A New Approach to Criminal Responsibility? Discussing the Separate Opinions on Indirect Co-Perpetration in the Ntaganda Appeals Judgment

[Liana Georgieva Minkova recently defended her PhD at the Department of Politics and International Studies, University of Cambridge, UK, and holds a full award from the Arts and Humanities Research Council (AHRC) Doctoral Training Partnership.]

On March 30^th the International Criminal Court (ICC) Appeals Chamber confirmed the conviction and sentence of Bosco Ntaganda. The judges decided to use this opportunity to also engage in a discussion about the interpretation of several Rome Statute provisions. This post focuses on the separate opinions of Judge Howard Morrison and Judge Chile Eboe-Osuji annexed to the Ntaganda Appeals Judgment, concerning the theory of indirect co-perpetration, which has often been used at the ICC to assess the criminal responsibility of the accused. It begins with a discussion of ICC jurisprudence and continues with the separate opinions of the two judges and their implications for the way we think about individual criminal responsibility for mass atrocities.

The ICC Approach to Establishing Criminal Responsibility

Article 25(3) Rome Statute presents the most detailed list of modes, pursuant to which a person could be held liable in international criminal law. Specifically, a person could bear criminal responsibility if that person:

(a) Commits such a crime, whether as an individual, jointly with another, or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime […];

(c) […] aids, abets or otherwise assists in its commission […];

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. […]

The interpretations of Article 25(3) offered in two of the ICC’s early cases, Lubanga and Katanga and Ngudjolo, have been generally followed in ICC jurisprudence since 2007-2008. Article 25(3) was interpreted to provide for two different types of criminal liability: the commission strictu sensu of a crime, or ‘principal’ liability, defined in subparagraph (a), and various forms of ‘accessory’ liability, listed in subparagraphs (b) to (d) (Lubanga Confirmation of Charges Decision, ¶320). According to the Lubanga Appeals Chamber, the first type of liability concerns those who have ‘committed’ the crime, while the second one – those who have ‘contributed to the crimes of others’ (Lubanga Appeals Judgment, ¶469, emphasis added). The Appeals Chamber opined that the principals to the crime, i.e. those who have actually committed the crime (whether by themselves, jointly with other or ‘through’ another person) bore ‘more blameworthiness’ that the accessories to the crime, i.e. those who had merely contributed to the crime of someone else (Ibid., ¶462).

The principal perpetrator of the crime may be easy to determine when an individual has committed the crime by herself (Article 25(3)(a) first scenario), but this task becomes more complicated when a number of individuals have committed jointly the crime or when the principal perpetrator has used another person to physically commit the crime (Article 25(3)(a) second and third scenarios, respectively). For example, it is not self-evident how committing a crime ‘through’ another person, which on this account bears principal liability, is different from ‘ordering’ another person to commit a crime, which is said to bear only accessory liability. Similarly, the distinction between committing a crime ‘jointly with others’ (principal liability) and ‘contributing’ to the crimes of a group acting with a common purpose (accessory liability) is also blurred.

ICC jurisprudence has adopted a peculiar approach for differentiating between those situations and for justifying the assertion that the perpetrators of crimes, defined in Article 25(3)(a), bear greater blameworthiness. Borrowing heavily from German criminal law theory, and especially from the writings of Claus Roxin, the Lubanga and the Katanga and Ngudjolo Pre-Trial Chambers chose the ‘control over the crime’ theory to distinguish between principals and accessories to the crime. On this account, the principal perpetrator of a crime was that person who could ‘control or mastermind its commission’ by deciding where and how the crime would be committed, regardless of whether that person was the physical perpetrator of the crime (Lubanga Confirmation of Charges Decision, ¶330, emphasis added). In cases of ‘joint commission’ of a crime, which the judges dubbed ‘co-perpetration’, the indicator of the accused’s ‘control’ over the collective crime was considered their ‘essential contribution’ to the joint criminal effort and their power ‘to frustrate the commission of the crime by not performing their tasks’ (Lubanga Confirmation of Charges Decision, ¶¶346-347). The ‘essential contribution’ requirement under Article 25(3)(a) was differentiated from accessory liability under subparagraph (d), which merely required ‘any other’ type of contribution (Lubanga Trial Judgment, ¶999). Furthermore, the commission of a crime ‘through another person’, dubbed ‘indirect perpetration’, was considered to refer to situations of hierarchical criminal organisations where the person at the top controlled the criminal apparatus. As an indicator of the accused’s control over the crime, the organisation needed to include a sufficient number of subordinates in order to guarantee that the superiors’ orders would be carried out, ‘if not by one subordinate, then by another’ (Katanga and Ngudjolo Confirmation of Charges Decision, ¶512). Thus, ordering a crime, through this specific type of organization that ensured almost automatic compliance with the accused’s orders was considered a form of principal liability and was differentiated from ‘ordinary cases of criminal ordering’, which triggered only accessory liability (Ibid., ¶517, emphasis added). Finally, the Katanga and Ngudjolo Pre-Trial Chamber determined that, in reality, control over mass atrocities could be exercised both jointly among the perpetrators and indirectly, by using subordinates to carry out the crimes. Hence, the judges adopted the so-called ‘indirect co-perpetration’ theory, which enabled the attribution of criminal responsibility to each co-perpetrator, even if only one of those persons had exercised control over the physical perpetrators of the crimes (Ibid., ¶493).

The ‘control’ theory, and especially its ‘indirect co-perpetration’ variant, have since then been widely used in ICC jurisprudence. Notable examples include the Kenyatta and Muthaura, Gbagbo and Blé Goudé, Ongwen and Ntaganda cases, to name a few. A brief look at ICC cases reveals that in most of them the prosecutor has brough at least some of the charges against the accused pursuant to Article 25(3)(a). But this practice brought criticism among some judges at Ntaganda Appeals Chamber.

The Ntaganda Appeals Judgment – Contesting the ‘Control’ Theory

14 years after the ICC adopted the ‘control’ theory, Judge Morrison and Judge Eboe-Osuji both issued separate opinions, annexed to the Ntaganda Appeals Judgment, in which they argued that the theory of ‘indirect co-perpetration’ had no statutory basis in the Rome Statute and that its inability to reflect the complexity of mass atrocities led to liberal interpretations of its requirements by the judges, which in turn questioned the quality of legal reasoning behind ICC judgments.

According to Judge Morrison and Judge Eboe-Osuji, ‘indirect co-perpetration’ based on the ‘control’ theory constituted ‘an unnecessary importation’ in ICC jurisprudence that had ‘no basis’ in the Rome Statute (Judge Morrison, ¶2; see also Judge Eboe-Osuji, ¶13). The judges questioned the premise on which earlier ICC chambers had relied on to adopt the ‘control’ theory – namely, the idea that Article 25(3) differentiated between degrees of blameworthiness. Judge Morrison argued that the various provisions of Article 25(3) did not constitute a ‘hierarchy of blameworthiness’ but rather listed the many different forms of participation in an international crime, without attaching any normative significance to one form or another (Judge Morrison, ¶¶8-9; Judge Eboe-Osuji, ¶¶45-47). On this account, there is no reason why someone who had ordered, instigated, or aided the criminal activities in their entirety may be less blameworthy than a person who had actually committed some of the crimes (Judge Morrison, ¶8). The judges also noted that the text of the Rome Statute nowhere mentioned the terms ‘principal’ or ‘accessory’ and that the Statute did not contain any provision that mitigated the sentences for accessory liability (Eboe-Osuji, ¶¶42-43). Judge Morrison, nevertheless, noted that that did not mean that the Rome Statute was ‘blind to the moral culpability of criminal actors’, but simply that it allowed for the degree of blameworthiness to be accounted for at the sentencing stage, and not necessarily with reference to the type of criminal liability that the accused bore (Judge Morrison, ¶11). In other words, Judge Morrison and Judge Eboe-Osuji subscribed to the view that in mass atrocities, the degree of blameworthiness of the accused depended on various factors and had to be examined with respect to the specific facts and circumstances of each case.

The two judges considered the ‘control’ theory not only unnecessary, but also ‘dangerous’ for the Court (Judge Eboe-Osuji, ¶94). From the perspective of Judge Morrison and Judge Eboe-Osuji, the indirect co-perpetration theory required the facts of the case to be made to fit a pre-determined system of rigid rules, which brought undesirable complications into the analysis of the messy evidence concerning mass atrocities. The organisational complexity and the sheer scale of such crimes makes the delineation of individual contributions towards the collective criminal activity particularly complicated. The task of establishing a link between the accused and the crimes is further complicated by the fact that the persons most of interest for high-profile international trials, namely leadership figures, are often removed from the scene of the crimes. The messy reality of mass atrocities, thus, challenges any conclusive observations that the accused had actually ‘controlled’ the crimes and enjoyed the power to frustrate their commission, as required by the indirect co-perpetration theory. According to Judge Morrison and Judge Eboe-Osuji, the application of indirect co-perpetration required significant stretching of the terms ‘control’ and ‘essential contribution’ in order to make the facts fit the legal theory (Judge Morrison, ¶17; Judge Eboe-Osuji, ¶77). Hence, the two judges were concerned that the use of indirect co-perpetration could lead to unsound legal reasoning behind ICC judgments.

The dissent of Judge Morrison and Judge Eboe-Osuji with respect to the ‘control’ theory is not unprecedented. Other ICC judges have also previously expressed similar concerns with that theory, including Judge Van den Wyngaert and Judge Fulford. But the separate opinions in the Ntaganda Appeals Judgment constitute the first time in a while that the issue has been raised at the ICC and invites important questions about the Court’s approach to criminal responsibility.

‘Reordering’ Article 25(3)

Because the two judges consider that the notion of ‘control over the crime’ is too nebulous to be determined with respect to mass atrocities, they instead adopt a plain reading of subparagraph (a), according to which the term ‘commits’ a crime (individually, jointly with another or through another person) requires simply a ‘sufficient nexus’ between the accused and the crime (Judge Morrison, ¶34). Specifically, with respect to commission ‘through’ another person, that nexus is seen to require that the accused had ‘procur[ed]’ or produced the crime (Judge Eboe-Osuji, ¶24). One may notice that the terms ‘nexus’ and ‘procured’ are quite broad. But from this perspective, this is precisely the benefit of using such terms – they could be interpreted with regard to the peculiar circumstances of each case, thus, reducing the pressure on the judges (and the prosecutor for that matter) to make the facts of the case fit a pre-existing legal theory, such as indirect co-perpetration.

Here one may object that interpreting Article 25(3)(a) in such broad manner vests the judges with too much discretion in determining which cases constitute ‘commission’ of a crime. But, crucially, both Judge Morrison and Judge Eboe-Osuji interpret the term ‘commits’, contained in Article 25(3)(a), in a more limited sense compared to their ICC colleagues. On that account, subparagraph (a) concerns only cases of ‘simple criminality’, where a limited number of persons have committed specific crimes, and not cases of organised criminality where an entire organisation conducts a criminal campaign (Judge Morrison, ¶36; Judge Eboe-Osuji, ¶¶65-66). Thus, according to the judges, a person can be said with certainty to have ‘committed’ a crime pursuant to Article 25(3)(a) only in small-scale criminal conduct, where the accused has retained at least some proximity to the crime. By contrast, the two judges consider that Article 25(3)(d), which explicitly refers to a ‘group’ acting with a ‘common purpose’ is a ‘useful vehicle’ for prosecution in cases concerning large-scale organised mass atrocities (Judge Morrison, ¶37; Judge Eboe-Osuji, ¶66).

In effect, Judge Morrison and Judge Eboe-Osuji ‘reordered’ in significance the provisions of Article 25(3). Generally, in ICC jurisprudence it is considered that the masterminds behind the crimes, those individuals who stand behind systemic criminality and bear greatest blameworthiness, should be convicted under subparagraph (a) for ‘committing’ those crimes. Forms of accessory liability listed in subparagraphs (b)-(d) have been used considerably less often at the ICC. In Ntaganda, however, the two judges interpreted Article 25(3) in the opposite way: subparagraphs (b), (c) and (d), and especially the last one, were seen as particularly appropriate for reflecting the criminal responsibility of senior figures, while subparagraph (a) was reserved for cases of smaller-scale criminality.

Some Lessons from the Ntaganda Appeals Judgment

The separate opinions of Judge Morrison and Judge Eboe-Osuji provide much food for thought, but we can start with the observation that the high specification of the laws regulating the attribution of criminal responsibility may in practice fail to deliver more convincing judgments in international criminal law. The greatest criticisms of the ‘joint criminal enterprise’ (JCE) theory of liability developed at the International Criminal Tribunal for the Former Yugoslavia (ICTY) were that its requirements were so broad that 1) it could have led to the attribution of guilt by mere association with the crime, and that 2) it failed to reflect upon the different roles, and consequently the different degrees of blameworthiness of the participants in the criminal enterprise. One scholar famously called JCE a theory of ‘just convict everyone’. By contrast, the ICC approach has heavily borrowed on criminal law theory and utilised a list of specific requirements for commission liability (e.g. the accused’s control over the crime, the special characteristics of the criminal organisation with respect to membership and structure, the accused’s ability to frustrate the commission of the crime, etc.).

But the separate opinions of Judge Morrison and Judge Eboe-Osuji suggest that in practice the ‘control’ theory could result in a similar expansion of criminal responsibility as JCE (Judge Morrison, ¶31) – something which criminal law scholars had already expressed concern with. Because various actors at different levels and with different functions in the organization could be said to have had ‘control’ over the crimes, in reality indirect co-perpetration fails to do a much better job than JCE in distinguishing the most responsible persons from the less significant participants in system criminality. The danger is particularly acute when the Court is unable to apprehend higher-level suspects and the accused available for trials may end up bearing the symbolic blameworthiness of the entire criminal organisation. The separate opinions to the Ntaganda Appeals Judgment ultimately reveal that because of the inescapable indeterminacy of legal rules, no matter how detailed those rules are, there is always the risk of delivering unsound decisions.

In my view, whether one agrees with their specific recommendations or not, the opinions of Judge Morrison and Judge Eboe-Osuji invite us to stop focusing exclusively on legal rules in the abstract and to think more about the quality of legal reasoning behind judgments. Criminal law theory is important and can be useful (indeed, it is relied upon in many domestic systems). But regardless of how specified the rules of criminal responsibility are, what ultimately matters are the available facts and evidence.