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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume I, s.4 General Principles of International Criminal Law, 20 Individual Criminal Responsibility

Albin Eser

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Individual criminal responsibility — Genocide — Mens rea — Responsibility of individuals — Responsibility of states — Customary international law — Codification

(p. 767) 20  Individual Criminal Responsibility

  1. I. Scope of Article 25 of the ICC Statute 768

  2. II. Elements For and Lack of a Comprehensive ‘General Part’ of Criminal Responsibility 769

    1. A. Within Article 25 of the ICC Statute 770

      1. 1. Individual Responsibility of Natural Persons 770

      2. 2. Perpetration and Participation 770

      3. 3. Attempt and Abandonment 771

    2. B. Elements of Criminal Responsibility outside of Article 25 of the ICC Statute 771

      1. 1. Legality as the Basis of Criminal Responsibility 771

      2. 2. Subjective Requirements of Criminal Responsibility 771

      3. 3. Grounds for Excluding Criminal Responsibility 772

    3. C. Missing Elements of Criminal Responsibility 773

    4. D. Tacitly Presupposed General Requirements of Criminal Responsibility 773

  3. III. Comparison with National and Customary International Criminal Law 774

  4. IV. Individual Criminal Responsibility as Distinct from Other Types of Responsibility 778

    1. A. Responsibility of Corporations 778

    2. B. Responsibility of States 779

    3. C. Individual Responsibility vs. Co-responsibility 779

    4. D. Individual Responsibility (even) in the Case of Official Capacity 780

  5. V. Perpetration and Participation 781

    1. A. Basic Models in National Law(s) 781

      1. 1. The ‘unitary perpetrator model’ 781

      2. 2. The ‘differential participation model’ 782

    2. B. Survey on Regulations of Perpetration and Participation in International Criminal Law 784

      1. 1. Early Codifications 784

      2. 2. Draft Code of Crimes against the Peace and Security of Mankind (1991/96) 785

      3. 3. ICTY/ICTR Statutes of 1993/94 786

      4. 4. The Main Features of Perpetration and Participation in the Rome Statute 786

    3. C. Perpetration (according to Article 25(3)(a) of the ICC Statute) 789

      1. 1. Solitary (Direct) Perpetration (Committing ‘as an individual’) 789

      2. 2. Co-perpetration (Committing ‘jointly with another person’) 789

      3. 3. Intermediary Perpetration (Committing ‘through another person’) 793

    4. D. Instigation (Article 25(3)(b) of the ICC Statute) 795

      1. 1. Accessorial to the Principal Crime 795

      2. 2. Soliciting or Inducing a Crime 796

      3. 3. Ordering a Crime 796

      4. 4. Mental Requirements with Regard to the Instigator 797

      5. (p. 768) 5. Excess of the Perpetrator 798

    5. E. Aiding, Abetting, or Otherwise Assisting (Article 25(3)(c) of the ICC Statute) 798

      1. 1. Objective Requirements 798

      2. 2. Subjective Requirements 801

    6. F. Complicity in Group Crimes (Article 25(3)(d) of the ICC Statute) 802

      1. 1. Objective Requirements 802

      2. 2. Subjective Requirements 803

    7. G. Incitement to Genocide (Article 25(3)(e) of the ICC Statute) 803

      1. 1. Subjective-Volitional rather than Objective-Causal Link to the Crime of Genocide 804

      2. 2. Directly and Publicly Inciting 805

      3. 3. Mental Element 806

    8. H. Complicity after Commission 806

  6. VI. Attempt and Abandonment 807

    1. A. Genesis and Scope of Article 25(3)(f) of the ICC Statute 807

    2. B. The Essential Elements of Attempt 809

    3. C. Abandonment 814

      1. 1. Precondition of Abandonment 815

      2. 2. Forms of Abandonment 815

      3. 3. Subjective Requirement of Abandonment 817

    4. D. Punishment 817

    5. E. Attempted Participation 818

  7. VII. Commission by Omission 819

  8. VIII. Concluding Assessment 820

  9. Select Bibliography 821

I. Scope of Article 25 of the ICC Statute

The title of Article 25 raises greater hopes than it is, in the end, able to fulfil. At first glance it gives the impression that this article contained all essential requirements for the criminal responsibility of an individual and, furthermore, it may enable the delimitation of individual from other forms of responsibility, such as that of the State. At a closer look, however, it appears that Article 25 merely regulates in detail the various forms of perpetration of and participation in an international crime (paragraph 3(a)–(e) ) and attempts thereof (paragraph 3(f) ). These provisions are situated in the context of other regulations which, on the one hand, establish the jurisdiction of the Court over natural persons (paragraph (1) ) and, on the other hand, leave the responsibility of States under international law unaffected while neither clearly including nor excluding their responsibility under the ICC Statute (paragraph (4) ). On the whole it seems fair to say that Article 25 by no means contains a comprehensive and definite compilation of all requirements essential for ‘individual criminal responsibility’, as the title of the article suggests. Nevertheless, it is equally fair to say that in this respect, Article 25 is not worse but rather better than earlier drafts of the international criminal code which contained even less explicit rules of international criminal responsibility.1

(p. 769) Another feature which should be mentioned is a sort of double structure of the Rome Statute. On the one hand, it contains rules for the establishment of the Court and its jurisdiction, which are of a procedural character. On the other hand, it provides specific definitions of crimes and general requirements of responsibility, which are of a substantive nature. In comparison with earlier developments of international criminal law, it appears that at first the elaboration of ‘substantive law’ was the main endeavour.2 This tendency may be explained by the fact that in the early days, international criminal justice was not yet in close reach. By the same token, the Charter of the International Military Tribunal of Nuremberg (IMT) would leave the elaboration of large parts of procedural law up to the Tribunal itself according to its Rules of Procedure and Evidence.3 Now, with the establishment of the ICC, substantive as well as procedural rules stay side-by-side within the same statute. Although this may be welcome due to its offering an optimum of transparency and legal security, one must be aware that with regard to defences and exemptions from criminal responsibility, it is not always clear whether these elements are of a substantive or procedural nature, the consequences of which may differ. At any rate, the Statute has made progress at least insofar as it considers the ‘grounds for excluding criminal responsibility’ (Article 31) as not a merely jurisdictional matter, as otherwise it would not make sense to treat persons under 18 as being excluded from ‘jurisdiction’ (Article 26). And, furthermore, since still leaving the question open as to whether and to what degree the exclusionary grounds of Article 31 as well as other ‘defences’ are of a substantive or procedural nature, the Rome Statute leaves room for interpretation, for filling gaps with general elements and for structuring the crime according to general principles.

Although this is a task for the future, it seems advisable to see the Rome Statute’s article on ‘individual criminal responsibility’ in the broader light of related provisions before turning to the details of Article 25.

II. Elements For and Lack of a Comprehensive ‘General Part’ of Criminal Responsibility

The Rome Statute in its Part 3 on ‘General Principles of Criminal Law’ certainly contains quite a few provisions which represent essential components of a ‘General Part’ of a criminal code as is traditional in continental Europe and many other countries with similarly modelled penal codes. The respective provisions in (p. 770) the Rome Statute, however, are neither in number nor shape apt to form a true ‘General Part’.4 Therefore, the requirements of individual criminal responsibility have to be found partly within and partly outside of Article 25. Without claimimg to be complete, at least the following elements and requirements may be listed as essential for individual criminal responsibility.

A. Within Article 25 of the ICC Statute

1. Individual Responsibility of Natural Persons

Paragraphs (1) and (2) establish the jurisdiction of the ICC over natural persons and proclaim their individual responsibility. Both provisions thereby confirm that even the ‘Law of Peoples’ (as ‘International Law’ is for instance expressed in the German ‘Völkerrecht’) may impose on the individual direct duties, the violation of which can lead to individual (international) criminal responsibility—a principle which already had been presupposed by the IMT5 and more recently by the ICTY.6 Less clear than these provisions, which may—as has since become generally recognized—merely have a declaratory function, is paragraph (4) which reiterates an old position in the codification history of international criminal law according to which the individual criminal responsibility of natural persons shall not affect the responsibility of States under international criminal law,7 which does not, however, explicitly exclude criminal responsibility of States.8

2. Perpetration and Participation

Paragraph (3) describes various forms of perpetration and participation. As these phenomena constitute the central substance of Article 25(3) ICC Statute and will be dealt with in more detail infra (at V), a mere survey of the main features suffices here.

(p. 771) In terms of ‘perpetration’, according to subparagraph (a) an international crime may be committed individually (by one person alone and directly), jointly with another person, or through another person.

In terms of ‘participation’, subparagraphs (b) and (c) penalize a broad variety of ordering, soliciting, inducing, aiding, abetting, or otherwise assisting the attempt or commission of a crime or the facilitation thereof.

Whereas the preceeding forms of perpetration and participation may be called ‘classical’, i.e. traditional for many jurisdictions,9 subparagraphs (d) and (e) provide certain extensions of criminal co-responsibility by a group of persons acting with a ‘common purpose’, with special requirements for the necessary intention or by specifically penalizing the direct and public incitement to certain crimes, such as genocide.

3. Attempt and Abandonment

In principle, it is certainly laudable that the attempt to commit a crime is not only penalized but defined as well, and that even the exclusion of liability in case of abandonment is provided for (subparagraph (f)). From the conceptual point of view, however, one may wonder why attempt is regulated in the direct neighbourhood of participation, as if it were just another type of it, instead of regulating attempt in its own independent provision as it is good tradition and as had been suggested in earlier drafts.10

B. Elements of Criminal Responsibility outside of Article 25 of the ICC Statute

1. Legality as the Basis of Criminal Responsibility

There is neither individual nor any other criminal responsibility unless provided for by law. The various sub-principles of this almost universally acknowledged principle of legality is expressed in three different provisions of nullum crimen sine lege (Article 22), nulla poena sine lege (Article 23), and non-retroactivity ratione personae (Article 24).

2. Subjective Requirements of Criminal Responsibility

In accordance with the canonic concept of ‘actus reus nisi mens sit rea’, it is not the mere unlawful act that bears criminal responsibility, but only if it has been committed in a certain state of mind. Whereas many national criminal codes—at least (p. 772) with regard to certain crimes such as homicide or bodily injury—would be satisfied with negligence, the Rome Statute requires intent as the mental element (Article 30). This, however, is not without exception, as commanders and other superiors may be held responsible for crimes of subordinates if they ‘should have known’ that their forces were committing or about to commit such a crime (Article 28(a)(i) ), thus expanding responsibility, implicitly, into the realm of negligence.11

As main grounds by which mens rea may be negated, the Rome Statute recognizes not only mistake of fact, but also—under certain conditions—mistake of law (Article 32) as well.12 Another subjective requirement of criminal responsibility, although ‘hidden’ in an ‘exclusion of jurisdiction’ over persons under the age of 18 (Article 26), is the capacity of the perpetrator to appreciate the unlawfulness or nature of his conduct and/or to act in accordance with the requirements of law.13

3. Grounds for Excluding Criminal Responsibility

The establishment of criminal responsibility does not solely depend on the presence of positive requirements, such as an act and a certain state of mind, but also on the absence of negating obstacles, as for instance incapacity due to mental disease or self-defence. Such ‘defences’, as in a rather unspecified manner the common law tradition would comprehend various grounds of excluding criminal responsibility, can be found mainly, but by no means exhaustively, in Article 31 of the ICC Statute. Without clearly distinguishing between ‘justifications’, ‘excuses’, or other grounds for excluding punishability, as developed in continental European theory and partly even recognized in the penal code,14 Article 31 recognizes—under certain conditions—four grounds for excluding criminal responsibility: mental incapacity, intoxication, self-defence and defence of property, and duress.15 This list, however, is not complete, as certain exclusions can also be found outside of Article 31, in particular mistake of fact or law (Article 32), minor age under 18 years (Article 26), abandonment of an attempt (Article 25(3)(f)) and superior orders (Article 33).

Somewhat countervailing to these defences are those legal figures which at first glance might also be invoked as grounds for excluding punishability, but which are, in fact, explicitly derogated in the area of international criminal law: one is the (p. 773) official capacity (such as a Head of State or Government), which is neither a ground for excluding nor for mitigating criminal responsibility (Article 27), the other is—contrary to many national laws—the non-applicability of any statute of limitations (Article 29).

C. Missing Elements of Criminal Responsibility

Although the Rome Statute—in comparison to any predecessors—contains a quite impressive list of positive and negative elements of criminal responsibility,16 the missing list of elements which one would expect in the ‘general part’ of a national penal code is no less impressive. This is particularly true with regard to the commission of a crime by omission,17 although the special responsibility of commanders for crimes of subordinates (Article 28) at least partially covers this field; equally remarkable is the silence of the Rome Statute with regard to certain grounds of justification, such as consent of the victim, conflict of interest, general and/or military necessity, and—as special phenomena of public international law—the problem of immunity of diplomats, reprisals, and the tu quoque argument.18 A more general deficit is the lack of any rules of merger in case of concurrent crimes.19

D. Tacitly Presupposed General Requirements of Criminal Responsibility

As became clear from the preceding list of positive, negative, and missing elements of criminal responsibility, the Rome Statute was neither anxious to regulate all necessary elements of criminal responsibility explicitly nor did it endeavour to structure them along a certain doctrine, but was rather content with regulating at most those requirements which were deemed particularly essential or in need of clarification. This is true, for instance, with regard to the principal requirement of intent or for the exclusion of official capacity, as criminal liability might otherwise be extended to mere negligence, and State officials might try to evade criminal responsibility. This abstinence of the Rome Statute from a comprehensive ‘general part’ does not mean, however, that the general requirements of criminal responsibility had been developed without any ‘hidden agenda’. Although this is not the place to ascertain what—common or different—doctrine the individual drafters had in mind when developing and approving certain regulations, they (p. 774) had a certain understanding of criminal responsibility and certain indispensable requirements. One seems to have been the requirement of an actus reus in terms of a wilful act and mens rea in a sort of culpability, as the drafters would otherwise not have been able to recognize mistake of law or duress as grounds for excluding criminal responsibility.

III. Comparison with National and Customary International Criminal Law

After realizing that the Rome Statute, though it regulates some (more or less) principal, positive requirements for, and negative exemptions from criminal responsibility, is still far from a comprehensive ‘General Part’;20 it is not yet in the same developmental stage and shape as are most national criminal codifications.

This is at least true with regard to national penal codes which follow the continental European tradition, though even there there may be differences of elaboration and systematization of the crime.21 Taking this into account and the fact that the preceding list of explicitly recognized, tacitly presupposed, and evidently missing elements of criminal responsibility make up all of what normally would belong to a modern penal code, it would not make much sense here to engage in a detailed comparison of the elements and structure of the crime in the Rome Statute with those in international criminal codes, not least because such a comparison, if thoroughly carried out, would have to comprise the entire penal code(s). Instead of such a general and necessarily abstract survey, it appears preferable to make special references to national law(s) where appropriate.

With regard to international criminal law and previous draft codes, however, it will be interesting to see to what extent and in which way the requirements of criminal responsibility had already been recognized before the Rome Statute came into being. Just to mention the main steps, the first instrument providing general requirements for individual responsibility in a binding manner was the Charter of the International Military Tribunal (IMT) in Nuremberg:22 aside from establishing individual responsibility for certain crimes against peace, war crimes, and crimes against humanity (Article 6), it partially covered the early stages of planning and preparation and certain types of complicity, declared the official position of defendants, including Heads of State or other government officials, as not freeing (p. 775) them from responsibility (Article 7), and recognized superior orders, if at all, as mitigating circumstances at most (Article 8).23

In summing up the principal statements and requirements in the IMT Charter of Nuremberg and in the judgment of the Tribunal, the International Law Commission (ILC) promulgated the so-called Seven Nürnberg Principles of International Law24 which basically reinforced the requirements of the aforementioned IMT Charter, though with some modifications and generalizations: while in case of superior orders the defendant may be released from responsibility if there was no moral choice possible to him (Principle IV), complicity in the commission of one of the relevant crimes is now declared a crime under international law in a general way (Principle VII).

In complying with its mandate from the UN General Assembly to further develop the Nuremberg Principles, the ILC in 1954 presented its first Draft Code of Offences against the Peace and Security of Mankind.25 Though still rather short, it supplemented the already known Code of Offences with some general rules, such as on conspiracy, direct incitement to commit an offence, complicity in the commission of an offence, and attempt (Article 2(13) ). Even these additions, however, merely complemented the special offences, rather than providing any sort of ‘general part’.

With regard to the latter respect, more progress was made with the ILC’s Draft Code of Crimes against the Peace and Security of Mankind of 1991.26 After stating the main principles of responsibility and punishment in a sort of core provision (Article 3), including general rules on participation and attempt,27 the Draft Code confirms the responsibility of a State under international law for an act or omission attributable to it (Article 5), excludes statutory limitations (Article 7), proclaims the principle of non-retroactivity (Article 10), proscribes the responsibility of superiors for failure to prevent subordinates from committing an international offence (Article 12), and, last but not least, opens the door for defences (p. 776) and extenuating circumstances, as the competent court may deem appropriate (Article 14).

Compared to this Draft Code of 1991, the Statutes of the International Tribunals for former Yugoslavia (ICTY)28 and Rwanda (ICTR)29 evidently fall short of the state of consensus reached meantime in the international community both among experts and public opinion. In paying more attention to questions of jurisdiction, composition of the court, and procedural rules, the substantive parts of these Statutes make do with proclaiming the special crimes under the jurisdiction of these Tribunals,30 restricting the jurisdiction over natural persons31 and, by an altogether new technique, pulling the already known and perhaps slightly modified general rules together in a provision on ‘individual criminal responsibility’.32 This restraint of the ICTY and ICTR Statutes had to be made up for, of course, by judge-made law of the Tribunals as in fact occurred.33

In 1996, the ILC, presumably not without the influence of private efforts of codification to be explained later, came out with a thoroughly revised Draft Code of Crimes against the Peace and Security of Mankind.34 With regard to substantive rules and requirements, this Draft Code complements, and to a certain degree modifies the conditions of ‘individual responsibility’ (Article 2), in particular by explicitly requiring intent, penalizing both the active ordering of a crime and a superior’s failure to prevent it, defines instigation as well as aiding and abetting in a rather broad way, reformulates the definition of attempt, though not yet explicitly recognizing discharge for abandonment. With regard to defences and extenuating circumstances (Articles 14, 15), however, the Draft Code of 1996 made no progress beyond that of 1991.

This rather slow and narrow approach to a more comprehensive code of international criminal law on the diplomatic and similarly official level is understandable to a certain degree if one takes into account that government committees or similar publicly mandated commissions such as the ILC are expected to move along consensual lines. This is, at most, conducive to achieving the best possible compromises rather than to establishing truly solid and impartial law. In light of this, private initiatives were of vital importance. This is, among others, particularly true of academic efforts by and within the Association International de Droit (p. 777) Pénal (AIDP) and the International Law Association (ILA). From many other activities and publications worth mentioning,35 only two initiatives, as presented in the form of Draft Codes, may be named here. First, a Draft International Criminal Code and Draft Statute for an International Criminal Tribunal,36 which already contained a rather comprehensive ‘General Part’ with provisions for instigation, participation, attempt, and omission (Article IV), for objective and subjective elements such as causation (Article VI) as well as grounds for excluding criminal responsibility, such as self-defence, necessity, superior order, error, incapacity, and consent (Article IX); secondly, the Updated Siracusa Draft37 which, in cooperation with the AIDP, the ISISC (Istituto Superiore Internazionale di Scienze Criminali in Siracusa/Italy), and the Max Planck Institute for Foreign and International Criminal Law in Freiburg/Germany, with the assistance of public and international criminal law experts from all over the world, presented the, to date, most comprehensive ‘General Part’ of an international criminal code in at least regulating the ‘core provisions’ found in most modern national codes.38 Aside from the questions regulated in earlier drafts, the Updated Siracusa Draft also contains provisions on the age of responsibility, insanity and intoxication, omission, causation, the mental element, and, not least, a rather comprehensive list of grounds for excluding criminal responsibility. Between these two initiatives, the AIDP, in cooperation with the ISISC, had made a probably influential contribution to the development of an international criminal code by procuring Commentaries on the International Law Commission’s 1991 Draft Code of Crimes against the Peace and Security of Mankind.39 In assuming that both these commentaries and the Updated Siracusa Draft had been taken into account by the ILC in the revision of its Draft Code 1996 and in realizing that these documents also had (p. 778) been taken into consideration by the Preparatory Committee in 1996,40 it seems fair to say that the Rome Statute is the result of combined efforts both by State officials and non-governmental initiatives. This is no less true for the principles of individual criminal responsibility in question here.

IV. Individual Criminal Responsibility as Distinct from Other Types of Responsibility

By establishing the jurisdiction of the ICC over natural persons (Article 25(1) ) and proclaiming their individual responsibility (Article 25(2) ),41 the Rome Statute limits at the same time the scope of international criminal law to individual criminal responsibility. This makes it necessary to distinguish it from other types of criminal liability.

A. Responsibility of Corporations

At first glance, paragraph (1) of Article 25 of the ICC Statute seems to do no more than to state the self-evident course when implicitly restricting the jurisdiction of the Court and, thus, the responsibility for international crimes within the Rome Statute to natural persons, as the particular definitions of crime in Articles 5 to 8 are connected to a human act and, consequently, to the conduct of a natural person. However, even if this point of departure still allowed the sanctioning of a legal entity (such as a corporation or other ‘juridical persons’), as long as its ‘activity’ can be traced back and attributed to a natural person, when reading paragraphs (1), (2), and (3) of Article 25 of the ICC Statute together, there can be no doubt that by limiting criminal responsibility to individual natural persons, the Rome Statute implicitly negates—at least for its own jurisdiction—the punishability of corporations and other legal entities. In the same line it had already been stated by the IMT that international crimes ‘are committed by men not by abstract entities’.42

Even in face of this authority, however, the question of whether a corporation should be excluded from criminal responsibility was an issue in the deliberations prior to the Rome Statute. In particular, the Draft Statute of 1998 contained a proposal which—with the exception of States—would subject legal entities to the jurisdiction of the ICC if ‘the crimes committed were committed on behalf of (p. 779) such legal persons or by their agencies or representatives’.43 This inclusion of legal persons was demanded in particular by the French Delegation in order to make it easier for victims of crimes to sue for restitution and compensation.44 This proposal, however, was not successful in the end as it had—among others—these arguments against it: from a pragmatic point of view it was feared that the ICC would be faced with tremendous evidentiary problems when prosecuting legal entities, and from a more normative-political point of view it was emphasized that criminal liability of corporations is still rejected in many national legal orders,45 an international disparity which could not be brought in concord with the principle of complementarity (Article 17 of the ICC Statute).46 Furthermore, it was felt ‘morally obtuse for States to insist on the criminal responsibility of all entities other than themselves’.47 This alludes to the next point of exclusion.

B. Responsibility of States

Like other legal persons, States are also not subject to the jurisdiction of the ICC. Although this is not explicitly stated, Article 25(4) of the ICC Statute, according to which individual criminal responsibility ‘shall [not] affect the responsibility of States under international law’, has to be read in such a way that the implicit exclusion of States from criminal responsibility shall not preclude other kinds of responsibility of States, if so provided for by other customary international law or treaties. By limiting criminal responsibility to individual natural persons and by not attributing their acts to the legal persons they represent,48 the same holds true for the case that a natural person acts as ‘an agent of the State’ or ‘in the name of the State’.49

C. Individual Responsibility vs. Co-responsibility

When the Rome Statute in Article 25(3)(a) declares that a natural person can commit a crime not only ‘as an individual’, but also ‘jointly with another person’ or ‘through another person’, this equalization of ‘individual’ perpetration with co- or even intermediary perpetration seems at first sight contradictory to Article 25(2) which refers only to individual responsibility: this seems to allow the (p. 780) conclusion that paragraph (2) solely points and is limited to the ‘solitary perpetrator’.50 This seeming contradiction can be solved, however, if the real nature of co-perpetratorship is analysed. This legal figure of complicity is characterized by the fact that the joint perpetrators put together a united plan for a crime which they perhaps perform by division of labour. As explained later,51 based on the common plan, the individual contributions of the co-perpetrators in performing the crime can be reciprocally attributed to each other. In this way, joint perpetratorship does not imply liability for wrongdoing of another; rather the basis for criminal responsibility is the individual blame placed on each perpetrator for having participated in the planning of the crime and for having consented to the illegal contributions of the other co-perpetrators. Thus, it is the reproach of unlawfulness against each individual which makes it feasible to attribute the reciprocal contributions to each other. On these terms, the solitary perpetrator as well as co-perpetrators can be considered ‘individually responsible’ for the crime, as intended by paragraph (2).

D. Individual Responsibility (even) in the Case of Official Capacity

The Rome Statute considers the principle that a natural person is criminally responsible for a crime as valid without exception. This is expressed in Article 27 which declares the Statute applicable to all natural persons regardless of any ‘official capacity’. Parallel provisions can already be found in the ICTY and ICTR Statutes in Articles 7(2) and 6(2), respectively. Even Article 7 of the Nuremberg Charter contained a provision according to which a perpetrator may not invoke his official position to escape from liability.52 The rationale behind this rule is the proposition that a person in an official function ordering or causing an international crime to be carried out may not be placed in a better position than the person who himself commits the crime. Furthermore, the gravity of the crimes covered by the Rome Statute would not allow a Head of State to invoke his or her official position, even if the official concerned received, under other circumstances, special protection under international law.53

Article 28 of the ICC Statute goes even further than Article 27, as far as superiors are concerned. These officials are not only barred from invoking their official capacity, they may eventually even be criminally responsible for the international crime of a subordinate if they failed to exercise the necessary command and control. This liability for ‘omission’ goes even as far as to cover negligence for not duly realizing that the forces were committing or about to commit an international crime (Article 28(a)(i)).54

(p. 781) V. Perpetration and Participation

A. Basic Models in National Law(s)

When trying to systematize the various structural modes of perpetration and participation as found in numerous national legal orders, one finds two basic models on which—though partially combined or modified—national laws with regard to criminal (single and co-) responsibility are founded.55

1. The ‘unitary perpetrator model’

By disregarding national specifics, one model can be characterized as considering every person who contributes to the carrying out of a crime in whatever way and degree as a ‘perpetrator’, without distinguishing in any way between different types of true ‘actors’ or mere ‘accomplices’. This ‘expansive’ notion of perpetratorship is based on the assumption that whoever contributes any cause to the commission of a crime, regardless of how close to or distant the cause is from the final result, must be considered as (co-)author of the crime. If a difference is to be made between the weight or distance of the individual cause contributed by different (co-)authors, this might be a matter of individualized determination of the sentence, not however of guilt or innocence.

Prominent representatives of this model are Austria and Italy. But even for supranational courts and codes, this somehow ‘holistic’ model of perpetratorship seemed attractive enough to be followed by the Nuremberg and Tokyo Tribunals56 and in the form of an additional clause, adopted by the ICTY and ICTR Statutes57 and, as a general clause, recommended by the Updated Siracusa Draft,58 which declared individually responsible any person ‘who plans, instigates, orders, commits or otherwise aides and abets in the attempt or execution of a crime’, thus putting the commission of the crime on the same level and within the same category as planning, instigating, ordering, or otherwise aiding (Article 33-9(1) ).

This ‘unitary perpetrator model’ is also characterized by declaring each party to a crime individually responsible, ‘apart from the responsibility of other participants’ (Updated Siracusa Draft, Article 33-9(2) ), thus not employing the notion of ‘accessorial liability’ as characterised by the other model.

(p. 782) 2. The ‘differential participation model’

This model is characterized by distinguishing between ‘perpetratorship’ (in a narrower sense) and (mere) ‘participation’, although the borderline to be drawn between the two may vary between various countries which fundamentally follow this model. This ‘restrictive’ theory of perpetratorship is based on the observation that, except for the case of truly equal cooperation of various persons in the commission of the crime, the causal contributions can be so different in weight and closeness to the accomplishment of a crime that it would be unjust to treat all persons involved in the same way. For this reason the notion of ‘perpetrator’ (in terms of the German ‘Täterschaft’ or the Spanish ‘autoría’) is restricted to those persons who either stand in the centre of the committing of a crime or who steer it by means of predominant influence, whereas other parties to a crime are mere ‘participants’ (in terms of the German ‘Teilnahme’ or the Spanish ‘participación’). In addition, these two groups may be further differentiated by distinguishing within ‘perpetratorship’ between solitary perpetrator, co-perpetrators, and intermediate perpetrator, and within ‘participation’ between solicitor/instigator (Anstiftung/indución) and aider/abettor (Beihilfe/cooperación), if not treating accessories as a special group of complicity after the fact.59

Prominent representatives of this ‘differential participation’ model are France, Germany, Spain, Switzerland, and—although with certain particularities—penal codes and systems of the common law tradition. As will be seen later, the Rome Statute seems to be based on this model as well.

There are at least two features which are characteristic of the various expressions of this model. One is the obvious possibility of sanctioning ‘perpetrators’ and mere ‘accessories’ of the crime in a different way, by either upgrading perpetrators or downgrading accessories, or by declaring complicity only punishable with regard to the more serious crimes such as felonies and not mere misdemeanours, or for requiring intent and, by doing so, excluding mere negligence or even recklessness from accomplice liability. Differentiated treatments of this sort, however, do not necessarily correspond to the distinction between true ‘perpetrators’ and mere ‘accomplices’, rather there may be differences even within the one or the other category. Such ‘crossovers’ can be found, for instance, in German Law where, on the one hand, participation in terms of instigation (‘Anstiftung’) and aiding and abetting (‘Beihilfe’) requires intent, both by the accomplice and the perpetrator carrying out the crime (§§ 26, 27 German Strafgesetzbuch); on the other hand, with regard to punishment, only a mere aider and abettor can expect mitigated punishment (§ 27), whereas the instigator shall be punished ‘in the same manner as the perpetrator’ (§ 26).

(p. 783) The other characteristic of the ‘differential participation model’ is the relationship between the ‘principal act’ of the perpetrator and the contributions of accomplices in terms of ‘derivative’ or ‘accessorial liability’.60 Unlike the ‘unitary perpetration model’, in which each causal contributor to the crime is individually liable for his own conduct, in the ‘differential participation model’, the responsibility of mere accessories depends on and is ‘accessorial’ to the principal act. This leaves the question of how narrow this dependence must be. There are basically two ways to be considered. One can either presuppose that the ‘principal’ perpetrator fulfils all requirements of a crime, with the inclusion of his own personal culpability and the exclusion of any ground or justification and excuse: with this type of ‘strict accessorial liability’, however, note that in the case of a war crime in which due to intoxication the principal perpetrator has lost his capacity to control his conduct (as in the case of Article 31(1)(b) of the ICC Statute), any other instigators or aiders, even if themselves in a sober state of mind, could not be held criminally responsible. Or, on the other hand, the responsibility of accomplices is merely dependent on the unlawfulness of the principal act: in this case of ‘limited accessorial liability’, accomplices could be held criminally responsible even in the case where principal perpetrator is under the age of 18 years (Article 26 of the ICC Statute) or for some other reason, such as incapacity (Article 31(1)(a), (b) ) or mistake of law (Article 32(2) of the ICC Statute) is not personally responsible. Whereas traditional codes and theories of participation, if they address this problem at all, appear to have been based on the notion of ‘strict accessorial liability’,61 the modern trend goes towards some sort of ‘limited accessorial liability’, as, for instance, clearly expressed in the German reform act of 197562 or as interpreted in the same way in Switzerland and Spain.63 It goes without saying that models are not necessarily reality. But even if the various divisions in perpetration and participation presented before may be combined and modified from country to country,64 the regulation in this area has at some point to opt for this or the other way. This, however, presupposes that the law-makers must be aware of the underlying problems. There is some doubt as to whether this has been the case on the level of international criminal law until now.

(p. 784) B. Survey on Regulations of Perpetration and Participation in International Criminal Law

1. Early Codifications65

Starting with the Hague Land War Convention of 1907,66 which already contained prohibitions and duties with regard to warfare the violation of which individual criminal responsibility could ensue, the rules pertaining to participation are still rather rudimentary: according to Article 50, States were entitled (but not obliged) to penalize the co-responsibility of individual persons in war crimes, and according to Article 34 a parleyer could lose his status of immunity if he used his position to commit treason or for instigating it, the latter implying some sort of complicity in terms of inducement.

More elaborate provisions subsequently appeared in the IMT Charters of Nuremberg and Tokyo, which listed various forms of participation in connection with single crimes, but still without any general regulation. The various single crimes appear less defined by the same legislative technique, rather than in a seemingly accidental way. Whereas according to subparagraph (a) of Article 6(2) of the IMT Charter of Nuremberg, crimes against peace shall comprise ‘namely, planning, preparation, initiation or waging of a war of aggression’, thus naming certain accessories before the fact, subparagraph (2)(b) on war crimes simply lists specific violations of the laws or customs of war (such as murder, ill-treatment, or deportation to slave labour), without, however, naming any accessory contribution before the fact, such as planning or preparation, as was the case with crimes against peace (subparagraph (a) ). Once more, another technique is used with regard to crimes against humanity (subparagraph (c) ) by first naming certain crimes such as murder, extermination, enslavement or ‘inhumane acts committed against any civilian populations’ (sub-section 1), and then proclaiming the responsibility of ‘leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes’ (sub-section 2), thus not describing certain actions (as was the case in subparagraph (a) ) but rather certain types of actors. This lack of clarity may have led the Nuremberg and Tokyo Tribunals to a sort of ‘unitary’ model by not distinguishing between perpetrator/principal and accessory.67

Expanding criminal responsibility beyond the point of individually acting persons to groups or organisations, is Article 10 of the Nuremberg IMT Charter which entitles national authorities to bring individuals to trial for membership in (p. 785) those groups or organizations which have been declared criminal by the IMT. By this device, which has been traced back to the Anglo-American notion of ‘conspiracy’,68 individual responsibility is extended back into the early stages of crimes subject to the IMT Charter.

In the search for some more general proclamation of the punishability of participation, one needs to look at the Genocide Convention of 1948 which probably for the first time obliged the Contracting Parties to penalize not only genocide as such but also conspiracy to commit and complicity in genocide.69 A similar generalization of participation can be found in the so-called Seven Nürnberg Principles of the ILC (1950) by declaring ‘complicity in the commission of a crime against peace’ as a crime under international law (Principle VII).70

2. Draft Code of Crimes against the Peace and Security of Mankind (1991/96)71

The first document which clearly distinguishes between the commission of an international crime and other forms of participating therein appears to have been the Draft Code of 1991 (Article 3(1) and (2) respectively).72 Yet, this step forward almost immediately ends in open questions, as the Draft Code neither describes different forms of commission, nor does it clarify whether and to what degree participation (namely aiding, abetting, providing the means for the commission of a crime, conspiring, or directly inciting) requires the principal perpetrator’s own responsibility (in terms of accessorial liability)73 or whether it suffices that the accomplice made a contribution with the intent to support the commission of the crime, without requiring that the principal crime in fact be carried out.74

Fortunately, the Draft Code of 1996 brought some clarification (Article 2(3) ) in favour of accessorial liability by requiring that ordering the commission of a crime is only punishable if this crime has in fact been committed; the same is true with regard to aiding, abetting, or otherwise assisting in the (obviously factual) (p. 786) commission of such a crime.75 The concept of conspiracy as well has been structured according to accessorial principles.76 Another question is whether the drafters realized that the conspiracy concept would lose its function of covering the early stages of a crime (in terms of stages preceding even its preparation or attempt) if the crime must be carried out in order to make the conspirators criminally liable.

3. ICTY/ICTR Statutes of 1993/94

The Statutes of the ad hoc Tribunals for former Yugoslavia and Rwanda are yet another example of regulations which, partly due to the wording of earlier conventions such as that on genocide, lack a clear notion of perpetration and participation. Whereas the articles on crimes against humanity and war crimes simply name the various violations without any hint of liability for complicity,77 the articles on genocide also mention conspiracy, incitement to, and complicity in genocide.78 In addition to these special crime provisions, however, both Statutes, in a general clause, declare individually responsible every person ‘who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime’.79 Not mentioning the unclear relationship between the special participation provisions with regard to genocide and the general responsibility clause, the latter again mixes together the perpetration of the crime and the various modes of participation therein. It is also not clear whether and to what degree the principal act must in fact have been performed. In addition, whereas, quite remarkably, conspiring is not named in the general clause, criminal responsibility can still go far ahead of the commission of a crime as even the aiding and abetting in the planning and preparation of a crime are made punishable. It is no wonder that such uncertainties in this regulation left some room and need for interpretation by the Tribunals.80

4. The Main Features of Perpetration and Participation in the Rome Statute

In comparison with the foregoing drafts and qualifications, the Rome Statute can claim to deal with questions of perpetration and participation in a rather comprehensive and detailed way. This is apparent by distinguishing within the committing of a crime between solitary perpetration (‘as an individual’), co-perpetration (‘jointly with another person’), and intermediary perpetration (p. 787) (‘through another person’). Unlike the rather broad responsibility approach of the ICTY/ICTR Statutes, the Rome Statute in Article 25(3) seems to follow a narrower concept of participation. Instigation as well as aiding and abetting presuppose that the principal act has at least been attempted (subparagraphs (b) and (c) ). Similarly, participation in the preparation of or the conspiring to commit a crime is no longer punishable if the principal crime does not at least reach the stage of an attempt (subparagraph (d) ), the only exception being direct or public incitement to genocide which does not actually need to be carried out (subparagraph (e)). With regard to punishment, the Rome Statute does not explicitly differentiate between principals and accessories to a crime. Yet, by obliging the Court, in determining the sentence to take such factors into account as ‘the individual circumstances of the convicted person’ (Article 78(1) of the ICC Statute), the door is open for weighing the commission of a crime by the principal and the contributions of accomplices in a gradual way. Further evidence of the drafters’ readiness to structure perpetration and participation in a more lucid way than in earlier regulations can be drawn from the fact that the Rome Statute does not mix together instigation, aiding, and committing a crime, but rather distinguishes, thereby perhaps even creating a hierarchy, between committing, instigating, aiding, otherwise supporting, and inciting a crime (Article 25(3)(a)–(e) of the ICC Statute).

When searching for a concept of perpetration and participation that is comprehensive enough to comprise all cases worthy of being penalized, the Rome Statute, however, with its Article 25(3) overshot the mark, in particular by not paying sufficient attention to the question of whether certain modes of participation do indeed need regulation as perhaps already covered elsewhere. This is true, for instance, with regard to ‘ordering’ the commission of a crime (subparagraph (b) ), as ordering supposes a superior position which advances the superior to the rank of an ‘intermediate’ perpetrator (in terms of committing a crime through another person, according to subparagraph 3(a) ).81 Furthermore, was it necessary in face of the broad scope of assistance to a crime (subparagraph (c) ) to penalize contributions to group activities by an additional special provision (subparagraph (d) )?82

When trying to decide into which of the above-mentioned models of perpetration and participation the Rome Statute fits, it is difficult to find an unambiguous answer. When keeping in mind that we are moving in the area of macro-criminality and perhaps state-supported crimes, it appears advisable for an effective fight against crime to judge the responsibility of individual parties to a crime on their (p. 788) own merits as far as is possible. This aim seems best served by interpreting the Rome Statute’s regulation in terms of a ‘unitary perpetration model’ as in this system the responsibility of a party to the crime is less, if at all, dependent on the responsibility of the principal perpetrator.83 This view seems to be supported by the fact that the frame of punishment provided for by the Rome Statute is the same for all parties to a crime (though differentiations may be possible in the individual determination of the sentence according to Article 78 of the ICC Statute). Another indication in this direction may be seen in the various forms of instigation, such as ‘inducing the commission of such a crime which in fact occurs or is attempted’ (Article 25(3)(b) of the ICC Statute). This leaves open the question as to whether this phrase implies the dependence of the inducement on the wrongdoing of the principal (in terms of the ‘differential participation model’) or whether it is merely expressing the need for a crime to at least be attempted, without thereby derogating from the accomplice’s own wrongdoing. This appears expressed by the ILC to the effect that ‘an individual is held responsible for his own conduct which contributed to the commission of the crime notwithstanding the fact that the criminal act was carried out by another individual’.84 On these terms, as in the ‘unitary perpetration model’, each party to a crime is responsible for his own contribution, not for the commission or participation by another. On the other hand, however, the ‘differential participation model’ can draw some support from the fact that Article 25(3) of the ICC Statute, contrary to the Draft Code of 1991 and the ICTY/ICTR Statutes,85 distinguishes in a systematic way between perpetration (subparagraph (a) ) and other forms of participation (subparagraphs (b)–(e) ) and that, with regard to the latter, it indicates a sort of graduated responsibility, as for the weakest form of participation (subparagraph (c) ) any sort of contribution (‘otherwise assisting’) shall suffice.86 Remarkably enough, on an even less stringent regulation than that of the Rome Statute, the ICTY appears to have interpreted the participation concept of Article 7 of the ICTY Statute in terms of the ‘differential participation model’ when stating that the difference between ‘committing’ a crime and other forms of participation such as aiding and abetting lies in the fact that ‘the aider and abettor is always an accessory to a crime perpetrated by another person, the principal’.87 The accessorial dependence of the accomplice on the principal act of the perpetrator, however, is just the typical mark of the ‘differential participation model’.

(p. 789) C. Perpetration (according to Article 25(3)(a) of the ICC Statute)

As previously stated,88 a person can be criminally responsible in terms of ‘perpetration’ in three ways.

1. Solitary (Direct) Perpetration (Committing ‘as an individual’)

In the first line, this phrase refers to the case of a single person who, without any assistance or influence by another person, commits the crime. In this case the perpetration can truly be called ‘solitary’.

In a broader sense, however, this phrase also covers the case where there are still other parties to the crime who are merely rendering accessory contributions to the commission by a ‘principal’. This case is neither identical with the legal figure of ‘co-perpetrators’ (infra 2), in which all persons jointly co-acting are individually liable, nor with that of ‘intermediate’ perpetratorship (infra 3), in which the perpetrator is using another person as his tool, but rather refers to the combination of perpetration (of one or more principals) and participation (by one or more accessories before, during, or after the fact). What makes a person the ‘principal’ in such a situation is the fulfilment of all statutory elements of the crime in his own person, which, perhaps instead of the English term ‘individual’, is better expressed by the Spanish version of ‘por sí solo’ or by the original French version of ‘à titre individuel’.89 If this is the case, as in killing or torturing the victim with one’s own hands, this person must be treated as the (direct or immediate) ‘perpetrator’ even if he was induced to do so or somehow assisted by others.

There is no question that this form of perpetration could be more clearly expressed by reference to committing the crime ‘by himself or herself’ (as in the German wording of § 25(1) Strafgesetzbuch), instead of repeating in a kind of vicious circle that a person is ‘individually responsible’ when committing a crime ‘individually’ (ICC Statute Article 25(2) and (3)(a), respectively).

2. Co-perpetration (Committing ‘jointly with another person’)

Similarly brief is the definition of co-perpetration in Article 25(3)(a) alternative (2) of the ICC Statute. To commit ‘jointly with another person’ seems to express no more than two requirements: first, there must be more than one person committing the crime, and secondly, they must work together. Both phenomena, however, are characteristic of cases of mere complicity as well, be it instigation by X or assistance by Y of A who commits the crime. If co-perpetration and the various modes of complicity are to be distinguished, then either the term ‘jointly’ must be interpreted in a qualitative way by meaning more (or at least something (p. 790) else) than mere inducing or assisting the commission of the crime, or particular weight must be given to the term of ‘committing’ the crime, a requirement common to all three modes of perpetration.

From an analytical point of view, with regard to ‘committing’ the crime, the question arises whether each co-perpetrator must fulfil the definitional requirements of a crime in the same way as a solitary perpetrator (supra 1) or whether ‘committing’ in the case of co-perpetration can be understood in a less strict sense allowing one to combine and mutually attribute the contributions of various co-perpetrators made for the accomplishment of the crime. In the first alternative, murder in co-perpetration could be acknowledged only for those persons who kill with their own hands, but not by those who give the command or hand over the knife or keep the victim down on the ground, even if all of them are acting in a common plan. According to the other interpretation, by understanding ‘commission’ in broader terms, as by accepting the mutual attribution of contributions made in a functional division of labour for the accomplishment of the crime, not only the person who physically kills the victim, but also the organizer of the plan and the provider of means can be held liable as co-perpetrators. In this second alternative, however, the softening of ‘committing’ must be counterbalanced by stronger requirements for the ‘jointly’ committing, because otherwise co-perpetration is no longer distinguishable from mere instigation or aiding and abetting.

When scrutinizing national and international sources with regard to this question, it is unsurprising that different approaches can be found.90 In countries following the ‘unitary perpetrator model’,91 it seems obvious that by declaring each contribution to the commission of a crime as ‘perpetratorship’, it is, on the one hand, not necessary to work with some sort of mutual attribution of functionally coherent contributions, while on the other hand, however, each party to a crime is only responsible for his own wrongdoing and culpability. On these terms, co-perpetratorship as in Austrian law can be described as a more factual unity in accomplishing the crime (‘Ausführungsgemeinschaft’) rather than a normative unity (‘Bewertungsgemeinschaft’).92 The other end of the spectrum seems to be represented by common law which, on the basis of a ‘differential participation model’,93 requires a ‘principal in the first degree’ to make a direct contribution to the accomplishment of the crime with mens rea, thereby degrading participants (p. 791) with minor contributions to ‘secondary parties’ or to ‘principals in the second degree’.94 Between these two extremes, German law holds a middle position by not declaring, on the one hand, each contribution to the accomplishment of a crime as perpetration, but, on the other hand, by not requiring a co-perpetrator to carry out the crime with his own hands but that the various contributions are mutually attributable as based on a functional division of labour according to a common plan. On these terms, co-perpetratorship is commonly defined as joint commission of a crime by knowingly and voluntarily working together.95

Since the national laws are divided, supranational approaches to the interpretation of co-perpetration deserve particular attention. This is especially true with regard to judgments of the ICTY, which have adopted a wide notion of co-perpetration. Although Article 7(1) of the ICTY Statute does not explicitly mention co-perpetration, but rather mixes the ‘committing’ of the crime with various forms of participation,96 in the Tadić case, the Appeals Chamber of the ICTY saw the need for distinguishing between co-perpetration and mere participation.97 In departing from the assumption that co-perpetratorship does not necessarily require direct physical perpetration of the offender, thus, on the objective level opening the door for indirect contributions for accomplishing the crime, consequently the subjective level of mens rea becomes the main field for distinguishing between perpetration and participation. In this respect, two criteria seem to be essential: first, the co-perpetrators must have a common plan, design, or purpose which amounts to or involves the commission of a crime provided for in the Statute, though this plan does not need to have been previously arranged or formulated. Secondly, the co-perpetrators must participate in the common design whereby this participation may ‘take the form of assistance in, or a contribution to, the execution of the common plan or purpose’.98 As in this way the requirements of co-perpetratorship are lowered substantially, the ICTY sees the need to distinguish between co-perpetration (in terms of acting in pursuance of a common purpose or design to commit a crime) and aiding and abetting. The main differences are the following: the aider and abettor is always a mere accessory to the crime of the principal; aiding and abetting does not presuppose a common concerted plan, as it is possible that the principal is not aware of the accomplice’s suppport; and with (p. 792) regard to the requisite mental element the aider and abettor must merely know that his act assists the commission of the principal’s crime.99 Though realizing that it is not easy to get a clear picture of the ICTY’s position regarding perpetration and participation, as it seems to intermingle different national concepts, the ICTY puts particular emphasis on the common plan: whereas the support of the aider and abettor must have ‘a [objectively] substantial effect upon the perpetration of the crime’, for co-perpetration it suffices ‘to perform acts that in some way are [subjectively] directed to the furthering of the common plan or purpose’.100 Consequently, the structure of co-perpetratorship is characterized by the common purpose as the main basis of responsibility, whereas the qualities of the single contributions are of minor importance. In this way, a mutual attribution of contributions within the common plan becomes possible.

This leaves the question of how criminal acts of a co-perpetrator outside the common plan have to be treated, in particular, whether such ‘excess’ of an offender may also be attributed to his co-perpetrators. According to the aforementioned principle that the common purpose is the main basis of attribution, one would expect that contributions of a party to a crime may be attributed to other co-perpetrators only insofar as they stay within the common plan, as is, for instance, the position in German doctrine and practice.101 The ICTY Appeals Chamber, however, would be prepared, particularly in cases involving a common design to pursue one course of conduct (such as to effect ‘ethnic cleansing’), to deem all co-perpetrators responsible even for an excessive act if this is a ‘natural and foreseeable consequence of the effecting of that common purpose’,102 provided that the co-perpetrators are aware of the risk of excessive acts and ‘nevertheless willingly took that risk’.103 Although the ICTY Appellate Chamber, thus, still requires intent in terms of ‘dolus eventualis’, there are some doubts whether this broad notion can be applied to the Rome Statute. For in Article 30 requiring ‘intent and knowledge’ for the commission of a crime (paragraph 1), and in its definition of knowledge as awareness of the occurrence of a consequence ‘in the ordinary course of events’ (paragraph 3), it is at least a question of fact, if not of law, as to when an ‘excessive’ act can be considered part of the ‘ordinary course’ of events.104

In sum, co-perpetration finds its own profile from two sides: while, in an objective respect, it does not necessarily require the own physical performance of a definitional element of the crime, as a contribution may be rendered during the entire commission of the crime, from as early as the planning of the crime until the (p. 793) accomplishment of the criminal end, still the perpetrator’s contribution must co-determine the crime by being more than marginal or merely accidental. As to what degree this is the case depends, in a subjective respect, largely on the common plan and the role to be played within it by the perpetrator. At any rate, however, as soon as a party to a crime fulfils in his own person all definitional elements of the crime, he becomes a perpetrator and is thus no longer a mere accomplice.

3. Intermediary Perpetration (Committing ‘through another person’)

The Rome Statute is probably the first international instrument in which this mode of indirect perpetratorship by using another person as a tool is explicitly regulated. Differing from the aforementioned co-perpetratorship in which the parties to the crime are more or less on an equal standing, ‘intermediary perpetration’ (autoría mediata, mittelbare Täterschaft) is characterized by the predominance of an indirect perpetrator (auteur médiat, Hintermann) who uses the person that physically carries out the crime (intermédiaire, Tatmittler) as his instrument. Whereas this human tool is typically an innocent agent, in particular because he has acted erroneously or is otherwise excused or of minor age, the indirect perpetrator—as a kind of ‘master-mind’105—employs higher knowledge or superior willpower to have the crime executed.

The wording of the Statute, again rather terse, says, however, more than most national codes. Whereas, for instance, the new French Code Pénal does not even explicitly mention the ‘auteur médiat’ in its Article 121-4 on perpetration, Article 25(3)(a) alternative (3) of the ICC Statute speaks of committing a crime ‘through’ another person. Furthermore, whereas even some recently reformed codes such as the German Strafgesetzbuch content themselves with speaking of commission ‘durch einen anderen’ (§ 25(1) ), the Rome Statute additionally states that the indirect perpetrator is punishable ‘regardless of whether that other person is criminally responsible’ (paragraph (3)(a)). In another respect, the Rome Statute does not go as far as some recent national codes which partly require that the intermediary serve as an instrument (as according to Article 28 Spanish Código Penal) or by describing the modes of perpetration by directing the performance of the crime or inducing the other person in abusing his dependence (as in Article 18 Polish Kodeks karny) or by limiting indirect perpetratorship to the instrumentalization of persons who, due to their age, lack of culpability, or another legally recognized circumstance are not subject to criminal responsibility (as according to Article 33(2) Russian Ugolovnyi kodeks).

(p. 794) In comparison to these partially too open and partially rather narrow national approaches, the Rome Statute pursues a moderately happy medium marked by three guidelines:

  1. First , as with the other modes of perpetration, the intermediary one also requires ‘commission’ of the crime in that the indirect perpetrator finally fulfils all statutory elements of the crime, though not physically himself, yet by exerting his higher knowledge or predominant will. In this respect, any personal qualities which might be required by the statutory definition of the crime (such as being an officer or soldier), as well as the absence of any justification or excuse on his part, have to be present in and evaluated with regard to his person. This means that any circumstance which may exclude the punishability of the person he uses as his instrument (as for instance minor age or lack of a required personal quality) is irrelevant with regard to the person and responsibility of the indirect perpetrator.

  2. Second , as the indirect perpetrator must commit the crime ‘through’ another person, this intermediary must be used as a tool. This requires, on the one hand, more than inducing or soliciting a person to commit a crime, as otherwise indirect perpetratorship would hardly be discernible from instigation in terms of Article 25(3)(b) of the ICC Statute. On the other hand, the Rome Statute does not name and, thus, not limit the instruments by which another person may be steered to a criminal act, as was mentioned above with regard to the Polish Code. Therefore, any means of instrumentalizing another person to commit a crime, be it the use of force or the exploitation of an error or any other handicap on the tool’s side, may suffice, provided that it is the exertion of some controlling predominance on the indirect perpetrator’s side.

  3. Third , as the indirect perpetrator is punishable ‘regardless of whether [the] other person is criminally responsible’, the ICC Statute provides clarifications in respect of two controversial questions.106 In one direction, by making indirect perpetration independent from the tool’s own criminal responsibility and, furthermore, by refraining from naming certain grounds of excluding criminal responsibility (as mentioned before with regard to the Russian Code), the Rome Statute opens the door to indirect perpetratorship for any deficiency on the tool’s side: starting from lack of jurisdiction over persons under 18 (Article 26), continuing with incapacity due to a mental disease or intoxication (Article 31 (1) (a) and (b) ), justification by self-defence or excuse by duress (Article 31(1)(c) and (d) ), mistake of fact or law (Article 32), or any other ground of excluding criminal responsibility (p. 795) (Article 31(1) and (3) ),107 and perhaps not even ending with the special case of Article 28(b)(i) that the instrumentalized person in fact lacked the quality of a superior. This openness due to the ‘independence clause’ (in terms of the indirect perpetrator’s responsibility independent from that of his tool) is also true in the other direction by making indirect perpetration possible even in a case in which the tool himself is in full terms criminally responsible such as, for instance, in the case where the intermediary was fully conscious of his own responsibility but bowed to overwhelming influence or force, or where the indirect perpetrator thought to exploit the error of his tool who was fully aware of the situation but did not dare to resist. This legal figure of an ‘(indirect) perpetrator behind the (direct) perpetrator’, which as ‘Täter hinter dem Täter’ has found special attention and elaboration in German doctrine and practice,108 is especially characteristic for hierarchically organized power structures. As this is not only typical for mafia-like organizations but for military systems as well, this type of perpetratorship may easily occur with war crimes or other state-supported criminal acts.109 In order to be still distinguishable from normal instigation (Article 25(3)(b) of the ICC Statute), this sort of ‘Organisationsherrschaft’110 by which the crime of the direct perpetrator is attributed to the perpetrator behind him as though it were his own, can be justified only if there is a sufficiently tight control by the indirect over the direct perpetrator, similar to the relationship between superior and subordinate in the case of command responsibility (Article 28 of the ICC Statute).111

D. Instigation (Article 25(3)(b) of the ICC Statute)

Although the Rome Statute itself does not speak of ‘instigation’ but rather of ordering, soliciting, or inducing the commission of a crime, it appears fair to use this term as perhaps the best and most common expression for summarizing what also used to be called ‘accessory before the fact’.

1. Accessorial to the Principal Crime

As a mode of participation distinct from perpetration, instigation must remain in a certain relationship to the principal crime.112 Whereas this accessorial problem (p. 796) was left open in most former drafts and codifications, in particular the ICTY/ICTR Statutes,113 Article 25(3)(b) of the ICC Statute explicitly presupposes a crime ‘which in fact occurs or is attempted’. This requirement, however, is not without exception, since, at least with regard to genocide, direct and public incitement is punishable even if the principal crime is not carried out (Article 25(3)(e) ).114

2. Soliciting or Inducing a Crime

Although ‘ordering’ a crime is named at first place, it appears appropriate to start with soliciting or inducing a crime as the ‘classical’ modes of instigation which should also entail criminal responsibility in the area of international criminal law.115 In common legal language, ‘soliciting’ means to ‘command, authorize, urge, incite, request or advice’ another person to commit a crime, whereas ‘inducing’ means ‘to affect, cause, influence an act or course of conduct, lead by persuasion or reasoning’.116 When comparing both definitions, it is difficult to find clear demarcations between them; therefore it seems advisable to use inducing as a sort of umbrella term, covering soliciting as a stronger method of instigating another person to commit a crime.117 Certainly, instigation usually works by means of exerting psychological influence on another person. This can also be done by inducing various persons in a chain, provided that the first instigator knows and wishes his influence on the first person to be carried on via other persons to the final perpetrator.118

3. Ordering a Crime

Whereas the preceding modes of instigation may occur between equals, ‘ordering’ a crime presupposes some superior position as is typical for commander-subordinate relationship: the superior uses his power of command over persons who are bound to him by obedience. In fact, his culpability is, in comparison to that of his subordinates, not only higher but even twofold, the reason being that he, on the one hand, violates his duty to hinder his subordinates from wrongdoing, and, on the other hand, he actively abuses his own powers in ordering his subjects to commit (p. 797) a crime.119 Therefore ordering a crime is certainly the strongest form of instigation.

Yet, the question is whether ordering a crime is not more appropriately dealt with by other provisions.120 Whereas a case of commanders not preventing crimes by subordinates is covered as an offence of omission in Article 28 ICC Statute,121 the active ordering of a subordinate to commit a crime is a typical case of intermediary perpetratorship by exploiting a hierarchical power structure in terms of organizational predominance.122 Therefore, to name ordering a crime as a case of instigation was not only superfluous but perhaps even inappropriately degrading a form of perpetration to mere complicity.123

4. Mental Requirements with Regard to the Instigator

Other than in the case of aiding and abetting, which must be carried out ‘for the purpose’ of facilitating the commission of the crime,124 no special mens rea requirements are referred to in case of instigation. Consequently, the general requirements of Article 30 of the ICC Statute must be observed. These, however, must be put in more concrete terms in two respects: first, with regard to his own conduct, the instigator must exert his influence with intent and knowledge. This means that the intent of the instigator must be directed at causing the principal to commit the crime. Secondly, the instigator must presuppose that the principal will carry out the crime in a state of mind required by the Statute. If, for instance, the crime requires intent (and not merely negligence or recklessness), the instigator must foresee and recognize that the principal will perform the crime intentionally and in fulfilling all definitional elements thereof. In this sense, the instigator must have a ‘double intent’ with regard to his own conduct and that of the principal.

Furthermore, the intent of the instigator must also be concrete in being directed at a certain crime and perpetrator. This does not necessarily mean, however, that the crime is determined in all details; it rather suffices, as probably in most (p. 798) national laws, that the instigator anticipates the crime in its essential elements and rough outlines.125

5. Excess of the Perpetrator

As the instigator’s scope of intent at the same time limits his responsibility, he cannot be held liable for crimes which go beyond his intent. Consequently, an excess of the principal by committing a crime which was not covered by the intent of the instigator, cannot be attributed to him. This is clearly the case in which the principal commits another crime than he was instigated to (e.g. instead of supposedly torturing a man, he rapes a woman), but also in the case that the principal does more than he was instigated to (e.g. killing the victim instead of merely injuring him). It is still irrelevant, however, when the deviation of the actual from the proposed crime is inessential.

E. Aiding, Abetting, or Otherwise Assisting (Article 25(3)(c) of the ICC Statute)

This provision covers the ‘classical’ field of complicity by assistance which falls short of instigation (subparagraph (b) ), on the one side, and goes beyond other contributions (such as contributing to group activities according to subparagraph (d)) on the other. In contrast to the usual language of ‘aiding and abetting’, used in the ICTY and ICTR Statutes,126 the Rome Statute speaks of a person who ‘aids, abets or otherwise assists’ in the attempt or accomplishment of a crime, including ‘providing the means for its commission’. This wording indicates that, first, aiding and abetting are no more an indistinguishable unity but that each of them has its own meaning, secondly, that aiding and abetting are just two ways of other possible forms of ‘assistance’, the latter thus serving as a sort of umbrella term, and thirdly, that ‘providing the means’ for the commission of a crime is merely a special example of assistance.

1. Objective Requirements

  1. (a)  Like instigation, complicity by assistance is also a form of accessorial liability in relation to the principal crime; this means that it must assist the accomplishment (or at least the attempt) of a crime.127 Therefore, preparatory contributions, though determined to enable the commission of a crime, remain unpunishable if the intended principal crime is not carried out.128 If, however, the principal crime reaches at least the stage of an attempt, it does not matter at what time and place (p. 799) during the preparation and performance of the crime the assistance was rendered. Although in this respect the ICTY and ICTR Statutes are clearer by explicitly speaking of aiding and abetting ‘in the planning, preparation and execution’ of a crime,129 there is no reason why the assistance in certain stages of a crime should be excluded from responsibility here either.130

  2. (b)  The forms of contribution for facilitating the commission of the main crime are, except for ‘providing the means’ for its being carried out, not specified, as even the ‘classical’ terms of ‘aiding and abetting’ are far from determined.131 If the ICTR defines aiding as ‘giving assistance to someone’, whereas abetting would ‘involve facilitating the commission of an act by being sympathetic thereto’,132 aiding, perhaps not surprisingly, is practically identical with assisting, while abetting comes close to, if not being almost completely identifiable with, instigation.133 Instead of exchanging synonyms, which are in any case rather unclear, it appears preferable to resort to the umbrella term of ‘assistance’ which can consist of any sort of contribution facilitating the commission of the crime.

  3. (c)  With such a broad understanding of assistance, however, some sort of other restriction appears necessary if not even very remote involvement in or connection with the planning or performing of a crime is to be made punishable. One way of keeping complicity within certain boundaries could be the requirement of a causal connection between the assistance and the principal crime. If this requirement in terms of a ‘conditio sine qua non’ were taken seriously, however, complicity by assistance would not only come very close to, if not even be absorbed by, co-perpetration, but would exclude even most serious contributions in the preparation or performance of the crime from criminal responsibility if the aider were (p. 800) able to show that despite his contribution, the perpetrator would have been ready and able (as, for instance, by finding assistance by others) to perform the crime, thus negating the causality of his own contribution. Therefore, either a true causal connection between the assistance to and the commission of the crime cannot be required in principle, as seems to be the position of the ICTY when declaring as erroneous that the assistance should have a causal effect on the crime,134 or the causal connection has to be construed in a less strict way, such as letting suffice that the aiding and abetting was at least furthering or facilitating the crime or running the risk of it being carried out.135

Whether one follows one or the other line of disregarding or softening the requirement of a causal connection, at some point one arrives at the question as to whether the assistance of the aider and abettor should have a certain quality in terms of a ‘direct and/or substantial’ contribution to the commission of the crime. This question arises even on the proposition that the commission of the crime must be connected with the assistance of the accomplice by a causal chain; for even if this is given, the causal contribution may be so minor or remote that it appears unjustified to attribute it to the accomplice. This doubt may have caused the Drafters of the Code of Crimes of 1996 to require that the aider and abettor must have ‘directly and substantially’ assisted in the commission of a crime.136 And although the formulations of aiding and abetting in the ICTY and ICTR Statutes did not contain this restriction,137 both the ICTY and the ICTR were prepared to read it into the relevant Statutes.138 Similarly the formulation of aiding and abetting in the Rome Statute might be interpreted in the same way. Still, hopes should not be raised too high. If, for instance, a contribution has to be considered to be substantial if ‘the criminal act most probably would not have occurred in the same way had not someone acted in the role that the accused in fact assumed’, and if, accordingly, ‘all acts of assistance by words or acts that lend encouragement or support’ are thereby covered,139 then this is nothing more than a softening of the ‘classical’ causality requirement by letting suffice both physical and psychological assistance in furthering the crime.140 These reservations must not mean that the (p. 801) requirement of a ‘substantial’ contribution is completely futile; for although not providing clear delineations, it can function as a sort of monitor by which, for instance, casual remarks, though perceived by the principal as encouragement, are obviously irrelevant, because easily exchangeable, and can thus be excluded. What this means in practice, however, is hardly definable in an abstract formula but has to be realized in a case-by-case method whereby certain modern theories of (positive and negative) imputation and attribution might be helpful when taken into consideration.141

2. Subjective Requirements

Unlike instigation, which is governed by the ordinary requirements of the mental element according to Article 30 of the ICC Statute,142 complicity by way of aiding, abetting, or otherwise assisting requires two different forms of mens rea.

  1. (a)  With regard to facilitating the commission of the crime, the aider and abettor must act with ‘purpose’ (Article 25(3)(c) of the ICC Statute). This means more than the mere knowledge that the accomplice aids the commission of the offence, as would suffice for complicity according to the ICTR and ICTY Statutes,143 rather he must know as well as wish that his assistance shall facilitate the commission of the crime. Consequently, if a civilian, asked by a soldier to disclose the hiding place of the later victim, is doing so out of fear and with the hope that the victim may have fled, he will not be criminally responsible, even if he is aware that the soldier might find and kill the victim.

  2. (b)  With regard to all other elements as his own assistance as well as the principal’s crime, the same mental elements are required and sufficient as with instigation. Correspondingly, the aider and abettor must have ‘double intent’ both with regard to the intentional commission by the principal and the requisite elements of his assistance.144 In sum, while the objective requirements of aiding, abetting, and assisting are relatively low, the criminal responsibility of aiders and abettors contains certain restrictions by means of higher subjective requirements.145

(p. 802) F. Complicity in Group Crimes (Article 25(3)(d) of the ICC Statute)

This provision on complicity in group crimes can be traced back almost literally to the recent International Convention of the Suppression of Terrorist Bombings of 1997146 which presents itself as a compromise of former ‘conspiracy’ concepts that have been controversial since Nuremberg.147 In common law ‘conspiracy’ means the agreement of two or more parties to commit a crime, regardless of whether it is actually committed or not; it is therefore considered as an ‘inchoate offence’.148 After some conspiracy concepts had found their way into the Draft Codes of 1991/96,149 connected with efforts to restrict broader responsibility for conspiracy,150 the Model Draft Statute for the ICC of 1998, though still containing the concept of ‘participation in conspiring’, required that the crime in fact be accomplished.151 In this way, the Model Draft Statute rejected the ‘inchoate offence’ notion of an independent conspiracy in now following the continental European concept of conspiracy as a sort of participation in a crime.152 Thus, in particular by the accessorial dependence from the principal crime, the concept of conspiracy converged to such a degree with instigation that it appeared no further loss to abandon it completely. Consequently, the Rome Statute no longer contains the notion of ‘conspiracy’.

1. Objective Requirements

  1. (a)  Like instigation and aiding and abetting, complicity in group crimes, too, is accessorial in requiring the commission of the principal crime or at least the attempt thereof.153

  2. (b)  Unlike instigation and aiding and abetting, however, the contribution of the accomplice must be rendered to a ‘crime by a group of persons acting with a common purpose’. In assuming that it must be distinguished from a ‘couple’ consisting of two people, the ‘group’ must consist of at least three persons who are connected by the same purpose; though not explicitly required by the ICC Statute, this purpose is usually a criminal one.

  3. (c)  As ‘contributions in any other way’ than those already comprised by subparagraphs (b) and (c) suffice, the objective threshold for participation in subparagraph (p. 803) (d) is lowered once more and, consequently, is even more difficult to circumscribe than the assistance in subparagraph (c).154

2. Subjective Requirements

In the face of the relatively low requirements in the aforementioned objective respects, it is all the more necessary to find some correctives on the subjective level. As with aiding and abetting, though with other differentiations, complicity in group crimes presupposes two different mental elements.

  1. (a)  The contribution to the group crime must be intentional in one of two alternative ways: it must either be made with the aim of furthering the criminal activity of the group (subparagraph (d)(i) ) or it must be made in the ‘knowledge’ of the intention of the group to commit the crime (subparagraph (d)(ii) ). Whereas the ‘aim’ in the first alternative seems to mean some ‘special intent’ with regard to the common purpose of the group, the second alternative merely requires the ‘knowledge’ of the group’s intention to commit the crime. But whereas in the latter case the intention of the group must already be directed to a specific crime, in the former case the ‘aim’ may be directed to the criminal activity or purpose of the group in general while the crime(s) to be carried out need not yet be determined in a concrete manner.155

  2. (b)  With regard to all other elements, in particular in comparison to the ordinary ‘double intent’ of the accomplice, the requirements of Article 30 of the ICC Statute are applicable in the same way as with instigation and aiding and abetting.156

    In sum, on the one hand, it seems doubtful whether this type of complicity is not superfluous since the thresholds of aiding and abetting are, according to subparagraph (c), already so low that is difficult to imagine many cases needing a special provision such as subparagraph (d). On the other hand, with regard to the group factor of this type of complicity, it may still have some symbolic relevance. Clearly, the employment of obviously different mental concepts in this provision can hardly hide the lack of expertise in criminal theory when this provision was developed.157

G. Incitement to Genocide (Article 25(3)(e) of the ICC Statute)

This provision is in substance identical to Article III(c) of the Genocide Convention of 1948158 and its equivalents in the ICTY and ICTR Statutes.159 In not requiring that the genocide incited is finally in fact committed, this provision (p. 804) is designed to prevent the early stages of genocide even prior to the preparation or attempt thereof by not waiting until a certain person has been used for a certain genocidal act as is necessary for instigation according to Article 25(3)(b) of the ICC Statute, but by already prohibiting direct and public incitement of undefined other people to commit genocide. As genocide has remained the only international crime the public incitement to which was deemed necessary to be penalized regardless of whether genocidal acts were in fact carried out or not,160 one may wonder whether it was indeed appropriate to locate such an exceptional speciality within the ‘General Principles of Criminal Law’ of the Rome Statute (Part 3), or whether it would not have been preferable to prescribe this as a further alternative of genocide in Article 6 within Part 2 containing the various international crimes.161 Regardless of its placement, this protection against hardly controllable public provocation to genocide has, as a pretracted form of participation, the following essential elements.

1. Subjective-Volitional rather than Objective-Causal Link to the Crime of Genocide

In contrast to the other forms of participation in subparagraphs (b), (c), and (d), where the crime contributed to must at least reach the stage of an attempt,162 incitement to genocide does not require that genocidal acts are in fact carried out nor does it require effective planning or preparation thereto. Although this independence of the incitement from the realization of genocide is not explicitly stated in the wording of the provision and although an express answer to this question seems to have been avoided by the drafters of the Genocide Convention,163 there can be no serious doubt that this provision, in face of the high risk of arousement of the public at large by incitements of this sort, would be meaningless if it required at least the attempt to commit genocide, not to mention the fact that the incitement to at least attempted genocide would be covered by subparagraph (b). Therefore, as was already held with regard to the identical provision in the ICTR Statute by the Trial Chamber in the Akayesu case, direct and public incitement to commit genocide must be ‘punished as such, even where such incitement failed to produce the result expected by the [inciter]’.164 This does not mean, however, that the crime incited to is without any significance; for, as the incitement must be (p. 805) directed at the commission of genocide, the intent of the inciter must comprise the definitional elements of a form of genocide according to Article 6 of the ICC Statute. In this sense, there must be a link between the incitement and genocide; however, this is not an objective ‘causal’ link,165 but rather a subjective ‘volitional’ one in terms of being directed at the genocidal aim of the inciting act.

2. Directly and Publicly Inciting

Being rather broad by not requiring that a genocide actually takes place, this provision needs some restriction with regard to the act of incitement. This can to some degree already be reached by understanding incitement not as a mere causing another person to commit a crime, but by provoking, arousing, exhorting, inspiring, urging on, or otherwise promoting the other person to engage in genocidal activities.

In addition, the incitement must be made both ‘directly’ and ‘publicly’. This raises no problems as far as the requirement of ‘publicly’ is concerned; for in describing this requirement as ‘communicating the call for criminal action to a number of individuals in a public place or to members of the general public at large’, the ILC also comprises ‘technological means of mass communication, such as radio and television’,166 thus taking into account the risk of arousement which can result both from open-air speeches and by media influence of uncontrollable reach. The intended breadth and strength of protection against public arousments can be easily hampered, however, as the incitement must be ‘direct’ as well. If this, as again in the words of the ILC, requires ‘specifically urging another individual to take immediate criminal action rather than making a vague or indirect suggestion’,167 this incitement comes very close to, if not even substantially covered by, instigation according to subparagraph (b), thus losing much of its own significance.168 Therefore, ‘directly’ must be less understood with regard to a certain individual to be influenced but rather in terms of excluding merely indirect influences as, for instance, by public speeches which not by themselves but by means of misleading interpretations of ill-intentioned mediators are used for provoking genocidal activities. Furthermore, the concepts of publicity as well as directness can differ from country to country and must therefore be viewed in the light of the given cultural and linguistic context. This admonition of the Trial Chamber in the Akayesu case,169 however correct it may be, may not be used as a political excuse for not taking xenophobic agitations seriously.

(p. 806) 3. Mental Element

  1. (a)  As subparagraph (e) does not provide for a special subjective requirement, the inciter needs no more than ordinary intent and knowledge according to Article 30 of the ICC Statute. Similar to subparagraphs (b) and (c), he must have ‘double intent’, first, by knowing that he is acting publicly and that his acts have a direct inciting effect on (any) other persons and, secondly, by knowing and desiring that the persons to be incited by him would, if carrying out the crime, act with the intent ‘to destroy, in whole or in part, a national, ethnical, racial or religious group’ as required by Article 6 of the ICC Statute on genocide.170

  2. (b)  A different question is, however, as to whether the inciter himself has to act with the own ‘special intent’ of destroying one of the protected groups, as suggested by the Trial Chamber in the Akayesu case.171 But it is not only that this proposition has no basis in the wording of subparagraph (e), it comes up against subparagraph (d) in which the need for a special mental element is explicitly stated;172 the same, however, should also be expected with subparagraph (e) if the inciter were to act with this special intent. Therefore, the inciter here must merely know and want the incited persons to commit the crime with genocidal intent while he himself might have completely different motives, eventually important for sentencing but not for the question of his guilt or innocence.

H. Complicity after Commission

It is common in certain legal systems for participation in the crime to be not only punishable for contributions in the preparatory phase or during the commission of a crime, but also after its completion,173 the reason being that the so-called ‘successive accessory’ after the fact covers the crime retroactively by his own intent and may eventually secure the final end of the crime and its effects by his own contribution. In this way, the whole crime may be attributed to him as an accessory after the fact. The same principles may also be applied to a ‘successive’ co-perpetrator. While some national laws would regulate this phenomenon as a form of perpetration in general, other national laws may treat them as special crimes such as ‘harbouring a criminal’.174

(p. 807) After earlier drafts had also drawn attention to these problems, the ILC finally drafted a compromise according to which contributions after the fact would still be covered as complicity if made and based on a commonly agreed plan.175 As the Rome Statute did not address this question, it must be assumed that it was not prepared to accept this position.176 Contrary to the Rome Statute, however, the ICTY expressly accepted the possibility of complicity after the fact if the accessory participated ‘through supporting the actual commission before, during or after the incident’; in this case, he is responsible ‘for all that naturally results from the commission of the act in question’.177 As the silence of law-makers is always ambiguous and does not necessarily point in one or other direction, the better reasons espouse including even contributions after the fact and into the general concept of participation if they have both a causal connection with the final accomplishment of the crime and have been made with intent to this effect.178

VI. Attempt and Abandonment

A. Genesis and Scope of Article 25(3)(f) of the ICC Statute

Article 25(3)(f) contains two messages: first, it declares the attempt of all international crimes covered by the Rome Statute punishable (sentence 1); secondly, it offers the exclusion of criminal liability in the case of abandonment (sentence 2). In both respects it took considerable time and effort to reach this state of regulation.

With regard to the IMT Charters of Nuremberg and Tokyo (1945/46),179 it appears as if attempt was not yet punishable as it was not mentioned at all. With one exception, the same is still true with the ICTY and ICTR Statutes of 1993 and 1994. A closer look, however, shows that by certain definitions of crimes which extended the punishability for preparation, implicitly attempt as well—and even the early stages thereof—was included. This was the case particularly with crimes against peace in Article 6(a) of the Nuremberg Charter which had covered the planning and preparation of a war of aggression, as well as in the ICTY and ICTR Statutes by penalizing the ‘attempt’ to commit genocide and even more generally by holding those persons individually responsible who ‘planned’ or otherwise aided in the ‘planning’ or ‘preparation’ of a crime.180 As in these cases the preparation or attempt was part of the definition of the crime, even preparatory activities (p. 808) it covered were and are to be considered completed crimes which leave no chance for discharging abandonment.181 Thus, it appears fair to say that, prior to the Rome Statute, neither a duly generalized nor an adequate concept of attempt as a category of criminal responsibility of its own was in force.

In contrast to the state of formal charters and statutes, more focus on an appropriate regulation of attempt can be found in drafts of international crimes. Starting with the 1954 Draft Code of Offences against the Peace and Security of Mankind, continuing with the Draft Code of 1991 and the Draft Code of 1996, each of them contained its own provision on attempt, although with some differences: whereas the Draft Code of 1954 (Article 2(13)(iv) ) merely provided for ‘attempts to commit any of the offences’ of that Code, the Draft Code 1991 (Article 3(3) ) contained a certain definition of attempt,182 while it was still disputed however, whether the criminal responsibility for attempt should be restricted to certain crimes.183 Before the Draft Code of 1996 (Article 2(3)(g) ) finally came forward with an attempt rule eventually applicable for all international crimes, though still not yet explicitly mentioning the possibility of abandonment, in the mean time the Updated Siracusa Draft had proposed a more comprehensive definition of attempt and an explicit rule for abandonment too (Article 34-8).184 The final step was then taken by the Rome Statute which—in disregarding the reservations of the ILC185—arrived at a full penalization of attempt, combined with an equally general possibility of abandonment.186 This generalization of attempt can indeed be applauded as the Rome Statute restricts itself from its very outset to the most serious crimes against humanity and international law which need to be prevented at the earliest stage of commission.

With regard to the fundamental question, which is perhaps discussed worldwide, of why an incomplete crime should be punished at all, the ILC gives two main reasons: ‘First, a high degree of culpability attaches to an individual who attempts to commit a crime and is unsuccessful only because of circumstances beyond his (p. 809) control rather than his own decision to abandon the criminal endeavour. Secondly, the fact that an individual has taken a significant step towards the completion of one of the crimes … entails a threat to international peace and security because of the very serious nature of these crimes.’187 In other words, the reason for penalizing the attempt can be seen in the combination of two elements: a more objective one in seeing in the ‘substantial step’ towards committing the crime a threat to the legally protected interest, and a more subjective one expressed by the perpetrator’s hostile attitude towards the law. From a more social-psychological perspective, an essential detrimental effect can be seen in the impression of shattered confidence of the population in the stability of the legal order exerted by the attempt. In these terms it is not so much the concrete object but rather the legal interest behind it which is endangered.188

B. The Essential Elements of Attempt

As most precisely expressed by the Latin proverb of ‘cogitare, agere, sed non perficere’, attempt—as distinct from mere planning, on the one hand, and full completion, on the other—is characterized by three elements: the perpetrator must have thought about committing a certain crime (mens rea), he must have acted towards this end (actus reus), but not have fully succeeded (non-completion of the crime).

1. Incompleteness of the Crime

As the attempted and the completed crime have the requirements of an actus reus and mens rea in common, they only appear distinguishable with regard to the (absence or presence of) completion. This negative element of attempt is addressed by subparagraph (f) in that ‘the crime does not occur’.189 Although it is laudable that this provision takes notice of this peculiarity of attempt at all, it is questionable whether it is properly phrased. Even by the Statute’s additional reason that the crime does not occur ‘because of circumstances independent of the person’s intentions’,190 it is unclear and misleading since it obscures the fact that it is the incompleteness of the crime due to which an actus reus with mens rea gets stuck in a mere attempt.191 This can be due to various reasons, the main ones (p. 810) being, as provided for by the Draft Code 1991, objective failures or obstacles,192 as in the case where the victim suddenly turned away and therefore avoided being hit by the perpetrator’s bullet or that the perpetrator was even stopped from firing in the first place. In more general terms, the non-accomplishment of a crime by reason of objective failure can be given due to the inaptitude of the means (e.g. use of inefficient tools), unsuitability of the object (e.g. if in case of a war crime military objects were mistaken for civilian ones), the inability of the perpetrator (if, for instance, an ordinary soldier, wrongly considering himself a commander, attempts to ‘order’ a genocidal action), or, though in rather exceptional cases, on grounds of justification (or some other circumstance negating the fulfilment of the definitional elements of the crime) the perpetrator did not know of (as for instance, if the victim to be deported in fact wished to leave this region without letting the perpetrator know). Aside from such personally conditioned and, therefore, partly subjective circumstances, a crime can also remain incomplete due to the lack of a mental element as, for instance, in the case where the victim the perpetrator tried to kill by shooting did indeed die in the end; this, however, in such an extraordinary course of intermediary events that the final end cannot be attributed to the perpetrator as not covered by his intent (as in a case, in which the victim was only slightly injured by the perpetrator’s bullet, but because of his visiting a hospital for bandaging was killed by an aeroplane crashing into the hospital). If this case is meant (or at least also included) with ‘circumstances independent of the person’s intentions’, one could accept this wording as not excluding cases of incompleteness of the crime for subjective reasons.

Particular problems with regard to the (in)completeness of a crime can arise in cases in which the definition of the crime does not require a certain effect, as rather (merely) prohibiting a certain activity, as, for example, in Article 8(2)(b) of the ICC Statute on war crimes. Whether some of these crimes are considered complete with the performance of the prohibited act or whether a certain ‘intermediary effect’ must have occurred, cannot be decided in a uniform manner but must be judged from the wording and purpose of the relevant provision. If, for instance, subparagraphs (i)–(iii) of Article 8(2)(b) of the ICC Statute prohibit the intentional directing of attacks against certain persons or objects, it should suffice for the completion of such a war crime that the perpetrator performs these attacks without additionally requiring that the persons or objects attacked be in fact damaged or destroyed. This may be different in the case of subparagraph (vii) of Article 8(2)(b) of the ICC Statute in which improper use of a flag of truce, of other military insignia or of the uniform of United Nations personnel is prohibited. As in this case the provision aims at protecting the enemy and/or the public at large against improper deception, (p. 811) the crime may be completed only if the improper use of the said objects has caused an error of the counterparty or among the population.

Although distinctions of this sort may appear purely academic, in particular because the perpetrator, as soon as he transgresses the borderline to attempt is, in any case liable, if not for a completed crime, then for the attempt thereof, nonetheless the distinction between both and, thus, the question of whether the crime has been completed or not plays a role insofar as the door to discharging abandonment is open only as long as the attempt has not been completed.193

2. Subjective Requirement: Intention to Commit the Crime

While the attempt is characterized by the incompletion of the crime, the intention of the perpetrator is the main point of reference regarding what he is going to do. Although this subjective requirement of an intention to commit a certain crime is not explicitly stressed in subparagraph (f), it might be inferred from the Statute’s mention of the perpetrator’s failure independent of his ‘intentions’.194 This means that the perpetrator must have both the conception of a certain crime, as, for instance, expressed in the German § 22 Strafgesetzbuch, as well as the unconditioned decision to carry it out; thus an attempt has to be denied for mental reasons as long as the perpetrator has not yet a determined proposition of a certain crime and/or if he has not yet definitely made up his mind to commit it. In order to fulfil this mental requirement, the perpetrator must therefore have anticipated all elements of the crime to be committed and decided to carry it out to full completion.

Another question concerns the form of intent required for an attempt. Whereas some national laws, as is particularly the tradition in common law, would require a direct intent, thus excluding mere dolus eventualis,195 other national laws, such as the German, would find dolus eventualis sufficient, if that suffices in completed crimes as well.196 The latter position also appears feasible for the Rome Statute, since subparagraph (f) obviously does not require an intent different from that according to Article 30.197

3. Objective Requirement: Action Commencing the Execution of the Crime

Since the intention to commit a crime can be present as early as in the stage of planning or preparing it, the critical borderline to an attempt is transgressed by (p. 812) the perpetrator’s ‘taking action that commences the execution of the crime by means of a substantial step’. This definition consists of two components: whereas the commencement criterion, which has probably been borrowed from French law198 and employed by the Draft Codes of 1991 and 1996,199 provides the doctrinal basis for the distinction between preparation and attempt; the additional requirement of a ‘substantial step’, which can be traced back to the American Model Penal Code,200 tries to indicate the practical means by which the commencement is evidenced. The crucial question remains, however, which step in the chain of various actions leading from planning to preparation and going on to the realization of the crime can be considered the ‘substantial’ one marking the borderline to an attempt. If ‘commencement’ should mean at least a partial accomplishment of the definitional elements of the crime, a ‘substantial’ step would require in the case of a murder that the perpetrator had, for instance, discharged a shot, thus excluding cases from attempt in which the perpetrator, though already having raised his gun, was hindered at the last moment from pulling the trigger. If, on the other hand, ‘substantial’ could be any essential contribution in support of the commencement to accomplish the crime, the borderline to attempt would be transgressed as early as the perpetrator’s taking a step without which the crime could not be carried out, as, for instance, loading the gun or setting the time clock of a bomb although the time and/or place of pulling the trigger or letting the bomb explode is still far away. As the wording of subparagraph (f) enforces neither one nor the other of these opposite interpretations, the door is open for teleological interpretation which would orientate itself by the degree of endangerment to the protected interest or object. This means that, on the one hand, attempt does not necessarily require a partial fulfilment of the definitional elements of the crime but that, on the other hand, the perpetrator according to his opposition and intention is already directly endangering the protected interest or object, as would be the case when the murderer is about to pull the trigger or the rapist ready to assault or seize the victim the next moment. This delineation is perhaps best expressed by the German concept which requires that the perpetrator ‘in accordance with his conception of the crime, moves directly towards its accomplishment’.201 This approach also appears in fact to be practised (p. 813) in French202 and Spanish law,203 and last but not least, seems also to have guided the ILC when letting suffice for the ‘commencement of execution’ that ‘the individual has performed an act which constitutes a significant step towards the completion of the crime’.204

Since the commencement of the execution as previously described represents the actus reus of the attempt, the question arises as to whether it also comprises so-called ‘impossible attempts’,205 which by no means can succeed, as in the case that the victim to be killed is already dead or the gun to be used is not working. Not unlike the national laws which used to leave this question open,206 the Rome Statute does not offer an answer either. Therefore, one has to resort to the rationale of the punishability of attempt: if it were, on the one hand, the concrete endangering of a certain object to be protected, the ‘impossible’ attempt would have to remain unpunished, as the prospective victim of the attempter can in fact not be endangered by an empty gun and still less if already dead. If it were, on the other hand, the ill will or attitude of the attempter which was to be punished, even attempts by superstitious means, such as cursing or praying that the victim be dead, would be covered. Instead, a happy medium could again be found by referring to the shattering of public confidence in the stability of the legal order resulting from seemingly possible though objectively impossible attempts, except for superstitious actions which are clearly harmless.207

A particular question is the commencement of the attempt in the case of an omission. Although omission is not made punishable by the ICC Statute in general,208 a special case of this sort can occur with commanders’ and other superiors’ failure to exercise control properly over their forces to prevent them from committing an (p. 814) international crime according to Article 28(a) of the ICC Statute.209 If with regard to this provision a commander decided not to take control of his forces and, thus, had the intention of committing a crime by omission according to Article 28 of the ICC Statute, the question is whether in case the expected crime of the subordinate is not accomplished in the end, the commander’s attempt of omission is commenced as early as his letting the first occasion pass in which he would be able to prevent the subordinate’s action, or whether the omission is not commenced until the last possibility for intervention. Instead of these opposite extremes, both probably represented in national laws, considering the silence of the ICC Statute it again appears preferable to refer to the criterion of endangerment according to which the attempt commences as soon as the protected object is put in immediate danger due to the commander’s not preventing his subordinate, or as soon as an existing danger is substantially increased by the commander’s failure to intervene.210 Aside from this, one must remember that in the special case of Article 28 of the ICC Statute, commanders are not only responsible for intentionally omitting the necessary control of subordinates, but also for the negligent failure to do so.211

C. Abandonment

As aforementioned, the possibility of being discharged from liability for the attempt if it was voluntarily abandoned before completing the crime was introduced into the Rome Statute at the last minute upon a Japanese move supported by Germany, Argentina, and other like-minded States.212 This does not mean, however, that the idea of abandonment was hitherto not at all present; for, as in the French tradition abandonment could be considered as part of the definition of attempt in presupposing that the crime was not completed ‘because of circumstances independent of the person’s intentions’,213 a wording that can be found as early as in the ILC Draft Code 1991 (Article 3(3) and still contained in Article 25(3)(f) sentence (1) of the ICC Statute. In following a proposal of the Updated Siracusa Draft214 almost verbatim, the ICC Statute’s subparagraph (f) sentence (2) does not only explicitly ‘invite’ the attempter to seize the opportunity of abandonment as an incentive to withdraw (p. 815) from the commission or finally to prevent it from completion,215 but also clarifies the conditions of abandonment at least in its basic features.

1. Precondition of Abandonment

Although not explicitly stated in Article 25(3)(f) of the ICC Statute, as a matter of logic abandonment presupposes that the attempt could still be completed. Consequently, if the perpetrator recognizes that his attempt has failed without having another chance to accomplish the crime, as in the case where the victim has already fled or the only explosive available turns out to be inefficient, there is no room for abandonment from the very outset. This means that in such a clear ‘failed attempt’, abandonment is excluded without needing to enquire about any voluntariness of the attempter.216

2. Forms of Abandonment

Provided that the crime could still be completed or that the perpetrator believes this to be the case, abandonment entailing the discharge from attempt can be reached in three ways: two of them (a) and (b) are explicitly regulated by subparagraph (f) whereas the third one (c) has to be construed by analogy which, as restricting the perpetrator’s responsibility, would be in accordance with Article 22(2) of the ICC Statute. Although not easily distinguishable, the requirements of abandonment are somewhat different in each way:

  1. (a)  Abandoning the effort to commit the crime (alternative (1) of subparagraph (f) sentence (2)) of the ICC Statute refers to the case where the completion of the crime can be avoided by simply not continuing the efforts towards its accomplishment. This presupposes that the actions taken thus far do not yet suffice to procure the prohibited result as, for instance, in the case of attempted murder in which the perpetrator has injured the victim with one (or even more) stabs while aware that more stabs would be necessary to kill the victim. In such a so-called ‘unfinished attempt’ the attempter can abandon the commission of the crime by simply discontinuing his stabbing, of course, provided that he is doing so with the requisite subjective intent.217

  2. (b)  (Otherwise) preventing the completion of the crime (alternative (2) of subparagraph (f) sentence (2)) of the ICC Statute refers to the case where in the normal course of events the perpetrator’s action would procure the prohibited result, as in (p. 816) the case where he has stabbed his victim so heavily that without intervening help he would die. In such a so-called ‘finished attempt’ the perpetrator must not be content with discontinuing his stabbing but must actively take steps to prevent his victim from bleeding to death, for example, by bandaging him with his own hands or by taking him to a doctor. Certainly, in this case the risk of preventing the prohibited result is his; this means that in the case of a ‘finished attempt’ the perpetrator can obtain a discharge by abandonment only if he succeeds in preventing the completion of the crime.

  3. (c)  Not explicitly provided for in the ICC Statute is the case where the perpetrator believes he has done everything to complete the crime which in fact, however, has failed without him being aware of it, thus, making him believe that for abandoning the attempt he would have to prevent the completion, as, for instance, in the case that a drug overdose supposedly sufficient to cause the victim’s death within an hour was in fact never strong enough to procure this result. If in such a case the perpetrator wanted to rescue his victim by taking him to a hospital to have his stomach pumped, it would not be the perpetrator’s active effort which prevented the crime from completion but rather the primary failure the perpetrator was unaware of. On the other hand, he could hardly avail himself of alternative (1) of the ICC Statute by simply abandoning his efforts, as according to his subjective proposition he is no longer in the stage of an ‘unfinished’ (supra a) than rather a ‘finished’ attempt (supra b) as he believes he has done everything necessary to let the attempt reach completion. As in such a case of a ‘supposedly accomplishable attempt’, it would be unjust if a perpetrator willing to prevent the completion were refused discharge for abandonment because neither alternative (1) nor alternative (2) of the ICC Statute are available for him; his efforts to prevent the completion, though objectively futile as well as unnecessary, should be treated as having prevented the accomplishment of the crime.218

  4. (d)  Incidentally, the last case of abandonment is not the only question which would have deserved explicit regulation. This is particularly true for abandonment in case of participation if not all of the accomplices withdraw at the same time or in the same manner from the commission of the crime. As not only this question, but even the whole ICC provision on abandonment appears to be modelled on German § 24 Strafgesetzbuch, though not adapting it entirely and, thus, leaving the lacunas here in question, a general reference to the German regulation seems appropriate.219

(p. 817) 3. Subjective Requirement of Abandonment

In addition to the objective prevention of the completion of the crime, the perpetrator must ‘completely and voluntarily give up the criminal purpose’. Though appearing united, this requirement contains two components, one of which is probably stronger than most national laws. Whereas the voluntariness probably goes along with most national laws containing an explicit regulation, the Rome Statute is not satisfied with the perpetrator’s abstaining from the concrete criminal act, as would suffice in some national laws,220 but rather expects the perpetrator to give up his criminal purpose completely. This means that a rapist who abandoned his attempt as he was moved by the urgent plea of a mother would be discharged from this attempt only if he refrained from looking for another victim. This issue as well as the highly disputable meaning of ‘voluntarily’ are hardly solvable by abstract definitions but rather by means of case-by-case decisions, as until now, however, seem not to have been taken by international tribunals.

D. Punishment

  1. (a)  As Article 25(3)(f) of the ICC Statute does not make any mention of the punishment provided for attempt, it apparently can, if not must, be the same as for a completed crime. If this equation of attempt and completion (in terms of not differentiating between both with regard to sentencing) was a deliberate decision or rather accidental due to lack of time for a discussion is an open question. At any rate, this lack of differentiation is neither normal221 nor convincing.222

  2. (b)  On the other hand, with regard to abandonment, the ICC Statute is clearer than most national laws in that it only frees the perpetrator from his liability for attempt and, thus, not from other concurring crimes which might have been completed. Consequently, if the perpetrator had physically injured the victim by his attempt of murder, his abandonment would not relieve him from his responsibility for the completed assault and battery.223

(p. 818) E. Attempted Participation

The Rome Statute probably differs from many national laws in one respect: it lacks a general prohibition of attempted participation,224 which must not be confused with participation in an attempt according to Article 25(1)(b)–(d) of the ICC Statute.225 After it abstained, on the one hand, from maintaining broad conspiracy concepts as particularly known in the common law tradition and, on the other hand, was not prepared to introduce more specific provisions for attempted instigation or aiding, accomplices before the fact remain unpunished as long as the supposed main crime does not at least reach the stage of an attempt.226 This means, for example, that for ordering a crime which is not executed by his subordinates, a commander is, in principle, not liable. Consequently, if in such a case of ‘attempted participation’ the commander is not to remain completely unpunished, one must resort to the national law for criminal and/or disciplinary sanctions as suggested by the ILC.227

The only exceptional step into the early stages of attempted participation may be seen in incitement to genocide according to Article 25(3)(e) of the ICC Statute as it is punishable regardless of whether the incitement was successful or not.228 Thus, as by its substantial nature a mere attempt, it should be abandonable as any other attempt. This, however, seems barred by the formal structure of incitement to genocide in terms of a completed crime,229 as in that stage a withdrawal, as mentioned above,230 is in principle not possible. As this consequence may have been missed by the drafters of subparagraph (e), the ICC may resort by means of analogy to subparagraph (f) sentence (2) alternative (1) or (2), respectively, for discharging an inciter who, after first agitations, voluntarily gives up any further efforts, if not even calms any arousments.231

VII. Commission by Omission

Criminal responsibility for omission is another field in which the Rome Statute refrained from a general regulation. The only genuine case of criminal responsibility for not doing what the person concerned was obliged to do is the failure of (p. 819) military commanders or other superiors to take necessary measures against crimes subordinates are about to commit according to Article 28(a) of the ICC Statute.232 This provision, however, is not transferable to officials other than those named in Article 28.

This abstinence of the Rome Statute was surprising since the Draft Statute and Draft Final Act, as proposed by the Preparatory Committee, still contained a general regulation for omission233 on the basis of which the Model Draft Statute for the ICC recommended the following definition: ‘Conduct … can constitute either an act or an omission, or a combination thereof, criminal responsibility for the result of an omission to act is given only ‘if the person was under a legal obligation to avoid that result’.234 Still, the non-adoption of this recommendation in Rome was not completely unexpected after it turned out that it was extremely difficult to reach an agreement with regard to the question of under what circumstances mere omission should be punishable. Particularly with regard to the character of the legal duty to act, it was highly controversial whether this duty should be explicitly regulated by the Statute, as with the criminal responsibility of commanders according to Article 28(a) of the ICC Statute. As this, however, was not considered a way to cover all cases of omission which would deserve punishment, the counter-position would be content with unwritten duties to act, such as ‘creating a particular risk or danger that subsequently leads to the commission of such a crime’.235 The same view was taken by the ILC in considering ‘committing’ a crime to cover both an ‘unlawful act or omission’ because, ‘as recognized by the Nürnberg Tribunal, an individual has the duty to comply with the relevant rules of international law and therefore may be held personally responsible for failing to perform this duty’.236 As the final drafters of the Rome Statute knew of these propositions and the discussions about them, the abstinence from explicit regulation cannot be interpreted in any other way than the rejection of individual criminal responsibility for commission by omission, unless it has been specifically provided for as in the case of Article 28(a) of the ICC Statute.237

(p. 820) Although the ICTY and ICTR Statutes do not provide for responsibility by omission in a general manner either, the ICTY and ICTR seem to extend the commanders responsibility for failing to prevent subordinates from criminal acts238 to some sort of complicity by omission.239 Whether this will indeed be a solid and appropriate way for developing criminal responsibility for omission in broader terms remains to be seen. Even guessing would need more elaboration than is possible here.

VIII. Concluding Assessment

Despite the criticism which must be made of various aspects of the ICC Statute’s regulation on individual responsibility, it certainly signifies progress in comparison to former drafts and provisions.

This is particularly true with regard to the emphasis on each individual’s own responsibility for their participation in the commission of an international crime depending on the sort and extent of the personal involvement. This emphasis on genuinely individual responsibility is supported both by banning immunities traditionally invoked, if not abused, by Heads of State and Government, on the one hand, and by excluding obedience of subordinates to superior orders as a defence, on the other. Another position likely to find principal approval is the rather comprehensive as well as differentiated regulation of perpetration and participation, even if this was reached at the cost of the traditional conspiracy concept. Attempt is another example of a rather unconvincing regulation, particularly with regard to the inconsistecy of abandonment, yet still presents a principal step forward.

On the whole, however, as indicated in the beginning, Article 25 of the ICC Statute does not entirely keep to what it promises. Contrary to its title’s proclamation of a comprehensive regulation of ‘individual criminal responsibility’, at a closer look it merely regulates the various forms of participation and attempt, thereby leaving in particular an essential lacuna with regard to commission by omission. In addition, although it remains true to its fixation on ‘individual’ responsibility, it limits at the same time responsibility for international crimes to individuals, thus excluding collective criminal responsibility of States and other corporate entities. Changing this, if desired and politically accomplishable, poses a challenge to both public international and international criminal law in the future.

(p. 821) Select Bibliography

  • NATIONAL AND COMPARATIVE CRIMINAL LAW

  • G. P. Fletcher, Rethinking Criminal Law (1978);
  • H.-H. Jescheck, ‘Versuch und Rücktritt bei Beteiligung mehrerer Personen an der Straftat’, 99 Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) (1987), 111;
  • A. Eser, ‘Justification and Excuse: A Key Issue in the Concept of Crime’, in A. Eser and G. P. Fletcher (eds.), Justification and Excuse: Comparative Perspectives (1987) 19;
  • H.-H. Jescheck and Th. Weigend, Strafrecht, Allgemeiner Teil (5th edn., 1997);
  • A. Eser, B. Huber, and K. Cornils (eds.), Einzelverantwortung und Mitverantwortung im Strafrecht, European Colloquium on Individual, Participatory and Collective Responsibility in Criminal Law (1998);
  • S. Mir Puig, Derecho Penal, Parte General (5th edn., 1998);
  • W. Wilson, Criminal Law (1998);
  • A. Schönke and H. Schröder, Strafgesetzbuch: Kommentar (26th edn., 2000).
  • INTERNATIONAL CRIMINAL LAW

  • H.-H. Jescheck, Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht (1952);
  • M. C. Bassiouni (ed.), Commentaries on the ILC’s 1991 Draft Code of Crimes against the Peace and Security of Mankind (1993);
  • O. Triffterer, ‘Bestandsaufnahme zum Völkerstrafrecht’, in G. Hankel and G. Stuby (eds.), Strafgerichte gegen Menschheitsverbrechen (1995) 169;
  • A. Eser, ‘The Need for a General Part’, in Bassiouni, Commentaries, supra, 43;
  • id., ‘ “Defences” in War Crime Trials’, 24 IYHR (1995) 201;
  • M. C. Bassiouni, International Criminal Law Conventions and their Penal Provisions (1997);
  • O. Triffterer, ‘Acts of Violence and International Criminal Law’, 4 Croatian Annual of Criminal Law and Practice (2/1997) 811;
  • L. Sadat Wexler (ed.), Observations on the Consolidated ICC Text before the Final Session of the Preparatory Committee (1998);
  • L. Sadat Wexler and M. Ch. Bassiouni (eds.), Model Draft Statute for the International Criminal Court Based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June l5–July 17 1998 (1998);
  • Th. Weigend, ‘Article 3: Responsibility and Punishment’, in M. C. Bassiouni (ed.), Commentaries on the ILC’s 1991 Draft Code of Crimes against the Peace and Security of Mankind (1993) 113;
  • E. M. Wise, ‘Commentary on Parts 2 and 3 of the Zutphen International Draft: General Principles of Criminal Law’, in L. Sadat Wexler (ed.), Observations on the Consolidated Text before the Final Session of the Prepatory Committee (1998) 43;
  • id., ‘General Principles of Criminal Law’, in L. Sadat Wexler and M. C. Bassiouni (eds.), Model Draft Statute for the International Criminal Court based on the Prepatory Committee’s Text to the Diplomatic Conference, Rome, 15 June–17 July 1998 (1998) 39;
  • Ch. van den Wyngaert, ‘The Structure of the Draft Code and the General Part’, in Bassiouni, Commentaries, supra, 53;
  • K. Ambos, ‘Individual Criminal Responsibility in International Criminal Law: A Jurisprudential (p. 822) Analysis—From Nuremberg to The Hague’, in G. K. McDonald and O. Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts. Vol. I. (2000) 1;
  • id., Der ‘Allgemeine Teil’ des Völkerstrafrechts. Ansätze einer Dogmatisierung(2002);
  • H. Vest, ‘Humanitätsverbrechen—Herausforderung für das Individualstrafrecht?’, in 113 Zeitschrift für die gesamte Strafrechtswissenschaft (2001) 457–498;
  • id., Genozid durch organisatorische Machtapparate. An der Grenze vor individueller und kollektiver Verantwortlichkeit (2002) 301 ff.
  • ROME STATUTE

  • P. Saland, ‘International Criminal Law Principles’, in Lee, supra, 189;
  • M. Ch. Bassiouni (ed.), The Statute of the International Criminal Court: A Documentary History (1998);
  • W. A. Schabas, ‘General Principles of Criminal Law in the ICC Statute’, 6 European Journal of Crime, Law and Criminal Justice (1998) 400;
  • A. Sereni, ‘Individual Criminal Responsibility’, in F. Lattanzi (ed.), The International Criminal Court: Comments on the Draft Statute (1998) 139;
  • K. Ambos, ‘Article 25’, in O. Triffterer, Commentary on the Rome Statute of the International Criminal Court (1999) 475;
  • id., ‘General Principles of Criminal Law in the Rome Statute’, 10 Criminal Law Forum (1999) 1;
  • A. Eser, ‘Article 31’, in Triffterer, Commentary, supra, 537;
  • R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999).

The author is greatly indebted to Alexander Schöpsdau for assistance in preparing this contribution and to Brigid Wefelnberg for her linguistic support.

Footnotes:

1  Cf. infra, at III. As to the drafting history of Art. 25 of the ICC Statute, see W. A. Schabas, ‘General Principles of Criminal Law in the ICC Statute’, 6 European Journal of Crime, Criminal Law and Criminal Justice (1998) 409 ff. with references to the various materials; furthermore, P. Saland, ‘International Criminal Law Principles’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999) 198 ff.

2  Thoroughly O. Triffterer, ‘Art. 32’ in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), margin No. 3 ff.

3  Ibid., margin No. 3.

4  Cf. A. Eser, ‘The Need for a General Part’, in M. C. Bassiouni (ed.), Commentaries on the ILC’s 1991 Draft Code of Crimes against the Peace and Security of Mankind (1993) 43.

5  Cf. O. Triffterer, ‘Bestandsaufnahme zum Völkerstrafrecht’, in G. Hankel and G. Stuby (eds.), Strafgerichte gegen Menschheitsverbrechen (1995) at 211 ff.; Report of the International Law Commission on the work of its forty-eighth session, May 6 to July 26, 1996, UN GAOR, 51st Sess., Supp. No. 10 (A/51/10) at 19; in addition Art. 1 of the ICTY Statute.

6  Cf. Art. 1 of the ICTY Statute and the ICTY Trial Chamber II in Prosecutor v. Duško Tadić, IT-94-1-T, 7 May 1997, paras. 663 ff., reprinted in G. K. McDonald and O. Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, Vol. II/2. Documents and Cases (2000) at 1003, 1129 f.

7  Cf. K. Ambos, ‘Art. 25’, in Triffterer (ed.), supra note 2, margin No. 37 with more references.

8  For more details see infra, IV.B. As to the more general legal policy question of whether in face of the systematic type of humanity crimes the traditional concept of individual criminal responsibility should rather be substituted by some kind of collective responsibility, cf. H. Vest, ‘Humanitätsverbrechen—Herausforderung für das Individualstrafrecht?’, in 113 Zeitschrift für die gesamte Strafrechtswissenschaft(2001) 457 ff.; id., Genozid durch organisatorische Machtapparate (2002) 301 ff.

9  Cf. infra, V.C-E.

10  Cf. Schabas, supra note 1, 413; E. M. Wise, ‘General Principles of Criminal Law’, in L. Sadat Wexler and M. C. Bassiouni (eds.), Model Draft Statute for the International Criminal Court Based on the Preparatory Committee’s Text to the Diplomatic Conference, Rome, June 15–July 17, 1998 (1998) at 43 f.; see also Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. II. Compilation of Proposals, UN GA, 51st Sess., Supp. No. 22 (A/51/22, 1996) at 93 f.

11  For more details, see Ch. 21 below (to Art. 28).

12  For more details, see Ch. 23 below (to Arts. 30 and 32).

13  Cf. A. Eser, ‘Art. 31’, in Triffterer (ed.), supra note 2, margin No. 7. On the reasons why the requirement of a minimum age for criminal capacity was not expressed as a substantive requirement in terms of a prerequisite of culpability (as, for instance, according to German Strafgesetzbuch and Art. 19 Spanish Codigo Penal) but rather as a jurisdictional matter, cf. Saland, supra note 1, 200 ff.

14  For more details, see Ch. 24.1 below and A. Eser, ‘Justification and Excuse: A Key Issue in the Concept of Crime’, in A. Eser and G. P. Fletcher (eds.), Justification and Excuse: Comparative Perspectives (1987) Vol. I, p. 19 f.

15  For more details, see Ch. 24 below, Art. 31.

16  Cf. infra, III.

17  For more details, see infra, VII.

18  Monitoring this missing list is not to say that all these instances should be recognized as ‘defences’; instead of remaining silent on these matters, however, the Rome Statute could have clarified the exclusion of perhaps doubtful ‘defences’, such as, for instance, consent of the victim as inappropriate in the context of an international crime. For further details to ‘defences’ worth being at least dealt with, cf. A. Eser, ‘Defences’, in War Crime Trials, 24 IYHR (1994) 217 ff., id., in Triffterer (ed.), supra note 2, margin No. 10 ff.

19  Cf. Ch. 11.6 above.

20  Cf. supra, II.

21  For more details, see infra, within IV-VII.

22  Charter of the International Military Tribunal, 82 UNTS 280, reprinted in M. C. Bassiouni, International Criminal Law Conventions and their Penal Provisions (1997) at 183 ff., and in McDonald and Swaak-Goldman, supra note 6, Vol. II/1, p. 61.

23  As to the question of whether and to what degree the IMT Charter of Nuremberg merely expressed already existing international law rather than making new law, cf. ICTY Trial Chamber Tadić case (supra note 6), paras. 663 ff.; cf. also Triffterer, supra note 5, 211 ff.; Report of the ILC, 48th Sess., supra note 5, 19. With regard to the jurisprudence by and after the Nuremberg and Tokyo Tribunals, cf. K. Ambos, ‘Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis—From Nuremberg to The Hague’, in McDonald and Swaak-Goldman, supra note 6, Vol. I, p. 7 ff.

24  Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgement of the Tribunal, 2 YILC (1950) 374–378, reprinted in Bassiouni, supra note 22, 210 ff. and in McDonald and Swaak-Goldman, supra note 6, Vol. II/1, p. 191.

25  YILC (1954), Vol. II, p. 151 f.; (1983), Vol. II, p. 4; (1983), Vol. II/2, p. 11; (1984), Vol. I, p. 4 f.; (1984), Vol. II/2, p. 8; (1985), supra note 6, Vol. I/2, p. 8.

26  YILC (1991), Vol. II/1, pp. 94–97.

27  Cf. infra, V.B.2.

28  UN Doc. S/25704, 3 May 1993 reprinted in Bassiouni, supra note 22, 251 ff. and in McDonald and Swaak-Goldman, supra note 6, Vol. II/1, p. 301.

29  SCRes. 955 (1994) Annex, 8 November 1994, reprinted in Bassiouni, supra note 22, 258 ff. and McDonald and Swaak-Goldman, supra note 6, Vol. II/1, p. 311.

30  Arts. 2–5 of the ICTY and Arts. 2–4 of the ICTR Statutes, respectively.

31  Art. 6 and 5 of the ICTY and ICTR Statutes, respectively.

32  Art. 7 and 6 of the ICTY and ICTR Statutes, respectively.

33  As to relevant cases, cf. the references supra at note 6 and infra at notes 123, 134, 138.

34  Report of the ILC, 48th Session, supra note 5, 14 ff., paras. 50 ff., reprinted in McDonald and Swaak-Goldman, supra note 6, Vol. II/1, p. 335 ff.

35  For more details cf. the historical survey and the pre-note to the Draft Statute: International Tribunal by M. C. Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998) 1 ff., esp. 3 ff. and 759, respectively.

36  By M. C. Bassiouni, originally published 1980, and revised 1987.

37  1994 ILC Draft Statute for an International Criminal Court with Suggested Modifications (Updated Siracusa Draft) prepared by a Committee of Experts. Submitted by AIDP et al., Done in Siracusa/Freiburg/Chicago, 15 March 1996.

38  This was reached in three steps: after a committee of experts, which convened in July 1995 in Siracusa, had identified a list of open questions and elements to be circulated in a general part (in Draft Statute for an International Criminal Court: Alternative to the ILC Draft, Siracusa/Freiburg, July 1995, p. 38 ff.), a smaller working group on substantive law, consisting of A. Eser, D. Koenig, O. Lagodny, and O. Triffterer, prepared a draft of general provisions (unpublished Freiburg Draft of Feburary 1996), which then was integrated into the Updated Siracusa Draft (supra note 37, as Arts. 33-0 to 33-18). Since not all provisions of the Freiburg Draft had been taken over without modifications into the Updated Siracusa Draft, it appeared appropriate to integrate the Freiburg recommendations into an amendment of the ILC ‘Draft Code of Crimes’ of 1991, published as annex by O. Triffterer, ‘Acts of Violence and International Criminal Law’, 4 Croatian Annual (2/1997) 872. For a comparison of the Freiburg Draft of 1996 and the Updated Siracusa Draft see K. Ambos, Der ‘Allgemeine Teil’ des Völkerstrafrechts (2002) 941 ff.

39  Edited by M. C. Bassiouni (1993).

40  Cf. Triffterer, supra note 38, 873.

41  Cf. supra, II.A. 1.

42  See the references by Ambos, in Triffterer (ed.), supra note 7, margin No. 4 to the Proceedings of the International Military Tribunal sitting at Nuremberg Germany, HM Attorney-General by HM’s Stationery Office London (1950) Part 22, 447.

43  Art. 23 para. 5 UN Doc. A/CONF. 183/2/Add. 1 (1998), reprinted in M. C. Bassiouni (ed.), International Criminal Court Compilation of United Nations Documents and Draft ICC Statute before the Diplomatic Conference (1998) 7 ff.

44  Cf. the references in Schabas, supra note 1, 409 f.

45  Cf. recently the contributions in A. Eser, B. Huber, and K. Cornils (eds.), Einzelverantwortung und Mitverantwortung im Strafrecht (1998).

46  Cf. Saland, in Lee (ed.), supra note 1, 199; Ambos, in Triffterer (ed.), supra note 7, margin No. 4.

47  Wise in Sadat Wexler and Bassiouni (eds.), supra note 10, 42.

48  Cf. supra, IV.A.

49  For more details on the development of State responsibility in international law and, in particular, in the ILC Draft on State Responsibility, see Report of the ILC on the work of its fifty-fourth session, UN GAOR, 54th Sess., Supp. No. 10 (A/54/10 and corr.1 & 2), paras. 49 ff.

50  Infra, V.C.1.

51  Cf. infra, V.C.2.

52  IMT Nürnberg Charter, supra note 22.

53  Cf. Report of the ILC, 48th Sess., supra note 5, 39 ff.

54  See infra, VII.

55  To the following, cf. M. Burgstaller, ‘Individualverantwortung bei Alleinhandeln; Einzelund/oder Mitverantwortung bei Zusammenwirken mit anderen’, in Eser, Huber, and Cornils (eds.), supra note 45, 17 ff.

56  See infra, V.B.1 at note 67.

57  See infra, V.B.3.

58  See supra note 37.

59  Cf. G. P. Fletcher, Rethinking Criminal Law (1978) 645 f.

60  With regard to this terminology, this is adopted from the German ‘Akzessorietät’, also known in other systems such as the Spanish ‘accessoriedad’, but apparently still foreign to English, although it could be easily phrased as ‘accessoriety’. Instead, and perhaps not without conceptual differences, Fletcher, supra note 59, 581 ff., prefers to speak of ‘derivative’ liability.

61  As, for instance, the German Penal Code until 1943 (cf. P. Cramer, in A. Schönke and H. Schröder (eds.), Strafgesetzbuch: Kommentar(24th edn., 1991), § 25 pre-note 22).

62  §§ 26–29 German Strafgesetzbuch.

63  As to Switzerland, cf. P. Noll and St. Trechsel, Schweizerisches Strafrecht, Allgemeiner Teil I (3rd edn., 1990), 181 ff., as to Spain, cf. S. Mir Puig, Derecho Penal, Parte General (5th edn., 1998) 395 ff.

64  As to further possible ways of structuring participation in Italian, French, Polish, Czech, Lithuanian, and English law, see the national reports in Eser, Huber, and Cornils (eds), supra note 45, 35 ff., 43 ff., 57, 61 ff., 73 ff., and 79 ff. respectively; furthermore cf. the comparative survey from a common law perspective by Fletcher, supra note 59, 634 ff.

65  To the following, cf. Triffterer, supra note 5, 227 ff. and Ambos, supra note 38, 444 ff.

66  Convention Respecting the Laws and Customs of War on Land (Hague, IV) of October 18, 1907; reprinted in McDonald and Swaak-Goldman, supra note 6, Vol. II/1, p. 25.

67  Cf. Ambos, in McDonald and Swaak-Goldman, supra note 6, Vol. I, p. 8 f.

68  Cf. Triffterer, supra note 5, 227.

69  Art. III(b) and (e), Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, reprinted in McDonald and Swaak-Goldman, supra note 6, Vol. II/1, p. 83 ff.

70  Cf. supra, III, at note 24.

71  As to the three versions of this Draft Code by the ILC, cf. supra, III, at notes 25 ff.

72  This observation is true despite the fact that the Apartheid Convention of 1973 (reprinted in Bassiouni, supra note 22, 630 ff.) mentions committing and participating (Art. III), since in this provision ‘committing’ stands side by side with ‘participating’ (in the same section (a) ) and in addition names ‘directly inciting’ or ‘conspiring in the commission’, and in a yet further section (b) names ‘directly abetting’, ‘encouraging’ or ‘cooperating in the commission’ of the crime of apartheid, thus again completely mixing up perpetration and participation in an accidental way.

73  Cf. supra, V.B.1.

74  Cf. the criticism by Th. Weigend, ‘Article 3: Responsibility and Punishment’ in Bassiouni, supra note 4, 115.

75  Cf. Art. 2(3)(b) and (d) of the Draft Code of 1996, but also the (less explicit) commentary in Report of the ILC, 48th Sess., supra note 5, 24 f.

76  Cf. Art.2(3)(e).

77  Arts. 2, 3, 5 of the ICTY Statute and Arts. 3, 4 of the ICTR Statute.

78  Paras. 3(a), (c), (e) of Art. 4 of the ICTY Statute and Art. 2 of the ICTR Statute, respectively.

79  Art. 7(1) of the ICTY Statute and Art. 6(1) of the ICTR Statute.

80  Cf., for instance, the ICTY Tadić case, supra note 6, paras. 673 ff. (see further p. 822, Addendum to note 80).

81  Cf. infra, V.D.3.

82  Cf. K. Ambos, ‘General Principles of Criminal Law in the Rome Statute’, 10 Criminal Law Forum (1999) 13 and infra, V.F.

83  Cf. Triffterer, supra note 5, 230; Wise, in Sadat Wexler and Bassiouni (eds.), supra note 10, 42 f.

84  Cf. Report of the ILC, 48th Sess., supra note 5, 24.

85  Cf. supra, V.B.2, 3.

86  Cf. Ambos, in Triffterer (ed.), supra note 7, margin No. 2.

87  ICTY Appeals Chamber, Prosecutor v. Tadić, IT-94-1-A, Judgment, 15 July 1999, para. 229. Cf. also infra, V.C.2.

88  Cf. supra, II.A.2, V.B.2.

89  Cf. Ambos, in Triffterer (ed.), supra note 7, margin No. 7.

90  For a comparative survey, cf. H.-H. Jescheck, ‘Versuch und Rücktritt bei Beteiligung mehrerer Personen an der Straftat’, 99 Zeitschrift für die gesamte Strafrechtswissenschaft (1987) 124 ff., W. Dietz, Täterschaft und Teilnahme im ausländischen Strafrecht (1957).

91  Supra, at V.B.1.

92  Cf. D. Kienapfel and F. Höpfel, Grundriβ des österreichischen Strafrechts, Allgemeiner Teil (8th edn., 2000) 206. This view, however, is not undisputed even in Austria: cf. e.g. H. Fuchs, Österreichisches Strafrecht, Allgemeiner Teil I (3rd edn., 1998) 302.

93  Cf. supra, V. 2(b).

94  This seems to be the common opinion at least in England and the United States, cf. W. Wilson, Criminal Law (1998) 577 ff.; A. P. Simester and G. R. Sullivan, Criminal Law: Theory and Doctrine (2000) 186 ff., Dietz, supra note 90, 89 ff.

95  K. Kühl, Strafrecht, Allgemeiner Teil (3rd edn., 2000) 765. For further details, in particular to the still disputed question of whether each co-perpetrator must necessarily be on the scene when the crime is accomplished or whether even a contribution in the preparatory stage may suffice, cf. P. Cramer and G. Heine, ‘Täterschaft und Teilnahme’, in Schönke and Schröder (eds.), supra note 61, § 25 pre-notes 80 ff. and margin No. 60 ff.

96  Cf. supra, V.B.3.

97  ICTY Appeals Chamber Tadić, supra note 87, paras. 185–232.

98  Tadić case, ibid., para. 227 (iii).

99  Tadić case, ibid., para. 229 (ii) and (iv).

100  Tadić case, ibid., para. 229.

101  Cf. Cramer and Heine, in Schönke and Schröder (eds.), supra note 61, § 25 margin No. 95.

102  ICTY Appeals Chamber Tadić case, supra note 87, ibid., para. 204.

103  Ibid., para. 220.

104  For further details of this problem, see infra, Ch. 23.

105  This description of the German ‘Hintermann’ (the individual in the background), though perhaps not covering cases of force, is at least appropriate for cases of intellectual superiority: cf. Ambos, in Triffterer (ed.), supra note 7, margin No. 9 with reference to C. Roxin and E. Silverman.

106  As to the preceding question of whether this clause of the independence of the perpetrator’s punishability from the responsibility of other persons would have already concerned the case of co-perpetratorship (supra, V.C.2) or whether it is only relevant for indirect perpetratorship here in question, see—with convincing arguments for the latter position—Ambos, in Triffterer (ed.), supra note 7, margin No. 10 f.

107  See also supra, V.A.2.

108  For further details see F. C. Schroeder, Der Täter hinter dem Täter (1965); Cramer and Heine, in Schönke and Schröder (eds.), supra note 61, § 25 margin No. 6-60, in particular 20 ff.

109  Therefore, it is no wonder that the breakthrough for the judicial recognition of this type of indirect perpetratorship in Germany was a case of criminal responsibility of members of the National Defence Council of the former German Democratic Republic for intentional killings of refugees by boarder control soldiers: Entscheidungen des Bundesgerichtshofs in Strafsachen (BGHSt) 40 (1995), 218 ff. Cf. Ambos, in McDonald and Swaak-Goldman, supra note 6, Vol. I, p. 20 f.

110  On its development, cf. in particular C. Roxin, Täterschaft und Tatherrschaft (6th edn., 1994) 242–252, 653–654.

111  See Ambos, in Triffterer (ed.), supra note 7, margin No. 9.

112  Both on the differentiation of perpetration and participation and their relation, cf. supra V.A.2.

113  Cf. supra, V.B.3.

114  This seems to be leftover from earlier propositions attempting to substitute the accessory requirement by a concept of ‘conspiracy’ as an ‘inchoate offence’; cf. Weigend, in Bassiouni (ed.), supra note 4, 115 ff.

115  Cf. Schabas, supra note 1, 410; but see also the criticism by Ch. Tomuschat, ‘Die Arbeit der ILC im Bereich des materiellen Völkerstrafrechts’, in G. Hankel and G. Stuby (eds.), Strafgerichte gegen Menschheitsverbrechen (1995) 270, 286 ff.

116  Blacks Law Dictionary (5th edn., 1979) 1249 and 697, respectively.

117  Cf. Ambos, in Triffterer, supra note 7, margin No. 13.

118  For more details to this ‘Kettenanstiftung’, cf. Cramer and Heine, in Schönke and Schröder (eds.), supra note 61, § 26 margin No. 13.

119  Cf. Report of the ILC, 48th Sess., supra note 5, 22 ff.

120  Cf. supra, V.C.3.

121  For more details, see Ch. 21 below.

122  Cf. supra, V.C.3 at note 109.

123  On the same line, see Ambos, supra note 82, 9 f., id., in Triffterer (ed.), supra note 7, margin No. 12. Whether, however, Ambos may indeed properly cite the International Criminal Tribunal for Rwanda in his support, is doubtful: certainly, the ICTR Trial Chamber in the Akayesu Judgment correctly holds that ‘ordering implies a superior-subordinate relationship’ whereby ‘the person in a position of authority uses it to convince (or coerce) another to commit an offence’, but nevertheless the ICTR seems to handle the situation as a form of complicity (through instructions) rather than of perpetration (Prosecutor v. Akayesu, ICTR-96-4-T, 2 September 1998, para. 483, reprinted in McDonald/Swaak-Goldman, supra note 6, Vol. II/2, p. 1573 (1627) ).

124  Art. 25(3)(c); cf. infra, V.E.2(a).

125  E.g. to the German law, cf. H.-H. Jescheck and Th. Weigend, Strafrecht, Allgemeiner Teil (5th edn., 1997) 688.

126  In Arts. 7 and 6(1) of the ICTY and ICTR Statutes, respectively ‘otherwise aiding and abetting’ comes after ‘planning, instigating, ordering and committing’; cf. supra V.B.3.

127  Cf. supra, V.D.1.

128  As to the question of attempted complicity, cf. infra, VI.E.

129  Arts. 7 and 6(1) of the ICTY and ICTR Statutes, respectively.

130  The same view was taken by the ICTY Trial Chamber in the Tadić case when stating: ‘not only does one not have to be present but the connection between the act contributing to the commission and the act of commission itself can be geographically and temporarily distanced’, supra note 6, para. 687; cf. also paras. 691 f. As far as the ILC was dealing with aiding and abetting and related problems, it was merely occupied with the question of direct and/or substantial contribution, but obviously not concerned with the stage and place where it is rendered (cf. Report of the ILC, 48th Sess., supra note 5, 23 ff.). With regard to the national laws as well, even where the time of a contribution to the commission of a crime plays a role, this mainly concerns co-perpetration rather than complicity by aiding and abetting: cf., for instance, to the Spanish Código Penal which in its Art. 29 speaks of ‘actos anteriores o simultáneos’, Mir Puig, supra note 63, 406 ff., or to the German Strafgesetzbuch which in its § 27 simply speaks of ‘“Hilfeleistung” zu einer vorsätzlich begangenen rechtswidrigen Tat’, cf. Cramer and Heine, in Schönke and Schröder (eds.), supra note 61, § 27 margin Nos. 13, 17.

131  Cf., for instance, the endeavours for distinguishing between aiding and abetting and for demarcating a lower and a higher frontier by Fletcher, supra note 59, 640 ff.

132  ICTR Trial Chamber Akayesu case, supra note 123, para. 484.

133  This is even more evident with the common definition of abetting in terms of ‘to command, procure, councel, encourage, induce, or assist’ in Black’s Law Dictionary, supra note 116, 5. See also B. Huber, ‘Alleinhandeln und Zusammenwirken aus englischer Sicht’, in Eser, Huber, and Cornils, supra note 45, at 79, 84.

134  ICTY Trial Chamber, Prosecutor v. Furundžija, IT-95-17/1-T, 10 December 1998, para. 232.

135  Rich case law and intensive discussions on these approaches seem particularly present in Germany and Spain: cf., for instance, Cramer and Heine, in Schönke and Schröder (eds.), supra note 61, § 27 margin No. 7 ff., and Mir Puig, supra note 63, 410 respectively.

136  Art. 2(3)(d) of Draft Code 1996; cf. supra, V.B.2 at note 75.

137  Cf. supra, V.B.3.

138  Cf. the ICTY Trial Chamber in the Tadić case, supra note 6, para. 691, confirmed in the Čelebići decision, Prosecutor v. Delalić et al., IT-96-21-T, 16 November 1998, para. 329. Basically on the same lines the ICTY Trial Chamber in the Furundžija case, supra note 134, para. 232, as well as the ICTR Trial Chamber in the Akayesu case, supra note 123, para. 484, and in Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, paras. 199 f.

139  ICTY Trial Chamber in the Tadić case, supra note 6, para. 689.

140  For a closer analysis of the ICTY/ICTR judgments, see Ambos, in Triffterer, supra note 7, Art. 25 margin Nos. 15 ff.

141  To the same end, see Ambos, in Triffterer, supra note 7, margin No. 18 and A. Serini, ‘Individual Criminal Responsibility’, in F. Lattanzi (ed.), The International Criminal Court: Comments on the Draft Statute(1998) 140. On the various theories of the foundation and exclusion of imputation and attribution, see most recently Th. Lenckner, in Schönke and Schröder (eds.), supra note 61, § 13 pre-notes 71–102 and, in particular on participation, Cramer and Heine, in Schönke and Schröder (eds.), supra note 61, § 27 margin No. 9a, 10a.

142  Cf. supra, V.D.4.

143  According to Arts. 7 and (1) of the ICTR and ICTY Statutes; cf. the judgments by the ICTY Trial Chamber in the Furundžija case, supra note 134, para. 249; cf. also ICTY Trial Chamber in the Tadić case, supra note 6, para. 692 and ICTR Trial Chamber in the Akayesu case, supra note 123, para. 479, and furthermore the critical analysis by Ambos, supra note 38, 789 ff.

144  Cf. supra, V.D.4.

145  This is also the conclusion by Ambos, in Triffterer, supra note 7, margin No. 19.

146  UN Doc. A/RES/52/164 (1998), annex, Art. 2(3).

147  For further details and references to this and the following, see Ambos, in Triffterer, supra note 7, margin No. 20.

148  Cf. Wilson, supra note 94, 550 f.

149  Cf. supra, V.B.2.

150  Art. 3(2) of the Draft Code 1991 and Art. 2(3)(e) of the Draft Code 1996.

151  Art. 23(5)(e) of the Model Draft Statute for the ICC, in Sadat Wexler and Bassiouni (eds.), supra note 10, 41.

152  Cf. Schabas, supra note 1, 413; Ambos, supra note 82, 12 f.

153  For further details on this requirement, see supra V.D.1.

154  Cf. supra, V.E.1 (c).

155  For more details, also with regard to the legislative history of this rather complicated provision, see Ambos, in Triffterer, supra note 7, margin No. 22 with further references.

156  Cf. supra, V.D.4, E.2.

157  Cf. also Ambos, in Triffterer, supra note 7, margin No. 23.

158  Cf. supra, B.1 at note 69.

159  Para. 3(b) of Art. 4 of the ICTY and Art. 2 of the ICTR Statute, respectively.

160  On deliberations of covering the early stages of other international crimes as well, see Report of the Preparatory Committee Draft Statute and Draft Final Act, p. 59 (in Bassiouni, supra note 35, 142) and Saland in Lee, supra note 1, 200. With regard to the coverage of public incitement in national codes, cf. A. Eser, ‘The Law of Incitement and the Use of Speech to Incite Others to Commit Criminal Acts: German Law in Comparative Perspective’, in D. Kretzmer and S. K. Hazan (eds.), Freedom of Speech and Incitement against Democracy (2000) 19–46.

161  See also the comment by Ambos, in Triffterer, supra note 7, margin No. 26.

162  Cf. supra, V.D.1, E.2(a), F.1.

163  Cf. ICTR Trial Chamber in the Akayesu case, supra note 123, para. 561.

164  Ibid., para. 562.

165  As misleadingly described by Ambos, in Triffterer, supra note 7, margin No. 28 when he speaks of the requirement of a specific ‘causal link’ between the act of incitement and the main offence.

166  Report of the ILC, 48th Sess., supra note 5, 26 f.

167  Ibid.; cf. also ICTR Trial Chamber Akayesu case, supra note 123, para. 557.

168  As only remaining relevant for cases in which not even an attempt is made at genocidal acts (cf. supra, V.D. 1). See also the criticism by Ambos, in Triffterer, supra note 7, margin No. 28.

169  Supra note 123, para. 557.

170  Cf. supra, V.G.2. In this respect I can fully agree with the ICTR Trial Chamber Akayesu case, supra note 123, para. 560.

171  Akayesu case, ibid., para. 560, supported by Ambos, in Triffterer, supra note 7, margin No. 30.

172  Cf. supra, V.F.2(a).

173  For German law, cf. Jescheck and Weigend, supra note 125, 692; for further references, see Schabas, supra note 1, 412.

174  Cf. ILC with regard to Art. 3 of the Draft Code 1991, YILC(1991) Vol. II/1, p. 98; C. Van den Wyngaert, ‘The Structure of the Draft Code and the General Part’, in Bassiouni, supra note 4, 55; Ambos, supra note 82, 11 with further references.

175  Cf. Report of the ILC, YILC (1991) Vol. II/2, p. 98; Van den Wyngaert and Weigend, both in Bassiouni, supra note 4, 5 f. and 116 f., respectively; in agreement Ambos, in Triffterer, supra note 7, margin No. 40.

176  See Bassiouni, supra note 35, 141 note 4.

177  ICTY Trial Chamber Tadić case, supra note 6, para. 692.

178  On further aspects of this problem, cf. Ambos, in Triffterer, supra note 7, margin No. 40 f.

179  Cf. supra, III at note 22.

180  Arts. 4(3)(d), 7(1) of the ICTY Statute and Arts. 2(3)(d), 6(1) of the ICTR Statute.

181  Cf. Triffterer, supra note 5, 233.

182  Cf. infra, VI.B.1 at note 192.

183  Cf. Report of the Preparatory Committee, 51st Sess., supra note 10, 99.

184  Updated Siracusa Draft, supra note 37. As will be seen later, however, this provision left out the attempt element of non-completion which had been expressed in the proposal by Eser, Koenig, Lagodny, and Triffterer, supra note 38, in this way: ‘In the case of an incomplete crime, the person is punishable for an attempt if he, with the intent to commit the crime, engages in conduct constituting a substantial step towards the accomplishment of the crime’ (Art. 33 g(1)) unpublished Freiburg Draft, supra note 38).

185  As reported by Ambos, the ILC could not reach a consensus on a list of crimes eligible for attempt because many members and some governments considered an attempt only possible in a case of war crime or crimes against humanity (Ambos, in Triffterer, supra note 7, margin No. 31, footnote 78 with detailed references).

186  As to the various Pre-Drafts of the Rome Statute, cf. Report of the Preparatory Commission 51st Sess., supra note 10, 93 f.

187  Report of the ILC, 48th Sess., supra note 5, 28.

188  On more details of this so-called ‘impression theory’ (Eindruckstheorie) which is now the prevailing explanation for penalizing attempt in Germany, cf. A. Eser, in Schönke and Schröder (eds.), supra note 61, § 22, pre-note 22.

189  In a slightly different way the Draft Code 1996 Art. 2(3)(g) had spoken of ‘a crime which does not in fact occur’.

190  The same wording—though merely speaking of ‘intention’ instead of ‘intentions’—can already be found in the Draft Code of 1991 Art. 3(3), and also in the Spanish Codigo Pénal Art. 16(1).

191  Cf. supra note 184 to Art. 33 g of the unpublished Freiburg Draft, but also infra, VI. C, with regard to the ‘independence clause’ in terms of expressing possible abandonment.

192  See Draft Code 1991 Art. 3(3): a crime that ‘failed or was halted’ only because of circumstances independent of the perpetrator’s intention.

193  Cf. infra, VI.C.

194  The same wording can be found in the Spanish Art. 16(1) of the Codigo Pénal. As to predecessors of this wording, cf. supra, VI.B.1.

195  As, for instance, barred by the Model Penal Code § 5.01 in requiring acting with ‘purpose’, and rejected also by Serini, in Lattanzi, supra note 141, 145.

196  For the German law, cf. Eser, in Schönke and Schröder (eds.), supra note 61, § 22 margin No. 17.

197  Cf. Ch. 23 below.

198  After already being included in Art. 2 of the French Code Pénal of 1810, it was preserved until the present Art. 121-5 of the Code Pénal of 1994 by speaking of ‘commencement d’éxecution’.

199  Art. 3(3) of the Draft Code 1991 and Art. 2(3)(g) of the Draft Code 1996.

200  § 5.01(1)(c) and (2) of the Model Penal Code; cf. Wise, in Sadat Wexler and Bassiouni, supra note 10, 44; Fletcher, supra note 59, 171 f.

201  § 22 German Strafgesetzbuch reads as follows: ‘Eine Straftat versucht, wer nach seiner Vorstellung von der Tat zur Verwirklichung des Tarbestandes unmittelbar ansetzt.’ For more details to the—partially controversial—interpretations of this definition, see Eser, in Schönke and Schröder (eds.), supra note 61, § 22 margin Nos. 25–55. Thus, it is not the subjective proposition of the attempter alone as perhaps misunderstood by Serini (in Lattanzi, supra note 141, 144 f.), but in connection with the objective move towards the execution of the crime which delineates mere preparation from attempt.

202  Although somehow diverging from the wording of Art. 121-5 of the French Code Pénal, the French doctrine seems to have understood ‘un commencement d’éxecution’ always in a broad sense of ‘tout acte qui tend directement au délit’. Cf. H. Pelletier and J. Perferti, Code Pénal (10th edn., 1997) 20.

203  In avoiding the term of ‘commencement of execution’, according to Art. 16 of the Spanish Codigo Pé;nal the attempt occurs ‘quando el sujeto da principio a la ejecución del delito directamente por hechos exteriores’, a definition which, according to Mir Puig, supra note 63, 340, comes closest to the German conception.

204  Report of the ILC, 48th Sess., supra note 5, 27. The same conclusion after evaluating the various comparative materials is drawn by Ambos, in Triffterer, supra note 7, margin No. 32.

205  Certainly, the term ‘impossible’ is misleading insofar as any attempt is ‘impossible’ in terms of finally not succeeding. Therefore, rather than the ‘normal’ non-accomplishment of the attempt it is the fact that the attempt can under the given circumstances by no means procure the expected result, that makes the attempt ‘impossible’.

206  As, for instance, in French law, which, though not explicitly regulated in this way, would consider the ‘délit manqué’ as punishable; cf. references in J.-H. Robert, Droit Pénal Général (4th edn., 1999) 212 f.; P. Conte and P. Maistre du Chambon, Droit Pénal Général (14th edn., 1999) 175 f.

207  On more details of the position on which the present German law is essentially based, see Eser, in Schönke and Schröder (eds.). supra note 61, § 22 margin No. 60 ff, § 23 margin No. 12 ff.

208  Cf. infra, VII.

209  On details of the definitional elements of commission by omission, cf. Ch. 21 below.

210  On more details of the delineation of the attempt by omission see Eser, in Schönke and Schröder (eds.), supra note 61, § 22 margin No. 46 ff.

211  Art. 28(a)(i) alternative (2) of the ICC Statute; cf. also Ch. 23 below.

212  Cf. Ambos, in Triffterer, supra note 7, margin No. 34.

213  Cf. G. Stefani, G. Levasseur, and B. Bouloc, Droit Pénal Général (16th edn., 1997) 203; Weigend, in Bassiouni (ed.), supra note 4, 117.

214  Art. 33-8(2) Updated Siracusa Draft, supra note 37, which itself is identical with the Art. 33g(2) of the Alternative Draft by A. Eser, O. Lagodny, and O. Triffterer in their proposals to amend the ‘Draft Code of Crimes against the Peace and Security of Mankind’, in Triffterer, supra note 38, 877 f., and in Ambos, supra note 38, 941 ff.

215  On this and other justifications of abandonment, see Fletcher, supra note 59, 186 f., Jescheck and Weigend, supra note 125, 538 f.

216  On more details and references to this rather recently elaborated type of subjectively ‘failed attempt’—as distinct from an objectively ‘failed attempt’ the perpetrator believes to be still accomplishable—cf. Eser, in Schönke and Schröder (eds.), supra note 61, § 24 margin Nos. 6–11, 68–72; furthermore infra, VI.C.2(c).

217  Cf. infra, VI.C.3.

218  The same end was reached by a landmark decision of the German Federal Supreme Court on the basis of an abandonment regulation which at that time was substantially the same as the one in the present Art. 25(3)(f) sentence (2) of the ICC Statute: cf. 11 BGHSt (supra note 109) (1958) 324 ff.

219  On more details and references, see Eser, in Schönke and Schröder (eds.), supra note 61, § 24, in particular margin Nos. 12–106, Jescheck and Weigend, supra note 125, 536 ff.

220  As, for instance, according to some German scholars, not so, however, according to the German Federal Supreme Court: for references, see Eser, in Schönke and Schröder (eds.), supra note 61, § 24 margin No. 39 f.

221  Just to mention the German law which at least allows optional mitigation in the case of a mere attempt (§ 23(2) Strafgesetzbuch).

222  Cf., with a plea for distinguishing between ‘incomplete’ and ‘complete’ attempts, A. Ashworth, ‘Criminal Attempts and the Role of Resulting Harm Under the [Model Penal] Code, and in the Common Law’, 19 Rutgers LJ (1988) 725–772, esp. 738 ff.

223  On more details of such a so-called ‘qualified attempt’, cf. Eser, in Schönke and Schröder (eds.), supra note 61, § 24 margin No. 9 f.

224  For details of this highly complex field, cf. the comparative survey by Jescheck, supra note 90, 136 ff.; as to certain parallels to the common law notion of conspiracy, see Fletcher, supra note 59, 218 ff.

225  Cf. supra, V.D.1.

226  On this consequence of the accessorial principle, cf. supra V.A.2, D.1.

227  Report of the ILC, 48th Sess., supra note 5, 23.

228  Cf. supra, V.G.

229  Cf. ICTR Trial Chamber in the Akayesu case, supra note 123, para. 562.

230  Cf. supra, VI.B.1.

231  This way of employing rules of abandonment to formally completed crimes by analogy can, for instance, be found in Germany: cf. Eser, in Schönke and Schröder (eds.), supra note 61, § 24 margin No. 110.

232  Certain elements of omission are, however, also contained in ‘intentionally using starvation of civilians [in terms of letting them die] as a method of warfare’ according to Art. 8(2)(b)(xxv) of the ICC Statute.

233  Art. 28(1) of the Preparatory Committee Draft Statute, p. 64 f. (in Bassiouni, supra note 35, 144).

234  Art. 28(2) and (3) of the Model Draft Statute (Sadat Wexler and Bassiouni, supra note 10, 48).

235  E. M. Wise, in ‘Commentary on Parts 2 and 3 of the Zutphen International Draft: General Principles of Criminal Law’, in L. Sadat Wexler (ed.), Observations on the Consolidated ICC Text before the Final Session of the Preparatory Committee (1998) 49 f. Cf. also Report of the Preparatory Committee, 51st Sess., supra note 10, 91.

236  Report of the ILC, 48th Sess., supra note 5, 21 f.

237  The same conclusion was drawn by Ambos, in Triffterer, supra note 2, Art. 25 margin No. 42.

238  See Art. 7(3) of the ICTY Statute and Art. 6(3) of the ICTR Statute.

239  Cf. ICTY Trial Chamber in the Furundžija case, supra note 134, para. 207, and ICTR Trial Chamber in the Kayishema and Ruzindana case, supra note 138, paras. 201 ff., 210.

Addendum to note 80. As to further, partially inconsistent, case law by the ICTY, as in particular ICTY-Trial Chamber I in Prosecutor v. Aleksovski, IT-95-14/1, Judgment, 25 June 1999, paras. 58 ff., Prosecutor v. Blaškić, IT-95-14-5, Judgment, 3 March 2000, paras. 261 ff., Prosecutor v. Kordic/Cerkez, IT-95-14-14/2-T, Judgment, 26 February 2001, paras. 372 ff., 827 ff., Prosecutor v. Krstic, IT-98-33-T, Judgment, 2 August 2001, paras. 600 ff., Prosecutor v. Kvocka et al., IT-98-30/1-T, Judgment, 2 November 2001, paras. 242 ff., ICTY-Trial Chamber II in Prosecutor v. Delalić, IT-96-21-T, Judgment, 16 November 1998, paras. 319 ff., Prosecutor v. Furundžija, IT-95-17/1-T, Judgment, 10 December 1998, paras. 190 ff.; Prosecutor v. Kupreskić, IT-95-16-T, Judgment, 14 January 2001, paras. 556 ff.; Prosecutor v. Kunarac et al., IT-96-23-T & IT-96-23/1-T, Judgment, 22 February 2001, paras. 387 ff., and the ICTR, as in particular ICTR Trial Chamber I in Prosecutor v. Kambanda, ICTR-97-23-S, Judgment, 4 September 1998, paras. 40 Nrn. 2 ff.; Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998, paras. 471 ff., 698 ff., Prosecutor v. Rutaganda, ICTR-96-3-T, Judgment, 6 December 1999, paras. 31 ff.; Prosecutor v. Musema, ICTR-96-13-T, Judgment, 27 January 2000, paras. 111 ff.; Prosecutor v. Ruggiu, ICTR-97-32-1, Judgment, 1 June 2000, paras. 13 ff., Prosecutor v. Bagilishema, ICTR-95-1-A-T, Judgment, 7 June 2001, paras. 29 ff.; Trial Chamber II in Prosecutor v. Kayishema/Ruzindana, ICTR-95-1-T, Judgment, 25 May 1999, paras. 198 ff., cf. the critical survey by Ambos, supra note 38, 271 ff., 349 ff., 794 ff.