Leadership responsibility in non-state criminal organisations. The rediscovery of indirect perpetration through an organisation by Latin American courts and the ICC

ABSTRACT

This article addresses the interaction between Latin American courts and the International Criminal Court in adapting and expanding the concept of indirect perpetration through an organisation (Organisationsherrschaft), in order to accommodate the criminal responsibility of leaders of non-state armed groups. This project has turned out to be a challenge, because Organisationsherrschaft was initially designed by it’s inventor, Claus Roxin, as a legal device to sustain the criminal responsibility of the kingpins, operating within tightly structured, hierarchical structures, Eichmann being the paradigmatical case. Nonetheless, the author concludes that national and international courts have succeeded in demonstrating that the doctrine of Organisationsherrschaft can be tailored to less rigidly structured organisations. They have accomplished this by keeping a close eye on the essence of the doctrine, to wit the leader’s capacity to assure (quasi) automatic compliance with orders through his dominance over an organisation. The development of the concept of indirect perpetration through an organisation proves that interaction between and mutual inspiration of national and international courts can chart new waters in (international) criminal law.

KEYWORDS:

• International criminal law
• responsibility of leaders
• control over an organisation
• non-state armed groups
• international criminal court
• Latin America

1. Introduction

In international criminal law discourse the issue of how to link political and military leaders to atrocity crimes is widely discussed. The reason for this scholarly and judicial interest is not hard to grasp. People who occupy positions at the top of criminal organisations or corporations do not – or only rarely – physically commit crimes, but outsource the dirty work to their subordinates. If one harbours a narrow, physical conception of ‘perpetration’, the principals who stay aloof from the crime scene cannot incur criminal responsibility under that label. However, as precisely these individuals concoct heinous crimes and can therefore be rightly considered as the autores intelectuales (masterminds) such an outcome does not satisfy one’s sense of justice. Several solutions have been probed to resolve this conundrum, each of them displaying advantages and disadvantages. For one thing, leaders who prompt others to commit crimes might be qualified as participants, under the heading of well-known modes of criminal liability like ‘aiding and abetting’ or ‘ instigation/ inducement’. After all, typical of these secondary forms of criminal responsibility is that they do not require the culprit to have physically committed the crime. However, the very depiction of their being ‘secondary’ to the main perpetrator downplays their prominence in the criminal event.

In the famous doctrine of superior or command responsibility this hierarchical order between superiors and subordinates is at least clearly acknowledged. Here we stumble on another problem. The responsibility of a military or civilian superior is engrafted on an omission to control his/her subordinates and can therefore not be easily reconciled with active furtherance of crimes.

Some concepts of criminal responsibility emphasise the collective nature of international crimes and appear to be less interested in the specific division of labour between leaders and executioners. As is well known, the ICTY and ICTR, SCSL and ECCC have amply applied the concept of Joint Criminal Enterprise (JCE) in order to prosecute and punish all those individuals that embark on a common criminal objective and in some way contribute to the accomplishment of that purpose. All the members of the JCE incur criminal responsibility for the crimes that are committed by (an)other member(s) in pursuit of realising the common purpose, provided that they knew that such crimes(s) would be committed or that it was at least foreseeable that (an)other member(s) would engage in such crime. While the JCE-doctrine therefore adequately captures the collective dimension by pointing out that all members are 'in it together’, it fails to differentiate as to the nature and weight of respective contributions. Indeed, the very element ‘some contribution’ is questionably vague in view of the lex certa principle.¹ Moreover, in the case law of the ad hoc tribunals, the agreement of the members to engage in a criminal venture is often taken for granted or conveniently glossed over, as they need not even mutually be aware of their existence. This is rather remarkable, in view of the fact that an agreement or common understanding is the gist of the doctrine and the justification for expansive criminal responsibility.²

In an attempt to remedy the shortcomings of JCE-doctrine, the International Criminal Court (ICC) has largely repudiated the concept and has, instead of this, concentrated on the substantive contribution and the guilt of individual culprits. In the Lubanga case, the Trial Chamber elaborated on the concept of ‘co-perpetration’, explaining that each perpetrator would have to provide an ‘essential contribution’ and would thus have ‘control over the crime’, in that his/her absconding would thwart the completion of the crime.³ In such an understanding of co-perpetration the equality of the ‘partners in crime’, in terms of capacity, resources and psychological influence, is conspicuous. Such parity is absent in a configuration in which leaders and superiors have clear ascendancy over their subordinates. That situation would rather be covered by ‘indirect perpetration’, a mode of criminal responsibility that was newly introduced in the Rome Statute and that counts as a primary form of criminal responsibility, on the same par as ‘perpetration’ and ‘co-perpetration’.⁴ The immediate perpetrator that is used as an instrument by the person in charge need not be a passive, inert tool that is absolved from responsibility, on account of his/her having succumbed to unbearable threats or force, being deceived, or lacking responsibility as a minor or due to insanity. In this sense, the final part of art. 25, 3 sub a of the Rome Statute – ‘regardless of whether that other person is criminally responsible’ – introduced a novelty, deviating from national criminal law Dogmatik. The innovation encouraged the ICC to chart new waters, by introducing a new mode of liability – Organisationsherrschaft –, following in the footsteps of the inventor of the concept, the famous German lawyer Claus Roxin.⁵ The empirical and normative finding that the executioners of heinous crimes in concentration camps or of summary executions of civilians on behest of the Nazi regime were fully responsible had prompted Roxin to the conclusion that the original interpretation of ‘indirect perpetration’ had been too narrow. The ‘perpetrator behind the desk’ (Schreibtishmörder) could be entirely confident that his intentions would be carried out, if he dominated the organisation, in a similar vein as if he were to exert control over a single irresponsible human being.⁶ Roxin postulated three requirements for criminal responsibility of masterminds on the basis of their wielding full control over an organisation (Organisationsherrschaft). First, the organisation must have a tight hierarchical structure. Secondly, the head of the organisation must be assured that his orders are complied with, even if a particular subordinate were to refuse or disobey. It meant that the subordinate members of the organisation were ‘interchangeable’, in the sense that the vacant place would be automatically filled in by a willing executioner. Roxin himself used the expression Fungibilitӓt (fungibility). And finally, the organisation must at least partially operate outside the realm of the law.⁷ In his discussion of Roxin’s original ideas, Thomas Weigend provides a very lucid explanation of this last requirement. If an organisation were to operate within the confines of the law, the head of that organisation who would order his subordinates to engage in unlawful action would never be certain of their unfaltering obedience, because they could always opt for law-abiding behaviour.⁸

In the Katanga case, the Pre-Trial Chamber employed Roxin’s theory to sustain the accused’s criminal responsibility, leaving the final element in abeyance.⁹ The Pre-Trial Chamber took an even bolder step by lumping two modes of criminal liability, to wit co-perpetration and indirect perpetration, together. The resulting concept of ‘Indirect Co-perpetration by Means of an Organization’ enabled the Trial Chamber to hold Katanga and Ngudjolo Chui not only responsible for the crimes that had been committed by their own subordinates, but also – on a mutual basis – for the atrocities committed by the foot-soldiers under the command of their partner in crime.¹⁰

The arduous efforts to find legal constructions that adequately and fairly reflect the involvement of leaders in system criminality have been extensively discussed in legal literature and we need not rehash this further.¹¹ This contribution focusses on the question whether the doctrine of Organisationsherrschaft can also be applied in respect of leaders of organisations that do not display the rigid structures which Roxin envisaged when he invented the concept. The topic seems to be fitting for the purpose of this conference. In the call for papers, the organisers welcomed discourses on the interaction between Latin American and European courts that subsequently informed the case law of the ICC. They thus hinted at a triangular exchange of legal deliberations between domestic courts and the ICC. References to the case law of Latin American and German courts by the ICC and – vice versa – to the judgments of the ICC in the legal decisions of national courts indeed suggest that all these courts have been influenced by their colleagues. Grosso modo, the chronology of the process developed as follows. While the ICC has been credited with both procuring the renaissance of Organisationsherrschaft and expanding its application to more loosely structured organisations, these initiatives have been preceded by case law in Latin American countries, in particular in Argentina and Peru, that paved the way for such developments in international criminal law. In their turn, the Latin American courts were inspired by the findings of the German Federal Court of Appeals (Bundesgerichtshof) that applied Roxin’s insights in the Berlin Wall Shootings cases.¹² In sum, the search for an adequate concept to hold leaders of organisations criminally responsible has been conducive of a vivid interaction between international and national courts and between domestic courts inter se.

The essay is structured as follows. In a slightly reversed chronological order, section 2 addresses the ICC’s expansive interpretation of the concept of Organisationsherrschaft and the opinions on such developments in legal literature. In section 3 the attention is turned to the Latin American case law in which leaders of non-state groups were convicted on the basis of the concept. Section 4 intends to offer some very tentative observations on the question whether the amendment of the doctrine was primarily triggered by factual – social/political – realities or was also to a certain extent inherent to the legal culture that constituted the background of that development. Section 5 rounds off with some final conclusions and reflections.

2. Organisationsherrschaft as a proper device to convict leaders of non-state groups? The case law of the ICC

The issue whether the concept of Organisationsherrschaft can be expanded to cover the criminal responsibility of leaders of less tightly organised non-state groups is a matter of controversy. As a prelude to the analysis of the case law of the ICC, this section in a nutshell presents some positions in legal literature. A profound theoretical discourse is not envisaged, because that would exceed the limited scope of this contribution. Some doctrinal reflections will be revisited in the subsequent section on Latin American case law, but only to the extent that they feature in the judgments themselves. In short, the emphasis in this article is on case law of international and national courts and the question whether and how they have mutually inspired each other’s findings. The brief theoretical excursus starts with an exposition of the opinions on the topic of the spiritual father on the matter, Claus Roxin.

To be sure, Roxin did not exclude the applicability of the concept beyond the context of criminal state bureaucracies. He explicitly acknowledged the feasibility of indirect perpetration through an organisation in respect of ‘acts committed as part of underground movements, secret organisations, gangs and similar associations’.¹³ Roxin even considered it to be conceivable that his doctrine might serve useful purposes in case of ‘purely criminal gangs’, engaging in property crimes and extortion.¹⁴ However, he immediately added a note of caution, warning that ‘we must be careful in assuming organizational control in such domestic groups’.¹⁵ Decisive seems to be whether there is a power structure (Machtapparat) that functions irrespective of the persons that are deployed and that can be fully controlled by the man at the top. Roxin qualified Al Capone’s infamous Murder Inc. as an example in kind.¹⁶ According to Roxin, then, the applicability of the doctrine of Organisationsherrschaft does not depend on the organisation being embedded in a state apparatus, but rather on the nature of the organisational structure.

Nonetheless, these two aspects have often been confounded in later commentaries. Mark Osiel, for instance, gives a particularly strict interpretation of Roxin’s ideas, asserting that

Roxin’s analysis assumes the existence of a rigidly formal bureaucracy of the sort contemplated by Weber’s famous ideal-type, developed from his understanding of the authoritarian Prussian army, which in the organizational chart perfectly mirrors the behavior of the people occupying positions within it.¹⁷

Kai Ambos has explicitly criticised this interpretation as being too stringent, where he holds that ‘the theory – of indirect perpetration by virtue of a hierarchical apparatus – is not only applicable to rigidly formal state bureaucracies but also to less formalized non-state groups’.¹⁸ At first sight, Ambos appears to disregard Roxin’s careful differentiation between the political allegiance of the group (state versus non-state) and its power structure. However, his references, in support of his opinion, to the Peruvian judgment against the founder and highest leader of the Peruvian Communist Party-Shining Path, Abimael Guzmán and other senior leaders of this terrorist organisation, as well as the decision of the Pre-Trial Chamber in the Katanga-case shed a different light on his contention. Not only did these cases concern leaders of non-state – terrorist or paramilitary – groups, but the ICC and the Peruvian courts seemed also to harbour a more lenient interpretation of hierarchical relations within the group. In other words, Ambos’ suggestion that the application of the concept of indirect perpetration by means of an organisation to non-State groups requires some concession to the rigidity of it’s hierarchical structure is not far-fetched. The case against Guzman and the Shinning Path’s leadership will be discussed in more detail in the next section. We will first take a closer look at the approach of the ICC.

In the confirmation of charges decision in the case of Katanga and Chui, the Pre Trial Chamber(PTC) took the lead.¹⁹ The PTC invoked three reasons for relying on ‘control over the organisation’ as an appropriate basis for criminal responsibility in the case under scrutiny. First of all, the concept had been incorporated in the Rome Statute. After all, so the PTC argued, ‘the most serious crimes of concern to the international community as a whole are paradigmatically committed by organized collectives. Any attempt of suppressing such crimes by legal means would involve the prosecution and trial of those controlling such organizations’.²⁰ Secondly, the notion of ‘control over an organization’ had been embraced by ‘numerous national jurisdictions’.²¹ And finally, the concept had been addressed in the case law of international tribunals.²² With the exception of the first element, the arguments were not particularly convincing. The Pre-Trial Chamber only referred to two European countries (Germany and Spain) and three Latin American countries (Argentina, Chile and Peru) in which the concept of control over an organisation had sustained the criminal responsibility of leaders. Moreover, the PTC admitted that the ICTY Trial Chamber’s conviction of Milomir Stakić by virtue of his wielding control over the Prijedor municipality had been overturned on appeal, but reasoned that this did not obviate the validity of the concept under the Rome Statute.²³ After all, as the PTC reasoned, in the hierarchy of applicable legal sources the Statute prevails. And as the Statute explicitly provides for ‘ joint commission through another person, the fact that it was not recognised under customary international law was immaterial, in view of the secondary position of customary international law in Article 21 of the Statute.²⁴ The argument is slightly spurious and contradictory: if a court seeks to find the support of another court in order to buttress its interpretation of the law, it is not very helpful to emphasise the latter’s deviating approach or opinion.

For the purpose of our topic, it is particularly relevant that the Pre-Trial Chamber considered the potential application of the concept of ‘control over an organization’ in the context of a para-military, non-state group that lacked the structural rigour of the Nazi bureaucracy for which the concept had initially been developed. Profusely quoting the work of Roxin, the PTC held that the control over the crime, justifying the qualification of a leader as a principal, rather than as an accessory, followed from his/her control over an organisation. While thus paying homage to the concept’s founding father, the PTC subtly amended the doctrine, by subordinating one of its central tenets – to wit, the fungibility of executioners – to the overhauling question whether the leader could count on automatic compliance with his orders via his control over the apparatus.²⁵ For sure, replaceability of subordinates would be a highly effective tool, but such automatic compliance could also be accomplished by means of ‘intensive, strict and violent training regimes’.²⁶ Obviously alluding to the situation under scrutiny, the PTC provided the example of ‘(…) abducting minors and subjecting them to punishing training regimens in which they are taught to shoot, pillage, rape and kill’, qualifying these as ‘an effective means for ensuring automatic compliance with leaders’ orders to commit such acts’.²⁷

The Trial Chamber reached a different conclusion.²⁸ In the absence of a centralised and effective chain of command, the Ngiti militia that was headed by Katanga and had allegedly engaged in atrocities could not be qualified as an organised apparatus of power and Katanga could therefore not have wielded complete control over his subordinates, as suggested by the Pre Trial Chamber.²⁹ Nonetheless, the Trial Chamber largely concurred with the PTC’s legal analysis of the concept of Organisationsherrschaft and in particular shared the latter’s opinion that the (semi) automatic compliance with orders was its crucial element. That could be achieved, according to the Trial Chamber, quoting Roxin with approval, if the organisation enjoyed ‘an autonomous existence and its existence and survival did not depend on personal relations’.³⁰ Such features, however, were not confined to bureaucracies akin to those of the Third Reich in Germany for which the doctrine was initially designed, but could also be displayed in the ‘very varied manifestations of modern-day group criminality’.³¹ The Chamber acknowledged, however, that any court of law would have a hard time in disentangling the lines of authority and decision-making in modern criminal organisations, in order to answer the question whether the organisation would meet this demanding standard: ‘The Chamber recognizes that the modalities of control over persons can be increasingly varied and sophisticated and that it is particularly difficult to conceive of and grasp the nature and internal dynamics of contemporary criminal organizations’. ³²

The re-invention of the doctrine of Organisationsherrschaft by the ICC has elicited mixed reactions in legal literature. While the norm-expressive force of the concept has been praised, it’s bold application by the Pre-Trial Chamber in the Katanga case, diluting – if not de-naturalizing – Roxin’s stringent framework, has met with criticism. Weigend, for instance, comments that

The (Pre-Trial) Chamber may have sensed that Roxin’s original model was not conceived for an African environment and attempted to make up for the lack of stringent institutional organization of the militias in question by adding new elements it found in the facts of the particular case.³³

Others have expressed a slightly more positive opinion, by pointing out the necessity of adapting Roxin’s doctrine to new configurations: ‘Such a flexible approach, geared to the specific circumstances, may prove the versality of the concept and its resilience against the wear and tear of time’.³⁴

In between the Decision of the Pre Trial Chamber and the Judgment of the Trial Chamber in the Katanga case, the doctrine has been mentioned as a potential basis for criminal responsibility in several cases.³⁵ All these cases concerned political leaders wielding power over a state apparatus, rather than leaders of non-state groups or criminal gangs. Moreover, these decisions did not offer new insights, so they need not further detain us here.

In recent judgments Trial Chambers have occasionally referred to the notion of control over an organisation without explicitly predicating criminal responsibility on this basis. In the Ntaganda-case, for instance, the Trial Chamber acknowledged that the armed group UPC/FPLC had served the accused as a vehicle to make his subordinates commit crimes against humanity and war crimes. The Chamber held that the UPC/FPLC was a well-organised armed group with a formal military structure.³⁶ The accused could rely on the organisation and obedience was assured by means of severe punishments in case of insubordination, including beatings, rape and deprivation of food.³⁷ The Trial Chamber concluded that ‘taking also into account the number of persons within the UPC/FPLC military structure at the relevant time, (…) the will of an individual soldier was irrelevant for the execution of a given order’, adding that ‘the UPC/FPLC as a whole functioned as a tool in the hands of the co-perpetrators’.³⁸ It is pretty obvious that the Chamber fully endorsed the possibility of indirect perpetration by means of an organisation and considered it applicable to the situation. There is a hardly veiled allusion to the crucial element of automatic compliance, in view of the abundance of recruits, id est the fungibility of the direct perpetrator. The only difference with the outcome in the confirmation of charges decision of the PTC in Katanga is that the Trial Chamber did not specifically qualify the mode of liability as ‘indirect perpetration by means of an organization’, but rather suggested that such control over an organisation could serve as an instrument to accomplish quasi absolute powers over subordinates.

It is a matter of conjecture whether the ICC will persevere in considering ‘control over an organization’ as an appropriate mode of liability for attributing responsibility to leaders of non-state groups. The Trial Chamber in the Katanga case has recoiled from doing so, perhaps startled by some critical reactions in legal literature, and has opted for the safer solution of group responsibility on the basis of a common criminal purpose. A more mundane explanation would be that the Chamber simply did not consider the organisation to have possessed the requisite features. On the other hand, clear references to the doctrine of Organisationsherrschaft as an extension of indirect perpetration keep surfacing in the case law, as we have noticed in the Ntaganda-case. Apart from the question whether the Rome-Statute allows for such an expansion – which is of course institution-specific –, the survival of the doctrine depends basically on two factors. First, the question arises whether the doctrine is really needed, in view of existing alternative modes of liability to hold the leaders of non-state groups criminally responsible for the crimes of their subordinates. Secondly – and related to this – we should further explore the boundaries of the applicability of the doctrine in case of non-state armed groups. In other words, we have to ascertain what structural features the organisation should have and which position the accused must occupy within the group to be confident of automatic compliance of his orders.

It is at this point – which is the central topic of this contribution – that case law of Latin American courts can provide useful guidance.

3. Latin American courts’ application and interpretation of the concept of Organisationsherrschaft

It is probably no coincidence that courts in Latin American countries have been in the vanguard of further developing the notion of ‘control of an organisation’ as basis for imputing criminal responsibility to leaders. Both political and legal elements have prompted that development. Embedded in the civil law tradition, Hispanic legal systems are traditionally familiar with the differentiation model that distinguishes between principals and accessories and within the former category comprises the notion of ‘indirect perpetration’ (perpetration by means of another person).³⁹ It is not surprising that courts have been favourably disposed to adoption of ‘control by means of an organization’, although some legal systems inhibited such expansion, because they required the non-responsibility of the direct perpetrator.⁴⁰ Politically, Latin American countries had to deal with the representatives of bloody dictatorships that had quenched the opposition by violent means.⁴¹

The first Latin American court that applied the concept of indirect perpetration through an organisation was the Buenos Aires Federal Courts of Appeal in the case against the Military Commanders of the successive Juntas that had governed Argentina during the ‘dirty war’ (guerra sucia).⁴² The accused had designed a plan to get rid of subversive elements by means of secret abductions, torture and killings and could be fully confident that the policy was executed by physical perpetrators who operated as mere cogs within a machine. The fact that the commanders could stop the disappearances at will – which they did when the operations did no longer serve their purposes – reflected their absolute power over the organisation. As Muñoz-Conde and Olásolo put it succinctly ‘For the Federal Court of Appeals, this was a case in which the instrument operated by the man behind the scene was the system itself, which he manipulates at his discretion, a system of interchangeable men’.⁴³ However, the judgment of the Federal Courts of Appeal did not stand. In a divided vote, the Majority of the Argentinean Supreme Court reasoned that the qualification of ‘principal’ should be confined to those who actually performed the elements of the crime. It revised the outcome of the Federal Court by changing the role of the members of the Military Juntas into ‘necessary participants’, a change that had no impact on the punishment.⁴⁴

Because of the somewhat convoluted interpretation of the concept of control over an organisation by Argentinean courts,, the Peruvian case against Alberto Fujimori emerged as the landmark decision on the topic in Latin America. After having been extradited by Chile, the former president of Peru stood trial and was ultimately convicted in April 2009 by the Peruvian Supreme Court (ratified on appeals later that year) on charges of multiple aggravated homicides, serious bodily injuries and aggravated kidnapping that the Court found to also constitute crimes against humanity under international criminal law. Extrajudicial executions and forced disappearances had taken place in Barrios Altos and La Cantuta, in the context of counter-terrorist operations against civilians who were suspected of supporting Shining Path (Sendero Luminoso). The Supreme Court found Fujimori to have orchestrated the events by means of the secret Colina-group which had been integrated in the Peruvian armed forces.⁴⁵ Probing the requirements as developed by Roxin, the Supreme Court confirmed that Fujimori could indeed be qualified as an indirect perpetrator by virtue of an organised power structure, adding that the systematic nature of the atrocities warranted their depiction as ‘crimes against humanity’. In fact, the Supreme Court’s judgment reveals a couple of specific features that may point at an effort to adapt the doctrine to the Latin American context. On the one hand, the Court harboured a broad interpretation of Organisationsherrschaft – in line with Roxin’s teachings-, by acknowledging the possibility that mid-level perpetrators could also incur criminal responsibility on the basis of the doctrine.⁴⁶ The temptation to resort to such a wide reading of the doctrine correlates perhaps with the increasing structural complexities of modern organisations and corporations. We will revisit this jurisprudential development in the next section.⁴⁷ On the other hand, the Supreme Court constrained the ambit of the applicability of the doctrine by adding a fifth element, to wit, the ‘favourable disposition’ of the direct perpetrator to engage in the crime.⁴⁸ Interestingly, the Court borrowed this element from a preceding Peruvian judgment in the case of the leader of the guerrilla movement Shining Path (Sendero Luminoso), Abimael Guzmán. For a better understanding of this requirement, in search of an answer to the question whether its inclusion was prompted by the Latin American court’s confrontation with the prosecution of leaders of non-state groups, we will turn now to a discussion of this case.

Abimael Guzmán, the founder and leader of Shining Path, alongside other members of the leadership of this terrorist organisation, stood trial on inter alia the charge of having master-minded the massacre at Lucanamarca during which more than 80 campesinos were randomly killed with the mere purpose of demonstrating the Peruvian state the movement’s capacity to create havoc. Shining Path exhibited a rigid hierarchical structure, with Guzmán presiding over both the Permanent Direction Committee and the Central Committee that had the authority to choose particular geographical targets and issue detailed instructions to intermediate committees when and against whom attacks had to be performed.⁴⁹ Against this factual background, it came as no surprise that the Peruvian courts invoked the notion of indirect perpetration by means of an organisation to sustain the criminal responsibility of Guzman and the other leaders of Shining Path.⁵⁰ Counsel for the Defence addressed the (non-) applicability of the concept of control over an organisation in case of non-state armed groups head-on, asserting that Shining Path’s members, because it was not a state organisation, were not obliged to comply with the orders of its leaders. In essence, the defence turned one of Roxin’s requirements on its head. The courts were quick to divulge the disingenuousness of the argument by pointing out that Roxin had precisely developed his theory in respect of organisations that acted outside the legal order. Of more substance was the second part of the Defence’s claim that purported to contrast Shining Path Luminoso with state organisations in respect of the former’s lack of members that could perform specialised tasks. This implied that the organisation could never meet the crucial ‘fungibility’ criterion of the doctrine. To be sure, the response of the Peruvian courts to this objection was rather confusing. In 2006, the National Criminal Chamber rejected the ‘fungibility’ element as an exclusive method to obtain automatic compliance of orders to commit crimes within an organisation like Shining Path and held that the ‘favourable attitude’ of its members to the ideological goals would be an equally suitable condition to achieve the result. It is not immediately clear how this ‘ideological zeal’ could compensate for the alleged dearth of skills amongst the members to execute the crimes envisaged. In 2007, the Peruvian Supreme Court partially reversed the findings of the National Criminal Chamber by restoring the fungibility element. However, the Court harboured a watered-down version of the requirement by pointing out that a refusal or failure by one member to commit a crime did not need to be followed immediately by a successful performance by another member. It sufficed that the criminal objective would ultimately be achieved. Guzmán (and the other members of Shining Path’s leadership) could be virtually certain of the end-result, as he could draw upon a vast reservoir of volunteers. Implicitly, therefore, the Supreme Court shared the Criminal Chamber’s opinion that ideological fervour was an important tool to accomplish automatic compliance, but it put it under the label of ‘successive interchangeability’.⁵¹

Whatever the (de)merits of this approach – I will address them in a bit more detail in the next section – it has been corroborated and followed by national courts in other Latin American countries, especially in Colombia. One of the most interesting decisions on the applicability of ‘control by means of an organization’ in respect of non-state armed groups has been taken by the quasi-judicial Chamber for the Recognition of the Truth, Responsibility and Determination of the Facts and Conduct of the Special Jurisdiction for Peace (hereafter: SRVR).⁵² The case concerned the policy, practiced by the guerrilla movement FARC-EP, of widespread kidnappings of civilians and prisoners of war, in order to put pressure on the Colombian government and obtain ransom. Once having determined that these abductions (potentially) constituted war crimes and crimes against humanity, in view of their connection – respectively – with a (non) international armed conflict and their widespread or systematic character,⁵³ the SRVR turned to the criminal responsibility of the 8 arraigned persons who all occupied leadership positions within the organisation. The SRVR characterised the FARC-EP as an organisation with a ‘military hierarchical structure, of the bureaucratic type, directed and dominated by it’s comandantes’.⁵⁴ The Chamber emphasised the pivotal role of the Secretariado that de facto took strategic decisions and also coordinated the Bloques ( local departments of the FARC) which were entrusted with the execution of the kidnappings and other crimes. One of the accused had been a permanent member of the Secretariado, while the others were comandantes of the Bloques. In addressing the question whether ‘control over an organization’ would serve as an appropriate concept to hold the accused criminally responsible, the Chamber identified the well-known requirements that had been adopted by the Supreme Court of Colombia, on the authority of Roxin.⁵⁵ Moreover, and especially interesting, the Chamber quoted the case law of the ICC, in particular the Confirmation of the charges Decision of the Pre-Trial Chamber in Katanga as an important precedent.⁵⁶ The FARC was an armed group, hierarchically structured and of an illegal character; the accused had wielded domination over the organisation, by cooperating in the collective organs; the direct perpetrators were exchangeable and could therefore not impede the commission of the crimes and they were ‘favourably disposed’ towards the commission of the crimes. The discussion focused on the fungibility of the direct perpetrators, as the FARC had been structured along entities that were assigned specific tasks, corresponding with the skills of their members. The capture of civilians was outsourced to specific units (comisiones de cuido) which only counted a limited number of guerrilleros who could not be easily replaced if someone of them deflected. As we may recall, the issue also surfaced in the case against Abimael Guzmán and the Shining Path’s leadership. As helpfully explained by Ambos, it depends on the question whether exchangeability should be understood in concreto as the power to replace someone ‘on the spot’, or rather in a more general (abstract) sense that the organisation could rely on sufficient competent persons. The Chamber opted for the latter, by holding that the accused had the authority to select the most competent persons for a specific mission, which practically precluded the failure of the venture.⁵⁷

The limited scope of this essay allows for the discussion of only a couple of cases, but the concept of indirect perpetration through organised structures of power has been often applied by other Latin American courts, especially in Colombia.⁵⁸ The case law demonstrates that courts acknowledge the fitness of the doctrine as an instrument to sustain the criminal responsibility of leaders, also – or perhaps in particular – of those in charge of para-military groups and guerrilla movements. Obviously, the application of the concept to this specific social and political context requires a shift of focus by taking account of particular organisational structures and interaction between leadership and rank-and-file. We have identified two elements in particular that are absent in Roxin’s pristine presentation. For one thing, the fungibility of the direct perpetrators is considered to be predicated on bonds of ideological allegiance. Secondly, the exchangeability of executioners may be jeopardised by the scarcity of skilful executioners. Both aspects are presumably emblematic for non-state groups that lack the infinite resources of a state and cannot count on unquestioned obedience. The crucial question is whether the concept allows for such amendments.

4. Control over an organisation in non-state groups: a realistic option?

In spite of its strong intuitive appeal, the concept of Organisationsherrshaft suffers from a number of internal contradictions that make it sometimes difficult to apply. The cracks in the wall were perhaps already visible when Roxin designed the notion with the paradigmatic case of the Nazi regime in mind, but the renewed interest of – international and domestic – courts and legal doctrine has further revealed its weak spots. The concept has been challenged in two configurations that are – to a certain extent – each other’s mirror image. First, the increasing complexities of modern bureaucratic organisations, in terms of decision making power and competences, raises the question who wields actually full control over the organisation. Secondly, in less rigidly structured non-state groups that depend on loyalty to the member’s ideological cause and specific skills, their ‘fungibility’ may not always be taken for granted. While the emphasis in this contribution is on the second element, the first configuration deserves a brief discussion, because it puts the predicaments of applying the concept of control over an organisation to non-state groups in proper perspective.

Inherent to the concept of Organisationsherrschaft (literally ‘domination over the organisation’) is the assumption that the leader wields absolute control over the apparatus. Ambos has pointed out that this stringent requirement complicates the application of the notion to mid-level perpetrators, because their decisions can always be revoked by the person at the apex of the hierarchy.⁵⁹ The observation undoubtedly makes sense, but modern bureaucracies with diversification of competence and delegation of authority also present the reverse possibility of depriving the (wo)man at the top of the knowledge of the organisation’s machinations and activities. One could certainly not expect the president of such an organisation to ‘oversee the preparation of crimes at different hierarchical levels, and control its performance and execution’.⁶⁰ Such potential vulnerabilities have been partially remedied by ingenious constructions, like the suggestion that the mid-level perpetrator would incur responsibility if he/she has at least control over and uses part of the apparatus,⁶¹ and that the leaders at different levels could act in concert and be qualified as co-perpetrators of indirect perpetration.⁶² However, such amendments undermine the normative power of the concept. If one takes the notion of ‘complete control over the organization’ seriously, the concept may turn out to be inapplicable to both the board of directors and the (mid-level) executive management, because of the prior’s lack of knowledge and the latter’s want of power. Following a number of German court decisions, the possibility of applying the doctrine to business corporations has recently been discussed in legal scholarship.⁶³ A discussion of this interesting idea that probably emerges from the German reluctance to acknowledge criminal liability of corporations, is beyond the scope of this essay. While I do not completely rule out that Roxin’s doctrine can be adapted to accommodate the criminal responsibility of business leaders, it would be prudent to warn against de-naturalization, as it affects the doctrine’s fair-labelling quality.

The phenomenon of complex and opaque organisational structures that potentially impedes a straightforward conclusion who wields full domination over an apparatus and warrants a finding of Organisationsherrschaft as basis for criminal responsibility, is generally not an issue in non-state groups. In this configuration, hierarchical structures are relatively simple and lines of communication considerably shorter. An example in kind are the para-military rebel groups that operate in African countries and challenge regimes in power. Joseph Kony’s Lord’s Resistance Army and Hitler’s regime could hardly be further apart in terms of technical prowess and organisational sophistication. However, Kony succeeded in creating an army, predominantly comprising child soldiers, by means of a devious mixture of strict discipline, threats of severe punishment, intoxication and instilment of awe and veneration for his supra-national powers. He could count on their unquestioned obedience in performing atrocities that required relatively few skills and even if one of them absconded, he could rely on his reserve of ‘willing’ executioners that the job was done. It is telling that the Pre-Trial Chamber in the Katanga-case precisely referred to the example of abducted child soldiers, adding that ‘the highest authority (…) through his control over the organisation, essentially decides whether and how the crime would be committed’.⁶⁴ From a dogmatic point of view, the African situation of para-military groups (ab)using child soldiers can be seamlessly reconciled with the exigencies of those who favour a more stern interpretation of concepts of criminal responsibility. After all, the diminished responsibility of child soldiers corresponds with the original understanding of ‘indirect interpretation’ implying that the Hintermann uses the innocent direct perpetrator as a tool.

The situation becomes more blurry when child soldiers emancipate from their erstwhile subdued status, develop their own ideas and skills and rise in the ranks of the organisation. Dominic Ongwen could no longer be easily replaced by another willing volunteer if he were to refuse service, because he possessed special skills in the realm of combat and organisation. The tables were turned, as he himself could now select from an abundant pool of available persons relying on their obedience in compliance with his orders and confident that the crimes would be committed because of their fungibility.⁶⁵ By acquiring this position, Ongwen had the power to frustrate the commission of the crimes, which made him a key figure in the accomplishment of Kony’s plans.⁶⁶ The Trial Chamber predicated Ongwen’s criminal responsibility on the concept of ‘indirect co-perpetration’, as he had acted jointly with other kingpins of the LRA, wielding full control over the army of dispensable child soldiers and ordering them to commit the crimes. Like some other African cases that were addressed by the ICC, the Ongwen judgment reflects groups dynamics that are probably inherent to more loosely structured non-state organisations. Changing patterns of social interaction and career mobility give an impression of volatility, casting doubt on the certainty of performance that is the hallmark of Organisationsherrschaft. However, the case law of the ICC demonstrates that the application of control over an organisation need not be confined to static bureaucracies. Automatic compliance with orders is the core element of the concept and whoever wields full control over a group of replaceable direct perpetrators qualifies as an indirect perpetrator through an organisation. The means by which such domination is acquired are of secondary importance.

The case law of Latin American courts that have assessed the criminal responsibility of leaders of guerrilla movements reveals yet another social-political context in which ‘control over an organization’ might be a suitable construct to sustain criminal responsibility. Like state organisations, these non-state groups are tightly structured, along hierarchical lines, although they generally lack the former’s division of labour and abundance of professional manpower. This shortcoming in terms of automatic compliance and replaceability is compensated by the members’ ‘positive attitude’ to engage in crimes, in name of their shared ideology. As we noticed before, this element is somewhat equivocal. At first sight, the introduction of ideological affiliation appears to erode the very foundation of the doctrine, because it values personal preferences of direct perpetrators, thus emphasising their freedom to choose. On the other hand, however, one might reason that commitment to an abstract political goal, rather than personal attachment to a charismatic leader, reinforces the uniformity amongst the members and thereby makes their performance more predictable. Arguably, the Latin American situation hovers between the paradigmatic case of a state apparatus with a pool of anonymous ‘cogs in the machine’ and more loosely structured African paramilitary groups in which strict obedience is enforced by means of harsh discipline and indoctrination. Latin American courts have acknowledged that the leaders of guerrilla groups had to resort to other mechanisms in order to secure automatic compliance with their orders, in view of the limited resources (compared to state organisations) and their dealings with relatively autonomous direct perpetrators (compared to African military groups). The sober conclusion that they succeeded in mobilising their members to commit international crimes on a massive scale prima vista proves that they wielded control over their organisation. Whether the doctrine allows for such an extension of its original scope depends (also) on the availability of alternatives to sustain the criminal responsibility of leaders of organisations. In the context of the Latin American situation and case law, ‘co-perpetration’ between leadership and direct perpetrators would be an inappropriate qualification, because the latter lacked the power to frustrate the commission of the crimes. Neither would the common purpose doctrine be an adequate label to portray the interaction between leaders and rank-and-file, as it ignores the former’s predominance in designing and directing the operations. Superior responsibility could serve as fall back option when there is insufficient proof that the accused could blindly trust that his orders were executed, id est without him giving further directions. While the concept of ‘perpetration through an organization’ admittedly is not always a perfect fit, compared with alternatives it adequately reflects the position and responsibility of leaders of Latin American rebel groups, engaging in international crimes.

5. Final reflections

Latin America courts and the ICC have contributed to the revival of the doctrine of indirect perpetration through an organisation (Organisationsherrschaft), in particular in respect of non-state groups. Acknowledging that such groups lack the complex hierarchical structures and surplus of professional manpower of state organisations, they have identified other methods, like strict discipline, indoctrination and ideological affinities, at the disposal of leaders to assure compliance with their orders. National and international courts have thus demonstrated that the doctrine is not a relict of the past that served to capture the working of a delinquent state bureaucracy in factual and normative terms, but can be tailored to less rigidly structured organisations.

The interplay between domestic courts and the ICC which appears from the references to each others’ findings enabled them to discover commonalities and differences in the situations they were seized to address, thus assisting them in further exploring the contours of the doctrine. Indeed, application of the concept by Latin American courts that drew inspiration from Roxin’s original writings and German case law, have preceded the concept’s high profile ‘ breakthrough’ in the jurisprudence of the ICC. In their turn, domestic courts, especially in Colombia have benefited from the insights of (Pre-)Trial Chambers of the ICC. It is submitted that all these courts, by keeping a close eye on the essence of the doctrine, to wit the leader’s capacity to assure (quasi) automatic compliance with orders through his dominance over an organisation, have not exceeded the boundaries of the doctrine, as initially intended by Roxin. Moreover, these legal findings have increased our understanding of the mechanisms and functioning of organisations as vehicles to commit international crimes.

Acknowledgements

The author acknowledges the assistance of his academic friends, Kai Ambos, Alejandro Chehtman and Hector Olásolo.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Harmen van der Wilt

Harmen van der Wilt Former chair of international criminal law, University of Amsterdam. Emeritus professor since 2022.

Notes

1 See for criticism in particular: A.M. Danner and J.S. Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’, California Law Review 93, no. 1 (2005): 75–169. On the failure of JCE-doctrine to distinguish between senior leaders and the rank-and-file, see Juan Pablo Pérez Léon Acevedo, ‘Bringing the Bosses to International Criminal Trials: The Problems with Joint Criminal Enterprise and the “Control over the Crime” Approach As a Better Alternative’, Pace Int’l L. Rev. 32 (Winter 2019): 15-28.

2 Harmen van der Wilt, ‘Joint Criminal Enterprise: Possibilities and Limitations’, Journal of International Criminal Justice 5 (2007): 91–108.

3 Prosecutor v. Thomas Lubanga Dyilo, Trial Judgement, ICC-01/01-01/06, 14 March 2012. For a profound discussion, see Jens David Ohlin, Elies van Sliedregt & Thomas Weigend, ‘Assessing the Control Theory’, Leiden Journal of International Law 26, no.3 (2013): 725-746.

4 Article 25,3, sub a of the Rome Statute reads as follows: ‘In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible’ (italics added).

5 On the reception of Organisationsherrschaft by the International Criminal Court see the article of Thomas Weigend, ‘Perpetration through an Organization; The Unexpected Career of a German Legal Concept’, Journal of International Criminal Justice 9 (2011): 91–111.

6 Roxin had based his theory to a large degree on the paradigmatic case of Eichmann.

7 C. Roxin, ‘Organisationsherrschaft und Tatentschlossenheit’, Zeitschrift für internationale Strafrechtsdogmatik 7 (2006): 293.

8 Weigend, ‘Perpetration through an Organization’, 97.

9 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, ICC-01/04-01/07, 2008: §§ 515-517; Prosecutor v. Germain Katanga, Trial Judgment, ICC-01/04-01/07, 2014: § 1403.

10 Katanga, Confirmation of Charges, note 9: § 484. Judge Van den Wyngaert criticized the outcome of the decision, because the normative elements were not borne out by the evidence. Prosecutor v. Mathieu Ngudjolo Chui, Trial Judgment, ICC-01/04-02/12, 2012, Separate Opinion of Judge Christine Van den Wyngaert: § 62/63.

11 Apart from the contributions already mentioned, I would like to refer to Kai Ambos, ‘Command Responsibility and Organisationsherrschaft: Ways of Attributing International Crimes to “the Most Responsible”’, in System Criminality in International Criminal Law, ed. André Nollkaemper and Harmen van der Wilt (Cambridge: Cambridge University Press, 2009), 127–57; Hector Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals in International Crimes (Portland, Oregon: Hart, 2009); Mark Osiel, Making Sense of Mass Atrocity (Cambridge: Cambridge University Press, 2009); Cassandra Steer, Translating Guilt; Identifying Leadership Liability for Mass Atrocity Crimes (The Hague: TMC Asser Press, 2017); Elies Van Sliedregt, Individual Criminal Responsibility in International Law, (Oxford: Oxford University Press, 2012).

12 Bundesgerichtshof, Judgment of 26 July 1994, Entscheidungen des Bundesgerichtshof in Strafsachen 40 (1994): 228–40.

13 I rely here and in the following passages heavily on a segment of Claus Roxin’s ‘Crimes as Part of Organized Power Structures’, originally published in Goltdammer’s Archiv für Strafrecht, 1963: 193–207 and published in Journal of International Criminal Justice, 9 (2011): 193–205, with an introduction of Gerhard Werle and Boris Burghardt.

14 Roxin, ‘Crimes as Part of Organized Power Structures’, 204.

15 Ibid.

16 Ibid.

17 Osiel, Making Sense of Mass Atrocity, 100.

18 Kai Ambos, ‘The Fujimori Judgment; A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, Journal of International Criminal Justice 9 (2011): 150.

19 Katanga, Confirmation of Charges, note 9: §§ 500–19.

20 Ibid, 501.

21 Ibid, 502. Interestingly, the PTC referred to three Latin American cases, respectively hailing from Peru, Argentina and Chile: Supreme Court of Peru, Case No. 5383-200, 14 December 2007; Federal Appeals Chamber of Argentina (The Juntas Trial), Case No. 13/84, Chapter 7/5; Supreme Court of Chile, Fallos de Mes, año XXXV, noviembre de 1993, 12 November 1993.

22 Ibid, 500, 506–8.

23 Ibid, 506–7.

24 The conclusion that ‘control over an organization’ had not solidified in customary international law was the reason for the ICTY Appeals Chamber to overturn the judgment of the Trial Chamber; ICTY, Prosecutor v. Milomir Stakić, Appeals Judgment, Case No. IT-97-24-A: § 62.

25 Katanga, Confirmation of Charges, note 9: § 518.

26 Ibid.

27 Ibid.

28 Katanga, Trial Chamber Judgment, note 9.

29 Ibid, 1420. Ultimately, the Chamber convicted Katanga on the basis of Article 25 (3), sub d of the Rome Statute (contribution to a group acting with a common purpose to commit international crimes).

30 Ibid, 1410.

31 Ibid.

32 Katanga, Trial Chamber Judgment, note 9: § 1410.

33 Weigend, ‘Perpetration through an Organization’, 107. Pérez Léon Acevedo, note 1: 54, is equally aware of the problem where he writes that ‘Certain concerns may be raised about how a theory originally framed for a very rigid state apparatus with a high level of hierarchical control (Nazi Germany) can work in contexts such as non-international armed conflicts in Africa with non-state actors where such “mechanization” seems to be weaker and the structures of power are more informal.’

34 H. G. van der Wilt, ‘The Continuous Quest for Proper Modes of Criminal Responsibility’, Journal of International Criminal Justice 7 (2009): 312.

35 See, inter alia, Prosecutor v. Omar Hassan Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Al-Bashir, Pre-Trial Chamber I, ICC-02/05-01/09, 4 March 2009: §§ 213-216; Prosecutor v. Francis Kirimi Muthaura, Uhuru Mulgai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges, Pre Trial Chamber, ICC-01/09-02/11-Red.., 23 January 2012: § 292; Situation in the Libyan Arab Jamahirya, Decision on the Prosecutor’s Application pursuant to Article 58 as to Muammar Mohammed Aby Minyar Gaddaffi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Pre Trial Chamber I, ICC -01/11-01/11-1, 27 June 2011: §§ 69–85. For a useful discussion of some of these cases, see Giulia Lanza, Indirect Perpetration and Organisationsherrshaftslehre; An Analysis of Art. 25(3) of the Rome Statute in Light of the German Differentiated and Italian Unitarian Models of Participation in Crime (Berlin: Duncker & Humblot, 2021), 96–107.

36 Prosecutor v. Ntaganda, Judgment, Trial Chamber, No. ICC-01/04-02/06, 8 July 2019: § 813.

37 Ntaganda, note 36: § 816.

38 Ibid, 819, italics added.

39 J.M. Rodriguez Devesa and A. Serrano Gomez, Derecho Penal Espanol, Parte General, (Madrid: Dykinson, 1994), 800 : ‘(La autoría mediata) es autor el que se vale de otra persona como mero instrumento para executar el hecho’.

40 In the famous Chilean case of the killing of Salvador Allende’s minister of foreign affairs, Orlando Letelier, the responsibility of General Contreras who had masterminded the assault, could not be directly predicated on his prominent position in the Chilean secret service DINA, using that organization as a tool, because the immediate perpetrator was fully responsible himself. The Chilean Penal Code of 1874 (article 15) only acknowledged indirect perpetration when the direct perpetrator had been exposed to duress. Compare Kai Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part (Oxford: Oxford University Press, 2013), 116; Francisco Muñoz-Conde and Héctor Olásolo, ‘The Application of the Notion of Indirect Perpetration through Organized Structures of Power in Latin America and Spain’, Journal of International Criminal Justice 9 (2011): 121/122.

41 A classic scholarly work on the nature and motives of these regimes is: G. O’Donnell, Modernization and Bureaucratic Authoritarianism: Studies in South American Politics, (Berkeley, C.A.: Institute for International Studies, 1973).

42 See Muñoz-Conde and Olásolo, ‘The Application of the Notion of Indirect Perpetration’, 116/117 and, in more detail, Olásolo, The Criminal Responsibility of Senior Political and Military Leaders, 128/129.

43 Muñoz-Conde and Olásolo, ‘The Application of the Notion of Indirect Perpetration’, 117.

44 Muñoz-Conde and Olásolo, ‘The Application of the Notion of Indirect Perpetration’, 117/118 with other examples of later practice in which courts kept struggling with the concept of indirect perpetration through organized structures of power. As a matter of fact, Muñoz-Conde and Olásolo give an abbreviated and slightly distorted reflection of the findings of the Argentinean Courts. Both the Federal Court and the Supreme Court acknowledged the value of Roxin’s theory for the situation under scrutiny, but revealed an incomplete understanding of the concept. The Federal Court explicitly used the qualification ‘ autor mediato’, but in fact treated the accused as necessary participants. The Majority of the Supreme Court changed the mode of liability into ‘necessary participation’, but thus perpetuated the Federal Court’s depiction of the accused as ‘mere accessories’. Both courts did not fully grasp the scope of Organisationsherrshaft as a basis for responsibility as a perpetrator and its compatibility with Argentinean criminal law. See for a discussion of this confusion, Marcelo A. Sancinetti, Los Derechos Humanos en la Argentina post-dictatorial (Buenos Aires: Lerner, 1988), 26–30. I am indebted to my friend Prof. Dr. Alejandro Chehtman, and an anonymous reviewer for drawing my attention to this complex issue.

45 CSJ (Corte Suprema de Justicia), Sala Penal Especial, judgment of 7 April 2009, Exp. No. AV 19-2001. For an overview of the background of the case and a seminal legal analysis, see Ambos, ‘The Fujimori Judgment’.

46 CSJ, note 45: § 731. For the original confirmation of the possibility of a chain of ‘perpetrators behind the perpetrator’ (Tätern hinter dem Täter), see Claus Roxin, Täterschaft und Tatherrschaft, Sechste Auflage (Berlin/New York: Walter de Gruyter, 1994), 248.

47 For a critical discussion, see Ambos, ‘The Fujimori Judgment’, 152.

48 CSJ, note 45: §§ 726–7.

49 I draw this background information from the article by Muñoz-Conde and Olásolo, ‘The Application of the Notion of Indirect Perpetration’, 128.

50 Judgment of the Peruvian National Penal Chamber, 13 October 2006, Case No. 560-03; confirmed by the Peruvian Supreme Court, Penal Chamber, 14 December 2007, Case No. 5385.

51 For a critical discussion of this approach, see Muñoz-Conde and Olasolo, ‘The Application of the Notion of Indirect Perpetration’, 130. Compare also Dino Carlos Caro Coria, ‘Prosecuting International Crimes in Peru’, International Criminal Law Review 10 (2010): 598–9, who correctly observes that the large membership of Shining Path did not necessarily imply that the direct perpetrators were expandable.

52 Sala de Reconocimiento de Verdad, Responsabilidad y de la Determinación de los Hechos y Conductas de la Jurisdición Especial de la Paz, 26 January 2021 (hereafter : SRVR). The institute is established in order to conduct pre-procedures, involving truth-finding, legal qualifications of crimes and identification of responsibility, with a view to excluding especially serious (international) crimes from the ambit of amnesties. For an extensive analysis of the nature of the SRVR, the procedure and its findings in the case under scrutiny, see Kai Ambos and Milena Schellenberger, Primera Imputación en la JEP: toma de rehenas y otras privaciones graves de la Libertad, cometidas por las FARC-EP, CAPAZ (Instituto Colombo-Alema por la Paz), Policy Brief, 10-2021.

53 The SRVR explicitly referred to the Rome Statute, particularly mentioning Art. 7(1), sub e (Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law) and art. 8(2) c, sub 3 (Taking hostages as a serious violation of Common Article 3 to the Geneva Conventions); SRVR, note 52: §§ 718, 749.

54 SRVR, note 52, § 113.

55 Corte Suprema de Justicia, 22 May 2013, No. 40830: § 14.

56 SRVR, note 52: §§ 782–4.

57 SRVR, note 52: § 771. Concurring with the conclusion, Ambos and Schellenberger, Primera Imputación en la JEP, 11, although they censure the shallow discussion of the evidence that was advanced to sustain the point.

58 See, for instance, Corte Suprema de Justicia, Sala Penal. Sentencia de 12 de Febrero de 2014. Radicado 40.214 ; Corte Suprema de Justicia, Sala Penal. Sentencia de 02 de Septiembre de 2009. Radicado 29.221.

59 Ambos, ‘The Fujimori Judgment’, 152.

60 Katanga, Judgment, 1412.

61 Ibid, 1411; Ambos, ‘The Fujimori Judgment’, 152.

62 Katanga, Confirmation of Charges, 524–6.

63 See, for instance, Carolin Urban, Mittelbare Täterschaft kraft Organisationsherrschaft; Eine Studie zur Konzeption und Anwendbarkeit, insbesondere im Hinblick auf Wirschaftsunternehmen (Universität Osnabrück, 2019).

64 Katanga, Confirmation of Charges, 518. Emphasis added.

65 Prosecutor v. Dominic Ongwen, Trial Chamber Judgment, ICC-02/04-01/15, 4 February 2021: § 2914.

66 Ibid, 2915–8.