Beijing Law Review
2013. Vol.4, No.4, 129-136
Published Online December 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.44016
Open Access 129
Group-Based Imputation and the International Criminal Law
Discourse. Individuals and Associations
as International Criminal Wrongdoers*
Charis Papacharalambous
Law Department, University of Cyprus, Nicosia, Cyprus
Received July 24th, 2013; revised August 26th, 2013; accepted September 23rd, 2013
Copyright © 2013 Charis Papacharalambous. This is an open access article distributed under the Creative
Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium,
provided the original work is properly cited.
Collective agency is resurfacing within International Criminal Law (ICL) discourse; its genealogical
traces can be found in socio-legal contexts like in systemic theories of liability, victimization-centered
approaches and criminal policy models transforming traditional criminal law provisions into “combat
norms”. At the intersection between moral theories and law discourse, one can also trace as similar traits
the discussions on the relations between corporations’ and purely collective patterns of imputation,
whereby selflessness is the main normative characteristic of the wrongdoer. At the level of criminal law,
theorizing collective guilt can be made thematic through the methodological turn towards collectivism,
the promotion of an aggregate knowledge model as appropriate liability form and the normative orienta-
tion towards the criterion of concerted action as individually imputable collective wrong. The qualified
forms of co-perpetration within ICL discourse (like the “Joint Criminal Enterprise”, the “Organized
Structures of Power” or the “Joint Control of Crime”) are then considered as slippery and ethnocentric
hermeneutic tools for translating collective imputation into legal linguistics. Thereby recent developments
in the jurisdiction of the International Criminal Court as well as in this of the newer internationalized
courts are accordingly analyzed.
Keywords: International Criminal Law; Collective Guilt; Collective Agents; Co-Perpetration
Introduction
Collective agency is gaining ground since the end of last
century in the framework of criminal law discourse. Interna-
tional Criminal Law (henceforth: ICL) seems very prone to
following these developments. Before coming to terms with the
spirit of the developments inherent in the ICL doctrine, taken as
an autonomous epistemic field itself, I first refer back to the
wider and more fundamental discursive environment; out of
this can then emerge the contours of a type of genealogy of an
ICL-related collective agency.
Socio-Legal Background Theorizing
We can trace the modern origins of collective agency in a
field I would like to name “Socio-legal” i.e. where doctrinal
solipsism is immersed in the Societal and emerges out of it in
an altogether hybrid but at the same time productive form. I
would mention three instances in this field:
1) Systemic theories of liability: especially concerning
criminal law, discussions turn from classical personal culpabil-
ity towards failures or wrongs in accomplishing social “roles”.
Thereby penalization figures as counterfactually securing so-
cietal normative expectations (e.g.: Jakobs, 1997, passim). Sys-
temic theory in criminal law is one of many reactions against
the traditional ideal type of the person to be criminally imputed
as long as it is a socially “unencumbered autonomous monad”,
a conception already exposed to sharp critique also from a
“critical-realist” standpoint (Norrie, 2000, passim). Systemic
theory can be thus presented as the culmination of normativiza-
tion in matters of imputing or blaming judgments.
2) Emphasizing victimization in new criminal law contexts,
like organized crime, money laundering or terrorism. The bor-
derline between personal guilt and guilt by association is
blurred through this expansion of victimization; on the other
hand this trend turns to be productive in fields like human traf-
ficking in the sense that it is revealed as a “state crime” insofar
as the state tolerates or under-reacts and thus indirectly contrib-
utes to it through omission.
*Enlarged and further elaborated version of a paper presented at the “Sum-
mit on Critical Approaches to International Criminal Law” at the Univer-
sity of Liverpool and under its auspices on 7.12.2012. I would like to thank
the participants of the Conference for their remarks and suggestions. Spe-
cial thanks to my friend and colleague Thomas Skouteris, Associate profes-
sor at the Law Dept. of the American University in Cairo for his invitation
to the Conference and the fruitful discussions on the subject. I am also
grateful to my then assistant researcher Ms. Natassa Aplikiotou for having
gathered and duly classified a big amount of recent ICL Court Judgments.
3) Criminal policy models: where no normal criminals are to
be punished but rather societal systems to be dealt with, the
deviants become enemies, and insofar non-persons, who are to
be confronted through “combat norms” (e.g.: Jakobs, 2004,
passim; Jakobs, 2006, passim; Papacharalambous, 2007, pas-
sim). This instance can be labeled as “securitization” trend in

C. PAPACHARALAMBOUS
the field.
Philosophy of Morals and Law Discourse
This time I shall proceed the other way around, that is not in
a “bottom-up” schema (from society to legal codes) but in a
“top-down” one (that is from moral theory to law). The dis-
cussion here revolves around the question: Are there collective
agents? According to a recent revival of the respective discus-
sion, there are such agents, namely as culmination in a climax
beginning with amorphous collections of individuals, followed
by more or less unified groups, within which one can discern
group agents if the collective activity is intentional, especially
jointly so and based on binary attitudes (List & Pettit, 2011:
31-41). These collective agents are epistemologically autono-
mous units, i.e. non-reducible to the minds and deeds of their
individual members. They function thus as an in-between figure
apart from either a mystifying “emergentism” according e.g. to
the organicist paradigm or from an “eliminativist” stance, based
on the tradition of economics and analytical philosophy, and
holding group entities either as fictions (useful according to
utilitarian criteria and suitable to the nominalist approach as to
the nature of universals) or otherwise as mere non-sense (List &
Pettit, 2011: 73-78). Even so, group agents are, if their robust-
ness should be guaranteed, powerful in the first place; they are
powerful, that is, irrespective of whether they are illegal or not.
This means that individuals can exert only a weak and indirect
control wherever a group agent arises (List & Pettit, 2011:
129-150). More than that: members of a group can deploy a
positive “we”—identification form by extinguishing their liter-
ally individual preferences in favor of the group identity (“col-
lective amour proper”). This is the point where the possibility
of international crimes begins to take shape (List & Pettit, 2011:
193-195,197). An illuminating example displays in this regard
the Australian legislative attempt to establish corporations’
criminal liability for their involvement in contexts of interna-
tional crimes occasioned mainly by motives of economic profit
(see respectively Kyriakakis, 2007, passim and especially at
823-826). From the standpoint of “normative individualism”
the aforementioned are reasons why, notwithstanding the rec-
ognition of group agents, the latter should not be given equal
standing as well as why they have to be especially checked
(List & Pettit, 2011: 174-185).
Now, according to the above, the responsibility is corporate
but still not collective. The latter may be intelligible though,
wherever larger-looser groupings (religious congregations,
nations, neighborhoods) omit to respect the law by at least al-
lowing a group agent to become a spokesbody for themselves.
That the latter exerts a dictatorial power over the social whole
is a result they have or may have foreseen and accepted, at least
insofar as one should hold that even if identity precedes ration-
ality this identity should nevertheless remain individual without
exceptions because only so can the collective deed be person-
ally imputed. Punitively reacting against the grouping is coher-
ent at least from the viewpoint of a “developmental regulation”
of its behavior (List & Pettit, 2011: 158-169,198-199). This
means that the reaction should serve the purpose of not allow-
ing the deed to happen again, in criminal law terminology: it
should occur for reasons of general prevention (positive or
negative). A crucial question as to this, which cannot be han-
dled here in details, is whether ascription of guilt precedes the
sanction or the latter perhaps over-determines the guilt. Ac-
cording to the answer to this question the legitimization of the
whole functional-systemic understanding of criminal law may
stand or fall (cf. indicatively the critique on “normativist fal-
lacy” of criminal law functionalism expressed by Schünemann,
1984: 58-60).
These new insights in group action have pervaded not only
ICL but traditional complicity doctrine as well by making mens
rea requirements “thinner”. By transforming the mental element
into a rather functional parameter, modern criminal law dis-
patches the accomplice’s liability from the principal’s. This is
the case at least insofar as the volitional part of the former’s
mental element is not required in order for his/her mens rea to
be established (the case of the “alienated accomplice”) and as
the requirement of qualified intent of the accomplice regarding
the aim of the principal is also about to be abandoned letting
recklessness suffice (the case of the “knowing but indifferent
facilitator”1). In this framework accomplice liability tends to
become more inchoate than in the past (cf. the partly critical
approach of Kutz, 2011: 161-165).
On the other hand we have to be aware of the fact that the
acknowledgment of autonomous collective agents which can be
morally held blameworthy exclusively on a collective basis,
may, instead of increasing, as it would seem at first glance, let
penal austerity towards collective wrongdoing rather decrease,
because collective guilt is considered as non-distributive (Isaacs,
2011: 23-93). In the course of such a reasoning even member-
ship responsibility is not collective; further, individuals impli-
cated in collective organizations are accountable not for the
collective act but individually as having acted in a collective
frame, even if they are leaders; this is the more so, i.e. the basis
of moral imputation remains the more individual, the more the
involvement refers rather to goal-oriented groups than to or-
ganizations more or less structured (Isaacs, 2011: 97-129). The
link to collectivities becomes, the argument goes, weaker in
mere collective contexts or cultural patterns, where wrong is
socially ignored as long as it is widely tolerated; there, one can
speak only of individually based moral responsibility, address-
able through education and demands for social change (Isaacs,
2011: 130-174). Blameworthy contributions to serious forms of
delinquency seem though to contradict this lessening of “jus
puniendi”: is the client of sexual services merely morally-indi-
vidually responsible as acting in an immoral social pattern?
Isn’t he to be considered as part of the trafficking scene? As the
argument goes, collectively indicated moral responsibility can-
not be translated in criminal participation at the organized
crime of trafficking. Is the Swedish legislator then ill-reacting
by punishing such conduct?
At a fundamental level of moral analysis, collective guilt
cannot be denied on the grounds of relativism engendered by
the so called “moral luck” problem. Whatever reasons can be
invoked against the detachment of condemnation even from
contingencies deemed as crucial, no one harmed can be denied
the expectation of receiving an apology for the harm suffered
from the part of the harming community member (beyond and
before any specific form of judgment): guilt for belonging to
the evil collective is pre-reflexive (Cooper, 2001: 211-214). The
collective guilt issue can principally be analytically also sepa-
1Whereby also the problematic of “neutral acts” and socially congruent
roles reemerges: e.g., the gun seller or the professionals in the organized
crime or money laundering scene tend to become accomplices due to their
mere cognizance or even suspicion of their clients’ ultimate criminal aims,
although they may exert their roles legally.
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C. PAPACHARALAMBOUS
rated from the question about the collective nature of the pro-
tected interest: even if the variety of natural species cannot be
proposed as such interest, even if under “group interests” can-
not be assumed but interests which are fundamental but simul-
taneously still personal, there is sense in discerning collective
forms of liability from individual ones, for they qualitatively
increase the wrongfulness of the misdeeds (Zanetti, 2010, pas-
sim).
Support for broadening the scope of liable persons comes
also from utilization of ethical philosophy in an unmediated
manner, even if this is not tantamount to holding that the guilt
is primarily or basically collective. An example is the interpre-
tation of Australian case-law on torts on the grounds of the
Levinasian ethics: “proximity” may thus become the conceptual
lever driving to an utmost extension of liability (Manderson,
2006, passim). Whether this can apply also in criminal matters,
is though something very much contentious.
Criminal Law Theory
“Plural subjects” are in moral theory conceivable but this
alone entails still nothing concerning the legal liability of their
members, even when they are temporally concurrent to the
misdeeds of the group (Gilbert, 2010, passim and especially
55-64). Worse than that: collective agency may imply collec-
tive exculpation, which legitimizes impunity if it excludes indi-
viduation of the process of imputing criminal liability, e.g. by
granting excuse of lethal acts for soldiers participating in a war
of aggression (Rodin, 2010, passim and especially 230-238). To
translate as criminal a moral collective responsibility one has to
accept a “methodological collectivism” even if one is not ready
to accept an “ontological” one: then, one is not excluding
criminal liability of collectives, nor is reducing it to individual
liability, but is imputing collective liability individually and if
needed preemptively (Gerber, 2010, passim and especially
68-69,72-73,79-85,89-91; on the non-ontology of group agents,
see also Gilbert, 2001: 229-231). “Methodological individual-
ism” seems, at any rate, pre-modern and normatively feeble,
ignoring that even individual imputation remains socially con-
structed: insistence on it may illegitimately exonerate and
“naturalize” responsibility (Korenjak, Ungericht, & Raith, 2010,
passim). Compatible with this approach is e.g. the focus on the
violation of “integrity” standards viewed under their social,
moral and epistemic aspect for imputing collective moral re-
sponsibility for omissions; this is deemed to avoid distributive
models of individually ascribing collective responsibility and to
integrate relational parameters (modes and forms of complicity)
into the concept (Schweikard, 2010, passim and especially
116-119,129,132-133).
Holding that the collective guilt thesis is an absurdity, is not
that obvious any longer; it is to be henceforth considered as an
object of legal history rather (cf. e.g. Rothenpieler 1982, passim,
especially 278 et seq.). However, the declaration of Nazi or-
ganizations as criminal still did not exclude but on the contrary
required the personal culpability of the members; membership
alone did not suffice; insofar the case was one of an expanded
individual liability (Vest, 2010: 329-330).
Purely collective is the criminal liability when the associa-
tion bears it as such. Opposite to this, the association’s liability
is not original but derivative , when it is imputed to it through
the personal liability of another, who may be either the low
ranking employee whose conduct is vicariously transferred to
higher ranking directing persons (this is the US “respondeat
superior” model) or directly the mind of the corporation irre-
spective of the corporation’s “hands” conduct: this is the Brit-
ish “identification doctrine”, meaning that the corporation is
identified at the manager’s person. Different from all these
forms would be a purely strict liability model: it would be ori-
ented at the endangerment displayed by the association and
proceed to conviction without serious evidential problems. The
normative problem there would be how to harmonize interna-
tional criminal law, i.e. the arch-crimes, to a liability form dis-
pensing totally with the mens rea requirement. Can we have
collective wrong without collective guilt? Further: what kind of
evil would this be, if we still need that notion? Is collective
entity to be dealt with as “natural” evil, something like a storm
or a flood? Closer to international criminal blameworthiness
seems then only the “aggregate knowledge model” as to corpo-
ration liability: the liability is not derivative (the entity is cul-
pable) and also not strict (the natural persons are jointly reck-
less). There is always a concerted action with regard to interna-
tional crimes, implied e.g. in the contextual elements of the
crimes against humanity or of genocide, irrespective of whether
they are objective or subjective in nature (Vest, 2010: 334-342).
Macro-criminality transforms indeed through the organized
form of planning and conduct a simple murder to crime against
humanity. In this sense “personal wrongdoing” does not any
more mean “individual wrongdoing” but rather entity’s culpa-
bility which renders the “societas delinquere non potest”—
principle all the more obsolete (see on this Militello, 2010,
523-530; see also from the newest ICL jurisdictions e.g.: East
Timor-Special Panel for Serious Crimes, Prosecutor v. Agustin-
ho Atolan alias “Quelo Mauno”, at page 5
2). At the level of
national jurisdictions it is true that the British 2007 Corporate
Homicide Act features as a good example of “corporate crime”
in displaying dimensions of holistic-aggregative responsibility
of sorts by focusing on management as common activity pattern
adding particular breaches of tort law-based duties of care,
grossly perpetrated (see e.g. Herring, 2008: 758-759,762-764).
On the other hand, “corporate killings” are considered by
many as rather “regulatory offences”. Even those affirming this
form of homicide and thus proposing its separate provision as
special homicide offence do stress the distinction to mens rea-
based killings, intentional, reckless or even negligent ones
(Clarkson, 2000: 151-153). But, again: the element of “con-
cert” finds its limit where a de-personalization of guilt begins,
where what is imputed is a “natural” or “structural” evil. There
is no “concert” without personal contribution. Even if interna-
tional crimes are committed by ordinary people in extraordinary
times (whereas normally a crime is held as committed by “ex-
traordinary” people acting in “ordinary” times), one is not to
blame for the times but for the act done. Insofar the individual-
ist (and as to international relations cosmopolitan-liberal) as-
sumption that the international criminal is an evildoer, worthy
2As the text at the end of this page goes: “A single act of murder, if it is a
p
ortion of a wider plan of aggression against civilian population, is quali-
f
ied a crime against humanity and deserves a more severe treatment be-
cause, amongst other reasons, the participants to the plan, granting them-
selves, explicitly or not, mutual support and trust and shelter,
s
eal a bargain
which strengthen their capacity to strike and to gain impunity. In these
conditions the single individual looses or weakens his sense of responsibility
of self-accountability, becoming a part of an organization whose goals
transcend the wills and the strengths of the members.
A
nd in the crime
outlined in the charge these features occur,
s
ince the gathering and the
p
lanning of killings, wreckage and disruption on an unidentified and indis-
tinct mass of potential victims is the setting in which the murder is located”
(emphasis added).
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C. PAPACHARALAMBOUS
to be blamed as “moral monster” remains still valid, epistemo-
logically at least if not ontologically, but of course at the back-
stage somehow within legal theorizing on international crimes,
namely as a heuristic label of concretizing collective evil (cf.
partly differently Ainley, 2008, passim; on the difference be-
tween evil and risk as prohibiting strict liability in ICL, see also
Papacharalambous, 2011: 99).
The concrete appearance of collective evil may be thus inter-
preted as de-personalization of the agential self of the criminal,
his/her chosen selflessness, so that evil may be unleashed
without individual competence for the sake of getting (mainly
and primarily sadistic) satisfaction as a sub-human. Insofar
collective evil is not “taking place” but is done, i.e. the decision
to become non-agential remains a fully-fledged agential choice
(so rightly Vetlesen, 2008: 66-67,71,82-84).
What seems to be out of question in case of a collective guilt
approach (even if it is not conceived of as pure but rather as
based on a “shared intentions” model) is that there is no place
for a separate accomplice’s mens rea: whoever knows of and
approves the context is held as willing the result. The co-per-
petrator needs e.g. not share the ulterior genocidal intent, it
suffices if he/she knows that the planners have it (May, 2010:
350-364,370). Despite the fact that lesser forms of complicity
may attenuate the sanction in the sentencing stage, they can
principally nonetheless be also linked to the crime if only reck-
lessness or grave negligence is established (May, 2010: 366-367).
An issue quite different (and for itself enormously demand-
ing) is, on the other hand, this concerning the nature of a col-
lective-based criminal sanction.
Collective guilt should from the very start be discerned from
any retaliatory imposition of pain on groups deemed as ab-
stractly hostile. No notion of criminal responsibility is thereby
required, not even in the form of “joint venture” of any kind. In
such cases we are facing the crime of “collective punishment”,
already envisaged as mainly a war crime, laid down as such in
various international legal texts, as for example the Statutes of
ICTR, ICC or the Special Court for Sierra Leone [henceforth:
SCSL] (see indicatively Werle, 2009: 404-405).
What is, though, further at stake is especially whether such
sanction should be something more than safety measures or
“naming and shaming” procedures. Here is the materialization
of criminal liability of states squarely placed (Vest, 2010: 342-
325). If military action against a delinquent state can be consi-
dered as such sanction, one is almost continually confronted
with the possibility of blatantly accepting rough distribution of
collective guilt to individuals, at least to some degree (Erskine,
2010: 254-271). An analogous context is the following: What
about actions not overtly military and based on international
law? How is for example the internationally “legal” condemna-
tion to death of hundreds of Iraqi children occasioned by the
UN embargo resolutions in the 90’ ties to be judged? May the
UN be conceivable as criminal “world”-state? (See, on the
terrifying effects of the Iraqi embargo and its tremendous nor-
mative questions it poses, Veitch, 2007: 12-19).
ICL Discourse; The Patterns
In the framework of ICL the collectivization of criminal guilt
has been partly digested, that is lower than the level of state or
other multi-state international agents but almost entirely at the
level of other group-based actions. Mainly criminal participa-
tion and especially co-perpetration have become respectively
thematic. As up to now we can discern 4 forms of qualified
co-perpetration in ICL (Olásolo, 2010, passim, especially 153
et seq.; Van Sliedregt, 2012: 131-147, Papacharalambous, 2011,
91-94):
1) The “Joint Criminal Enterprise” (“JCE”) model, in the
framework of which the defendant becomes primary perpetrator
according to the unitary model. There has been a clear ICTY
and ICTR jurisdiction in favor of JCE after 2003 ICTY Appeals
Judgment on JCE (Ojdanić). In sum, collective wrong notions
span from members’ responsibility as of them having being
cogs in the machinery (JCE II type/“institutionalized” respon-
sibility form) up to members’ responsibility as of the fact that
they should have known the possibility of the excesses of oth-
ers (JCE III type/“collateral” responsibility form) and whereby
the volitional constituent of intent turns almost redundant,
recklessness and negligence are blurred, actus reus becomes
“thin” as long as it is mainly subjectively based, and guilt is
reduced to strict liability despite the grievous nature of interna-
tional crimes which makes them candidates par excellence for a
mens rea requirement (Werle, 2009: 172-176). After the Brđanin
Appeals Judgment became clear that principals needed not to be
part of the JCE, strictly speaking, that JCE were applicable in
all cases irrespective to how “large” they might be, and that no
specific agreement with the executioners was required; in this
context the guarantee that JCE remains distinct from an “open-
ended”, association-based guilt pattern or that the contribution
of the defendant had to be “significant”, even if not substantial
(!), can hardly hold as legally lucid solutions (cf. Gaynor &
Goy, 2007: 1179-1182). So, it was not surprising that also fi-
nancing of international crimes could be regarded as one more
form of JCE (Piacente, 2004, passim, and at 453-454).
Questions arising out of all this may be such like the follow-
ing: Is this not some kind of revival of the “Jamashita” syn-
drome, extending now participation beyond the confinements of
“command responsibility”? More generally: does not a norma-
tive model overturn here fully any notion of naturalistic “com-
mission”? As a last doctrinal resort may perhaps serve here the
civil law of “actio libera in causa” (a. l. i. c.), of which the
common law equivalent is the so called “Dutch courage cases
model”. JCE, especially this of the 3rd form, can then be con-
ceived of as a sophisticated form of the “versari in re illicita”
principle, introducing an anticipative temporality as to culpabil-
ity, a guilt in a “pluperfect tense” in the course of a clearly anti-
naturalistic, normative model of imputation for collective
crimes (see especially on this: Papacharalambous, 2011: 95-
101; Rodin, 2010: 2263).
More or less recently issued ICL judgments either:
a) recur to participation (aiding, abetting, planning etc.) un-
derlining the frequent appearance of evidential hurdles in ac-
cepting collective guilt forms of liability (SCSL, Prosecutor v.
Ch. Taylor, at pars. 142-4,145 et seq. [168], 169 et seq. [177];
SCSL, Prosecutor v. Fofana and Kondewa, Appeals Chamber,
for example at pars. 112, 154 and at paragraph 31 of the partly
dissenting opinion of Justice R. Winter; East Timor-Special
Panel for Serious Crimes, Prosecutor v. Pe reira, at pp. 19-20,
against which Judge Phillip Rapoza expressed his dissenting
opinion in favor of JCE by lowering the requirements as to the
explicit character of the common agreement and to the proof of
qualified intent as well: ibid, Separate Opinion of Judge Phillip
Rapoza, at pars. 25, 27, 30) or
3The link can thus be made with the “chosen selflessness” thesis, referred to
in the previous subchapter.
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C. PAPACHARALAMBOUS
b) sporadically set JCE closer to traditional complicity (e.g.
dissenting opinion of Judge B. M. Itoe in: SCSL, Prosecutor v.
Fofana and Kondewa, Trial Chamber I, at pars. 73-75,132; East
Timor-Special Panel for Serious Crimes, Prosecutor v. Jose
Cardoso, at pars. 367-376 and at 460-462: accessorial liability
and co-perpetration of a militia commander, as to the rest a mem-
ber of a JCE, for the rape of a victim committed by others) or
c) contrary to the above remain with or return in a full-blown
form of acceptance of JCE (SCSL, Prosecutor v. Sesay, Kallon
& Gbao, Trial Chamber I, passim, whereby, regarding espe-
cially the 3rd accused, JCE was assumed on the basis of his
ideological contribution to the collective purpose, an argument,
which caused a strong dissenting opinion of Justice Pierre
Boutet, ibid, at pp. 689-694, among others concluding that
through this expansive interpretation of JCE the defendant,
apart from his guilt as to some aiding and abetting, has not
adequately received notice of the JCE-charges against him; this
last argument found resonance at the Appellate Court in that
“ideology” was not accepted as sufficient in itself; however, the
Court affirmed JCE as to the rest, i.e. concerning other con-
stituents of it or the other 2 defendants, with the exception of
one crime from JCE as to all three: SCSL, Prosecutor v. Sesay,
Kallon & Gbao, Appeals Chamber, passim and at pars. 173-182,
304-305,4554; Extraordinary Chambers in the Courts of Cam-
bodia [henceforth: ECCC], Prosecutor v. Kaing Guek Eav alias
“Duch”, pars. 487-516, where the Court finds that a JCE II
form was to be imputed to the accused5, whereas also his ac-
cessorial liability has been confirmed (pars. 532-537); East
Timor-Special Panel for Serious Crimes, Deputy Prosecutor
General v. Barros & Mendonca, pars. 123-1436; East Timor-
Special Panel for Serious Crimes, Prosecutor v. Salvador
Soares, pars. 187-189). Acceptance of JCE emerges implicitly
also in cases of recourse to traditional co-perpetration, whereby
liability for crimes committed by others is imputed to a member
of a group, who beyond being simply present on the spot takes
actively part in the atrocity (East Timor-Special Panel for Seri-
ous Crimes, Prosecutor v. Martins & Goncalves, at p. 147).
And, of course, naturalistically conceivable contributions do
not do more than merely stress the JCE-like responsibility.
Main recent precedent on this constellation is a case of exerting
during a siege maneuver a crucial role (by holding a gun) in
enhancing the criminal results, which has been considered as
part of a conduct subsumed under article 14.3(d) of UNTAET
Regulation 2000/15, which is identical to article 25(3)(d) ICC-
St. (East Timor-Special Panel for Serious Crimes, Prosecutor v.
Joseph Leki, at p. 8).
2) The “Joint Control of Crime” model (“JCC”), meaning
co-commission or at least functional if not real-natural control
over the crime; this is mainly the case with the leaders’ liability,
which fact does not preclude the possibility of participation in
the technical sense (accessorial liability). In this sense, a pre-
paratory act committed by the leader can make him/her primary
perpetrator, whereas an encouragement from his/her part to-
wards the executioners during the atrocity may still be a case of
abetting. Primarily these are cases of horizontal co-operation
among the wrongdoers (ICC, Lubanga, Decision on the Con-
firmation of Charges, pars. 342-367, and as to the actus reus of
the accused: pars. 372,376,378-379,383,396-398; analogously:
ICC, Prosecutor v. Lubanga, Trial Chamber, pars. 976-988,994,
997,999,1003-1006: joint perpetrator liability based on art.
25(3)(a) ICC-St. as to the actus reus, therefore qualified, “es-
sential”, contribution is required in comparison to accessories’,
“substantial”, one; East Timor-Special Panel for Serious
Crimes, Deputy Prosecutor General v. Metan, paragraph 14 in
fine: “joint perpetration” based on article 14.3(a) of UNTAET
Regulation 2000/15, which is identical to article 25(3)(a)
ICC-St.; the same is also assumed in East Timor-Special Panel
for Serious Crimes, Prosecutor v. Tilman, paragraph 47;
Prosecutor v. Da Costa Nunes, pars. 62-63; Prosecutor v. João
Sarmento, pars. 81-82, as well as, together with aiding and
abetting concerning other victims, in Deputy Prosecutor Gen-
eral v. Francisco Pedro, pars. 11,14).
Through the “control-test” the traditional “but for-test” of the
domestic criminal law is reemerging: crucial is that the crime to
be jointly committed could be frustrated if someone withdraws
himself from it; the flip side of this is that co-perpetrator can be
only someone rendering an essential contribution to the crime.
This means as to the mental element that mere foreseeability of
an excess will not suffice; it also means that all participants
should share the mens rea level required for the respective
crime. All these peculiarities dissociate the JCC from the JCE
model, i.e. the ICC jurisprudence from the one followed by the
ad hoc Tribunals (Werle, 2009: 176-178; a summary general
overview of art. 25 ICC-St. see also in Werle, 2007, passim).
The ongoing acceptance of JCC is a symptom of a return to
accessorial liability, even if only for the sake of differentiations
in the judgments concerning sentencing (Werle und Burghardt,
2010: 850-853); besides, it is better serving the avoidance of
vagueness in statutorily exactly describing the participatory
actus reus (Militello, 2010: 526-527), without of course over-
coming the tension in accomplices’ liability between the need
for restriction and its inherent trend to expansion, a feature only
magnified in the case of ICL (Dubber, 2007: 1001).
4Cf. though ibid. the devastating critique to the majority’s judgment exerted
by Justice Shireen Avis Fisher in pars. 1-46 of her dissenting opinion as to
the 3rd accused: the judgment is accused of circularity, conflation of differ-
ent JCE modes’ mens rea and improper construal of the Trial Chamber
j
udgment by assuming existence of facts the latter did not really find.
5This was assumed contrary to the initial exclusion of the JCE mode o
f
liability by the Pre-Trial Chamber in that case. The Trial Chamber judged
based on Internal Rule 98(2) that the inclusion it now affirms was a mere
legal re-characterization of the same facts through an ap
p
licable liability
form and insofar admissible as long as the fair trial rights of the accused
were not violated.
6Whereby though it must be noted that the Court does not use explicitly the
designation “JCE”, instead referring to “joint enterprise”, “common pur-
p
ose/ enterprise” or even “common criminal enterprise”, thus indirectly
allowing for interpretations possibly favoring a linkage of the crucial liabil-
ity mode to a more traditional co-perpetration.
7There, the following is respectively stated: “On these premises, the multi-
p
licity of murders and other crimes […] is merged in a unity, w[h]ere the
identity of a single crime is lost and the participants bear the burden of the
whole. In the end, it was a single, yet multifaceted, action and those who
g
ave a contribution to it are responsible not for the single element that they
directly committed but also for its entirety” (emphasis added).
3) The “Organized Structures of Power” model (“OSP”),
meaning perpetration through another. This is the case of the
Latin American juntas (e.g. Argentina) or of GDR-like inci-
dents. Contrary to the 2nd model this one presupposes a vertical
hierarchical relationship between leader and executioner and
the interchangeability of the executioners in a context where
lawfulness is a conduct alternative with extremely low prob-
ability, it cannot namely be reasonably expected (see also
Werle und Burghardt, 2010: 855-857, but cf. at 856 as to the
“lawlessness” criterion). The problem here is the trend of this
model to assume perpetration through others who are not “in-
nocent agents”, as long as they normally still have the intent to
Open Access 133

C. PAPACHARALAMBOUS
act as primary perpetrators. ICC seems to affirm this assump-
tion sliding over the respective doctrinal controversies (Werle
und Burghardt, 2010: 853-854). One tries there to focus rather
on the lessening of freedom in acting than on being legally
responsible for the act, in order to legitimize perpetration
through another despite the latter’s liability and because of
his/her submissiveness (Schlösser, 2004, passim).
4) The “Mixed” model issuing at a synthesis between JCC
και OSP: here we have an “indirect co-perpetration”/“co-
perpetratorship” of sorts. Condition is the leadership in the
frame of structures without the OSP-characteristics, whereby
the executioners have not taken part at the common planning
and thus principally accessorial liability should hold. So, the
leader may feature as instigator or abettor of the primary perpe-
trators, according to the circumstances. As to case law illustrat-
ing the mixed model one may indicatively refer to:
a) The ICTY Trial Chamber Judgment in re Stakić, whereby
the defendant in common with 2 other leaders committed per-
secutions in Prijedor and the defendant exerted control as head
of the local administration (mayor) organizing the military and
militia activities, which “but for” his contribution would have
not taken place; the defendant was not the direct head of these
two collective entities, nevertheless (Prosecutor v. Milomir
Stakić, Trial Chamber Judgment, pars. 431-442,468-4988),
b) The ICC Arrest Warrant Decision in re Bemba Gombo.
Here the defendant was indicted as co-perpetrator of war crimes
during the Congolese civil war and has been charged with dolus
eventualis as to his mens rea (Bemba Gombo, pars. 69-84),
c) The ICC Confirmation of Charges Decision in re Katanga
and Ngudjolo Chui. There, the defendants organized the attack
against civilians and controlled formally the paramilitary exe-
cuting bands. The defendants have not taken part at the deeds;
the bands disposed over a hierarchical structure, which has not
reached the threshold of an OSP though (Katanga and Ngud-
jolo Chui, Part IV, Subchapters A and B)9.
d) The ICC Arrest Warrant in re Al Bashir. There, the defen-
dant was Chief of Sudanese Military which allegedly commit-
ted international crimes against members of certain tribes in the
Darfur region since 2003. The crimes were carried out upon
decisions of several boards, such as the government, security
agencies and militias (Al Bashir, passim and at page 7)10.
In the frame of this 4th model one should discern between 1)
cases of co-perpetration between indirect perpetrators for acts
carried out through others separately subordinated to them; the
acts committed by each group’s members are imputed then to
the leader of the other group. Here, point of departure remains
the co-perpetration (but the agents are indirect ones) and 2)
cases of indirect perpetration, committed co-operatively with
others and carried out by other primary perpetrators acting as
executioners (whereby, OSP-characteristics are especially
stressed). Here, point of departure is indirect perpetration (but
the indirect perpetrator is a collective) (Werle und Burghardt,
2010: 857-863).
Noteworthy seems though that intra-systematic criminal law
differentiations deepening in the scope and variety of forms of
collective liability is one thing whereas the “maximalism” of
absorbing international into the criminal law is another (but cf.
so Cassese, 2007: 881-887 as to the ICJ’s 2007 Judgment on
the Bosnia v. Serb ia case). Therefore, it is not, for example,
necessary to consider crime types like “complicity in genocide”
as redundant forms of the participation doctrine of domestic
criminal law: the international nature of genocide may be seen
as conveying to “complicity in genocide” (as it has been laid
down in art. 4 ICTY-St. and art. 2 ICTR-St.) a specific charac-
ter different from the complicity doctrine and rather inherited
from an international legal source, namely the 1948 Convention.
Insofar, it would represent a provision of a special crime cov-
ering all possible forms of criminal “synergy” to genocide fal-
ling outside accessorial liability, whereas the participation doc-
trine represents a liability form, accessorial to any international
crime and not a specific crime in itself (cf. so e.g. Eboe-Osuji
2005, passim, and at 67-81, among others also referring, for
example, to the vicissitudes in identifying the nature of “par-
ticipants” after the fact). The role of comparative studies be-
comes therefore all the more important as long as it seems that
the future ICL will turn emphatically hybrid (see on this regard
also Delmas-Marty, 2003, passim).
Two Concluding Remarks
Coming to the end of present analysis, let me point out two
aspects of a more general concern. First, it can be maintained
as a general trend, that there is an ongoing normativization of
complicity inside a multitude of liability models (Van Sliedregt,
2012: 153-155). Even if the acceptance of JCE was unreflective,
and the acceptance of the control theory through the ICC case
law is “hagiographic”, we can no more simply concentrate
ourselves on the mens rea of the group members and then recur
to only accessorial liability when intention cannot be assumed
(as in such cases of the JCE-III where the defendant knows but
doesn’t intend). This is, though, Ohlin’s thesis (Ohlin, 2012:
280-290). This thesis returns us back to the animus theories,
invalidating the whole turn to analyzing collectivity as a re-
newed field of inquiry. It practically dissolves this turn into
traditional mens rea based participation teachings, whereas the
focal point should be primarily rather the structural modifica-
tions of the collective actus reus.
Second, both the 2nd and the 3rd model display tensions in-
herent in the theory on agent’s domination upon the deed (“act
dominion theory”; “Tatherrschaftslehre”, as it has been admi-
rably elaborated by Roxin), on which especially the control
model has been based (its heuristic value more than its episte-
mological accuracy stresses Dubber, 2007: 981-984,1001).
These tensions are due to the nature of the phenomenon of col-
lective macro-criminality itself, which forces doctrine to elabo-
rate hyper-normative exegetic models, to seek refuge in vague-
ness and tolerate lacks of comprehensiveness. Dominion theory
may be thus forced, if it is applied beyond OSP-like cases, to
further spiritualize “control”, whereby the “remote principal”
will only fictively “commit”, becoming practically nothing
more than a completely vicariously liable person (Van Sliedregt
2012: 81-88,165-170). Isn’t this a “totalizing” effect produced
by visiting global phenomena through a Eurocentric lens (cf.
also the comments of Werle und Burghardt, 2010: 855)?
8Whereas the Appeals Chamber returned afterwards again to JCE, the ICTY
familiar mode of liability: cf. Prosecutor v. Milomir Stakić,
A
ppeals
Chamber Judgment, pars. 62-63,66-104; there “co-perpetratorship”is held
as a legally errant construction without customary grounding.
9Meanwhile Ngudjolo Chui has been acquitted and released.
10On 12.7.2010 another Arrest Warrant followed with additional charges
(on genocide).
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http://www.refworld.org/docid/4f9a4c762.html
Prosecutor v. Mateus Tilman, East Timor-Special Panel for Serious
Crimes, Dili District Court No. 08/2000 (24.8.2001).
http://www.worldcourts.com/un_etta/eng/decisions/2001.08.24_Pros
ecutor_v_Tilman.pdf