Auctores intellectuales : a critical analysis of ICC Jurisprudence on the concept of co-perpetration

Abstract

The International Criminal Court (ICC) strives to attach the most appropriate mode of liability to senior political or military leaders who are far removed from the scene of the crime, so as to hold them individually criminally responsible as principals under Article 25(3)(a) of the Rome Statute of the ICC. The primary focus of this dissertation is on the formation and adoption by the ICC of direct and indirect co-perpetration, and their elements, and whether they are consistent with a strict interpretation of Article 25(3)(a). While the constitutive elements of co-perpetration were interpreted broadly in the ICC’s first conviction, the expansive interpretation was rejected in its latest one. This dissertation argues in favour of a narrower interpretation of the constitutive elements of co-perpetration and a stricter reading of Article 25(3)(a), as a more appropriate criterion to distinguish between the modes of liability under Article 25(3). The question arises whether indirect co-perpetration attributes liability more adequately to senior political or military leaders, or whether a more suitable path forward exists for the Prosecution to attach liability to such intellectual perpetrators. On this matter, it is being proposed that the ICC first formally develops a doctrine of ‘indirect perpetration by an organisation’ that attributes liability collectively to horizontal relationships, before attaching at will novel modes of liability that do not follow a strict interpretation of Article 25(3)(a). The argument is also made that the Prosecutor should first attach to the senior leaders the mode of liability, whether principal or accessory, that is easiest to prove when considering the circumstances and facts of the case. Then, the ICC should clearly demonstrate in its decision that such intellectual perpetrator is culpable as if he physically perpetrated the crime.