Perpetration through an

Organization
The Unexpected Career of a German Legal Concept
Thomas Weigend*

Indirect perpetration is a rather novel concept in international criminal law, mentioned explicitly for the first time in Article 25(3)(a) of the International Criminal
Court (ICC) Statute. In its Katanga and Chui decision, ICC Pre-Trial Chamber I
interprets the concept of indirect perpetration in a particular manner. Citing
German legal doctrine, the Pre-Trial Chamber regards as an indirect perpetrator, a
person who uses a hierarchically structured organization to induce others to
carry out a criminal act. It is questionable whether this doctrine is helpful in analysing the cases of indirect perpetration in the context of systemic crime; it might be
preferable to ask what it takes to control the will of another person to such an
extent as to make him commit a crime. The existence of an organization controlled
by the perpetrator may be no more than one factor relevant for answering that
question.

1. Introduction
In its decision on the confirmation of charges against Germain Katanga and
Mathieu Ngudjolo Chui,1 the International Criminal Court (ICC) Pre-Trial
Chamber I addresses a substantial number of difficult legal issues, some of
them for the first time. One of the most interesting passages of the decision
deals with the question of perpetration through another person under Article
25(3)(a) ICC Statute. Expanding on the analysis of Article 25(3) in its decision
in 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 of
this Journal. [Thomas.weigend@uni-koeln.de]
1 Decision on the Confirmation of Charges, Prosecutor v. Germain Katanga and Mathieu Ngudjolo
Chui (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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Journal of International Criminal Justice 9 (2011), 91^111
doi:10.1093/jicj/mqq077
Advance Access publication 29 December 2010

Oxford University Press, 2010, All rights reserved. For permissions, please email: journals.permissions@oup.com

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Abstract

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international criminal law. In doing so, the Chamber draws heavily on theories
developed in German legal doctrine and jurisprudence, creating the impression
that these theories are generally recognized in Germany and beyond, and can
thus provide a reliable basis for international criminal law. In what follows, I
will not deal with the methodological question as to how the law under the
ICC Statute is to be found, and what role comparative analysis can play in
this endeavour. Instead, I will explain how and to what extent German law
has adopted the idea that a person can perpetrate a crime by using an organization; to what extent that theory is subject to criticism; and finally, what options the ICC has to accept, reject, or limit the concept presented by Pre-Trial
Chamber I.

The accused Germain Katanga and Mathieu Ngudjolo Chui were leaders of
military groups connected with different ethnic groups in the Eastern Congo
region of Ituri. In February 2003, Katanga and Chui developed the common
plan to wipe out the village of Bogoro, and their respective troops carried out
that plan in a joint action. In the course of this action, the troops killed many
members of the civilian population of Bogoro and committed other atrocities
amounting to war crimes and crimes against humanity. The prosecutor
charged Katanga and Chui as co-perpetrators pursuant to Article 25(3)(a) ICC
Statute, based on the theory that they exercised joint control over the crimes
committed.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 on
their presence at the place where the offences were committed; instead, the
Pre-Trial Chamber declared that they jointly committed the war crimes
through other persons under their command, thus combining the modalities
of co-perpetration and perpetration through another person, both contained
in Article 25(3)(a) of the Statute.4
Following the lead of its Lubanga decision, the Chamber defines control as
the criterion for distinguishing principal perpetrators (covered by Article
25(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 militia
members. The Chamber decided that accessorial liability was rendered moot by a finding of liability as principals under Art. 25(3)(a) and hence did not further pursue the alternative of
accessorial liability; ibid., xx 470^471. The Chamber thus sidestepped the question whether it
is permissible for the prosecutor to present alternative charges although Reg. 52(c) of the ICC
Regulations requires [a] legal characterization of the facts to accord both with the crimes
under 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, x 330.

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2. Indirect Perpetration in the Pre-Trial Chamber

Decision in Katanga and Chui

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Chamber had declared that principals to a crime are not limited to those who
physically carry out the objective elements of the offence but also include
those who, in spite of being removed from the scene of the crime, control or
mastermind its commission because they decide whether and how the offence
will be committed. In the present decision, the Chamber follows up on this
statement, interpreting the control or mastermind formula to include the situation where a person has control over the will of those who carry out the objective elements of the offence.6 Since Article 25(3)(a) ICC Statute explicitly
declares to be irrelevant whether the person through whom the crime is committed himself acts culpably or not, the Chamber concludes that control over
the immediate actor can also be exerted by means of an organization:

Since the crimes covered by the ICC Statute will almost inevitably concern
collective or mass criminality, the Chamber continues, the Statute must be
understood to encompass organizational control as a form of perpetratorship:
::: by specifically regulating the commission of a crime through another
responsible person, the Statute targets the category of cases which involves a
perpetrators control over the organization.8 The Pre-Trial Chamber then
defines the necessary elements of an organization by which the perpetrator
can control the will of his subordinates:
The Chamber finds that the organisation must be based on hierarchical relations between
superiors and subordinates. The organisation must also be composed of sufficient subordinates to guarantee that superiors orders will be carried out, if not by one subordinate, then
by another. These criteria ensure that orders given by the recognized leadership will generally be complied with by their subordinates.9

In such an organization, the Chamber claims, the orders of the leader will be
carried out automatically; if one member should refuse to obey, another
member will take over.10 The Chamber points out that one way of installing
such a strict system of command and obedience is through intensive, strict,
and violent training regimens.11 The Chamber further explains that perpetration by means of an organization can also be committed jointly by several leaders acting in concert, provided that each leader supplies a contribution
necessary for the fruition of the common plan.12
Applying these standards to the case before it, the Chamber concludes that
there is sufficient evidence to show that defendants Katanga and Chui in fact
6
7
8
9
10
11
12

Katanga and Chui, supra note 1, x 488.

Ibid., x 498.
Ibid., x 501.
Ibid., x 512.
Ibid., xx 515^517.
Ibid., x 518.
Ibid., xx 524^526.

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

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co-perpetrated the crimes in question through their respective troops since

compliance with their orders was ensured, and both leaders were aware of
that 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 Chambers

Theory
A. The Perpetrator behind the Perpetrator

13 Ibid., xx 540 et seq. With respect to sexual crimes committed by the militia, the majority of the
judges held that the defendants knew that in the ordinary course of events, the implementation
of the common plan would inevitably result in the rape or sexual enslavement of civilian
women (ibid., at x 551). Judge Us acka, in dissent, wrote that there was insufficient evidence to
link the defendants to these offences (idem, ibid., Partly Dissenting Opinion of Judge Us acka, x
27).
14 See e.g. the large number of writers cited in note 647 to the Courts opinion in Katanga and
Chui, supra note 1, x 485.
15 C. Roxin, Straftaten im Rahmen organisatorischer Machtapparate, Goltdammers Archiv fur
Strafrecht (1963), at 193; for an (abridged) translation of Roxins article see infra, in this issue of
the Journal. A similar concept was proposed almost contemporaneously by F.C. Schroeder,
Der Tater hinter dem Tater (Berlin: Duncker & Humblot, 1965).
16 Bundesgerichtshof (Federal Court of Appeals), judgment of 26 July 1994, in 40 Entscheidungen
des Bundesgerichtshofes in Strafsachen (1995) 218^240, at 236 et seq. For an (abridged) translation 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 perpetrators, it is necessary for the courts to distinguish between these two forms of participating in a
criminal act.

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The Pre-Trial Chamber has based its concept of perpetration through an organization on amply documented legal writings and court opinions from various legal systems.14 The Chambers crown witness is the influential and
internationally renowned German criminal law scholar Claus Roxin, who first
published a theory of perpetration by means of an organization in 1963.15
Three decades later, Roxin saw his theory applied by the German Federal
Court of Appeals (Bundesgerichtshof) when it had to adjudicate human rights
violations committed in the context of the lethal border regime installed by
the leadership of the German Democratic Republic (GDR).16
When Roxin wrote his seminal article in 1963, the criteria for distinguishing
between perpetratorship17 (which in Germany has always included the concept
of indirect perpetratorship by the use of another person) and accessorial liability 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 of
the 19th century, consistently taken a subjective approach. They maintained
that principals as well as accessories provided causal contributions to the
criminal act, and since one could not distinguish between more causal and
less causal contributions, the only way to tell perpetrators and accessories

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18 Reichsgericht (Imperial Court), judgment of 7 January 1881 in 3 Entscheidungen des

Reichsgerichts in Strafsachen (1881) 181^183, at 182^183. In the famous bathtub case decided by
the Imperial Court, a woman had given birth to a child out of wedlock. The woman asked her
sister (S) to drown the baby in the bathtub, and S did so. The Imperial Court reversed the conviction of S for murder and suggested that she should be convicted of aiding and abetting infanticide because she wanted only to help her sister and had no personal interest in having
the baby killed; see Reichsgericht, judgment of 19 February 1940, in 74 Entscheidungen des
Reichsgerichts 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 organisatorischer
Machtapparate und der BGH, Goltdammers Archiv fur Strafrecht (2006) 411, at 413.
20 The seminal work was C. Roxin,Taterschaft und Tatherrschaft (8th edn., Berlin: de Gruyter Verlag,
2006). The first edition of this monograph was published in 1963. For a more recent summary
of Roxins 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 another
person 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 aiding
and abetting are defined separately in the following paragraphs. Although the Codes terse formulation leaves many questions open to interpretation, it seems clear that the Code does not
espouse a purely subjective approach: under x 25(1), a person who commits the offence himself

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apart was by considering their subjective attitude: if a person has the mind of a
perpetrator (animus auctoris), he will be treated as a principal regardless of the
importance of his factual contribution; if he only wishes to help another
person commit the crime (animus socii), he will be convicted as an aider and
abettor even if he personally fulfils every element of the definition of the
crime.18 Under this theory, perpetration through another person could be committed by anyone who had the mind of a perpetrator and caused another
person to carry out the act constituting the offence; at least in theory, it made
no difference whether the front mancould himself be held liable as a perpetrator. Writers who embraced the subjective approach therefore saw no major
problem in recognizing a perpetrator behind the perpetrator (Tater hinter dem
Tater), that is, a person committing a crime by using another responsible
person.19
The great majority of German law scholars rejected the courts subjectivist
approach because it lacked a rational criterion for distinguishing between principals and accessories, leaving everything to the courts assessment of the defendants attitude. Based on the writings of earlier authors, it was Claus
Roxins variant of the objectivist theory20 which eventually carried the day.
According to Roxin, a perpetrator is a person who dominates (beherrscht) the
commission of the criminal offence, in that he has the power to determine
whether or not the relevant acts are done. Domination of the act
(Tatherrschaft) can occur when a person does the relevant act himself, does it
jointly with others, or uses another person as his tool. When the German legislature reformed the General Part of the Penal Code in the late 1960s, it more
or less transferred Roxins theory into the formulation of the relevant provision,21 and it is not difficult to discover traces of this theory in the terminology
of Article 25(3)(a) ICC Statute as well.

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cannot be treated as a mere accessory, even if his subjective wish is only to help others to
commit the offence.
22 For an early statement of this view, see W. Gallas, Die moderne Entwicklung der Begriffe
Taterschaft und Teilnahme im Strafrecht, in Sonderheft (special issue) Zeitschrift fur die gesamte
Strafrechtswissenschaft (1957) 3; for a more recent version, see R.D. Herzberg, Mittelbare
Taterschaft und Anstiftung in formalen Organisationen, in K. Amelung (ed.), Individuelle
Verantwortung und Beteiligungsverhaltnisse bei Straftaten in burokratischen Organisationen des
Staates, der Wirtschaft und der Gesellschaft (Sinzheim: Pro Universitate Verlag, 2000) 33, at 43;
see also, R. Bloy, Grenzen der Taterschaft bei fremdhandiger Tatausfuhrung, Goltdammers
Archiv fur Strafrecht (1996) 424, at 437 et seq.
23 For a good overview, see B. Schunemann, in H.W. Laufhutte, R. Rissing-van Saan, and
K. Tiedemann (eds), Strafgesetzbuch. Leipziger Kommentar (12th edn., Berlin: Walter de Gruyter
Verlag, 2007), at x 25, notes 62^64.

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According to Roxins theory, the hallmark of perpetration through another

person alternatively named indirect perpetration (mittelbare Taterschaft)
is the perpetrators domination of the human instrument who actually carries
out the criminal act. Domination can take various forms. For example, the indirect perpetrator can create a misconception about relevant facts, he can
exert strong psychological pressure (duress) upon the actor, or he can employ
a person who, because of mental illness or immaturity is unable to realize
what he is doing. Under this theory, domination necessarily presupposes that
the person to be dominated lacks an element that would make him fully
responsible, under the criminal law, for what he does. If the immediate actor
enjoys complete autonomy in his decision to carry out the criminal act and is
therefore fully responsible, he cannot at the same time be the mere instrument
of another person.22 Consequently, many German scholars have proposed the
so-called autonomy principle: indirect perpetration is not possible if the
person who carries out the act is an autonomous, criminally responsible
actor.23 In other words, the fact that the actor can be punished for his criminal
act shields the person in the background from liability as a perpetrator; he
can 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 exceptions from the principle that there can be no perpetrator behind a fully responsible perpetrator. The case that made Roxin wonder was that of Adolf
Eichmann. Could it be true that Adolf Eichmann, who gave the orders leading
to the killing of millions of Jews, was not a perpetrator of mass murder but
only an instigator, a mere accessory? Since the persons who operated the concentration camps and the gas chambers evidently were criminally responsible
for their acts, the autonomy principle would indeed shield Eichmann (as well
as Adolf Hitler and Josef Stalin) from full responsibility as a principal.
Considering this consequence, Roxin came to the conclusion that there must
exist a further category of domination, one that does not rely on the immediate
actors lack of criminal responsibility. He suggested that a person who is in
charge of a hierarchically structured criminal organization whose members

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97

24 For a recent statement of this view, see C. Roxin, Organisationsherrschaft und

Tatentschlossenheit, Zeitschrift fur internationale Strafrechtsdogmatik (2006) 293, available
online 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 organization refused to carry out the order to commit the crime because as a rule the criminal
act would then be carried out by another member. Roxin obviously has in mind tight-knit
large organizations such as the SS or the GDRs Peoples Army.
26 Roxin, supra note 24, at 297.
27 In order to make his concept applicable to the GDR regime which evidently did not operate
outside the law in most aspects of life Roxin claims that it is sufficient that an organization
has distanced itself from the law in those areas where the crimes in question are being
committed. Roxin, supra note 24, at 297.

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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 subordinates are themselves perpetrators of the crimes.24 The perpetrator behind the
desk, Roxin argues, differs from an instigator in that he need not look out for
a principal offender but already has at hand people willing to commit the
offence.
Roxin maintains that domination of the commission of a crime is as strict
and absolute when the perpetrator works through an organization as when
he uses an irresponsible human instrument. In order to make sure that the
perpetrator behind the desk is capable of imposing his will on his subordinates,
Roxin posits three additional conditions: the organization must have a tight
hierarchical 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 organization be certain that their orders will be carried out under all circumstances. He emphasizes the necessity that members of the organization be
fungible, that is, any member unwilling or unable to carry out the leaders
orders can immediately be replaced by another subordinate, so that the leader
knows that the crimes will be committed regardless of the individual wishes
of any particular member of the organization.25 If the criminal task requires
a specialist who is difficult to replace, Roxin concludes, the head of the organization should not be held responsible as a principal but only as an instigator,
with the specialist being the sole perpetrator of the crime.26 Unquestioning
obedience to the leaders orders is not guaranteed, according to Roxins view,
when the organization operates within the bounds of the law; if that is the
case, he argues, a subordinate faced with an unlawful order might well
choose obedience to the law and refuse to commit the crime. If, on the other
hand, an organization like the mafia or the SS operates outside the law, its
members will have no incentive to abide by any norm other than those set by
the 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 be
committed.

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B. The German Courts Version of Roxins Theory

28 For an analysis and extensive documentation of the jurisprudence, see W. Joecks, in B. von
Heintschel-Heinegg (ed.), Munchener Kommentar zum Strafgesetzbuch, Vol. 1 (Munich: C.H. Beck,
2003), comments on x 25, notes 15^29; C. Roxin, Die Abgrenzung von Taterschaft und
Teilnahme in der hochstrichterlichen Rechtsprechung, in C. Roxin and G. Widmaier (eds), 50
Jahre Bundesgerichtshof^ Festgabe aus der Wissenschaft, Vol. 4 (Munich: C.H. Beck, 2000), at 177;
Schunemann, supra note 23, at 17^31.
29 Bundesgerichtshof, judgment of 3 November 1992, in 39 Entscheidungen des Bundesgerichtshofes
in Strafsachen (1994) 1^36; Bundesgerichtshof, judgment of 25 March 1993, in 39
Entscheidungen des Bundesgerichtshofes in Strafsachen (1994) 168^195.
30 Bundesgerichtshof, judgment of 26 July 1994, in 40 Entscheidungen des Bundesgerichtshofes in
Strafsachen (1995) 218^240.
31 Ibid., at 236.

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Somewhat surprisingly, the Federal Court of Appeals, the highest German

court in criminal matters, has embraced Roxins concept of perpetration
through an organization and actually expanded it beyond what Roxin himself
would have imagined. Never having fully abandoned the subjectivist approach,
the German courts had in the 1980s moved toward a mixed test for distinguishing principals from accessories, emphasizing that that distinction
depended on an overall evaluation of the facts of each case, including both objective and subjective factors.28 After the end of the German Democratic
Republic, German courts were faced with a host of novel legal questions. One
of them concerned the responsibility for the death of hundreds of GDR citizens
who were shot or lost their lives in the mine fields as they attempted to cross
the border to the West. Some of the border guards who had actually fired
deadly shots were convicted of intentional homicide, and their claims of
duress as well as mistake of law were rejected.29 Subsequently, some of the
highest political and military leaders of the GDR were accused of murder for
instituting and maintaining the border regime, which included strict orders
to border guards to prevent, by all means, any illegal defection from the GDR.
These cases squarely confronted the Federal Court of Appeals with the question whether the leaders of the relevant GDR institutions could be punished
as principal perpetrators even though the border guards had already been convicted as perpetrators of the border killings. The Federal Court of Appeals, relying on the theory of perpetration through an organization developed by
Roxin many years earlier, held in 1994 that the leaders of the GDR regime
were not mere instigators but perpetrators of homicide.30 In this decision, the
Federal Court of Appeals took the objectivist approach of asking who dominated the criminal act (i.e. the shooting of fugitives). The Court conceded that
normally a responsible actor who fires the fatal shot dominates the unlawful
killing, which would preclude any domination by other persons. But the Court
recognized an exception for situations where the activity of a person in the
background almost automatically brings about the result (i.e. the death of fugitives) because that person makes use of organizational structures and rules
and thus, sets into motion rule-determined processes (regelhafte Ablaufe).31 In
a seemingly irrelevant but intentionally placed dictum, the Court indicated

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4. Critical Views
Even the narrower original version of Roxins theory has not escaped criticism.
The question has been raised why only the leader of a lawless organization
can be a perpetrator, as Roxin proposes organizations that claim to operate
on 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 Unternehmen
lat sich so losen). The presiding judge of the Courts panel who coined this phrase later revealed that the Court intentionally used this formulation in order to extend the notion of perpetration through an organization to business enterprises; see A. Nack, Mittelbare Taterschaft
durch Ausnutzung regelhafter Ablaufe, Goltdammers Archiv fur Strafrecht (2006) 342, at
343^344.
33 See e.g. Bundesgerichtshof, judgment of 13 September 1994, in 40 Entscheidungen des
Bundesgerichtshofes in Strafsachen (1995) 257, at 268^272; Bundesgerichtshof, judgment of 6
June 1997, in 43 Entscheidungen des Bundesgerichtshofes in Strafsachen (1998) 219, at 232;
Bundesgerichtshof, judgment of 11 December 1997, in Neue Zeitschrift fur Strafrecht (1998) 568;
Bundesgerichtshof, judgment of 2 November 2007, in Neue Zeitschrift fur Strafrecht (2008) 89.
34 See e.g. K. Ambos, Tatherrschaft durch Willensherrschaft kraft organisatorischer
Machtapparate, Goltdammers Archiv fur Strafrecht (1998) 226, at 239^240; V. Haas, Die Theorie
der Tatherrschaft und ihre Grundlagen (Berlin: Duncker & Humblot, 2009), at 107^109; F.
Munoz Conde, Willensherrschaft kraft organisatorischer Machtapparate im Rahmen
Nichtrechtsgeloster Organisationen? in B. Schunemann et al. (eds), Festschrift fur Claus
Roxin zum 70. Geburtstag am 15. Mai 2001 (Munich: de Gruyter Verlag, 2001) 609, at 623;
H. Olasolo, The Criminal Responsiblity of Senior Political and Military Leaders as Principals to
International Crimes (Oxford: Hart Publishing, 2009), at 134; T. Rotsch, Tatherrschaft kraft
Organisationsherrschaft? 112 Zeitschrift fur die gesamte Strafrechtswissenschaft (2000) 518, at
553^556; B. Schunemann, Die Rechtsfigur des Taters hinter dem Tater und das Prinzip der
Tatherrschaftsstufen, in A. Hoyer, H.E. Muller, M. Pawlik and J. Wolter (eds), Festschrift fur
Friedrich-Christian Schroeder zum 70. Geburtstag (Munich: C.F. Muller, 2006) 401, at 413;
Zaczyk, supra note 19, at 414. But see the defence of the approach of the Federal Court of
Appeals by R. Hefendehl, Tatherrschaft in Unternehmen vor kriminologischer Perspektive,
Goltdammers Archiv fur Strafrecht (2004) 575, at 578 et seq.

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that perpetration through an organization might occur not only in

state-sponsored organizations but also in mafia-like criminal organizations
and indicated further that the problem of responsibility for leading business
enterprises could also be solved that way.32 In a series of later decisions, it
became apparent that the Federal Court of Appeals had intended to inconspicuously lay the groundwork for a broad extension of Roxins original doctrine to all kinds of enterprises, thus making the leading staff of business
enterprises responsible as principals for business-related offences committed,
with their knowledge, by subordinate employees.33 This broad reading of perpetration through an organization has been widely criticized by legal scholars,
mainly because a business enterprise lacks all the main characteristics (tight
hierarchical structure, general lawlessness, fungibility of members) that
might justify the imposition of liability as a perpetrator to the leaders of a military or political organization.34

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35 See Ambos, supra note 34, at 242^243; Herzberg, supra note 22, at 36^37; J. Schlosser, Soziale
Tatherrschaft (Berlin: Duncker & Humblot, 2004), at 151^155.
36 Haas, supra note 34, at 56; H. Otto, Taterschaft kraft Organisatorischen Machtapparates, Jura
(2001) 753, at 755^756; T. Rotsch, A nmerkung zu BGH Urt. v. 3.7.2003, 2004, Juristische
Rundschau (2004) 248, at 249; Zaczyk, supra note 19, at 414. For an alternative explanation of
dominance through social organizations, see Schlosser, supra note 35, at 212 et seq.
37 T. Rotsch, Neues zur Organisationsherrschaft, Neue Zeitschrift fur Strafrecht (2005) 13, at 16.
Roxin emphasizes the fact that the result (Erfolg) is certain when the perpetrator makes use of
an organization under his command, neglecting the question of how exactly that result
comes about; see Roxin, supra note 24, at 296^297. (Similarly, Roxins student B. Schunemann
equates perpetratorship with dominance over the result and therefore sees no problem in regarding the key person of an organization as a perpetrator); see Schunemann, supra note 23,
x 25, note 127; Schunemann, supra note 34, at 411.
38 See Herzberg, supra note 22, at 37^38; J. Renzikowski, Restriktiver Taterbegriff und fahrlassige
Beteiligung (Tubingen: Mohr Siebeck, 1997), at 87^89; T. Rotsch, Einheitstaterschaft statt
Tatherrschaft (Tubingen: Mohr Siebeck, 2009), at 326^331.
39 For similar criticism, see Haas, supra note 34, at 38, 41; H. Radtke, Mittelbare Taterschaft kraft
Organisationsherrschaft im nationalen und internationalen Strafrecht, Goltdammers Archiv
fur Strafrecht (2006) 350, at 354^355.

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their members to comply with orders given from above.35 A more fundamental
criticism concerns the issue of domination. Some authors have asserted that
even the leader of a tightly knit organization does not have sufficient actual
control over the individual criminal act for which he is to be held responsible.36
Instead of relating the perpetrators domination to a particular criminal
act, these critics claim, Roxins theory only manages to explain that the end
result e.g. that a person who tried to cross the border of the GDR without
permission is now dead can be traced back to the persons who installed
the border regime.37 The fact that members of an organization can easily be
replaced does not resolve this problem: if the leader of the organization orders
subordinate A to commit the crime on day X, and A refuses, then the fact that
subordinate B commits a similar crime on day Y cannot make the leader the
principal 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 the
criminal act as the hallmark of perpetratorship, it remains unclear whether
domination is a factual or a normative concept. Those who like Roxin
emphasize the necessity of factual control face the difficulty that the question
whether someone dominates a certain event is not a yes or no issue but a
matter of degree. One can say that Adolf Eichmann to a certain degree dominated the killing of Jews sent from Hungary to concentration camps, and
even that his influence may have been greater (or lesser) than that of the persons actually operating the gas chambers; but it makes little sense to maintain
that Adolf Eichmann and no one else dominated those killings. Hence, to
make the distinction between perpetratorship and accessorial liability depend
on the issue of factual domination of the criminal act leads to unpredictable
results depending on the existence of other actors and the relative degree of
their domination.39 Domination thus remains a vague term, and as the

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101

5. Is there a Need for Perpetration through an

Organization?
The first question one might ask is whether it is necessary to create a new form
of perpetratorship for persons who would in any event be liable to be punished
as instigators. In response to Claus Roxins invention of a perpetrator behind
the perpetrator, several authors have insisted that one should stick to the
autonomy principle, punishing even those at the very top of a criminal
organization for instigating the crimes committed by their criminally
responsible subordinates.42 Roxin has responded by pointing out that the
leader of an organization bears greater responsibility than a mere instigator
because the subordinate within an organization cannot substantially deviate
from the orders given by the leader,43 and Bernd Schunemann has added that
the leader of the organization does not submit to the decision of the immediate
40 See Rotsch, supra note 38, at 462; Schlosser, supra note 35, at 193 et seq. (citing statements expressing emotional dissatisfaction with treating the perpetrators behind the desk as mere
accessories).
41 For a useful analysis, see G. Heine, Taterschaft und Teilnahme in staatlichen Machtapparaten,
55 Juristenzeitung (2000) 920 (calling a chimera the classification of perpetrators and accessories 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, in
K. Luderssen (ed.), Aufgeklarte Kriminalpolitik oder Kampf gegen das Bose?, 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, supra
note 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; Munoz Conde, supra note 34, at 623;
and Otto, supra note 36, at 758^759, would convict the leader of the organization not as an
instigator but as a co-perpetrator of the crimes carried out by his subordinate.
43 Roxin, supra note 24, at 295.

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discussion above has shown, Roxins attempt to give domination through an organization stronger contours by adding empirical criteria opens up new lines
of attack due to the arbitrariness involved in choosing these criteria (and not
others).
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 systemic crime 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 environment
by business enterprises may make it necessary to devise new grounds for, and
new forms of, criminal responsibility, and the special type of perpetratorship
developed by Claus Roxin may be a response to that need. In the following section, I will pursue the question whether it is indeed necessary to employ this
special variant of indirect perpetratorship, or whether criminal law and
international criminal law in particular might be better off without it.

102

JICJ 9 (2011), 91^111

44 Schunemann, supra note 34, at 410.

45 Cf. J. Vogel, Individuelle Verantwortlichkeit im Volkerstrafrecht, 114 Zeitschrift fur die gesamte
Strafrechtswissenschaft (2002) 403, at 427 (claiming that the introduction of a perpetrator
behind the perpetratoronly leads to fruitless discussions about distinguishing between instigation and perpetration).
46 Nor is any particular form of participation listed among the mitigating and aggravating circumstances 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 thorough
documentation of ICTY and ICTR jurisprudence in this regard, see B. Burghardt, Die
Vorgesetztenverantwortlichkeit
im volkerrechtlichen
Straftatsystem
(Berlin:
Berliner
Wissenschafts-Verlag, 2008), at 383, 389^392 (the fact that the Appeals Chamber deemed the
defendant guilty of a different form of responsibility sometimes led to an increase or reduction
of the sentence).
48 Cf. F. Zorzi Giustiniani, The Responsibility of Accomplices in the Case-Law of the ad hoc
Tribunals, 20 Criminal Law Forum (2009) 417, at 419; see also C. Kre, Claus Roxins Lehre
von der Organisationsherrschaft und das Volkerstrafrecht, Goltdammers Archiv fur Strafrecht
(2006) 304, at 308 (claiming a need in international criminal law to express a persons main responsibility on the level of conviction rather than sentencing); G. Werle and B. Burghardt,
Die mittelbare Mittaterschaft ^ Fortentwicklung deutscher Strafrechtsdogmatik im

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actor, and therefore, cannot be treated as a mere instigator.44 These arguments

correctly refer to typical features of organizational crime, but these features
are not necessarily distinctive: it is easy to imagine one-on-one situations
where the same conditions apply, and yet the person giving the order would
universally be regarded as a mere instigator. For example, a domineering husband who asks his wife to steal certain items from a store because he wants
to sell them would be treated as an instigator when the wife, fearing her
husbands wrath if she failed to comply, carries out the theft. It may satisfy
our sense of judicial aesthetics to see Adolf Eichmann and the big mafia boss
convicted as principals; but there is no doctrinal need for doing so.45
Nor does sentencing law force us to upgradea person from instigator to perpetrator in order to be able to impose a sanction proportionate to his personal
guilt. In almost all legal systems, instigators can receive the same amount of
punishment as principal perpetrators. In principle, this is also true with respect to international crimes. According to Articles 77 and 78 ICC Statute, the
Court can impose any sentence up to lifelong imprisonment, taking into account the gravity of the crime and the individual circumstances of the convicted person, and there is no distinction made among the various forms of
responsibility listed in Article 25(3).46 However, Rule 145(1)(c) ICC Rules of
Procedure and Evidence lists the degree of participation of the convicted
person among several factors to be taken into account in sentencing, and this
may well reflect the fact that the International Criminal Tribunal for the
former Yugoslavia (ICTY) has established that the form and degree of the participation of the accused in the crime is a determinant factor of the gravity of
the crime and hence, of the sentence.47 It has convincingly been argued that
the inherently collective nature of international crimes makes it particularly
important to ascertain the specific role of each participant and to have the
verdict and sentence reflect that particular role.48 The distinction between

Perpetration through an Organization

103

49

50
51
52

53

Volkerstrafrecht? in R. Bloy et al. (eds), Gerechte Strafe und legitimes Strafrecht. Festschrift fur
Manfred Maiwald zum 75. Geburtstag (Berlin: Duncker & Humblot, 2010) 849, at 852; but see,
contra, Vogel, supra note 45, at 425.
See supra, note 22; see further L. Kutzner, Die Rechtsfigur des Taters hinter dem Tater und der Typus
der mittelbaren Taterschaft (Frankfurt: Peter Lang Verlag, 2004), at 250; Schlosser, supra note 35,
at 170. The Pre-Trial Chamber in Katanga and Chui, supra note 1, x 499 note 660, put the problem thus: Essentially, the possibility that a person may so control the will of another that he
can be said to perpetrate a crime through that other, seems incompatible with a meaningful
notion of that other as a fully responsible actor.
See the notion of social dominance (soziale Tatherrschaft) developed by Schlosser, supra note 35,
at 287 et seq.
This is the solution proposed by Olasolo, supra note 34, at 119^122.
In the theory proposed by Schlosser, 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 can
be held criminally responsible. Olasolos suggestion raises the question why a person should
be held responsible on the basis of a mere illusion of being an autonomous agent we would
certainly not convict an insane man who claims to be totally normal and wishes to accept
responsibility for what he did.
Cf. Radtke, supra note 39, at 356; K. Rogall, Bewaltigung von Systemkriminalitat, in C. Roxin
and G. Widmaier (eds), 50 Jahre Bundesgerichtshof. Festgabe aus der Wissenschaft, Vol. 4 (Munich:
C.H. Beck, 2000) 383, at 426; Vogel, supra note 45, at 405^409.

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principals and accessories, though not technically necessary, may be a useful

tool of expressing that distinction.
If perpetration through an organization is one way of aptly characterizing
the specific character of organizational crime, are there doctrinal objections
to applying that label as a form of perpetratorship? One problem with Roxins
theory may be that it contains a self-contradiction: critics maintain that the
front man committing the criminal act cannot at the same time be criminally
liable for his acts as a free agent and be a mere instrument in the hands of
the leader of an organization.49 Two arguments have been made to resolve
that seeming contradiction: the fact that the actor is part of a tight organization, it has been said, makes him so dependent that his autonomy no longer
exists;50 another author distinguishes between the self-concept of the actor
(who conceives of himself as autonomous and can therefore be held responsible) and the objective situation of dependency (which permits the law to
regard the leader of the organization as the principal due to his actual power
over the commission of the criminal act).51 Both arguments raise further questions,52 but the seeming self-contradiction in Roxins theory still is not a fatal
flaw: since the ascription of (criminal) responsibility is not a yes/no question
of logic but a normative issue,53 it is logically possible to accept a situation
where the person at the back and the person at the front, both and
independently of each other possess enough autonomous influence over
the 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 clearly
irresponsible person (a child, an insane person, or a person acting under the
influence of a relevant mistake of fact) for the commission of a criminal act,

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JICJ 9 (2011), 91^111

54 For a borderline German case, see Bundesgerichtshof, judgment of 15 September 1988, in 35

Entscheidungen des Bundesgerichtshofes in Strafsachen (1989) 347^356: A couple (A and B) made
their very gullible friend F believe that their enemy X needed to be killed in order to satisfy
the evil cat king (a devilish demon invented by A and B) who would otherwise kill millions of
people. F eventually tried to kill X with a knife, believing that he was justified in killing one
person in order to save millions of others. The Federal Court of Appeals held F responsible for
attempted murder because his honest mistake of law could have been avoided. The Court nevertheless convicted A and B as perpetrators of attempted murder, arguing that they had made F
totally dependent and had thus induced him to commit the act. The Court rejected a strict application of the autonomy principle which would have precluded the Court from convicting
A and B as principals and declared that the distinction between perpetration and mere instigation in cases such as the one before the Court depended on the kind and intensity of the
actors mistake as well as the intensity of the influence exerted by the person in the background
(ibid., at 352^353).

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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 influencing (punishable as instigation or aiding and abetting) and dominating a
person. In cases of individual crime, the impossibility of reliably distinguishing
between degrees of psychological influence has led to the doctrine that there
can be no indirect perpetration when the immediate actor is fully responsible,
and that holds true even where the actor is particularly gullible or personally
dependent on the person in the background.54 To look at things differently
when a group or organization is involved may coincide with our intuition concerning group pressure or the power of organizations, but there is no rational
grounds for holding the leader of an organization a priori responsible as a principal perpetrator where an individual exerting similarly strong influence
would be regarded as a mere instigator. Nor are there any inter-subjectively
persuasive factors that make some organizations more prone than others to
create perpetrators behind the perpetrator. There may exist in our minds
ideal types of an oppressive, authoritarian organization, but as the debate
over the distinguishing factors posited by Roxin and the Federal Court of
Appeals (see supra) shows, our images differ from each other and it seems impossible to achieve agreement on those factors even within a single legal culture. Even if we were able to identify an ideal type of organization where the
activities of each member are so tightly controlled by the leaders that we
would be prepared to hold the leaders responsible as perpetrators, we would
still have to recognize that not every aspect of a group members activity is
controlled to the same degree, and would consequently have to ask whether a
particular criminal act was covered by the level of organizational control
required for allocating principal responsibility to the leadership level.
In sum, Roxins concept of indirect perpetration through an organization
draws its lifeblood from the intuitive persuasiveness of holding the leaders of
National-Socialist organizations such as the SS responsible as perpetrators
of the mass atrocities committed by the members of these organizations.
But that intuition is a shaky ground on which to build a legal theory.

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105

Since criminal liability for ordering or instigation is a sufficient basis for

imposing severe sentences on responsible figures in the background of the
actual 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. Roxins Theory as Part of International Law?

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 Olasolo, supra note 34, at 120, has correctly
observed, the Pre-Trial Chamber has not adopted Roxins requirement that the organization
must operate outside the law.
59 See Lubanga, supra note 2, x 500.
60 Katanga and Chui, supra note 1, xx 502, 504.

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Whatever may be the validity of the result of the considerations submitted

above, the authors of the Courts Statute have left no doubt that commission
of a crime through another person is possible regardless of whether that
other person is criminally responsible (Article 25(3)(a) ICC Statute),55 and
have equally clearly separated this form of criminal liability from ordering, soliciting, or inducing a crime as listed in Article 25(3)(b) of the Statute.56 We
have to conclude that the Statute neither ties perpetration to the physical carrying out of the criminal act57 nor recognizes the autonomy principle that
would negate indirect perpetration when the front man is fully responsible
for his act. That insight, however, still leaves several options as to the interpretation of the phrase commits ::: through another person in the context of the
ICC 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 defendants control over an organization.58 The Chamber gave three reasons for
taking this approach: (i) it has been incorporated into the framework of the
Statute; (ii) it has been increasingly used in national jurisdictions; and (iii) it
has been addressed in the jurisprudence of the international tribunals.59 The
evidence the Chamber presents for this claim, however, is not overly strong.
The list of numerous national jurisdictions that are claimed to be in favour of
the concept of perpetration through an organization is limited to five
(Argentina, Chile, Germany, Peru, Spain), in one of which (Argentina) the
Supreme Court had overturned a lower court judgment proposing this
theory.60 International tribunals have indeed addressed the issue but so far
have preferred to employ the joint criminal enterprise (JCE) doctrine to convict
organizers and other figures further removed from the scene of the actual

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7. Options in Interpreting Perpetration through

Another Person
What, then, are the options the ICC has in interpreting the commission
through 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 certain organizations; (ii) adopt the even broader version preferred by the
German Federal Court of Appeals and extend the clause to all organizations
including business enterprises; (iii) attempt to harmonize its jurisprudence
with that of the ICTY and interpret the clause such that it reflects some or all
forms of JCE; and (iv) apply the clause as it is written, that is, require personal
dominance over the individual who carries out the criminal act.
The first two options do not have much to recommend them. As we have
seen, Roxins version of the perpetration through an organization concept suffers from the fact that it has been devised ad hoc under the impression of
large-scale state-organized atrocities and therefore, contains elements that

61 See e.g. Judgment, Stakic (IT-97-24-A), Appeals Chamber, 22 March 2006, x 62 (discussing status
of indirect perpetration in international criminal law and rejecting a combination of indirect
perpetration 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 international criminal law failed in Judgment, Simic (IT-95-9-A), Appeals Chamber, 28 November
2006 (Dissenting Opinion of Judge Schomburg, xx 18^21). This is not the place to discuss the
merits of the JCE doctrine, which has dominated the jurisprudence of ICTY and ICTR; for a
recent 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 the
JCE doctrine; cf. Lubanga, supra note 2, xx 334^337.
62 Katanga and Chui, supra note 1, x 501.
63 Ibid., at x 510.
64 Accord, Werle and Burghardt, supra note 48, at 854^855.

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crime.61 Most importantly, the ICC Statute provides for the commission of a
crime through another person but does not mention perpetration through an
organization. The Chamber in Katanga and Chui supports its argument by
claiming that since the crimes covered by the ICC Statute will almost inevitably concern collective or mass criminality, the Statute must be understood
to target the category of cases which involves a perpetrators control over the
organisation.62 That may well be but the fact that the Statute targets mass
criminality does not determine exactly in which way its authors expected the
judges to address this phenomenon. In spite of the Pre-Trial Chambers assertion that it has presented a compelling case for its approach to criminal liability,63 I would regard the issue as still open. There is certainly nothing to even
remotely suggest that the concept of perpetration through an organization is
a form of criminal liability recognized as customary international law.64

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107

65 As suggested by Schunemann, supra note 34, at 412.

66 Katanga and Chui, supra note 1, at x 518.
67 For a more benevolent interpretation of the Trial Chambers adaptation of Roxins concept, see
H.G. van der Wilt, The Continuous Quest for Proper Modes of Criminal Responsibility, 7
Journal of International Criminal Justice (2009) 307, at 312: Such a flexible approach, geared to
the specific circumstances, may prove the versatility of the concept and its resilience against
the wear and tear of time.
68 See text at supra notes 31, 32. The German high courts approach has resonated in Lubanga,
supra note 2, x 330, where the Pre-Trial Chamber defined control simply as the ability of a perpetrator to decide whether and how the offence will be committed. In Katanga and Chui, supra
note 1, xx 512^517, the Pre-Trial Chamber abandoned the loose approach taken in Lubanga
and instead required the organization to have certain specific features as suggested by Roxin.

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seem accidental rather than essential. Even if its applicability were reduced to
inherently violent organizations,65 thus emphasizing the element of irresistible
control over its members, this concept lacks both an empirical and a theoretical basis other than the fact that the leaders of some organizations can, under
certain conditions, be fairly certain that their commands will be carried out
even if these commands involve the commission of a criminal offence.
Moreover, Roxins concept may fit orderly, bureaucratic dictatorships such as
that of the National-Socialists in Germany or the Socialist Unity Party in the
GDR; it hardly lends itself to be applied to vaguely organized militias or rebel
armies where the authority of a leader or group of leaders may be accepted
only as long as they are successful in providing material goods and military
success. It is a sign of this weakness that the Pre-Trial Chamber in Katanga
and Chui felt compelled to ad hoc add rigorous training methods as a further
possible tool of controlling organization members.66 The Chamber may have
sensed that Roxins original model was not conceived for an African environment and attempted to make up for the lack or stringent institutional organization of the militias in question by adding new elements it found in the facts of
the particular case.67
One way out of the constraints of Roxins model would be to interpret the
notion 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 But
such an open-ended approach to indirect perpetration would worsen the concepts problems of vagueness and overreach: there is no good reason to hold
the manager of a business enterprise with 10 employees responsible as a principal 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 to
commit the same offence. The myth of rule-determined processes certainly
is not sufficient to establish a general rule of perpetratorship for leading
members 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 the
jurisprudence of the United Nations ad hoc tribunals and the ICC. Such an interpretation would also reflect the fact that indirect perpetration at least in

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JICJ 9 (2011), 91^111

69
70
71
72
73
74

Cf. Marxen, supra note 41, at 233; Vogel, supra note 45, at 409^410, 420^421.
Judgment, Tadic (IT-94-1-A), Appeals Chamber, 15 July 1999, x 190.
Ibid., x 203.
Ibid., x 191.
Judgment, Kvoc ka et al. (IT-98-30/1-A), Appeals Chamber, 28 February 2005, x 81.
Tadic , supra note 70, x 204.

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the form of perpetration through an organization and JCE both aspire to accommodate the special problems of systemic crime, where responsibility
cannot easily be ascribed along the links of immediate causation, and where
specific difficulties of proof arise.69 As is well known, the notion of JCE has
been based on the idea that committinga crime includes those modes of participating in the commission of crimes which occur where several persons
having a common purpose embark on criminal activity that is then carried
out either jointly or by some members of this plurality of persons.Whoever contributes to the commission of crimes by the group of persons or some members
of the group, in execution of a common criminal purpose, may be held to be
criminally liable:::.70 In many situations, leaders liability under JCE and
under the concept of indirect perpetration will indeed produce the same results, as for example with respect to commanders of concentration camps
where prisoners are maltreated or killed by lower level guards. With respect to
those in authority of the camp, the second variant of JCE provides for responsibility as principals because of their objective position of authority within the
concentration camp system.71 Applying the theory of perpetration through
an organization, one could reach the same result by stating that the commander of the camp perpetrated murder and maltreatment through the guards
who 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, that
is, the defining element of JCE: any JCE requires a common criminal design72
or a common purpose involving the commission of a crime73 among all participants. There is no such requirement for indirect perpetration, even when
the person who performs the criminal act is himself culpable of a crime. Only
the perpetrator in the background needs to have the requisite mens rea for the
offence of which he is to be convicted, and there is no requirement that he
ever communicates with the person at the front. On the other hand, the third
variant of JCE applies when the immediate actor performs a criminal act that
the other members of the JCE did not foresee but which nevertheless was a natural and foreseeable consequence of effecting the common purpose.74 That
situation cannot be qualified as a case of indirect perpetration because the perpetrator behind the perpetrator to be criminally liable must have the full
intent required by the crime in question; it is not sufficient that he only could
foresee what the person at the front might do. In addition to these discrepancies concerning mens rea, the structure of Article 25(3) ICC Statute makes it
unlikely that its authors could have intended to equate JCE and commission
through another person. If they had, there would have been no good reason
to include Article 25(3)(d) of the Statute, which describes a somewhat

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109

75 Cf. H. Olasolo, 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 Olasolo, supra note 75, at 266.

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watered-down version of JCE.75 It is likely that the authors of the ICC Statute
wished to accept both JCE (in a modified form) and perpetration through
another person, thus making it necessary to find for both forms of criminal
liability 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-Trial
Chamber in Katanga and Chui defines a principal as one who has control over
the will of those who carry out the objective elements of the offence.76 The
wisest course to take may be to leave that definition as it is. In order to have a
defendant convicted of indirect perpetration in accordance with Article
25(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 various ways of doing so: exercising strong physical or psychological pressure;
creating a misconception concerning the relevant facts; or manipulating the
other person such that he thinks that what he does is beneficial to the victim
or to mankind.77 The existence of an oppressive organization in which the
actor is a subordinate member may well be instrumental in bringing strong
pressure to bear and thus, in a particular situation, to control the subordinates
will; but the fact that the defendant is the leader of an organization cannot by
itself be conclusive evidence of his having control over the will of all members
of the organization. The clause regardless of whether that other person is
criminally responsible referring to indirect perpetration in Article 25(3)(a)
ICC Statute remains meaningful even if given the minimalistic interpretation
proposed here: that clause clarifies that one can control the will of another
person 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 in
each case. It seems better to permit courts to address that question directly
and to inductively develop criteria appropriate to the specific subject-matter of
international crimes than to tie their decision to particular factual elements
such as the existence of an organization. Importantly, under the approach
suggested here, control needs to be proved upon the particular facts concerning the relationship between the persons involved, and the prosecution does
not satisfy its burden of proof by merely establishing the existence of an organization (with whatever qualities). That interpretation may make life a bit
harder for the prosecution, but it has rightly been said that legality and fair
trial principles prohibit the expansion of any theory of criminal liability in
order to circumvent a lack of evidence.78 Upon the facts described in the
Katanga and Chui decision, one would not expect great difficulty in finding
sufficient evidence of a controlling role of the defendants over the soldiers

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committing the atrocities, but the details are eventually for the Trial Chamber
to establish. If it followed the approach suggested here, fact-finding would
not need to concentrate on the organizational quality of the militias led by
the defendants but on their personal influence on those who committed
the crimes.

8. Concluding Note: Indirect Co-Perpetration

79
80
81
82
83

Katanga and Chui, supra note 1, xx 520^526, 546^549.

Ibid., x 524.
Ibid., x 525.
Ibid., x 526.
Judgment, Stakic (IT-97-24-T), Trial Chamber, 31 July 2003, x 741. The Appeals Chamber rejected
the Trial Chambers approach in favour of JCE; see, Stakic , supra note 61, x 62.
84 Olasolo, supra note 75, at 268.

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One of the puzzling issues of the Katanga and Chui decision is the combination
of co-perpetration and indirect perpetration: defendants Katanga and Chui
are said to have joined forces and thereby co-perpetrated war crimes through
other persons.79 The Pre-Trial Chamber notes that co-perpetration requires a
coordinated essential contribution made by each co-perpetrator resulting in
the realisation of the objective elements of the crime,80 and that this contribution can also consist in activating the mechanisms which lead to the automatic compliance with their orders and, thus, the commission of the crimes.81
The actual activities of the co-perpetrators (for example, designing the attack
as well as coordinating and monitoring the activities of troops) can be carried
out 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 the
ICTY Trial Chamber in Stakic .83
Although joint indirect perpetration has been called a fourth manifestation
of the notion of control over the crime84 it is in fact not another new legal invention but simply a factual coincidence of two recognized forms of perpetration. Co-perpetrators can contribute in various ways to the commission of the
crime, and one contribution can be to provide a human instrument under
the control of the co-perpetrator. If, for example, A and B carry out their
common plan to bring their young children (As son X and Bs daughter Y) together in someones abandoned house, give them matches and instruct them
to make a nice fire, there can be no doubt that A and B are co-perpetrators of
arson: they jointly use X and Y as their human tools to achieve the desired
effect. In this hypothetical, A would arguably be liable as a co-perpetrator of
arson even if he could prove that only Y actually caused the fire, because his
participation (bringing in X as Ys play mate) was an essential part of the
common plan. The situation in Katanga and Chui is structurally similar, if one
assumes that Germain Katanga and Mathieu Ngudjolo Chui exerted control

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85 Cf. the similar analysis by Olasolo, ibid., at 269, and van der Wilt, supra note 67, at 314. The
issues of mens rea are discussed in Katanga and Chui, supra note 1, xx 533^539.
86 Decision, Prosecutions Application for a Warrant of Arrest against Omar Hassan Ahmad Al
Bashir, 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 by Werle and Burghardt, supra note 48, at 860^863.

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over their respective militias and intended or foresaw them to commit the
crimes they actually perpetrated.85
The joining of separate forces as allegedly practised by Germain Katanga and
Mathieu Ngudjolo Chui can be distinguished from the junta model of joint indirect perpetratorship, which the ICC Pre-Trial Chamber found to exist in the
Al Bashir case.86 In the junta scenario, there is just one group of subordinates
subject to control by a group of leaders working together, whereas in Katanga
and Chui, there are two separate groups cooperating in one operation based
on an agreement between their respective leaders.87 There is no doctrinal obstacle to applying Article 25(3)(a) ICC Statute to either situation. The critical
issue lies not in joining human tools but in what it means to control their operation. That is where the ICC may have to dig still deeper in order to lay a
proper foundation for dealing with cases of perpetration through another
person.