Emerging Voices: Together Again? Customary Law and Perpetration by Means

[Robert Charles Clarke is a Research Associate at the Supreme Court of Western Australia]

It could as well be said that Darré, for example, is guilty of murder of numerous people in the occupied portion of Russia, because, as Minister of Food, he had charge of the Food Estate and supplied the food that maintained the Einsatzgruppen in that territory; that it was all a part of one operation and the feeding the troops an essential part, without which the murders could not have been committed. This may seem fanciful, and indeed it is … Ministries Case, 936 (Powers, J., dissenting)

One could be forgiven for assuming that this passage was directed at the conviction of Thomas Lubanga for his “essential” contribution to the use of child soldiers (see ¶ 1356), a conviction that, he argues on appeal, rested on a novel doctrine inappropriate to an international forum. But as the reference to Nazi death squads of 1940s vintage suggests, the doctrine may be less novel than Mr Lubanga thinks.

Trial Chamber V of the ICC found that Lubanga committed crimes under Article 25(3)(a) of the ICC Statute “jointly with” other leaders of his political-military organization, the FPLC, by playing an essential part in a common plan to recruit and deploy military forces, which to his knowledge would include children under 15: ¶¶ 1351–1357. Lubanga was therefore convicted as a perpetrator by means: one who remains absent from the scene but, as an essential link in the chain of causation, decides whether and how the crime occurs: see generally Confirmation of charges against Katanga, ¶¶ 473, 495.

According to the standard narrative, the theory of perpetration by means proliferated in civil law jurisdictions after being expounded by German scholar Claus Roxin. Indeed, the ICC relies so heavily on Roxin and other German-influenced sources that Judge Fulford felt the theory was “imported directly from the German legal system”: ¶ 10. This observation is front and centre in Lubanga’s challenge to the legality of perpetration by means on appeal: ¶¶ 332–338.

In this respect, Lubanga keeps good company among international jurists, the ICTY and other UN tribunals having likewise concluded that perpetration by means is not a norm of customary international law: see e.g. Ayyash, ¶ 256. However, they diverge when Lubanga asserts that a person can only commit a crime by engaging directly or physically in the relevant act. As the ICC Prosecutor now observes, UN tribunals hold that principal offenders include parties to a joint criminal enterprise (JCE), where their confederates carry out or procure the criminal act: ¶ 265 n.540. This doctrine draws on jurisprudence from the post-WWII period and is said to reflect a customary legal emphasis on a “common criminal purpose,” rather than causal predominance.

The theories preferred by the ICTY and ICC—JCE and perpetration by means, respectively—are therefore considered to have different juridical and philosophical origins, which has deterred each court from drawing on the other’s jurisprudence. This may concern the ICC little in black letter law terms, as it acts within the confines of its Statute. However, by limiting themselves so, both courts invite the criticism that they apply principles which, being rejected by the other, are obscure and parochial: see e.g. ¶¶ 5 & 20 of the concurring opinion of van den Wyngaert, J. The Prosecutor’s attempt to synthesize common principles from parallel lines of jurisprudence is therefore welcome; however, if it succeeds it will do so against the run of play.

Nevertheless, such harmonization is arguably possible. The principles underlying perpetration by means were canvassed at the international level well before the ICC and ICTY existed, in the same body of sources that ground what is now termed JCE doctrine. Consider, for example, the first treaty provision on parties to offences, Article 6 in fine of the Charter of the International Military Tribunal (IMT) 82 U.N.T.S. 279:

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Integral to this provision is the “common plan or conspiracy,” now recognised as the customary legal wellspring for JCE doctrine: see e.g. ECCC JCE decision ¶¶ 57–58. From the conspiracy flows responsibility for all acts performed by “any persons” in its execution, which the drafting history indicates was shorthand for Axis “forces and authorities, whether armed [or] civilian” controlled by the Nazi leadership: 393. It was, in other words, thought that these leaders had both conspired and actually “organized or incited or otherwise caused” the crimes through state instrumentalities: 254, 337, 418. As the ILC would later comment, conspiracy was married to the idea of “organizers” or “indirect perpetrators”—figures who “conceive of the crime, give orders, but stay away from the theatre of operations”—first posited by Soviet theorist Aron Trainin in The Criminal Responsibility of the Hitlerites (1944): ¶¶ 46–47.

This “chief perpetrator”, Trainin argued, acted

with the aid of a complicated executive apparatus. In the hands of international criminals, the entire mass of people becomes an instrument for the perpetration of serious crimes, just as a knife becomes the instrument in the hands of a murderer. (110–111)

In the context of such a “system of organized governmental banditry,” what mattered was not physical engagement in the final act of violence, but control over the system that was its root cause: 112. Although not the basis for Lubanga’s conviction, this theory of acting through an organisation represents another important branch of perpetration by means: cf. Confirmation of charges against Katanga, ¶ 515.

Closer to the Lubanga judgment, perhaps, was the IMT’s emphasis that Hitler could not act alone, but “had to have the co-operation of statesmen, military leaders, diplomats, and business men”, including the co-conspirators in the dock at Nuremberg: 226. When the ILC later sought to codify principles of criminal responsibility, it likewise observed that international crimes “by their very nature often require the existence of a plan or systematic policy by senior government officials,” the inception of which by the “planner” or “co-conspirator” was a necessary condition for the actions of the frontline perpetrator: ¶ 14.

Adherence to an unlawful purpose was therefore closely bound to the notion that the unseen conspirator played a decisive role in bringing the crime about. The partition of these complimentary ideas into the ostensibly conflicting doctrines of JCE and perpetration by means seems to be a recent development.

While these sources may augment the theory underpinning Lubanga, they do not specifically support the theory’s concrete application in the Trial Chamber’s “essential contribution” test. This criterion is generally thought to have appeared on the international stage in the ICTY Stakić case (see ¶¶ 439–441), cited by the ICC as evidence that perpetration by means has “been applied in international criminal law in the jurisprudence of the international tribunals”: Confirmation of charges against Katanga, ¶ 506. And that brings us back to Ministries – in particular, the conviction of Wilhelm Keppler for the “Germanization” of occupied territories.

In essence, this meant the destruction or removal of the local population, followed by resettlement with ethnic Germans. Among the cross-section of bureaucratic criminals who implemented the program, Keppler’s function was to manage the transfer of vacated land through the German Settlement Trust Company or “DUT”. Acting as the escrow, DUT effectively provided the nexus between the initial depopulation and colonial resettlement.

The majority conceded that neither Keppler nor his underlings took any “physical part in the forced emigration,” which was the immediate responsibility of other bodies. Nevertheless, the company “was an essential part of the criminal scheme and without it the crime could not be carried into successful execution.” In sum, Keppler “knew [DUT’s] functions and he knew what part it played in the general scheme,” and was criminally responsible as one of the “prime factors” in its success: 584–586.  As is sometimes the case, it was the dissenting opinion that distilled from the court’s reasons its juridical essence, expressed in the Einsatzgruppen analogy at the start of this post. However, although Judge Powers thought the conviction was “fanciful”, the majority’s reasoning essentially presages the judgment against Lubanga several decades later.

One of this blog’s regular contributors, Professor Kevin Jon Heller, has noted another Ministries verdict that foreshadowed perpetration by means, namely, the conviction of Gottlob Berger for overseeing the notorious Dirlewanger brigade: The Nuremberg Military Tribunals and the Origins of International Criminal Law 271–272 (2011). The reasons given at 545–546 parallel the Argentine Juntas case, one of the ICC’s key authorities: in both cases mid-level commanders retained tactical control, but the principal architects organised the criminal system and guaranteed it impunity: cf. 26 ILM 317, 363–364 (1987). As these cases illustrate, the ICC need not rely solely on a relatively narrow range of domestic law sources: perpetration by means can, it is submitted, exist in consonance with customary law rather than in spite of it.

The author would like to thank Ms Jin Chien of Legal Aid Ontario for her assistance in editing this piece.