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Reconciling Responsibility with Reality

A Comparative Analysis of Modes of Active Leadership Liability in International Criminal Law

Author: Johannes Block

Publisher: T.M.C. Asser Press

Book Series : International Criminal Justice Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

This book explores the issue of leadership criminality from a new angle by comparing two highly relevant modes of responsibility. By contrasting individual criminal responsibility for ordering international crimes with indirect perpetration through an organisation, it shows the doctrinal weaknesses of the latter and outlines the much-overlooked advantages of the former. The volume analyses the development of both forms of responsibility, looking at their origins, and their reception in academia and practical use in jurisprudence.

The history of indirect perpetration through an organisation (Organisationsherrschaft) is portrayed from its German academic origin, through German jurisprudence to the reception of the doctrine at the International Criminal Court. By comparing the doctrine’s stages of evolution, the book sheds light on the different aspects of the various models of indirect perpetration through an organisation and carves out general and fundamental criticism of it. The characteristics of ordering liability are explored in depth through an analysis of jurisprudence of the Nuremberg subsequent trials, the ad hoc tribunals and the International Criminal Court. This historic and doctrinal comparison reveals a well-defined and to-date much neglected mode of responsibility with enormous potential for the adjudication of leadership figures in the ambit of international criminal law and only one conclusion can follow from this analysis: it calls for practitioners and academics to leave the well-trodden paths of national criminal law doctrine and embrace truly international modes of liability such as the ordering of a crime.

This volume in the ICJ series provides practitioners, researchers and students with a detailed account of forms of leadership liability and an innovative approach to the topic’s most discussed issue.

Dr. Johannes Block is a criminal lawyer specializing in international criminal law, responsibility of leadership figures, questions of perpetration and participation in crime as well as the national-socialists’ crimes. He studied in Münster, Germany and Bogotá, Colombia and obtained his Dr. iur. from the University of Cologne, where he also worked and taught as a research assistant for several years. His legal clerkship led him to organized crime investigations, criminal defence, the European Commission and the German Federal Ministry of Justice.

Frontmatter

Chapter 1. Introduction

Abstract

How to properly attribute individual criminal responsibility to persons in leadership positions remains one of the most discussed questions of International Criminal Law. This introductory chapter explains the approach taken and method applied to produce an innovative answer to this question in this book. It is argued that applying responsibility for ordering a crime to some or all masterminds of international crimes seems an obvious solution, albeit one often ignored by international criminal tribunals. The reason for this is seen in the application of doctrines such as indirect (co-)perpetration. Therefore, the chapter argues to analyse these two forms of responsibility and compare them in detail. Thus, it may be found out, whether they can be meaningfully distinguished from each other and if not, whether there are any compelling reasons to prefer one over the other. The definitions and terms used in this book are explained with a view to the plethora of legal technical terms that are applied during the course of it.

Johannes Block

Indirect Perpetration Through an Organisation

Frontmatter

Chapter 2. The German Origins of Indirect Perpetration Through an Organised Apparatus of Power

Abstract

The question of how to attribute individual criminal responsibility to leaders who plan, organise and instruct the commission of mass atrocity crimes is decades old and has received considerable attention in German academia and practice. The theory today applied by the International Criminal Court (ICC) is largely based on the writings of German scholars and jurisprudence of the German Federal Court of Justice. This chapter therefore explains and analyses German academic writing and jurisprudence on the theory of indirect perpetration through an organisation and its underlying theory of domination of the crime. By shedding light on these German origins of the doctrine the chapter lays the basis to analyse the theories as applied by the ICC, to critically review the doctrine and to explore whether liability for indirect perpetration through an organisation can be meaningfully distinguished from ordering a crime. This chapter explains three approaches to the theory of indirect perpetration through an organisation which can be distinguished in the German debate: A traditional doctrine, based on the writing of Claus Roxin and other scholars, the approach taken by the jurisprudence and a systemic-functional view. This chapter explores these different approaches and their catalyst case: The trial against Adolf Eichmann.

Johannes Block

Chapter 3. Indirect Perpetration Through an Organisation Under the Rome Statute

Abstract

This chapter analyses the jurisprudence of the International Criminal Court (ICC) on its theory of indirect perpetration through an organisation and its control theory. The doctrine with its legal requirements and implications is outlined in depth, making use of the elaborations of ICC jurisprudence and academic literature. It is argued that the requirements of indirect perpetration through an organisation at the ICC are well-described in theory. In practice however, it seems unclear which facts will suffice for the court to affirm the theory’s requirements and which ones will not. The comparison of the ICC’s theory with the German approaches as outlined in Chap. 2 shows that the former is an own theoretical construct that does not completely resemble any of the German doctrines, despite being closest to the traditional German approach. This chapter criticises the ICC’s theories of control over the crime and indirect perpetration through an organisation, applying arguments from both the international as well as the German academic debate. Other valid points of criticism aside, the theories are found to be based on an unconvincing concept of control over the crime that cannot credibly explain why a decision maker in a leadership position should qualify as someone committing the crime in the sense of Art. 25(3)(a) Rome Statute.

Johannes Block

Responsibility for Ordering a Crime

Frontmatter

Chapter 4. Historic Precedents: Ordering in Post-World War II Trials

Abstract

Ordering the commission of crimes as a form of individual criminal responsibility in international criminal law dates back to the trials against former German politicians, military officers and administrative personnel after World War II. Most prominently, the provision on criminal liability in Control Council Law No. 10 encompassed ordering liability. Many former SS and Wehrmacht officers were convicted by the U.S. Military Courts in Nuremberg inter alia based on the allegation of having ordered the commission of crimes. This chapter analyses the pertinent judgments of the Nuremberg subsequent trials, as well as certain other cases of the time, to shed light on the requirements and implications of the first instances of the use of ordering liability in international criminal law. The chapter concludes that both decision makers and architects of crimes could be described as having ordered the commission of crimes as it sufficed to exercise authority or authorship with regards to a criminal order. The chapter rejects the idea that a form of indirect perpetration liability was recognized by the U.S. Military Tribunals. It acknowledges that besides ordering liability, other, broader and more indirect, concepts of attribution of responsibility were also practiced by the courts.

Johannes Block

Chapter 5. Responsibility for Ordering a Crime Under the Jurisprudence of the Ad Hoc Tribunals for the Former Yugoslavia and Rwanda

Abstract

Both the statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda contain a provision on ordering liability. This chapter explores the pertinent jurisprudence and elaborates on the legal requirements and implications of ordering responsibility under these statutes. It is shown that ordering liability under these statutes was shaped by the ad hoc tribunals’ jurisprudence, leaving few questions as to the legal requirements of this mode of liability. Its categorisation within the overarching system of perpetration and/or participation in the statutes is less clear though. This chapter argues to interpret ordering responsibility under the ad hoc tribunals’ statutes as a highly blameworthy form of accessorial liability. This is based inter alia on a comparison with the doctrine of Joint Criminal Enterprise (JCE) which leads to the conclusion that JCE is not better suited than ordering liability to depict the highly blameworthy conduct of decision makers behind international crimes. The conclusion is further backed by a textual interpretation of jurisprudence, as well as an analysis the implications of modes of liability on sentencing.

Johannes Block

Chapter 6. Responsibility for Ordering Under Article 25 (3) (b) of the Rome Statute

Abstract

This chapter analyses the ICC’s jurisprudence on ordering liability in detail. It finds that the ICC in its decisions on ordering does not deviate much from the customary international criminal law as defined by the ICTY and ICTR as far as legal requirements are concerned. Where differences can be found, this chapter outlines and evaluates them. It finds that the narrower causal nexus requirement of ICC jurisprudence is appropriate but criticises the tendency to treat ordering, soliciting and inducing as one common mode of liability. It is shown that ordering liability was thought of as a proper mode of responsibility for high-level leaders in the early days of the ICC but was soon replaced through indirect perpetration liability. An analysis of the facts considered by the ICC to prove the requirements of ordering liability suggests that it could be used instead of indirect perpetration in many instances as the court recurs to the same facts to prove the requirements of both forms of responsibility. This result leads to the effect of ordering responsibility not playing any significant role in the current practice of the ICC, which is criticised in this chapter.

Johannes Block

Comparison, Evaluation and Conclusion

Frontmatter

Chapter 7. Comparison and Evaluation

Abstract

This chapter compares indirect perpetration through an organisation and ordering under the law of the Rome Statute, taking the findings of the foregoing chapters into account. The comparison takes note of the criticism formulated earlier on indirect perpetration through an organisation as well as the features of ordering liability. It concludes that no meaningful distinction between indirect perpetration and ordering is possible. This is due to the nearly complete overlap of the legal requirements of both forms of responsibility. It also follows from the fact that the notions control over the crime and authority of an ordering person describe the same kind of influence of the leader behind the crime. The chapter then explores whether compelling reasons speak in favour of applying indirect perpetration through an organisation instead of ordering and finds that no such reasons exist. No sentencing rules indicate that commission liability should be punished more severely than ordering liability. The concepts of expressive justice and fair labelling do not favour an application of indirect perpetration through an organisation on leadership figures either, as the doctrine provides no intelligible description of the wrongdoing of such persons, whilst responsibility for ordering provides such a description. It is therefore concluded that responsibility for ordering crimes should be applied on decision makers of international crimes instead of indirect perpetration through an organisation.

Johannes Block

Chapter 8. Conclusion: The Responsibility of Decision Makers for Ordering the Commission of International Crimes

Abstract

Based on the outcome of the foregoing chapter, this chapter summarizes the reasons for applying ordering liability instead of indirect perpetration through an organisation to decision makers of international crimes. It states that the historic development and uniformity of international criminal law, the expressive value and the form’s concise legal requirements are among the reasons to apply it in practice. The chapter then analyses what an interpretation of the Rome Statute could look like if ordering liability were applied to decision makers of international crimes. Under such an approach, indirect (co)perpetration through an organisation becomes unnecessary and accessorial modes of liability gain importance. Indirect perpetration still plays a role as a form of fall-back liability. Finally, the chapter provides some thoughts on what future systems of perpetration and participation in international criminal law could look like. It is suggested that descriptive forms of responsibility based on direct linkage principles such as ordering and planning should play a greater role due to their precise description of the actor’s wrongdoing and their potential contribution to fair labelling and expressive justice.

Johannes Block

Backmatter

Title: Reconciling Responsibility with Reality
Author: Johannes Block
Publisher: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-607-9
Print ISBN: 978-94-6265-606-2
DOI: https://doi.org/10.1007/978-94-6265-607-9