when defining indirect perpetration, although it does not apply it in entering the conviction.Footnote 91
Notwithstanding these common points, the Katanga judgment adopts an interpretation of the modes of liability that is in some respects different from the previous one. In our view, its approach is more convincing.
3.1. The accessorial nature of the contribution as a distinctive criterion
The Katanga Trial Chamber first distances itself from previous case law when it rejects the idea that Article 25(3) establishes a hierarchy of blameworthiness. The judgment clearly asserts that ‘the proposed distinction between the responsibility as a perpetrator or an accomplice does not constitute in any case a hiérarchie de culpabilité (hierarchy of blameworthiness), nor does it set, even implicitly, a gradation of penalties’.Footnote 92 The Chamber therefore adopts the opinion that we maintain: in the ICC framework, a conviction by way of principal liability does not need to be more serious per se than a conviction as an accomplice, since the Statute establishes no direct link between a specific mode of liability and the sentence to be imposed.
As stated earlier, the hierarchy of blameworthiness underlies all of the interpretive solutions aimed at giving the modes of principal liability the broadest possible scope. It is unsurprising, therefore, that the abandonment of this view by the Katanga Chamber entails its detachment from the interpretations leading to the expansion of the concept of perpetrator.
According to the Katanga Chamber, the sole criterion for distinction between principals and accessories in a crime lies in that the conduct performed by the former is constituent (‘constitutif’) for the commission of an offence, whereas the contribution of the latter is only accessorial (‘en lien’) to the commission of, or the attempt to commit, a crime by another individual.Footnote 93 As the Chamber stated, ‘[a]n accomplice cannot be held accountable as long as another person does not commit or attempt to commit a crime over which the Court has jurisdiction’.Footnote 94 Instead, the responsibility as a perpetrator ‘depends on no other individual's intervention’,Footnote 95 since it per se amounts to an offence or to an attempt to commit an offence.
The Katanga judgment therefore confirms the criterion in favour of which we have argued, i.e. the accessory or autonomous nature of the contribution made by the defendant.Footnote 96 Accordingly, the co-perpetrator is always involved in the material execution of a crime. Senior leaders, as long as they generally operate from a remote position, may be better labelled as indirect perpetrators, if the relevant requirements for this form of liability are met.
Otherwise, senior leaders may be charged as instigators or under other modes of participation envisaged in Article 25(3)(b)–(d). In such cases, in order to ensure the stigmatizing message of the conviction, we suggest that the judgments should label defendants as ‘masterminds’ or ‘intellectual perpetrators’ in the reasoning, although considering them as accessories from a technical point of view. Where proving the requirements necessary to establish these modes of liability is not possible, persons in authority may still be charged under superior responsibility for failing to act (Article 28).
3.2. A new methodological choice
When it comes to finding an operational criterion for delimiting this distinction between principals and accessories in specific cases, the majority of the Katanga Chamber applies the theory of the control over the crime. According to this interpretation, principals are all those who have control over the commission of the offence as well as the knowledge about the factual circumstances on which this control depends. Accessories to the crime, by contrast, can be distinguished from principals because, even if they hold a position of authority, the decision on the execution of the crime still lies with another individual.Footnote 97
Yet, unlike in previous decisions where this theory was applied, the Katanga judgment does not try to legitimize it with reference to Article 21(2)(c) (that is, by positing it a ‘general principle of law’). According to the Katanga judgment, it is not necessary to prove that a criterion falls within that category for it to be applied. What matters for the Chamber is that ‘the principle allows to draw the distinction between principals and accessories operational in practice’.Footnote 98
By stating that, the Court rejects the notion that Article 25(3) has a gap that must be filled by having recourse to subsidiary legal sources. According to the judgment, control over the crime is a criterion that simply clarifies the meaning of the relevant statutory disposition, in accordance with the interpretive methods provided for in the Vienna Convention on the Law of Treaties.
It is noteworthy that, while applying the rules established by that Convention, the Chamber also points out the specificity of the ICC system.Footnote 99 The latter, in fact, has recognized some principles that are fundamental to criminal law, and which have to be taken into account when interpreting the relevant provisions. The judgment makes reference to the principle of legality and its corollary, in dubio pro reo, both of which are envisaged in Article 22. These principles rule out interpretive methods, such as the teleological one, in so far as they may result in a reading that goes beyond the ordinary meaning of the statutory provisions and is to the detriment of the defendant.Footnote 100
The methodological approach followed by the Katanga judgment appears more convincing than that unsuccessfully attempting to ground the control over the crime theory in a putative general principle of law.Footnote 101 Furthermore, the reminder of the primacy of the principle of legality over teleological interpre-tations sets a limit on the expansive trend that was followed in the previous jurisprudence.
3.3. Refraining from expansive interpretations
As mentioned above, the Katanga judgment accepts both the theory of the control over the crime and its specific form of control over an organization, as elaborated by Roxin. In defining the constitutive elements of this form of indirect perpetration, the Chamber only focuses on two requirements: (i) the automatic functioning of the power apparatus enabled by the interchangeability of the potential direct perpetra-tors and (ii) the effective control the leader holds over this apparatus.Footnote 102 The latter implies that the indirect perpetrator uses at least a part of the structure over which he/she has power in order to direct the subordinates towards the commission of a crime.Footnote 103
In the view of the Chamber, the combination of these criteria allows an accused to be charged as a perpetrator only under the condition that he/she really has an effec-tive control over the course of events leading to a specific crime with which he/she is charged.Footnote 104 This implicitly overturns the previous understanding of indirect perpetration as encompassing every possible excess committed by a subordinate (or, in case of co-perpetration, by another member in the common plan). The Chamber requires instead a very close control over the commission of the crime, in terms of ‘knowledge, supervision and planning at different levels, [and] control of its bringing about’.Footnote 105
Furthermore, the Katanga judgment rejects the criterion of the essential contribution as a ground for co-perpetration. Its reasoning deals with the definition of perpetration under Article 25(3)(a) as a whole. In analysing that provision, the Chamber makes no reference to the criterion of ‘essential contribution’. Nor does it do so when defining the theory of the control over the crime. It is true that the judgment does not specifically consider a possible charge as a (direct) co-perpetrator. In any event, as explained above, the notion of ‘essential contribution’ made at the preparatory stage of the offence as a ground for perpetration is incompatible with the criterion of non-accessorial contribution, which the Chamber itself applies as the distinctive criterion between principal and accessory liability. Had the Chamber applied the criterion of ‘essential contribution’, it would have probably convicted Katanga as a co-perpetrator by virtue of an essential contribution, rather than – as it did – convicting him under Article 25(3)(d).
When applying this reasoning to the factual circumstances of the case, the Chamber concluded that the evidence collected in the trial fell short of showing the presence of these elements beyond any reasonable doubt.Footnote 106 Not only did the prosecution fail to prove that the Ngiti militia that committed the offences was really an organized power apparatus, it was also unable to demonstrate that Katanga had an effective control over the militia members and their crimes.
Hence, the Chamber re-classified the mode of liability and, in line with the proposal previously made in its decision to sever Katanga's case, it applied the form of accessory responsibility envisaged in Article 25(3)(d).
An extensive analysis of the reasoning the Chamber offered regarding this mode of liability goes beyond the scope of this article, which focuses on the interpretation of the forms of perpetration. But it is noteworthy that the Court affirmed that ‘[t]he crimes that are merely the result of the opportunistic conduct of the members of the group and that do not have any relevance in the common purpose cannot be ascribed to the concerted action of the group’.Footnote 107 This statement confirms the view that a defendant who took part in a common planFootnote 108 cannot be charged with an offence committed by a participant of the common plan, which goes beyond what has been agreed to by other participants.
In addition, the Chamber made a remark about the requirement for a specific contribution to the offence as the basis for charging a defendant under Article 25(3)(d).Footnote 109 If in order to label a defendant as an accessory under this provision the contribution has to refer to the commission of a crime and not only to the generic activities of the group, the same strict criterion should all the more apply to principal liability, in which the contribution is in itself legally relevant.
In conclusion, the majority considered that the factual circumstances established in the case met all of the constitutive elements required by Article 25(3)(d) and, therefore, declared the responsibility of Katanga as an accessory to the crimes.Footnote 110
In her dissenting opinion, Judge Van den Wyngaert stated instead that Katanga's conduct lacked both a specific link to the commission of the offences and the required mens rea in terms of knowing that the contribution would cause the commission of the crimes in the ordinary course of events. Hence, she concluded that Katanga should have been acquitted.Footnote 111
Such strong opposition not only to the label for the conviction, but also to the conviction itself inevitably lends the majority judgment a certain fragility.Footnote 112 Furthermore, the permanent disagreement among the ICC judges as to the interpretation of Article 25(3) gives rise to confusion. That Trial Chamber II takes a different position on this provision in the Katanga judgment than Trial Chamber I did in the Lubanga judgment raises questions as to the consistency in the ICC jurisprudence.
Although the Statute does not encompass the rule of binding precedent as such, Article 21(2) recognizes that ICC precedents may be applied in subsequent decisions. The two approaches compared in this article show a profound disagreement that still exists on the fundamental issue of the modes of liability before the ICC. The Chambers of the Court should endeavour to arrive at a common understanding of basic issues. The inconsistency in their legal findings seriously undermines the predictability of the ICC law.
4. Concluding remarks
The ICC interpretive approaches to the modes of principal liability have relied mostly on theories imported from the Continental legal systems: the theory of the control over the crime and the doctrine of control over an organization when it comes to indirect perpetration. Although resort to domestic sources of law has been grounded, at least prior to the Katanga judgment, in Article 21(1)(c), the Court's analysis was often flawed from a methodological point of view.
Until the issuance of the Lubanga judgment, the Court relied upon a broad interpretation of the essential contribution requirement and the concept of a common plan as the constitutive elements of the theories it applied. This expansive trend, which assumes the notion that labelling an individual as a perpetrator reflects a greater degree of blameworthiness than an accessory liability charge, arguably infringes upon the principles of legality and individual criminal responsibility.
The Katanga judgment partially overturns this approach in that it rejects the interpretation that the distinction between principals and accessories is indeed based on different degrees of blameworthiness. In contrast, it holds (and we agree) that the only valid criterion for distinguishing between perpetrators and accomplices is the autonomous or derivative character of their respective contributions to the crime. This means that a contribution by principals is in itself relevant from the standpoint of criminal law, that is, it amounts per se to a committed or attempted crime. By contrast, accomplice liability is accessorial, meaning that there must be a perpetrator who commits or at least attempts the offence for the contribution of the accomplice to be punishable.
This new approach coincides with a stricter reading of the constitutive elements of principal liability, in that a close and effective control over the commission of the crime is required before an individual can be charged as a perpetrator. This criterion helps avoid the undue expansion of this category of liability that has occurred in the Court's previous practice.
Besides, the Katanga judgment reflects a different interpretive method, which obviates the need for the theory that is subject to application to amount to a ‘general principle of law’. This method focuses on the wording of the statutory provisions and on a systematic reading thereof. It simultaneously rejects (at least in principle) any teleological interpretation that may cause an expansion of criminal accountability contrary to the principles of strict construction and in dubio pro reo. Footnote 113
The ICC system is far from evincing a shared understanding of Article 25(3) and the criteria for principal liability. However, in our opinion, the Katanga judgment offers an important step in the right direction. It is hoped that the future decisions by the ICC will follow this path and further clarify a number of issues.
In this respect, we would advise to limit the application of indirect perpetration through an organized power apparatus to those cases in which there is no doubt that the organization operates as an automatic mechanism pursuant to the orders of the superior.Footnote 114 Second, the Court should refrain from charging as a co-perpetrator an individual who has only made an essential contribution at a preparatory stage of the offence but took no part in the commission of the crime. Last, we strongly recommend that a thorough assessment be made of the objective and subjective links between the contribution made by the defendant and the specific crime with which he/she is charged.
Therefore, senior leaders, who normally operate from a remote position, would be better charged as indirect perpetrators, provided that the elements of this form of liability are met. If none of the essential requirements for principal liability is met, or where there is insufficient evidence to establish such elements, Article 25(3)(b)–(d) of the Rome Statute envisages a wide range of modes of accessory liability. Liability for instigating or ordering the crimes may suit the typical position of senior leaders and their contribution.Footnote 115 In order to keep the stigmatizing message of the conviction, the judgment could label them as ‘masterminds’ or ‘intellectual perpetrators’ but at the same time consider them as accessories from a technical point of view. In other words, not all defendants must necessarily be considered perpetrators.
