Crimes of Business in International Law: Concepts of Individual and Corporate Responsibility for the Rome Statute of the International Criminal Court 9781509913183, 9781509906901

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Preface

Academic work on any given topic resembles, to my mind, the never-ending act of encircling an idea; its results are, therefore, but the point of contact at which the baton is passed on from one researcher to the next. In this spirit, I wish to contribute one perspective on the law of the Rome Statute of the International Criminal Court, on the idea of ending impunity, hoping that my choice of business actors as this perspective's focal point will enhance the current debate on their (still) prominent involvement in the most serious instances of human rights violations. Throughout the course of this project I could count on the invaluable support of my family and friends, whom I would like to thank first and foremost. I am also very grateful to Professor Dr. Florian Jeßberger, who always had an open ear and an open mind when I was eager to discuss the current state of my work. And without my experiences at the European Center for Constitutional and Human Rights (ECCHR) in strategic litigation of corporate human rights violations this book would have turned out very differently; I am therefore much obliged to Wolfgang Kaleck and Claudia Müller-Hoff for enabling me to contribute to the Center’s important efforts towards global justice. A generous stipend from the German National Academic Foundation (Studienstiftung des Deutschen Volkes) has helped keeping my economic situation in balance and has put me into contact me with inspiring scholars. After completion of the manuscript in May 2014, I have only been able to selectively integrate more recent jurisprudence and scholarly contributions into the text. Berlin, June 2015

Thomas M. Schmidt

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Abbreviations

ACHPR

African Charter on Human and Peoples’ Rights

ACHR

American Convention on Human Rights

AP I

Additional Protocol I to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts 1977

Art.

Article

aStGB

Strafgesetzbuch (Austrian Criminal Code)

BGH

Bundesgerichtshof (German Federal Court)

BGHSt

Entscheidungen des Bundesgerichtshofs in Strafsachen (Official Collection of German Federal Court Decisions in Criminal Matters)

BrB

Brottsbalken (Swedish Criminal Code)

cf.

conferatur

CLF

Criminal Law Forum

e.g.

exempli gratia

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

ed.

Editor

edn.

Edition

eds.

Editors

EJIL

European Journal of International Law

fCP

Code Pénale (French Criminal Code)

fn.

footnote, footnotes

GA

Goldtdammers Archiv für Strafrecht

gOWiG

Gesetz über Ordnungswidrigkeiten (German Act on Regulatory Offenses)

gStGB

Strafgesetzbuch (German Criminal Code)

GYIL

German Yearbook of International Law

i.e.

id est

id.

idem

ICC

International Criminal Court

ICCPR

International Covenant on Civil and Political Rights

21

Abbreviations ICCSt

Rome Statute of the International Criminal Court

ICESCR

International Covenant on Economic, Social and Cultural Rights

ICJ

International Court of Justice

ICLQ

International Comparative Law Quarterly

ICLR

International Criminal Law Review

iCP

Codice Penale (Italian Criminal Code)

ICJS

Statute of the International Court of Justice

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the Former Yugoslavia

IDF

Israeli Defense Forces

ILC

International Law Commission

IMT

International Military Tribunal

IRRC

International Review of the Red Cross

JCE

Joint Criminal Enterprise

JICJ

Journal of International Criminal Justice

lit.

littera

LJIL

Leiden Journal of International Law

MPC

Model Penal Code

NCLR

New Criminal Law Review

NGO

Non-governmental Organization

p.

page

para.

paragraph

paras.

paragraphs

pp.

pages

PTC

Pre-Trial Chamber

RG

Reichsgericht

RPE

Rules of Procedure and Evidence

RS

Rome Statute of the International Criminal Court / Römisches Statut des Internationalen Strafgerichtshofs

sCP

Código Penal (Spanish Criminal Code)

sq.

sequens

sqq.

sequentes

Strl

Straffeloven (Danish Criminal Code)

TC

Trial Chamber

22

Abbreviations UDHR

Universal Declaration of Human Rights

UK

United Kingdom

UN

United Nations

US

United States of America

VCLT

Vienna Convention on the Law of Treaties

vs.

versus

ZIS

Zeitschrift für Internationale Strafrechtsdogmatik

ZStW

Zeitschrift für die gesamte Strafrechtswissenschaft

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1. Introduction and scope of inquiry

This inquiry into the law of the Rome Statute of the International Criminal Court (RS) takes as its phenomenological point of departure business actors both individual and corporate providing material resources (utilities and funding) towards the commission of genocide, crimes against humanity, and war crimes pursuant to Articles 6 to 8 RS. 1.1. Motives This point of departure is chosen for two reasons: First, the scenario of serious human rights violations in the course of business activity has materialized so frequently that its assessment in legal terms has become a matter of high practical importance for victims and the international community as a whole1. The most prominent cases of providing utilities are the granting of access to an airstrip by oil extractor Talisman used by Sudanese military forces for aerial operations amounting to war crimes and crimes against humanity2, the sale of weapons materials to the Hussein regime by Dutch business man van Anraat deployed against civilians in Iraq and Iran3, of bulldozers to the Israeli Defense Forces by Caterpillar used in the killing of civilians and destruction of civilian residences in the Gaza

1 See Schabas (2001), p. 439 (at 456) and for overviews Wells/Elias (2005), p. 141 (at 143 et sqq.); Kaleck/Saage-Maass (2010), p. 699 (at 700 et sqq.). 2 In US civil court, civil claims based on the Alien Tort Statute have been dismissed for lack of evidence, see International Crimes Database, The Presbyterian Church Of Sudan, et al. v. Talisman Energy, Inc. And Republic Of The Sudan, available at http://www.internationalcrimesdatabase.org/Case/43/Presbyterian-Church-Of-Suda n-v-Talisman-Energy/ (last visited: 30.06.2015) and Beisinghoff (2009), pp. 155, 157 with further references. 3 This case has been the subject of a domestic criminal proceeding in the Netherlands, resulting in the conviction of van Anraat, see Huisman/Sliedregt (2010), p. 803‐828 (at 805 et sqq.) as well as International Crimes Database, Public Prosecutor v. Frans Cornelis Adrianus van Anraat, available at http://www.internationalcri mesdatabase.org/Case/178/ (last visited 30.06.2015) with further references.

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1. Introduction and scope of inquiry

Strip and West Bank4, as well as of software and cars to the South African apartheid regime by International Business Machines (IBM), Mercedes Benz, General Motors, and others, which enabled the regime to track the whereabouts of black citizens and enforce public order against demonstrators5. As regards funding, private banks Barclay and UBS have been accused of granting loans to the South African apartheid regime, loans used to maintain operations of military and police forces6. According to Human Rights Watch, mining operator AngloGold Ashanti paid «protection money» and freight landing taxes in exchange for access to gold mines to Lendu rebel group Front des Nationalistes et Intégrationnistes (FNI), which has been accused of the Kilo massacre of 125 civilians in the Democratic Republic of Congo (DRC)7. This list of allegations and unsuccessful litigation attempts is far from conclusive8.

4 Civil suits against the Israeli military in Israel and against Caterpillar on the basis of the Alien Tort Statute in the United States have been dismissed, see International Crimes Database, Cynthia Corrie et al. v. Caterpillar Inc., available at http://www.in ternationalcrimesdatabase.org/Case/987 (last visited: 30.06. 2015) and also Skinner (2006) with further references. 5 As of March 2014, civil litigation before US courts has been unsuccessful against all defendants except General Motors, where a settlement was achieved in 2012. The United States Supreme Court has severely limited US jurisdiction for claims based on the Alien Tort Statute’s extraterritorial application, see International Crimes Database, Khulumani et al. v. Barclays National Bank et al., and Lungisile Ntsbeza et al v. Daimler AG et al., available at http://www.internationalcrimesdatab ase.org/Case/1155 (last visited: 30.06.2015) with further references. 6 Litigation in US civil court has been unsuccessful against these defendants as well, see International Crimes Database, Khulumani et al. v. Barclays National Bank et al., and Lungisile Ntsbeza et al v. Daimler AG et al., available at http://www.interna tionalcrimesdatabase.org/Case/1155 (last visited: 30.06.2015) with further references. 7 Human Rights Watch (2005), pp. 39, 58 et sqq.; Prosansky (2007), p. 236 (at 246). 8 For the abundant scholarship on such instances of business actors’ involvement in serious human rights violations, see also Beisinghoff (2009), pp. 129 et sqq.; Huisman (2010); Kaleck/Saage-Maass (2010), p. 699; Stoitchkova (2010), pp. 1 et sqq.; Thurner (2012), pp. 77 et sqq. with further references. In a typological approach, Meyer (2013), p. 56 (at 63 et sqq.) has distinguished five kinds of involvement: the commission of crimes by members of private security operators, the procurement of acts of commission by corporate actors to advance their economic goals, the provision of goods useful to the commission of crimes, the economic cooperation beneficial to regimes whose members commit crimes as well as the funding of acts of commission. This study focuses on the provision of goods and funding.

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1.1. Motives

Prosecutions led by or instigated via the complementarity regime of the International Criminal Court (ICC) into similar involvements under the Court’s jurisdiction can contribute to closing the «governance gaps»9 in existence in the field of human rights violations by business actors10. Yet, and in spite of promises made by then Prosecutor Moreno Ocampo to investigate at least those individuals who have funded the commission of crimes under the Statute11, prosecutions have thus far not materialized12. Scholars have attributed this lack of prosecutorial vigor also to the demanding mental elements of Article 25 (3) (c) and (d) RS, which, in their view, preclude punishment for such acts of business exchange13. Second, therefore, the inquiry’s phenomenological starting point directs attention to a host of intriguing questions that deal with fundamental concepts of individual criminal responsibility under the Rome Statute: Can individuals in positions remote to the criminal event be held responsible for committing crimes and what is the significance of Article 25 (3) RS in this regard? Which are the premises of business leaders’ superior responsibility to which Article 28 RS refers? Must business activity enjoy special protection from criminal prosecution as a result of its social value? And is it conceivable that in the future corporate business actors as «abstract entities»14 are as well held accountable before the International Criminal

9 United Nations Human Rights Council (2008), p. 27. 10 See Stoitchkova (2010), p. 183; Meyer (2013), p. 56 (at 58), and also Kaleck/ Saage-Maass (2010), p. 699 (at 709 et sqq.). 11 Communications Received by the Office of the Prosecutor of the ICC (16.07.2003): «[…] the Prosecutor believes that investigation of the financial aspects of the alleged atrocities will be crucial to prevent future crimes and for the prosecution of crimes already committed. If the alleged business practices continue to fuel atrocities, these would not be stopped even if current perpetrators were arrested and prosecuted. The Office of the Prosecutor is establishing whether investigations and prosecutions on the financial side of the alleged atrocities are being carried out in the relevant countries». 12 Meyer (2013), p. 56 (at 68); Gallmetzer (2010), p. 947 (at 950 et sqq.). 13 Meyer (2013), p. 56 (at 68, 70 et sq.). See also Reggio (2005), p. 623 (at 673); Vest (2010), p. 851 (at 863); Burchard (2010), p. 919 (at 938); Sliedregt (2012), p. 129; Stewart (2012), p. 165 (at 197). 14 See The International Military Tribunal (ed) (1947), p. 223 for the IMT positing that «[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced».

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1. Introduction and scope of inquiry

Court? These questions will be the subject of this study15. They are, I believe, of interest not only to those aiming at the prosecution of business actors; answers are valuable tools also for business actors themselves16. 1.2. An inter-disciplinary and multi-language approach To provide robust answers in a context so empirically complex, an interdisciplinary approach is of the essence: Both the International Criminal Court and scholars in the field have recognized the need to reflect upon the reality structures which characterize central notions of prevailing approaches to the above questions such as «control over the crime» (Article 25 RS) or «effective authority and control» (Article 28 RS). In this regard, organization theory and social psychology can shed light on premises of individual criminal responsibility. The subsequent question of a privilege of business activity in light of its social value leads to the delicate balance between liberty and security struck in each society, often at the time of its

15 Related questions such as incitement to genocide (Article 25 (3) (e) RS) and attempt (Article 25 (3) (f) RS) are interesting subjects for subsequent studies; they are not discussed here. There is, however, merit in the approach taken in 2.4 below for conceiving of both. In particular, the concept of attempt proposed by Ambos (2013), p. 254 and sqq. is crime-specific and therefore dependent upon a deep understanding of the Statute's crimes, which is facilitated by the proposal made below. 16 The International Commission of Jurists has recently stated how increasingly «relevant» international criminal law has become for business corporations: «The Panel believes that as the field of international criminal law develops and as companies operate in new contexts, international criminal law and its implementation in domestic and international jurisdictions will become ever more relevant to companies. […] [A] a wide variety of companies from all sectors – including natural resource extractive industries, infrastructure and engineering companies, financiers, retail and garment businesses and the communications industry – now have either global supply chains or a global presence and find themselves, or their clients or suppliers, operating in the midst of armed conflicts or in countries where crimes against humanity and other gross human rights abuses amounting to crimes under international law occur. The business transactions of these companies and their relationships with governments, armed groups and other businesses require them to understand what conduct may constitute a crime under international law», International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability (2008), p. 5 (my emphasis).

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1.3. The Corrie case example

inception. This inception has been conceived of by social philosophy. Finally, in light of proposals to extend the Rome Statute’s scope beyond individuals to organizations, international criminal law’s purpose to prevent acts of genocide, crimes against humanity, and war crimes calls for a concept of punishment which accounts for the reality of such punishment. Here too organization theory and social philosophy can offer guidance on epistemological and ontological premises. Yet not only insight drawn from disciplines other than the science of law matters; insight from contributions to the science of law in languages other than English is of similar importance. As the German Council of Sciences and Humanities has aptly expressed, the «academic discipline of law directs its inquiry at an object which is constituted by language, and which is therefore always partly shaped by the cultural context of the language in question. This ‹rootedness› in culture, which is true for all legal languages, is particularly evident in the field of legal doctrine, which operates with very precise, accurate terms and with vocabulary that is intimately connected to the national legal system. Such context-specific language can thus be difficult to be translated into other languages. In view of these linguistic specificities, German legal scholarship faces great challenges with regard to its internationalisation and Europeanisation»17. Said challenges apply to the following chapters as well. To the best of my abilities, I therefore strive to make use of a vocabulary that lacks in neither precision nor impartiality as to its meaning in the English-speaking legal community; when concepts are translated from German, French, or Spanish to the English language of this text, I intend to reflect their terminological implications in the translation. 1.3. The Corrie case example As is expected from a theoretical exploration in the practically oriented science of law, insights gained into concepts which chart paths to criminal responsibility under the Rome Statute will be applied to examples throughout the text. These applications, however, cannot replace the subsequent refinement of the concepts devised in real-world scenarios whose empirical complexity regularly precludes an assessment within the scope

17 German Council of Science and Humanities (2013), pp. 71 et sqq.

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1. Introduction and scope of inquiry

of studies such as this. To illustrate my phenomenological point of departure, I have therefore opted to refer in a hypothetical manner to the Corrie case wherever such illustrations enhance access to the concepts employed. In Corrie v. Caterpillar, plaintiffs alleged that by inter alia selling, leasing, and servicing bulldozers to the Israeli Defense Forces (IDF), US domiciled corporation Caterpillar Inc. aided and abetted the commission of war crimes18. According to plaintiffs, such bulldozers were used in Caterpillar’s knowledge by IDF members to extensively destroy civilian housing properties and to kill civilians in the West Bank and the Gaza strip19. Caterpillar allegedly participated in these war crimes «for no interest other than continued sales»20. For illustration purposes, it is assumed on the one hand that Caterpillar management employees have issued directives to sell, lease, or service these bulldozers and on the other hand that the ICC has jurisdiction concerning the war crimes alleged21. 1.4. References Ambos K (2013) Treatise on International Criminal Law: Foundations and General Part. Volume I. Oxford University Press, Oxford Beisinghoff N (2009) Corporations and human rights: An analysis of ATCA litigation against corporations. Lang, Frankfurt am Main Burchard C (2010) Ancillary and Neutral Business Contributions to 'Corporate-Political Core Crime': Initial Enquiries Concerning the Rome Statute. JICJ 8(3):919–946. doi: 10.1093/jicj/mqq033 Gallmetzer R (2010) Prosecuting Persons Doing Business with Armed Groups in Conflict Areas: The Strategy of the Office of the Prosecutor of the International Criminal Court. JICJ 8(3):947–956. doi: 10.1093/jicj/mqq037

18 Skinner (2006), pp. 1 et sqq. See also International Crimes Database, Cynthia Corrie et al. v. Caterpillar Inc., available at http://www.internationalcrimesdatabase.or g/Case/987 (last visited: 30.06.2015) for further references. 19 Skinner (2006), pp. 1 et sqq. 20 Skinner (2006), p. ii. 21 The conduct described may thus amount to war crimes as in Article 8 (2) (a) (i), (iii) and (iv) RS. On the issue of ICC jurisdiction in Gaza and the West Bank, see Ronen (2010), p. 3 (at 3 et sqq.); Pellet (2012), p. 409 (at 411 et sqq.); Zimmermann (2013), p. 303 (at 308 et sqq.); Ronen (2014), p. 7 (at 17 et sqq.). And on the legal qualification of such destructions of housing with bulldozers as violations of Article 147 of the Fourth Geneva Convention, see United Nations Human Rights Council (2009), p. 214.

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1.4. References German Council of Science and Humanities (2013) Prospects of Legal Scholarship in Germany: Current Situation, Analyses, Recommendations Huisman W (2010) Business as usual?: Corporate involvement in international crimes. Eleven International Publishing, The Hague Huisman W, Sliedregt E van (2010) Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity. JICJ 8(3):803‐828. doi: 10.1093/jicj/mqq040 Human Rights Watch (2005) The Curse of Gold: Democratic Republic of Congo, New York Kaleck W, Saage-Maass M (2010) Corporate Accountability for Human Rights Violations Amounting to International Crimes: The Status Quo and its Challenges. JICJ 8(3):699–724. doi: 10.1093/jicj/mqq043 Meyer F (2013) Multinationale Unternehmen und das Völkerstrafrecht. Schweizerische Zeitschrift für Strafrecht:56–86 Pellet A (2012) The Effects of Palestine's Recognition of the International Criminal Court's Jurisdiction. In: Meloni C, Tognoni G (eds) Is there a court for Gaza?: A test bench for international justice. Asser, The Hague, pp 409–428 Prosansky B (2007) Mining Gold in a Conflict Zone: The Context, Ramifications, and Lessons of AngloGold Ashanti’s Activities in the Democratic Republic of the Congo. Northwestern Journal of International Human Rights 5(2):236–274 Reggio A (2005) Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for Trading with the Enemy of Mankind. ICLR 5:623–696 Ronen Y (2010) ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities. JICJ 8(1):3–27. doi: 10.1093/jicj/mqp089 Ronen Y (2014) Israel, Palestine and the ICC - Territory Uncharted but not Unknown. JICJ 12(1):7–25. doi: 10.1093/jicj/mqu006 Schabas WA (2001) Enforcing international humanitarian law: Catching the accomplices. IRRC 83(842):439–459 Sliedregt E van (2012) Individual criminal responsibility in international law, 2nd edn. Oxford monographs in international law. Oxford University Press, Oxford Stewart JG (2012) The End of 'Modes of Liability' for International Crimes. LJIL 25(1):165–219 Stoitchkova D (2010) Towards corporate liability in international criminal law. Intersentia, Antwerp The International Military Tribunal (ed) (1947) Official Documents: Volume I. In: Trial of the Major War Criminals before the International Military Tribunal: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany. The Blue Series Skinner G (2006) War Crimes Litigation in U.S. Courts: The Caterpillar Case. The Palestine Center Information Paper No. 9 Thurner GWB (2012) Internationales Unternehmensstrafrecht: Konzernverantwortlichkeit für schwere Menschenrechtsverletzungen. Verlag Österreich, Wien

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1. Introduction and scope of inquiry United Nations Human Rights Council (2008) Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development: Protect, Respect and Remedy: a Framework for Business and Human Rights. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie United Nations Human Rights Council (2009) Human Rights in Palestine and other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict Vest H (2010) Business Leaders and the Modes of Individual Criminal Responsibility under International Law. JICJ 8(3):851–872. doi: 10.1093/jicj/mqq032 Wells C, Elias J (2005) Catching the Conscience of the King: Corporate Players on the International Stage. In: Alston P (ed) Non-state actors and human rights. Oxford University Press, Oxford, pp 141–175 Zimmermann A (2013) Palestine and the International Criminal Court Quo Vadis?: Reach and Limits of Declarations under Article 12(3). JICJ 11(2):303–329. doi: 10.1093/jicj/mqt014

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2. The commission of crimes by business actors

Individual criminal responsibility under Article 25 (2) RS requires to commit a crime, and under Article 25 (3) (a) RS to commit the crime individually, jointly, or through another. Article 25 (3) (b), (c), and (d) RS, in turn, demand «the commission of such a crime» in addition to prerequisites such as ordering, assisting, or contributing. These prerequisites have been vividly debated in jurisprudence and scholarship. The following sections will reproduce this ongoing debate between essentially two factions: those who argue in favor of a restrictive notion of commission on the basis of control over the crime and those who are convinced that a broader notion of commission dispensing with the distinction between (principal) perpetrators and (secondary) accomplices is best suited for the Rome Statute. Both positions have important implications for the phenomenological point of departure chosen for this inquiry: What are the prerequisites for holding business actors responsible for genocide, crimes against humanity, and war crimes under the Rome Statute? Could management employees in the Corrie case example1 – presumably having issued directives to sell, lease, or service those bulldozers – be held responsible under Article 25 (3) (a), (b), (c) or (d) RS? Should this distinction even matter? After a review of the arguments which have been proposed in the debate’s course (Sections 2.2 and 2.3), my goal is to offer a comprehensive perspective on the term and notion of commission under the Rome Statute, taking recourse to the law’s subject-matter (Section 2.4). The chapter will conclude with a human rights perspective on the limits of the commission responsibility of business actors in light of the possible social value of their conduct (Section 2.5). Before turning to these questions, however, it is in order to briefly elaborate on the foundations of interpreting the Rome Statute, which will serve as a point of reference throughout this study (Section 2.1).

1 See above in 1.

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2. The commission of crimes by business actors

2.1. Preliminary remarks: Interpreting the Rome Statute Article 21 (1) RS establishes a hierarchy of sources of applicable law, whereby those rules contained in the Statute itself hold the highest position. «In the second place, when appropriate», Article 21 (1) (b) RS allows recourse to «applicable treaties», and, inter alia, customary international law (implicitly included in «the principles and rules of international law»2), and «failing that» offers «general principles of law» as a source of law in sub-section (c). The starting point of every application of the Rome Statute must therefore be its immanent interpretation; only on the basis of a complete understanding of the law contained in the ordinary meaning and context of the Statute itself may secondary and tertiary sources of law be consulted3. The Rome Statute is silent as to when recourse to external sources of law is «appropriate» and it has thus been argued that appropriateness was left to the discretion of the Court4. The Court has determined on several occasions that secondary sources may be applied only if interpretation of the Statute leaves a gap in the law that cannot be filled otherwise5, subscribing to the view that an immanent interpretation of the Rome Statute provisions is primary. The «wealth of relevant jurisprudence»6 of the ad hoc tribunals as a heuristic tool in the determination of customary law pursuant to Article 38 (1) (c) ICJS is thus applicable before the ICC only on very limited terms7.

2 Schlütter (2010), p. 295; Nerlich (2009), p. 305 (at 313); Jesse (2009), pp. 99 et sq. and also Pellet (2002), p. 1051 (at 1071 et sq.) discussing the unusual choice of words in the Statute in leaving custom unmentioned. 3 Jesse (2009), pp. 110, 111 and Jesse (2010), p. 95 (at 103). See also Fletcher/Ohlin (2005), p. 539 (at 558) and ICC - Pre-Trial Chamber I, Prosecutor v. Al Bashir, 04.03.2009 – ICC-02/05-01/09 (§ 126). 4 McAuliffe deGuzman (2008), Article 21, mn. 9. 5 See ICC - Pre-Trial Chamber I, Prosecutor v. Al Bashir, 04.03.2009 – ICC-02/05-01/09 (§ 126). See also Nerlich (2009), p. 305 (at 312 with fn. 31) referring to ICC - Appeals Chamber, Situation in the Democratic Republic of Congo, 13.07.2006 – ICC-01/04 (§§ 37, 39, 41). In a similar vein, Sadat (2002), p. 270. 6 Nerlich (2009), p. 305 (at 308). 7 As envisaged by the UN Security Council and as has been expressed by the ICTY Appeals Chamber, criminal responsibility before the ICTY arises only on the basis of customary law as provided for in the ICTY Statute, see United Nations Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808: UN Doc. S/25704, 03.05.1993, p. 34 and e.g. ICTY - Ap-

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2.1. Preliminary remarks: Interpreting the Rome Statute

The Rome Statute is also silent as to how «general principles of law» are to be «derived from the national legal systems of the world»8. It was suggested in scholarship that it requires a «triple mental operation: a comparison between legal systems, the search for ‹common principles›, and their transposition to the international sphere»9. Pellet also notes that the Statute makes reference not to national laws as such but (in the French version) to «les lois nationales représentant les différents systèmes juridiques du monde», i.e. the national laws representing the different legal systems of the world, implying that what is needed to establish general principles of law is not «a systematic comparison of all national legal systems» but instead to make sure by means of a poll that the principles and concepts in question can be found in those legal systems which are repre-

peals Chamber, Prosecutor v. Galic, 30.11.2006 – IT-98-29-A (§ 85) and also Olásolo (2007), p. 301 (at 313 et sqq.) and Boot (2002), p. 393. With reference to JCE as a mode of participation, the ICC has articulated «the need not to transfer the ad hoc tribunals’ case law mechanically to the system of the Court», ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 508). See already Werle (2007), p. 953 (at 961 et sq.) advising against «a mechanical transfer of the ad hoc tribunals’ case law» due to the Rome Statute’s containing an «independent set of rules» and Raimondo (2010), p. 45 (at 57) positing that the ad hoc tribunals have made customary rules accessible to the ICC for application pursuant to Article 21 (1) (b) RS. The ICC has also expressed on numerous occasions that ad hoc jurisprudence does not constitute a source of law per se, see ICC - Pre-Trial Chamber II, Prosecutor v. Kony, 28.10.2005 – ICC-02/04-01/05-60 (§ 19); ICC - Trial Chamber I, Prosecutor v. Lubanga, 30.11.2007 – ICC-01/04-01/06-1049 (§§ 43 et sq.); ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§§ 322–341); ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 408) and for a detailed overview Bitti (2009), p. 285 (at 296 et sqq.); Ambos (2010b), p. 161 (at 166 et sqq.). Nerlich and Book suggest addressing ad hoc jurisprudence in order to avoid fragmentation of international criminal law under Article 31 VCLT, Nerlich (2009), p. 305 (at 319 et sq.) and Book (2011), pp. 284 et sqq. However, as Nerlich himself concedes, while in line with the provision’s purpose, this suggestion runs counter to the plain wording of Article 31 VCLT. Teleological approaches being required to respect ordinary meaning as their ultimate boundaries, the suggestion is at odds with methodology, cf. on these limits of teleological interpretation Dörr (2012a), mn. 45, 53, 58. For a critical perspective on the ad hoc tribunals reflecting the state of customary law, see Mettraux (2009), p. 22. 8 Fletcher (2011), p. 179 (at 184). 9 Pellet (2002), p. 1051 (at 1073).

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2. The commission of crimes by business actors

sented by national laws10, i.e. the Anglo-American system, the RomanGermanic system, and Islamic law11. This «polling method» has been accepted by the Appeals Chamber12. Ambos has stressed that the comparative process should follow a «functional, issue-oriented approach», focusing on «the role and functions of legal institutes in the solution of these issues» in order to avoid a «national bias»13. Relating to the process of transposition, Ambos argues that just as structural differences between the Anglo-American and Roman-Germanic legal systems have not been a major obstacle in transposing legal concepts from the former to the latter and vice versa, those general principles found can (and must) be adjusted to the specificities of international law14. According to Raimondo, four requirements for the application of general principles of law by the ICC can be established: subsidiarity (general principles «only to fill legal gaps» after recourse to Article 21 (1) (a) and (b) RS and for «interpreting rules of the Statute» or «enhancing legal reasoning»), abstraction (abstract principles from national legal rules), representativeness (recourse to laws which represent the world’s legal systems), and consistency (compatibility with the Rome Statute and international law)15. The interpretation of the Statute is subject specifically to Articles 21 (3)16, 22 (1), 22 (2)17, and 23 RS and generally to Articles 31, 32 VCLT as

10 Pellet (2002), p. 1051 (at 1073 with fn. 127). 11 Ambos (2010b), p. 161 (at 171). 12 See ICC - Appeals Chamber, Situation in the Democratic Republic of Congo, 13.07.2006 – ICC-01/04 (§§ 24 et sqq.). 13 Ambos (2013c), p. 78. 14 Ambos (2010b), p. 161 (at 171). 15 Raimondo (2008), pp. 150 et sqq. 16 On Article 21 (3) RS see Sheppard (2010), p. 43 (at 60) and below in 2.5.4.2 17 See Jesse (2009), pp. 149 et sqq. Schabas argues for an expansive reading of Article 22 (2) RS: «It makes sense […] to apply the principle of strict construction not only to the definition of crimes but also to relevant general principles that impact directly on their application, such as those governing participation in crimes […]», Schabas (2010), p. 410. He points out that Article 22 (2) RS is the result of the Rome Conference being «unsettled by such judicial licence» as practiced by the ICTY when criminal responsibility was extended by purposive interpretation of statutory provisions, Schabas (2011a), pp. 215 et sq. For the application of the principle of legality to principles governing individual criminal responsibility see also Grimminger (2010), p. 284 and Jesse (2009), pp. 154 et sqq. and particularly concerning Articles 25, 28 and 30 RS see Triffterer (2004), p. 213 (at 219, 223 et sqq.): «Participation is not an institution by itself, it also always depends on a certain definition of crimes. […] Article 25 and 28 shape individual criminal respon-

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2.1. Preliminary remarks: Interpreting the Rome Statute

an «applicable treaty» under Article 21 (1) (b) RS18. On the one hand, the limiting effects of Articles 22 and 23 RS (nullum crimen, nulla poena sine lege) depend upon prior interpretation of the Statute to determine the scope of crimes within the Court’s jurisdiction pursuant to ordinary rules

sibility for such crimes». In this vein, the ICC has resorted to Article 22 (2) RS when it excluded dolus eventualis from the scope of Article 30 RS, ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§ 369). Contrarily, for a restriction to Articles 6-8 RS, see Broomhall (2008), Article 22, mn. 39 and Boot (2002), pp. 395, 376 arguing that while Article 22 RS is not applicable as «Article 25 only comes into play after it has been established that «the conduct in question […] constitutes a crime within the jurisdiction of the Court» and «[t]hese requirements do not include an element of criminal responsibility», the legality principle nevertheless applies to Article 25 as an international human rights standard pursuant to Article 21 (3) RS; Boot concedes, however, that «Articles 25 and 30 are […] relevant in determining the contents of Articles 6 through 8». 18 According to Article 31 (1) VCLT, a provision’s ordinary meaning in its context and in light of its object and purpose must be the starting point of every interpretation. Textual, systematic and teleological approaches are combined as methods of equal rank, Ambos (2002a), p. 378. Concerning criminal law in general, Herzberg (2005), p. 1 (at 6 et sqq.) argues that statements of telos can only be deduced on the basis of results obtained from ordinary meaning, contextual and genetical approaches; teleological arguments are thus merely results of interpretation. Article 32 VCLT allows consulting the preparatory works of the treaty and other supplementary means when interpretations according to Article 31 VCLT leave the provision’s meaning ambiguous or obscure or lead to manifestly absurd or unreasonable results. Article 32 VCLT thus allows for two specific modi applicandi of these supplementary means: the confirmative mode (supplementary means are consulted to confirm the meaning ascertained by applying the general rule of Article 31) and the determinative mode (in cases of ambiguity or obscurity or absurd/ unreasonable results, supplementary means may decisively determine the meaning of a term), see Dörr (2012b), mn. 27, 29, 33. Customary interpretation rules such as effet utile and dynamic textual interpretation are also significant to statutory interpretation, particularly concerning generic terms, see Dörr (2012a), mn. 33 and specifically Ambos (2002a), pp. 381 et sq. See also Saland (1999), p. 189 (at 215) noting that dispute arose whether Article 21 (1) (b) RS should refer to «applicable» or «relevant» treaties and whether the Vienna Convention was «applicable» or only «relevant». The wording ultimately chosen is considered to give «considerable leeway» to the Court in deciding which sources of treaty law may be taken into account, see Sadat (2002), p. 177. The ICC has on numerous occasions affirmed the applicability of the VCLT, see Schabas (2010), p. 388 with fn. 55; Sheppard (2010), p. 43 (at 55); Schabas (2011a), pp. 213 et sq. and in particular ICC - Appeals Chamber, Situation in the Democratic Republic of Congo, 13.07.2006 – ICC-01/04 (§§ 33 et sqq.).

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of interpretation in Articles 31, 32 VCLT19. On the other hand, the application of Vienna Convention rules such as recourse to customary law sources (Article 31 (3) (c) VCLT) is restricted by Article 22 (2) RS, and interpretative efforts on the basis of the Vienna Convention may subsequently constitute a violation of Articles 22 (2) and 23 RS20. In scholarship, Article 22 (2) RS is seen to limit interpretative efforts based on Article 21 (1) (b) and (c) RS21.

19 Broomhall (2008), Article 22, mn. 48; Jesse (2009), p. 149; Grimminger (2010), p. 280. 20 In this vein on «the teleological method» ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§ 18). Yet, as Ambos points out, ICC Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§§ 280 et sq., 287) has misinterpreted the term «national» in Article 8 (2) (b) (xxvi) RS to mean «governmental», referring to «the object and purpose of the Statute of the Court, which is none other than to ensure that ‹the most serious crimes of concern to the international community as a whole› must not longer go unpunished», thus overriding the wording of the Statute on teleological grounds and thereby violating Articles 21 (1) and 22 (1) and (2) RS and also Article 31 (1) VCLT, Ambos (2010b), p. 161 (at 175 et sq.). The Court additionally refers to Article 32 VCLT, unduly employing «basic humanitarian considerations and common sense» as supplementary means of interpretation, ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§§ 283 et sq.). On this decision, see also Ambos (2013c), p. 91. 21 Lamb (2002), p. 733 (at 750 with fn. 67) argues that recourse to custom or general principles of law must only occur praeter legem, i.e. «as a source to interpret already-existing charges or to elucidate their meaning» but never contra legem, i.e. «as a source for creating new offences not expressly provided for within the written law or in a manner contraindicated by that express law». See also extensively with a view to omissions Grimminger (2010), pp. 276 et sqq. Ambos alludes to the principle of nullum crimen, nulla poena sine lege in Articles 22 and 23 RS as a «tabula rasa principle», expressing that the ICC is «a new Tribunal with a new law» and thus also operates with a new concept of legality as opposed to the broader approach of the ad hoc tribunals, Ambos (2010b), p. 161 (at 166 with fn. 24, 172). See also Ambos (2010b), p. 161 (at 174): «[Article 22 (1)] excludes crimes outside the Statute» and in a similar vein, Ambos (2013c), pp. 92 et sq. The «exhaustive attention paid to definitions during negotiations» is argued to indicate a tendency of the drafters towards a strict approach towards legality, see Broomhall (2008), Article 22, mn. 22 and also Lamb (2002), p. 733 (at 750 et sq.). See finally Broomhall (2008), Article 22, mn. 20, 22, arguing that in the case of non-State Parties «the only legitimate basis for establishing the criminal responsibility of individuals would presumably – in the absence of relevant national criminal prohibitions at the time of the alleged conduct – be that of customary law».

38

2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

Two additional features of the RS for purposes of treaty interpretation are worth mentioning in closing. First, its lack of an official body of travaux préparatoires22. And second, as Article 128 RS establishes six authoritative languages, interpretative efforts may be required to compare different language versions of the Statute in accordance with Article 33 VCLT23. This creates important challenges for interpretation: As Fletcher points out, «[t]he legal languages of the world remind us of the inherent limitations of our quest for universally binding general principles of criminal law […] There is no serious possibility of developing a value-free, quasi-scientific language of criminal law that could claim universal understanding»24. 2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship The Court as well as a number of scholars have argued that commission responsibility in sub-section (a) of Article 25 (3) RS is distinct from subsections (b), (c) and (d) both in requiring «control over the crime» and in expressing a hierarchically higher degree of responsibility25. They have categorized individual criminal responsibility pursuant to sub-section (a) 22 The documentary record of the Rome Conference is available as United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (2002), Official Records: Volumes I-III, albeit not officially as travaux préparatoires. Schabas (2011a), p. 215 posits that any analysis of the Statute’s genesis should «preferably» be based on what appears in official documents rather than on memories and personal experiences of those involved in the drafting process. See also Young (2011), p. 189 (at 196 et sq.) on exercising «appropriate awareness of the potential shortcomings of extensive reliance on preparatory works» of the Rome Statute. But see ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§ 364). 23 Article 128 RS establishes six authoritative languages, while Article 50 RS declares English and French as the Court’s working languages; Rule 41 ICC RPE allows for all authoritative languages as working languages if requested or adequate for efficiency, or if a majority of the participants in the proceeding speak a particular language. See extensively on language versions of the Rome Statute and resulting issues of interpretation, Fronza/Malarino (2007), p. 927 and Jesse (2010), p. 95 (at 104 et sqq.). 24 Fletcher (2007), p. 118. 25 ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 338 et sq.). See also Ambos (2013c), pp. 146 et sqq.

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as principal or perpetrator responsibility. Sub-sections (b) to (d), in turn, constitute non-perpetrator or accomplice responsibility; in their view, the requirement of «the commission of such a crime» in sub-sections (b) to (d) renders such accomplice responsibility dependent upon a perpetrator’s offense – in the Court’s words: «secondary liability» is dependent upon «whether the perpetrator acts»26 – and, for lack of control over the crime, entails a lower degree of responsibility for the accomplice’s contribution to the perpetrator’s offense. In this view, the term and notion of commission is highly restrictive. Other scholars have proposed a much broader term and notion of commission. They have rejected not only the so-called «control over the crime approach» for its overly simplifying take on individual criminal responsibility in macro crime contexts27 but also a hierarchy of «modes of liability», with individual degrees of criminal responsibility being more adequately (more flexibly) determined at sentencing28. Similar opposition to the control and hierarchy approaches also comes from individual judges at the Court29. These positions will be presented in the following. 2.2.1. ICC jurisprudence on commission and Article 25 (3) RS In Lubanga, the Majority of Trial Chamber I has extensively reviewed the term and notion of commission under Article 25 (3) RS. Earlier, Pre-Trial Chamber II in Katanga and Ngudjolo Chui had decided along the lines first laid out by Pre-Trial Chamber I in Lubanga, later affirming its position to a large extent in the Ngudjolo Chui and Katanga judgments.

26 ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 997 et sq.) with regard to Article 25 (3) (b) and (c) RS (my emphasis). 27 Ohlin/Sliedregt/Weigend (2013), p. 725 (at 726 et sqq.) with further references. 28 Miller (2007), pp. 354 et sqq., 298, 280 et sqq. 29 See ICC - Trial Chamber I, Separate opinion of Judge Fulford, 14.03.2012 – ICC-01/04-01/06-2842 (§§ 6 et sqq.); ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§§ 8 et sqq.).

40

2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

2.2.1.1. The Lubanga judgment: Commission vs. commission In the Lubanga judgment, Judge Fulford opposed the Majority’s decision by an elaborate separate opinion, specifically regarding the term and notion of commission. 2.2.1.1.1. The Majority’s decision by Trial Chamber I: Differentiation, a hierarchy, and collective control in co-perpetration Trial Chamber I has proposed in 2012 to read Article 25 (3) RS as a hierarchical ordering of «modes of liability», this hierarchy expressing «different degrees of responsibility»30. It is arranged in decreasing order from sub-section (a) to sub-section (d) in relation to the threshold of contribution assigned to each sub-section by its ordinary meaning31. Each sub-section is categorized as either principal or perpetrator responsibility (subsection a) or as secondary or accessory responsibility (b, c and d)32. The category of those most responsible, i.e. of principals under sub-section (a), is limited to those who are «closer to the violation of the legal interests protected by the norm», who are in control over the crime33. PTC I had provided for the textual anchor of this control over the crime approach, affirming that «the most typical manifestation of the concept of control over the crime, which is the commission of a crime through another person, is expressly provided for in Article 25 (3) (a) of the Statute»34.

30 ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 998 et sq.). In this vein on the Court’s jurisprudence also Ambos (2013c), p. 147. 31 ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 996, 998 et sq.) arguing that «the contribution of the co-perpetrator who ‹commits› a crime is necessarily of greater significance than that of an individual who ‹contributes in any other way to the commission› of a crime», that Article 25 (3) (f) RS establishes criminal responsibility only for «those individuals who attempt ‹to commit› a crime, as opposed to those who participate in a crime committed by someone else» and that Article 25 (3) (c) and (d) RS require «for secondary liability that the perpetrator at least attempt to commit the crime». 32 See ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 996 et sqq.). 33 ICC - Trial Chamber I, id. (§§ 998, 1003, 1005). 34 ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§ 339).

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2. The commission of crimes by business actors

This threshold distinction is to ensure the prerequisite capacity of the notion of perpetration to express who is most responsible for the most serious crimes of concern to the international community35. So-called coperpetration under Article 25 (3) (a) RS, as a consequence, requires that «the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime», i.e. «exercised, jointly with others, control over the crime»36. In this vein, «the control over the crime falls in the hands of a collective as such»37. Individual criminal responsibility of those less responsible under sub-sections (c) and (d) is seen by the Court as dependent on «whether the perpetrator acts»38, aligning the term and notion of commission in sub-sections (c) and (d) with that of sub-section (a). The Court thus conceives of a restrictive term and notion of commission under Article 25 (3) RS. This view has been confirmed on appeal39. 2.2.1.1.2. Judge Fulford: Opposition by way of a plain(er) reading Judge Fulford opposes these conclusions of the Trial Chamber. He has based his arguments on a «plain reading» of «the relevant terms», in particular of the term «commits»40. In his view, there is no «clear dividing line between the various forms of liability under Article 25 (3) (a) – (d) of the Statute» but instead «a clear degree of crossover»41. Ordering, soliciting, or inducing pursuant to Article 25 (3) (b) RS do not constitute «a less serious form of commission [sic] than committing it ‹through another person›» pursuant to Article 25 (3) (a) RS42 and «the criminality of accessories» under lit. c is not greater than of those who participate in a group under lit. d, «particularly since many of history’s most serious crimes oc-

35 ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 999). 36 ICC - Trial Chamber I, id. (§§ 1005 et sq.). 37 ICC - Trial Chamber I, id. (§ 994). 38 ICC - Trial Chamber I, id. (§ 998). 39 ICC - Appeals Chamber, Prosecutor v. Lubanga, 01.12.2014 – ICC-01/04-01/06 A 5 (§§ 456 et sqq.). See also below in 2.4.3.4. 40 ICC - Trial Chamber I, Separate opinion of Judge Fulford, 14.03.2012 – ICC-01/04-01/06-2842 (§ 13). 41 ICC - Trial Chamber I, id. (§§ 6 et sq.). 42 ICC - Trial Chamber I, id. (§ 8).

42

2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

curred as the result of the coordinated action of groups of individuals, who jointly pursued a common goal»43. The establishment of such a «hierarchy of seriousness» is neither (1) necessary for sentencing purposes since sentencing is not restricted by «the mode of liability under which an individual is convicted» but in accordance with Rule 145 RPE, the mode of liability is only «one of a number of relevant factors»44 nor (2) implied by the Statute’s wording as «the verb ‹commits› [only] requires a contribution to the commission of the crime […], an operative link between the individual’s contribution and the commission of the crime» (i.e. causation)45 nor (3) productive as an «ex post facto assessment as to whether an individual made an essential contribution to war crimes, crimes against humanity or genocide will often be unrealistic and artificial» due to the collective nature of these crimes46. Finally, in order to establish «‹principal› liability» under Article 25 (3) (a) RS, the «control over the crime theory» is both unsuited from a legal policy perspective, as «policy considerations underlying the domestic legal doctrine» are not applicable at the ICC (the punishment range is not linked to «mode of liability»)47 as well as «unnecessary» (those absent from the crime scene contribute «indirectly»)48. Consequently, joint commission under Article 25 (3) (a) RS mandates, in his view, that at least two individuals, in a coordinated manner, causally contribute to the commission of the crime49. 2.2.1.2. The Katanga and Ngudjolo Chui case: Horizontal and vertical perspectives on control Earlier, in 2008, ICC jurisprudence had already adopted the concept of «control over an organization», i.e. «control over an organized and hierarchical apparatus of power» to shape the notion of «commission» under

43 44 45 46 47 48 49

ICC - Trial Chamber I, id. (§ 8). ICC - Trial Chamber I, id. (§§ 9, 11). ICC - Trial Chamber I, id. (§§ 15 et sq.). ICC - Trial Chamber I, id. (§ 17) (my italics). ICC - Trial Chamber I, id. (§§ 10 et sq.). ICC - Trial Chamber I, id. (§ 12). ICC - Trial Chamber I, id. (§ 16).

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Article 25 (3) (a) RS50. As both Sato51 and Ambos52 describe, Pre-Trial Chamber (PTC) I in Lubanga was first to disregard the ICTY’s subjective approach to perpetration in favor of the notion of «control over the crime»53 and to establish, on this basis, that so-called «indirect perpetration» may flow from a «hierarchical relationship», from the «final say […] as to policies and practices» of the accused in a «hierarchically organized […] group»54. PTC III in Bemba subsequently established that «authority over his military organization» conferred control over the crimes committed by his troops to Bemba55. 2.2.1.2.1. The Majorities’ decisions of Pre-Trial Chamber I and Trial Chamber II: Control by means of a power apparatus in indirect perpetration The most elaborate conceptualization of this kind of control was therefore first provided in Katanga and Ngudjolo Chui by PTC I: The Chamber subsumed the notion of «control over an organized and hierarchical apparatus of power»56 under the broader notion of commission through another person with regard to African militia groups: Criminal responsibility under Article 25 (3) (a) RS accordingly arises if, in hierarchical organizations57, due to either a «sufficient supply of subordinates» that enables their «replaceability»58 or, lacking this, the existence of «intensive, strict, and violent training regimens» 59 or «allegiance to the military leaders of their [the

50 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 498, 511). 51 Satō (2012), p. 293 (at 293 et sqq.). 52 Ambos (2013c), pp. 156 et sqq. See also Weigend (2011), p. 91 (at 92 et sq.) and Jain (2011-2012), p. 159 (at 182). 53 ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§§ 331, 338). 54 ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 10.02.2006 – ICC-01/04-01/06 (§§ 95 et sq.). 55 ICC - Pre-Trial Chamber III, Prosecutor v. Bemba, 10.06.2008 – ICC-01/05-01/08-14 (§ 78). 56 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 511). 57 ICC - Pre-Trial Chamber I, id. (§ 512). 58 ICC - Pre-Trial Chamber I, id. (§§ 516, 518, 546). 59 ICC - Pre-Trial Chamber I, id. (§§ 518, 547).

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2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

subordinates’] ethnic groups»60, the execution of crimes is ensured in «almost automatic» or even «automatic compliance» with the accused’s orders61, who thus «not merely order[s] the commission of a crime, but through his control over the organization, essentially decides whether and how the crime would be committed»62. This vertical perspective is subsequently complemented or combined by the Court with a horizontal perspective under the heading of «indirect co-perpetration»: In order to «assess the blameworthiness of ‹senior leaders› adequately», the (vertical) notion of perpetration by means of a power apparatus was combined with the (horizontal) notion of joint perpetration in a new «mode of liability»63. In the Katanga judgment of 2014, Trial Chamber II has explicitly joined in previous jurisprudence on the law of Article 25 (3) (a) RS as based on control over the crime64. It has argued that the ordinary meaning of Article 25 (3) RS distinguishes between perpetrators – persons whose actions are constitutive of a crime – and accomplices – persons whose actions are «merely linked to the crime’s commission by another»65, thus expressing once more the dependence of complicity on perpetration. In spite of the existing overlap between statutory modes of participation, the provision’s genesis – the fact that a list was drawn up by the drafters in the first place – and considerations of legality, in the Court’s view, dictate interpretative production of a distinguishing principle66. The control over the crime approach is said to be most apt to this task: Irrespective of its al-

60 ICC - Pre-Trial Chamber I, id. (§ 547). 61 ICC - Pre-Trial Chamber I id. (§§ 514 et sq., 517). 62 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 518) (my emphasis). See also ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§ 330) on defining control over the commission of a crime as deciding on its whether and how. 63 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 492 et sq., 511 and 519 et sq.). In this vein also Wilt (2009b), p. 307 (at 309) («thus stressing simultaneously the horizontal dimension […] and the vertical dimension of system criminality»). See also Manacorda/ Meloni (2011), p. 159 (at 171 et sqq.). According Weigend, the new «mode of liability» merely amounts to a combination of indirect and of co-perpetration in terms of a «factual coincidence», Weigend (2011), p. 91 (at 110 et sq.). 64 ICC - Trial Chamber II, Prosecutor v. Katanga, 07.03.2014 – ICC-01/04-01/07 (§§ 1382, 1396). 65 ICC - Trial Chamber II, id. (§§ 1383 et sqq.) («seulement en lien avec la commission d’un crime par autrui», my translation). 66 ICC - Trial Chamber II, id. (§§ 1388 et sq.).

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2. The commission of crimes by business actors

leged widespread recognition in domestic legal orders, in the Majority’s view, this approach best renders operational the distinction between perpetrators and accomplices inherent to the Statute and best allows the statutory modes of participation to produce their normative force67. According to the Majority, control over the crime as «the power to decide if and how the crime is going to be committed»68 manifests itself also as control by means of a power apparatus in Roxin’s sense of Organisationsherrschaft, provided that «the highest authority of an organization» can rest assured that organization members will carry out an offense’s material elements69. Accordingly, the Chamber has characterized the power apparatus by the interchangeability of its members in the execution of leadership directives70 and the resulting control as predominantly a product not of individual relationships but of the organization’s nature and its structural dynamics71. Diverging from previous jurisprudence, however, Trial Chamber II has held with a view to Article 78 RS and Rule 145 ICC RPE that Article 25 (3) RS does not express a «hierarchy of blameworthiness» between participants; the provision is, in this view, silent on the accused’s culpability, merely refers to her «individual criminal responsibility» and thus does not contain a «ranking of punishment»72. The Appeals Chamber’s holding in Lubanga now directly contradicts this aspect of the decision73.

67 ICC - Trial Chamber II, id. (§ 1395). I have referred by the use of «normative force» to the Chamber’s holding that the control approach «permet à l’ensemble des dispositions pertinentes de cet article relatives à la responsabilité pénale individuelle de produire leur plein effet» (my emphasis). 68 ICC - Trial Chamber II, id. (§ 1396) («le pouvoir de décider si et comment le crime sera commis», my translation). 69 ICC - Trial Chamber II, id. (§§ 1405, 1403) (my translation). 70 ICC - Trial Chamber II, id. (§ 1408) («automatisme fonctionnel»). 71 ICC - Trial Chamber II, id. (§ 1409). 72 ICC - Trial Chamber II, id. (§§ 1386 et sq.) («responsibilité pénale individuelle», «échelle des peines», emphasis omitted, my translations). 73 ICC - Appeals Chamber, Prosecutor v. Lubanga, 01.12.2014 – ICC-01/04-01/06 A 5 (§ 462).

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2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

2.2.1.2.2. Judge van den Wyngaert: Opposition in another plain reading In her concurring opinion to the Ngudjolo Chui judgment rendered by Trial Chamber II, Judge van den Wyngaert has engaged in a «plain reading» of the Statute, explicitly in the spirit of Judge Fulford’s opinion to the Lubanga judgment74. She opposes the conclusions on interpreting the law of Article 25 (3) RS offered both by PTC II in Katanga and Ngudjolo Chui as well as by Trial Chamber II in Ngudjolo Chui. In her view, neither the ordinary meaning nor context of Article 25 (3) (a) RS nor recourse to other sources of law pursuant to Article 21 (1) RS – in particular general principles of law – would support the control over the crime approach or a hierarchical understanding of Article 25 (3) RS. Domestic criminal law doctrine is too radically fragmented to produce the control approach as a general principle 75. And in spite of the provision’s reference to «open-textured concepts», the control over the crime approach is in violation of Article 22 (2) RS76. She consequently rejects co-perpetration, perpetration through an organization, and indirect co-perpetration as modes of participation and proposes instead that perpetration (under the «label of ‹commission›») be limited beyond «simply a causal link» to «direct contribution[s]» and that co-perpetration be distinguished «from random coincidental actions of persons acting individually» by a shared intent prerequisite manifest as «voluntarily coordinated action»77. Indirect perpetration is defined, in her view, by a prerequisite of subjugation of the physical perpetrator’s will to which control over an organization may constitute an important evidentiary factor78. Additionally, absent «clear provisions indicating a differentiation in penalties for each of the paragraphs of Article 25(3)» in Articles 77, 78 RS and Rule 145 ICC RPE, and given the significant overlap of said paragraphs, the notion of a hierarchy of blameworthiness under Article 25 (3) RS is to be rejected79: «I fail to see an inherent difference in blameworthi-

74 ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§ 8). 75 ICC - Pre-Trial Chamber II, id. (§ 17). 76 ICC - Pre-Trial Chamber II, id. (§§ 12, 18 et sq.). 77 ICC - Pre-Trial Chamber II, id. (§§ 43 et sq., 32, 14). 78 ICC - Pre-Trial Chamber II, id. (§§ 54 et sq.). 79 ICC - Pre-Trial Chamber II, id. (§§ 27 et sq.).

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ness between aiding and abetting and committing a crime», she posits, «I do not believe that the foot soldier who participated in a mass killing (Article 25(3)(a)) is necessarily more blameworthy than the army general who aided and abetted the same killing (Article 25(3)(c))»80. It is not «abstract legal categories», she asserts, but «the factual circumstances of the case» that should determine the blameworthiness of the accused81. Judge van den Wyngaert moreover points out that the «intuitive tendency» to conceive masterminds or intellectual authors as «somehow most blameworthy for large-scale criminality» and to thus «try to characterise them as principals at any cost» within the «rigid division between Articles 25(3)(a) and 25(3)(b)-(d)» will yield problems «from a legal and conceptual point of view»: It is her position that with regard to the omission of planning as a mode of participation «the drafters of the Statute have not elaborated […] forms of criminal responsibility specifically aimed at this category of offenders», and the «conduct of political and military leaders will simply not fit the mould of principal liability»82. In her minority opinion to the Katanga Judgment issued by Trial Chamber II, Judge van den Wyngaert has reiterated this position on the law of commission83. 2.2.2. Commission and Article 25 (3) RS in scholarly contributions Positions in scholarship on the scope of the term and notion of commission are diverse and intersecting. I will subsequently limit my review to representative accounts, distinguishing between those positions that favor the Court’s hierarchical ordering of Article 25 (3) RS as well as its control over the crime approach and those positions that oppose both of these claims.

80 81 82 83

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ICC - Pre-Trial Chamber II, id. (§ 24) (my emphasis). ICC - Pre-Trial Chamber II, id. (§ 24) (my emphasis). ICC - Pre-Trial Chamber II, id. (§ 29). ICC - Trial Chamber II, Prosecutor v. Katanga, 07.03.2014 – ICC-01/04-01/07 (§§ 278 et sqq.).

2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

2.2.2.1. Article 25 (3) RS constitutes a hierarchical ordering of degrees of responsibility; (principal) perpetrators are in control over the crime, (secondary) accomplices aren’t Most prominently, Werle proposes that Article 25 (3) RS be interpreted in line with a «participation model that distinguishes degrees of responsibility»: Distinct quantities of responsibility correspond with different modes of participation; modes of participation, in his view, must be distinguished with recourse to «normative criteria that quantify responsibility»84. In his view, statutory modes of participation in Article 25 (3) RS are not «descriptive concepts […] but indicators of individual degrees of guilt» in four different levels of participation, in a «value-oriented hierarchy of participation»85. In this hierarchy, «[a]t the top, commission as a perpetrator constitutes the gravest form of criminal liability […] while contribution to a group crime constitutes the lowest level of participation»86. The hierarchy also reflects «the difference between commission, as liability for the crime as the result of one’s own conduct, and all the other modes of participation, as accessory liability for a crime committed by someone else»87. In other words: The perpetrator «defines the crime committed», not the accessory88. The criterion of control over the crime defines perpetration in sub-section (a) and thus distinguishes perpetration from other modes of participation, and such control (always) implies greater responsibility than a lack of control89, for the «degree of individual responsibility» depends on «the level of personal involvement in the criminal events»90. This greater degree of responsibility must then be taken into account at the sentencing stage91: Differentiation of modes of participation provides «help-

84 Werle/Burghardt (2010), p. 849 (at 850 et sqq.) («im Sinne eines nach Verantwortungsgraden differenzierenden Beteiligungsmodells», «wertende, die Verantwortung quantifizierende Kriterien», my translations). 85 Werle (2007), p. 953 (at 957). 86 Werle/Jeßberger (2014), p. 197. 87 Werle (2007), p. 953 (at 957). 88 Werle (2007), p. 953 (at 969 et sq.). 89 Werle/Burghardt (2010), p. 849 (at 850 et sqq.). 90 However, not necessarily decreasingly «as distance from the actual act increases» but often increasingly so, Werle (2007), p. 953 (at 954). 91 Werle/Burghardt (2010), p. 849 (at 850 et sqq.).

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ful guidelines in sentencing matters»92 and «would not have any practical effect if it were not taken into account in sentencing matters»93. Burghardt similarly opts for a «value-orientated approach» «pursuant [to] a differentiation model» in which the modes of participation in Article 25 (3) RS both «attribute criminal responsibility» and «function as criteria for ascribing a certain degree of responsibility», more precisely one of four degrees in a hierarchy that «must not be disregarded at the sentencing stage»94. Modes of participation are not merely «phenomenological categories», the «classification» in Article 25 (3) RS being «devoid of sense» form a «merely descriptive viewpoint»; instead, their «elements […] have to warrant a certain degree of liability»95. Burghardt favors not only the control criterion to distinguish between perpetrator and non-perpetrator responsibility but also the German «Teilnahmemodell» (where criminal responsibility of non-perpetrator participants is at least partially derivative of the principal perpetrator’s criminal wrong96 and thus qualitatively different from non-derivative perpetrator responsibility)97. Both Werle and Burghardt have applauded the Court for having combined horizontal and vertical perspectives under the notion of indirect co-perpetration98. Ambos too supports the notion of a «hierarchical structure» of Article 25 (3) RS in terms of a «value-based difference» regarding «the degree of wrongfulness and blame» between «perpetration» in sub-section (a) and «secondary participation» in sub-sections (b) to (d)99. From this insight into a prescriptive quantitative difference between participants under Article 25 (3) RS he deduces the need to «find a qualifier which unambiguously expresses the greater weight of the contribution of a perpetrator»; this qualifier is provided, in his view, by the «control over the act theory»100.

92 93 94 95 96 97 98

Werle (2007), p. 953 (at 957). Werle/Jeßberger (2014), p. 197. Burghardt (2010), p. 81 (at 94, 86, 91 et sq.). Burghardt (2010), p. 81 (at 91 et sq.). See below in 2.3.4.1.1. Burghardt (2010), p. 81 (at 86, 89, 93). See also Wilt (2009b), p. 307 (at 309) («thus stressing simultaneously the horizontal dimension […] and the vertical dimension of system criminality») and Manacorda/Meloni (2011), p. 159 (at 171 et sqq.). 99 Ambos (2013c), pp. 146 et sq. 100 Ambos (2013c), pp. 152 et sq. In an earlier contribution, in terms of perpetrator criteria, he had advocated plurality, «the control over the act theory» not being «the only or last word on the matter», Ambos (2012), p. 115 (at 145).

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2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

Secondary participants, in contrast, are to be held responsible based on «a mixed theory combining the autonomous wrong inherent in each complicity conduct and the partaking in the wrong of the main act»; such «secondary participation […] is not a crime in itself or even a completely autonomous form of participation», it is «at least [sic] factually dependent on a main act or crime»101. This complex system, he argues, cannot be abandoned in favor of an approach that relegates «degrees of participation» to the sentencing stage; for the «differentiated imposition of a title of imputation serves justice and fairness better than treating all parties to a crime equally» and is a «useful heuristic exercise» during Pre-Trial102. Finally, in her study on Article 25 (3) (b) and (c) RS, Finnin has defined «accessorial liability»103 to be derivative in nature, i.e. «the criminality of the conduct of the accessory is ‹derived› from that of the principal perpetrator», it is «not criminal on its own» but only «by virtue of its connection with the act of the principal perpetrator»104. She argues that a derivative approach is most suited to the Rome Statute, since a non-derivative approach «has been rejected by the majority of State Parties […] in their domestic criminal justice systems», would «represent a great departure from the practice of previous tribunals and courts» such as the ICTY and the ICTR, and would not conform to recent ICC jurisprudence105. In her distinction between a non-derivatively established (principal) perpetrator responsibility and a derivatively constituted accessory responsibility, Finnin restricts the notion of commission to the former. She does not, however, explain whether her approach is premised upon Article 25 (3) RS as a hierarchy in the above sense or whether «principal perpetrators» must possess control over the crime.

101 Ambos (2013c), pp. 147 et sq. 102 Ambos (2013c), p. 146. See also Ambos (2012), p. 115 (at 144 et sq., 147). 103 Finnin (2012), pp. 90 et sqq., 122, 184 has applied so-called element analysis to define prerequisites of «accessorial liability»; in her view, for example, «orders» in Article 25 (3) (b) RS is a conduct element, «the commission of such a crime» in Article 25 (3) (b) to (d) RS is a consequence element. She subsequently applies to those material elements the mental elements pursuant to Article 30 (2) and (3) RS, arriving thus at prerequisites for ordering, inducing, assisting etc. responsibility as a result of element analysis. 104 Finnin (2012), pp. 100, 94. 105 Finnin (2012), p. 100 referring to ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§ 320) (where assistants are, in her view, qualified as accessories).

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2.2.2.2. All participants are equal under Article 25 (3) RS; distinctions are made at the sentencing stage In scholarship, Miller argues that terminological differences in Article 25 (3) RS should not lead to qualitatively different modes of participation106. In his view, all participants are (qualitative) equals, i.e. their individual criminal responsibility is based on the same rationale, which does not distinguish between non-derivatively responsible principals and derivatively responsible accomplices, and they are distinguished (quantitatively) only at the sentencing stage107. He proposes that «the commission of such a crime» in Article 25 (3) RS establishes the requirement of the presence of (at least) those elements of the offense that constitute an attempt; these elements, in his view, may be constituted by the physical acts of any of the participants in a «collective offense»108. The phrase, in his view, serves to indicate quantitative (or: factual) dependence, i.e. the essential prerequisite that criminal responsibility can arise only for offenses whose elements have been constituted109. In her review of Article 25 (3) RS, Mitgutsch similarly proposes that no qualitative distinction be made between perpetrators and other participants under Article 25 (3) RS110. The expression «commission of such a crime» in Article 25 (3) RS in her view refers to the prerequisite of a «direct perpetrator», constituting at least the elements prerequisite for an attempt of the offense in question111. She argues that recourse to the control over the crime approach by the ICC is a device redundant to determining the scope of such perpetration, given that a distinction between participants before the sentencing stage is not mandated by the Statute112. In Van Sliedregt’s view, Article 25 (3) RS contains «overlapping modalities of perpetration and participation» under which a plurality of approaches can prevail; the «normative approach» to distinguishing principals from non-principals should be limited to sub-section (a), where she

106 Miller (2007), pp. 354 et sq. 107 Miller (2007), p. 355. 108 Miller (2007), pp. 311, 313, 355 («Gesamttat», my translation). See in greater detail below in fn. 525. 109 Miller (2007), p. 311 («quantitative Akzessorietät»). 110 Mitgutsch (2011), p. 357 (at 364). 111 Mitgutsch (2011), p. 357 (at 363). 112 Mitgutsch (2011), p. 357 (at 361, 373).

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2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

also supports the control over the crime approach; sub-sections (b) to (d) «reflect a classic differentiated and derivative approach»113. In spite of these arguments that align her view in most respects with that of Werle and Ambos, she proposes that the degree of responsibility is expressed «at the level of sentencing, not at [the] conviction level»: While she concedes that «[t]here is value in adopting a normative approach to the principal status», she finds this value only in the expressive capacity of communicating to the international community «who was the ‹real› culprit» – all «participants of international crimes are punished for the crime proper (as if they were principals)», sub-sections (b) to (d) should not be conceived of as «reduced liability»114. Her support for the control approach thus seems to suggest that she views it as particularly suited to serve the need for an expressive capacity of international criminal law115. According to Mantovani, the Rome Statute «rejects the complicated notion of differentiated liability with regard to predetermined categories of participants» and «adopts the simpler principle of the equal culpability of participants»; accordingly, participants are responsible as long as they contributed to the commission of the crime116. Only at the sentencing stage and on a case-by-case basis is «the real degree of culpability of each participant» to be determined117. Enumerations of forms of participation are «merely illustrative»118. Militello similarly concludes that «the analytical nature of the descriptions of Article 25 (3) appears to derive from another fundamental principle of criminal law, i.e. the principle of legality and the correlated need for an accurate description of criminally significant conduct» but does not «draw any distinction as to the magnitude of responsibility»; «the Rome Statute does not envisage any difference in levels of punishment»119.

113 114 115 116 117 118 119

Sliedregt (2012a), pp. 85, 80 et sq., 88, 86, 74. Sliedregt (2012a), pp. 85, 80 et sq., 88, 86, 74. Sliedregt (2012a), pp. 85, 80 et sq., 88, 86, 74. Mantovani (2003), p. 26 (at 34 et sq.) (my emphasis). Mantovani (2003), p. 26 (at 34 et sq.). Mantovani (2003), p. 26 (at 34 et sq.). Militello (2007), p. 941 (at 948 et sq.).

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2.2.3. Results and outlook: Implications for the scope of individual business actors’ responsibility under the Rome Statute The Majorities at the Court as well as Werle and Burghardt plead for a two-fold restriction of the term and notion of commission: quantitatively to the highest degree of responsibility as well as qualitatively to acts that constitute control over the crime. Such control appears in different formulations: as (individualized) collective control in co-perpetration and as control by means of a power apparatus. Less restrictively, both Ambos and van Sliedregt support the Court’s control over the crime approach as a perpetrator criterion but reject any claim to it being exclusive. Van Sliedregt, in opposition to the Majority, Werle, Burghardt, and Ambos, who support not only this qualitative but also an inherent quantitative distinction between participants under Article 25 (3) RS, rejects moreover that Article 25 (3) RS constitutes a hierarchy of degrees of responsibility. Judge Fulford in his separate opinion similarly rejects such hierarchization but also argues especially against the control over the crime approach, commission in his view being premised merely on a causal contribution. And Judge van den Wyngaert proposes to limit commission as perpetration to direct contributions. Such broader notions of commission are supported as well by Mitgutsch, who due to the Statute’s concept of equivalence of all participants sees no need for a control approach to Article 25 (3) (a) RS. More specifically, Miller posits that commission references a collective effort by which offense elements are brought into existence; this view, in turn, imposes restrictions on the term and notion of commission by establishing rules on how this collective effort should be constituted. All of these positions have important implications for the assessment of business actors’ conduct. For those positing equivalence between participants under Article 25 (3) RS, business actors’ individual criminal responsibility would arguably120 turn (merely) on their (causal) contribution to the offense in question, with the individual degree of their responsibility being determined at the sentencing stage. Individual criminal responsibility would require the presence of prerequisite offense elements, brought into existence either by one or several accused. The involvement of a perpe-

120 I use the word «arguably» in this text to express «that there are good reasons why something might be true», in my opinion or in the cited author’s opinion. On this definition, see Abbs (2009), available at http://www.ldoceonline.com/dictionary/ arguably (last visited: 30.06.2015).

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2.2. Commission in Article 25 (3) RS in ICC jurisprudence and scholarship

trator in the Court’s sense would not be required. Whether business actors’ individual criminal responsibility arises under sub-section (a) or sub-sections (b) to (d) RS would arguably depend upon the phenomenology of their physical acts; whether a directive were to fall under sub-section (b) as encouragement or as assistance (c) or contribution (d) would not per se predetermine the degree of responsibility. Statutory modes of participation would be descriptive in nature. In the Corrie case example121, therefore, criminal responsibility for directives issued by Caterpillar management employees could arise for committing a war crime; such commission could be described as assistance by providing the means as referenced in Article 25 (3) (c) RS. If perpetration under Article 25 (3) (a) RS is presumed to require control over the crime, business actors who do not possess such control, could only incur individual criminal responsibility as secondary participants pursuant to the prerequisites established in Article 25 (3) (b) to (d) RS. Whether a directive would be categorized as encouragement under subsection (b) respectively as assistance (c), or contribution (b) would depend also on the associated degree of responsibility. In this sense, statutory modes of participation possess a prescriptive quality, which is framed e.g. in the debate as to whether assistance need be substantial or not122. Criminal responsibility for encouragement, assistance, and contribution is moreover made dependent upon a qualitative assessment of one or several other participants’ physical acts as perpetration, thus presuming another prescriptive quality of sub-sections (b) to (d). In particular this prerequisite turns conceiving the scope of the term and notion of commission into more than an academic exercise; it has most important practical implications for prosecutions of core crimes123. Arguably lacking control over the crime, Caterpillar management employees could not be held responsible for having committed a war crime pursuant to Article 25 (3) (a) RS; instead, their responsibility could arise only as secondary participation pur121 See above in 1. 122 See in greater detail below in fn. 445 and 446. 123 Scholars have suggested that in the particular context of international core crimes, one individual offense with one principal offender will most often not be identifiable, see Dencker (1996), pp. 265 et sq.; Vest (2001), p. 457 (at 495); Miller (2007), p. 356; Ambos (2011a), p. 148; Vest (2011), pp. 373 et sq., 414 et sq. and cf. also Weißer (2011), pp. 356 et sq. (on avoiding this drawback in Italian criminal doctrine). In a similar vein, ICC - Trial Chamber I, Separate opinion of Judge Fulford, 14.03.2012 – ICC-01/04-01/06-2842 (§ 17).

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suant to Article 25 (3) (c) RS. What then is the law of commission in light of this controversy? In the following section, I propose a closer review of the arguments offered by both factions above. 2.3. Review of perspectives on commission in ICC jurisprudence and scholarship Most of the above arguments are derived from an analysis of the text of Article 25 (3) RS, i.e. of its ordinary meaning, context, and genesis. Beyond textual analysis, needs for legal certainty and expressivity in punishment have additionally been proposed as arguments. This section is devised to probing the validity of these claims. 2.3.1. The ambivalent text of the Rome Statute As the above has shown, scholarship and jurisprudence have both engaged in extensive reviews of the text and context of Article 25 (3) RS, resulting in either restrictive or more expansive understandings of the term and notion of commission. 2.3.1.1. Textual perspectives in ICC jurisprudence In Lubanga both the Majority and Judge Fulford have exposed a host of arguments in relation to the Statute’s ordinary meaning and context. The Majority’s main conclusions are intricately related to the (presumed) ordinary meaning and context of the Statute: While the textual anchor of the control over the crime approach had already been provided by PTC I in Lubanga, the Majority’s threshold distinction between commission and contribution (ordinary meaning and context of «commits» and «contributes» in Article 25 (3) (a) to (d) RS, context of «commits» in Article 25 (3) (f) RS) as well as the dependence of «secondary liability» upon principal perpetrator responsibility (ordinary meaning of «commits such a crime») are both derived from the Statute’s text and lead the Court to presume – on the one hand – a hierarchical responsibility-related difference between the statutory modes of participation contained in Article 25 (3) RS and – on the other hand – that the difference between those most re-

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2.3. Review of perspectives on commission in ICC jurisprudence and scholarship

sponsible (principals) and those not most responsible (accessories) is marked by the former’s control over the crime. Judge Fulford has opposed these arguments and conclusions, based as well on what he found to be features of the Statute’s text: The descriptive overlap of sub-sections (a) to (d), a broad reading of the ordinary meaning of «commission», and the context of Articles 77, 78 RS and Rule 145 ICC RPE have convinced him to assume (qualitative) equivalence between statutory modes of participation and (thus) to refute claims of the Majority regarding the control over the crime approach as well. Judge van den Wyngaert has similarly pointed to overlap as well as to the context of said provisions in opposition to a hierarchical reading of Article 25 (3) RS; in her view, the control over the crime approach violates Article 22 (2) RS. Finally, while the Majority of Trial Chamber II in Katanga shares Judges Fulford and van den Wyngaert’s argument drawn from Articles 77, 78 RS and Rule 145 ICC RPE, it (nevertheless) joins the Majority of Trial Chamber I in Lubanga in declaring the distinction between (principal) perpetrators and (secondary) accomplices as inherent to the Statute’s modes of participation in Article 25 (3) RS. 2.3.1.2. Textual perspectives in scholarship In scholarship, Werle has put forward that «linguistic differentiation and the conceptual systematization» of Article 25 (3) RS as well as the phrase «the commission of such a crime» both serve as arguments for the qualitative difference between (principal) perpetration and (secondary) participation in the sense that the latter is responsibility for the crime defined by the former 124. Moreover, this qualitative distinction is said to be accompanied by a quantitative one as a matter of Article 25 (3) RS as well: Although the Rome Statute does not expressly provide for «gradations in the degree of criminal liability» in Article 25 RS, «the system lying at the heart of the provision implies a model that also distinguishes between degrees of responsibility attached to each mode of participation»125. Ambos similarly considers the text to indicate degrees of responsibility «not ex-

124 See above in 2.2.2.1 and again Werle (2007), p. 953 (at 967, 970, 957). 125 Werle/Jeßberger (2014), p. 196.

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pressly […] [but] terminologically and implicitly» 126 and draws contextual support for his position from the «limitation of attempt liability to those persons who ‹commit› (in the sense of subparagraph (a))» as well as from the need for «factual dependence» expressed in the references to the attempted crime in sub-sections (c) and (d)127. He moreover points to the regardless-clause in Article 25 (3) (a) RS as an explicit reference to indirect perpetration by means of a power apparatus, i.e. on the basis of a control over the crime approach128. Finnin interprets references to the crime’s commission in sub-sections (b), (c) and (d) as indication of more than factual dependence; in her view, these references point to «derivative liability»129. From a textual perspective, both Miller and Mitgutsch base their opposing claims of (quantitative) equivalence of all participants under Article 25 (3) RS on the lack of mandatory distinctions as to different modes of participation in terms of punishment ranges in Articles 77, 78 RS and Rule 145 ICC RPE130. Equivalence as a matter of quality is derived by Mitgutsch from the text of the regardless-clause in Article 25 (3) (a) RS; it determines the mere factual inter-dependence of contributions in committing crimes under the Statute131. In Mitgutsch’s view, this equality is underlined moreover by the possibility to interpret the «or» in Article 25 (3) (a) RS as inclusive instead of exclusive, thus expressing the participants’

126 Article 25 (3) RS distinguishes between different modes of participation «at least terminologically»: While it does «not expressly provide for a gradation in the degree of responsibility» from lit. a to lit. d, it supports an «implicit value-based differentiation» in its ordinary meaning, Ambos (2013c), pp. 146 et sq. 127 Ambos (2013c), pp. 146 et sq. 128 Ambos (2013c), p. 154 with further references. 129 Finnin (2012), pp. 21 et sq., 99 et sq. 130 Miller (2007), pp. 355 et sq.; Mitgutsch (2011), p. 357 (at 364). 131 Miller (2007), pp. 355 et sq. Mitgutsch (2011), p. 357 (at 363 et sq.) posits that dependence of secondary accomplice responsibility not upon the presence of other physical acts (quantitative dependence) but qualitatively upon a principal’s offense (i.e. upon the combination of physical acts and mental elements), is precluded by a contextual understanding of Article 25 (3) (a) RS in light of Article 30 (1) RS: Given that Article 30 (1) RS in principle allows for criminal responsibility on the basis of negligence («unless otherwise provided»), a prerequisite of qualitative dependence would have required an expressly made reservation against such negligent conduct.

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2.3. Review of perspectives on commission in ICC jurisprudence and scholarship

interchangeability132. As does Miller, she bolsters her argument by referring to the formulations in sub-sections (b) to (d) RS, which require plainly that e.g. «the commission of a crime» is induced, omitting to specify any additional attributes of such commission133. Militello and Mantovani similarly take recourse to the lack of mandatory distinctions regarding the range of punishment to propose participants’ equivalence134. 2.3.1.3. Results: The Statute’s ambivalence from a textual perspective Text-based approaches to Article 25 (3) RS have yielded a host of diverging arguments and conclusions in jurisprudence and scholarship. In jurisprudence, the separate opinions of Judges Fulford and van den Wyngaert have countered the Lubanga Majority’s arguments and conclusions on hierarchization of participation and dependence; they have been opposed by the Majority in Katanga on the matter of hierarchization – all reaching for the Statute’s ordinary meaning and context to produce supporting arguments. The control over the crime approach is similarly both appraised and refuted on the basis of ordinary meaning. A comparable schism is present in scholarship, arguments that are extracted from the ordinary meaning and context found in the text of Article 25 (3) RS serving to support either a prescriptive characterization of sub-sections (a) to (d) both in terms of their scope and their hierarchization or the equivalence of participants and illustrative character of modes of participation in Article 25 (3) RS. Faced with this dispute, it is important to highlight recent comparative research cautioning against overemphasizing statutory prerequisites in order to determine the scope and structure of the term and notion of commission of crimes: Scholars have concluded in particular that the statutory distinction of modes of participation per se is only a weak indicator of a

132 Mitgutsch (2011), p. 357 (at 370, 374). On this interpretation, see also ICC - PreTrial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 491) on the «or» meaning «either one or the other and possibly both». 133 Miller (2007), p. 355; Mitgutsch (2011), p. 357 (at 363 et sq.). See also Hamdorf (2002), p. 396. 134 Militello (2007), p. 941 (at 948 et sq.); Mantovani (2003), p. 26 (at 34 et sq.).

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qualitative distinction between perpetrators and secondary participants135. Judge Fulford’s overlap argument is a case in point: To determine any overlap of statutory modes of participation, it is indeed important to first assign these modes of participation meanings such that they overlap in scope. In Hamdorf’s view, only when the law imposes on modes of participation a non-quantitatively established dependence on the commission of a crime, i.e. a dependence on qualities of that crime which render that crime the crime of another such as its intentional commission or the lack of defenses, can the statutory formulation be taken to indicate a qualitative difference between commission in the sense of (principal) perpetration and the non-perpetration contributions of secondary participants136. This, however, is not the case in Article 25 (3) RS: The provision only requires the crime’s commission or attempted commission and points neither to intentionality nor lack of defenses and in this vein imposes a mere quantitative (factual) dependence of participants’ physical acts instead of a qualitative dependence upon another’s offense137. Hamdorf points out, in addition, that the regardless-clause in Article 25 (3) (a) RS might merely state the obvious: Why should criminal responsibility be at all premised upon another’s criminal responsibility?138 Proponents of a qualitative distinction such as Werle (claiming that only the perpetrator defines the crime, whereas others participate in the crime of the perpetrator, i.e. of another) and the Majorities in Lubanga and Katanga (claiming that perpetrator responsibility is independent, whereas accomplice responsibility is dependent on

135 Hamdorf (2002), pp. 14, 29, 32 and sq. therefore, distinguishes an (independent) statutory model of participation from the applied model of attribution. Concurring Rotsch (2009), p. 144; Vest (2011), p. 179. Also concurring but critically, Miller (2007), pp. 261 et sqq., 244 et sqq., 296, 300, who argues that it is misleading to propagate a distinct significance of a statutory model, as in the interpretative process, genesis and telos are to be considered as well. Burghardt (2010), p. 81 (at 86 et sq.) appears to put greater emphasis on «statutory mode[s] of participation» to limit the scope of criminal responsibility in basing his criticism for the «broad concept of criminal liability» in the Rome Statute mainly on «the substantive provisions of criminal responsibility in the ICCSt» and, in turn, relies on jurisdictional limitations to amend their scope. Both Hamdorf (2002), p. 14 and Miller (2007), pp. 247 et sqq., 261 derive this conclusion from their comparative research into the law of commission in Norway, Austria, Sweden, respectively Italy. 136 Hamdorf (2002), pp. 308 et sq. 137 See also Ambos (2013c), pp. 147 et sq. 138 Hamdorf (2002), p. 396.

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«whether the perpetrator acts», i.e. on the crime of another) can thus only draw weak support from the Statute’s text for their proposals. And yet, even this conclusion appears set on shaky foundations with regard to the Rome Statute. For from a genetical perspective, Schabas has stressed that «sophisticated deconstruction» of the terms used in Article 25 (3) RS «will yield little of interest» as it was (simply) the drafters’ aim «to codify exhaustively various forms of complicity by drawing upon concepts familiar to jurists from different legal traditions»; the provision should thus be interpreted plainly «as an attempt to cover complicity generally»139. It then seems that Trial Chamber II’s adherence to genesis to uphold both the distinction between perpetrators and accomplices as well as the prescriptive function of statutory modes of participation140 is a vain effort, as is Judge Fulford’s allusion to overlap141. We must ultimately keep in mind also that «general part» provisions are often purposely formulated by recourse to abstract terms which, in turn, allow for a host of interpretations but cannot by themselves offer conclusive guidance as to their normative content142. As a consequence, Article 25 RS arguably should not be taken to offer by itself context to ordinary meaning interpretations. Therefore, whether or not Article 25 RS prescribes a hierarchy of degrees of responsibility (threshold distinction of wrongfulness and blame between «commits» and «in any other way contributes»?) and, relatedly, whether or not individual criminal responsibility under sub-sections (b) to (d) is dependent upon the acts of a so-called perpetrator in control of the crime («commits» as perpetration?) should not solely be determined based on a textual perspective. As recognized both in scholarship and jurisprudence, recourse to additional perspectives is of the essence to finding the law of Article 25 RS generally, and of the term and notion of commission specifically. Two such prominent perspectives will subsequently be addressed.

139 Schabas (2010), p. 431. 140 See above in 2.2.1.2.1 and again ICC - Trial Chamber II, Prosecutor v. Katanga, 07.03.2014 – ICC-01/04-01/07 (§§ 1388 et sq.). 141 See above in 2.2.1.1.2. 142 Miller (2007), p. 248.

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2.3.2. The legal certainty perspective: More ambivalence The imperative of legal certainty is undoubtedly an indispensable guideline to the interpretation of Article 25 (3) RS143. Responsibility distinctions before the sentencing stage have been argued to serve such legal certainty in providing (greater) predictability of sentencing in international criminal justice; in particular Weigend has pointed out that «the normative gradation between several participants in a crime can be difficult» but «the effort must be undertaken, and it is too easy a way out to leave it all to the sentencing judge»144. Regarding German criminal law, Roxin has argued that this assessment must be premised upon doctrine and cannot occur behind closed doors145. Restrictively conceiving the term and notion of commission on the basis of quantitative and qualitative assessments of conduct before the sentencing stage in terms of perpetrator vs. non-perpetrator responsibility therefore makes sense from a legal certainty perspective. Indeed, as Husak opines from an Anglo-American perspective as well, «trust in [sentencing] discretion is a poor substitute for getting our legal doctrines right in the first place»146 – however, «getting our legal doctrines right» can also mean to purposely direct certain considerations towards sentencing discretion. What happens with atypical cases, i.e. when, as Judge van den Wyngaert asserts, a particular conduct does not fit the categorical «mould[s] of principal liability» available but is considered nevertheless most «blameworthy»147? There is now considerable evidence regarding domestic jurisdictions that points to a subjectivism disguised in doctrinal arguments when it comes to determinations of greater (perpetrator) responsibility before the sentencing stage: Doctrinal categorization, it is argued, occurs according to the perception of desired sentences148. In this vein, Keiler concludes that seemingly «no longer the dogmatic cat-

143 See already above in 2.1. 144 Weigend (2012), available at http://opiniojuris.org/2012/03/22/ljil-weigend-com ments/ (last visited: 30.06.2015). See also on German criminal law Jescheck/ Weigend (1996), p. 646. 145 Roxin (2003a), mn. 6, 8. See also on German criminal law Jescheck/Weigend (1996), p. 646. 146 Husak (2014), p. 41 (at 47). 147 See above in 2.2.1.2.2 and again ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§ 29). 148 Stewart (2012b), p. 165 (at 210 et sq.) with further references.

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egorization determines the severity of the sentence imposed, but conversely that the severity of the sentence deemed desirable determines the categorization of the conduct in question»149. This subjectivism might be due to the highly normative150 (better: empirically conscious and therefore normatively open151) character of perpetrator criteria such as control over the crime. As scholars argue however, such normativity then refutes any increase in legal certainty that is involved in differentiations of responsibility before the sentencing stage and militates for openly relegating differentiations to the sentencing stage altogether152. Hamdorf points out in this regard that while the control over the crime approach presumes a qualitative difference between (principal) perpetration and (secondary) complicity, this difference is conceived so diffusely that a choice between both forms of responsibility is ultimately possible by recourse to considerations of «punishability» alone153. What is more, differentiations at the sentencing stage need not occur without providing guidance to the sentencing judge: Scholars opposed to (statutory) hierarchization and a control over the crime approach explicitly point to the lack of legal certainty involved in «leav[ing] it all to the sentencing judge»154, and argue instead for developing a system of sentencing factors or guidelines specific to individual participation (but not modes of participation) to ensure predictability 155. These sentencing factors can then

149 Keiler (2011), p. 173 (at 190) with references to jurisprudential practice in the Netherlands and elsewhere. Also in this vein, Rotsch (2009), p. 416, showing in an extensive analysis how these differentiations have been leveled in the practice of German jurisprudence on perpetrator responsibility for control over the crime, subjective assessments of culpability leading to arbitrary categorizations at the attribution stage, and opposing this view as an «exaggerated generalization», Vest (2011), pp. 378 with fn. 154 (my translation). 150 Hamdorf (2002), pp. 127, 340 et sq. Somewhat euphemistically Rotsch (2009), p. 417 refers to the open concept of control as normatively empty. 151 See below in 2.4.1.1 and 2.4.1.2.2. 152 See Stewart (2012b), p. 165 (at 210 et sq.) and also ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§§ 19 et sq.). 153 Hamdorf (2002), p. 124 («Strafwürdigkeitserwägungen», my translation). 154 See again Weigend (2012), available at http://opiniojuris.org/2012/03/22/ljil-weig end-comments/ (last visited: 30.06.2015). 155 Miller (2007), pp. 241, 292 et sq., 304 et sqq., 308 with further references. See also Ambos (2014), pp. 273 et sq. on the «US model» of sentencing guidelines and below in 2.3.4.1.2.

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serve as conceptual guidelines and can moreover be combined in their aggravating and mitigating effects in order to adequately reflect blameworthiness of atypical cases as well – cases which are at the heart of the arguable unpredictability of categorizations before the sentencing stage156. The legal certainty argument on responsibility distinctions before the sentencing stage is therefore ambivalent. For both before and at the sentencing stage the need arises to thoroughly work out the relationship between the phenomenology of participation in crimes under the Statute and the assessment of individual criminal responsibility so as to provide methodological and substantive guidance to inter-subjectively valid assessments of criminal responsibility. The development of (quantitative) sentencing factors would depend on this analysis as much as the development of criteria that aim to differentiate responsibility (qualitatively) before the sentencing stage. From a legal certainty perspective, therefore, responsibility distinctions before or at sentencing are viable options. This perspective consequently does not offer a conclusive argument as to the scope of the term and notion of commission under the Rome Statute. 2.3.3. The punishment perspective: A superior expressive capacity of modes of participation as degrees of responsibility? Scholars and ICC jurisprudence argue that responsibility distinctions under Article 25 (3) RS are essential to the expressive capacity of international criminal law. To provide the Rome Statute with a «capacity to express the blameworthiness of those persons who are the most responsible for the most serious crimes of international concern»157 the ICC has opted

156 Miller (2007), pp. 241, 281, 308 et sqq.; Mitgutsch (2011), p. 357 (at 361) and also Weißer (2011), pp. 122, 124 on the Italian debate on the impossibility to determine individual criminality at the attribution stage: Instigators are only typically but not always more responsible than those who carry out an act of murder themselves. Implicitly on this issue also ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Con-curring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§§ 24 et sq., 29). See also below in 2.3.4.1.2. 157 ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 999).

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to have Article 25 (3) RS express «different degrees of responsibility»158 and to interpret the term and notion of commission restrictively, limited to (principal) perpetration. In Weigend’s view, international criminal law in its «narrative function»159 is charged with the task of exhibiting «the specific role of each participant»; the «distinction between principals and accessories» is considered «a useful tool» in this regard160. But need this differentiation occur before the sentencing stage? If «bolstering the principal status» of those who «masterminded crimes», i.e. «communicating to victims and the international community as a whole, who was the ‹real› culprit»161, is an important expressive act, will this effort at expressivity fail or be hampered if responsibility gradations are relegated to the sentencing stage? Couldn’t the narrative of «where more blame lies»162 also be told convincingly at the sentencing stage? Cannot terminology of responsibility distinctions both before and at the sentencing stage be rendered graphic enough by jurisprudential efforts to be understood by laypersons163? Would the Court really indulge in a fictional account of equality if participants are assessed in terms of the degree of their responsibility only at the sentencing stage164? And isn’t it a fictional account to conceive of both masterminds and executors as the same kind of perpetrators165? In my opinion, from the perspective of expressivity, both equal treatment of all participants under Article 25 (3) RS and the 158 See above in 2.2 and again ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 999). 159 See Wilt (2009a), p. 158 (at 160, 166, 170) for a critical review of the «hermeneutic quality» or ability to fulfill a «hermeneutic or narrative function» of JCE doctrine to portray «the collective dimension of international crimes and the complex organizational structure responsible for their commission», particularly in combining «political/military leadership with ‹rank and file› in one large JCE» and also Ambos (2013c), p. 146. 160 Weigend (2011), p. 91 (at 102) and also Zorzi Giustiniani (2009), p. 417 (at 419); Vest (2011), pp. 377, 427. On role distinctions, see already Traĭnin (1945), p. 79. 161 Sliedregt (2012a), p. 80. 162 Weigend (2012), available at http://opiniojuris.org/2012/03/22/ljil-weigend-com ments/ (last visited: 30.06.2015). 163 Cf. Stewart (2012b), p. 165 (at 212 et sq.) for an opposing view. 164 Cf. on this issue with regard to co-perpetration in structured hierarchies, Morozinis (2010), p. 199 referring to Roxin (2006c), p. 710 who claims that a fictional account must be avoided. 165 Cf. on the domestic realm Dencker (2002), p. 525 (at 529) and see again ICC Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4

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presumption of a «value-oriented hierarchy» are viable options as long as the Court generally keeps in mind its obligation to render judgments that support the Statute’s expressive capacity. The (here so-called) punishment perspective thus fails to provide closure to the debate on the scope of the Statute’s term and notion of commission. 2.3.4. Commission and attribution: A comparative perspective under Article 21 (1) (c) RS? PTC I has expressed that only insofar as the Statute itself provides for a «specific mode of liability» are secondary sources of law such as general principles of law under Article 21 (1) (c) RS «not relevant for this Court»166. In this vein, the comparative perspective on Article 25 (3) RS may be warranted in order to fill a gap in the law, considering that a determination of the scope of the term and notion of commission is indispensable to findings of individual criminal responsibility and cannot conclusively be determined by recourse to the Statute’s text. Pursuant to a «functional, issue-oriented approach»167 this section will analyze (briefly) by way of polling168 the Anglo-American and Roman-Germanic legal systems on how the term and notion of commission are conceived domestically as a form of attribution. This perspective on commission in terms of attribution is chosen for providing important insights into the dispute of whether and which distinctions between participants are to occur before or at the sentencing stage. The presentation is structured in accordance with Raimondo’s proposal on Article 21 (1) (c) RS regarding abstraction, representativeness, and consistency169.

166 167 168 169

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(§ 29), positing that very often the «conduct of political and military leaders will simply not fit the mould of principal liability». ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 508) (my emphasis). See also Farrell (2010) p. 873 (at 887). Ambos (2013c), p. 78. Cf. above in 2.1 on the so-called polling method. Cf. above in 2.1 on this proposal.

2.3. Review of perspectives on commission in ICC jurisprudence and scholarship

2.3.4.1. Abstraction: Forms of attribution and the scope of commission Attribution (or: imputation) is both a fundamental concept in criminal law and fundamentally in need of explanation. Broadly speaking, attribution establishes a connection between an individual and an event for the purpose of establishing that individual’s (moral or legal) responsibility for the event170. Legal philosophers distinguish between factual attribution (or: imputatio facti) and normative attribution (or: imputatio iuris); the former serves to determine the individual’s creatorship or authorship of the event, the latter to determine the merit of the event authored171. Factual attribution qualifies the event as something the individual did, normative attribution qualifies this doing as (un-)meritorious – or, for the purposes of criminal law, as culpable172. The offense description stands between both kinds of attribution as a «rule of conduct»173: Application of a criminal law provision to the event described therein presupposes that this event is qualified by factual attribution as authored by an individual; application of the provision subsequently assesses what someone did as criminal or criminality174. Normative attribution finally determines the individual demerit of or guilt for the criminal wrongdoing175. While this distinction between factual attribution, criminality, and normative attribution arguably transcends (all) positive criminal law176, modern criminal legal scholarship has largely ignored, superseded, or modified

170 Ambos (2007), p. 2647 (at 2665) with further references. 171 Hruschka (1991), p. 449 (at 451 et sq.) with further references. See also Ambos (2007), p. 2647 (at 2664 et sqq.) and Ambos (2013c), p. 83. 172 Hruschka (1991), p. 449 (at 451 et sq., 455). 173 Hruschka (1991), p. 449 (at 450 et sq., 453, 458) (my translation). 174 See Hruschka (1991), p. 449 (at 450 et sq., 453, 458) on the retrospective «benchmark function» of offense descriptions as «rules of conduct» («Maßstabsfunktion», «Verhaltensregeln», my translation). See also below in 2.4.3.3.1 on the distinction between criminal law norms as prospective conduct and retrospective sanction norms. 175 Hruschka (1991), p. 449 (at 450, 455). See also Fletcher (1978), pp. 491 et sqq. on (factual) «objective attribution» vs. (normative) «subjective attribution». 176 Hruschka (1991), p. 449 (at 460). The distinction made does not lead to the neoclassical tripartite structure of crime which distinguishes between the objective and subjective elements of the offense, wrongfulness, and culpability, see Hruschka (1991), p. 449 (at 460) and on this structure Ambos (2007), p. 2647 (at 2650).

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it177: For the purpose of holding an individual criminally responsible, the most basic connection to be established is between a physical act (or conduct) and a result (or consequence) on the basis of causation. Yet, to establish the individual’s creatorship of a criminal result, causation is regarded at times too broad and at times too narrow; attribution has thus been expanded to include concepts such as proximity/remoteness178 or risk creation and risk realization179, which allude to normative (instead of «naturalistic»180) assessments of creatorship181. In particular regarding complicity, where several actors are involved in the event in question, the basic connection of causation has proven unsuited to fixate the physical act(s) for which criminal responsibility shall arise182. Connections then designated as attribution have instead been devised e.g. between one’s physical act and another’s physical act (and thus also that act’s result) or between a physical act and the criminality assigned to another’s physical act. From a comparative perspective, these connections can be structured essentially as four different forms of attribution: Domestic legal systems attribute (merely) physical acts and/or normatively assessed physical acts (as criminality); both forms exist in an individual and a collectivist subform183. These forms of attribution are governed each by a set of rules of attribution. The term and notion of commission and its scope, in turn, is shaped by such specific forms and rules of attribution, e.g. as perpetrator attribution184. These forms and rules will be the subject of the following section.

177 See Miller (2007), pp. 265 et sq. 178 See Stewart (2012a), p. 1189 (at 1203) with further references on the «popular notion of proximate cause». 179 See Stewart (2012a), p. 1189 (at 1204) and Roxin (2006b), pp. 371 et sqq., 374 as well as Ambos (2007), p. 2647 (at 2664 et sqq.) and below in 2.4.3.3.1 and 2.5.4 for the prospective character of risk creation on the one hand and the retrospective character of risk realization on the other hand in the so-called «risk standard». 180 See Ambos (2013c), p. 83. 181 See Miller (2007), p. 266. 182 See Miller (2007), p. 268 and also Hruschka (1998), p. 581 (at 587 et sq., 594) and Jakobs (2012), p. 80. 183 These forms of attribution have been devised as categories by Miller (2007), pp. 276 et sqq. Information on national jurisdictions has been drawn primarily from the works of Hamdorf (2002) (Austria, Denmark, Sweden and Norway), Miller (2007) (Italy) and Weißer (2011) (France and United Kingdom). 184 See Roxin (2006c), p. 30 and Bloy (1985), p. 311.

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2.3.4.1.1. Attribution of physical acts and (derivation) of criminality In the individualist sub-form of attribution of physical acts, the attributed acts carried out by another individual are normatively treated as if they had been realized by the addressee of attribution herself, in other words: the addressee is regarded as the event’s creator185; the collectivist subform attributes to participants the aggregate of individual physical acts and/or results thereof as e.g. a joint project186. The individualist sub-form is employed as the only form of attribution in Sweden, Denmark and Austria187. In the UK, this sub-form is employed to establish so-called principal liability, albeit limited to the rule of attribution of realizing the offense’s prerequisite elements «by one’s own hand»188. Other jurisdictions are less restrictive in determining the principal or perpetrator status of a participant; in Germany and also in Spain, the individualist sub-form is applied to direct and indirect perpetration in combination with a control over the crime approach as a rule of attribution189. A collectivist sub-form is predominantly argued to underlie the statutory rules applicable to criminal participation in Italy, where causation or so-called instrumentality are applied as rules of attribution190 as well as so-called co-perpetration in

185 Miller (2007), p. 276. See also Hamdorf (2002), pp. 300, 302 et sqq. 186 Miller (2007), pp. 279 et sq. 187 Section 24, § 4 (1) and (3) BrB and § 23 Strl, see Hamdorf (2002), pp. 187; 51, 234, 236; 300, 302. In Austria, § 12 aStGB requires conduct and consequence (and circumstance) elements (objektiver Tatbestand) to be satisfied by one individual whose contribution then constitutes the substrate of attribution to others, see Hamdorf (2002), pp. 109, 207 and also Weißer (2011), pp. 131, 431, 433. A similar restriction as to who can constitute the so-called «complicity object» is advocated by Herlitz (1992), p. 541 for Swedish criminal law but not applied by the prevailing scholarly opinion. On Sweden, see also Hamdorf (2002), p. 193. 188 Smith (1991), pp. 27 et sq. 189 § 25 (1) gStGB and Art. 28 eCP, Miller (2007), pp. 272, 279; Weißer (2011), pp. 150 et sqq. (mittelbare Täterschaft, based on control as the rule of attribution) and Muñoz Conde/García Arán (1998), pp. 482 et sqq. (autoría mediata por dominio del hecho). 190 See Art. 110 iCP. On the so-called theory of the «fattispecie plurisoggettiva eventuale», see Miller (2007), pp. 280 et sqq. (the scope of the collective attribution context and is determined based on instrumentality to the joint venture [strumentalità]); Weißer (2011), pp. 106 et sqq., 112, 121, 546 (the scope is based prevailingly on causally facilitating the joint venture, while only recently authors have ascribed to the view of an objective instrumentality of the contribution).

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Germany and Spain, the rule of attribution being, again, control over the crime191. The two sub-forms of attribution of criminality (often characterized as derivation or derivative liability) do not attribute normatively neutral physical acts but normatively assessed physical acts from an individual (often so-called principal) offense or from a collective offense, the object of attribution being the criminality (or liability) brought about by a single (principal) perpetrator or by a plurality of participants192. In the individualist sub-form, the principal’s criminality or liability is assigned to a secondary participant; her criminal responsibility is in that sense (at least partially) based on that of the so-called principal (participant)193. In the collectivist sub-form, a joint criminality or liability is first constituted by all participants and, in a second step, assigned or attributed to said participants; their criminal responsibility is based on the joint criminal wrong194. The individualist sub-form is found in accomplice responsibility in Ger-

191 § 25 (2) gStGB and Art. 28 eCP. On these provisions, see Miller (2007), p. 272; Weißer (2011), pp. 328 et sqq. (Mittäterschaft) and Muñoz Conde/García Arán (1998), pp. 484 et sq. (coautoría por dominio del hecho). 192 See Hamdorf (2002), p. 306. The object of attribution will vary pursuant to fundamental differences in domestic legal orders. In German legal theory, conduct that satisfies the definition of a criminal offense is presumed criminally wrongful; this criminal wrong is distinguished from blameworthiness, the latter forming the basis of a judgment of blameworthiness, see Fletcher (1978), pp. 43 et sq., 455 et sqq. who identifies as premises underlying the analysis of so-called subjective attribution in German criminal theory: «(1) that an act may be found to be wrongful without an analysis of [subjective] attribution, and (2) no one may be properly punished for a wrongful act (an act of wrongdoing) unless the act is [subjectively] attributable to him» and again Hruschka (1991), p. 449 (at 460). At common law, criminal responsibility presupposes the union of an offense’s actus reus as the external side and mens rea as the internal side of the crime; mens rea refers both descriptively to a state of mind (intention) and to culpability; a distinction between wrong and culpability is argued to be lacking or, at least, to be less pronounced, Ambos (2007), p. 2647 (at 2657 et sq.). On the merits of this distinction between wrong and culpability, see Fletcher (2007), pp. 322 et sqq. See also Fletcher (1978), pp. 641 et sq.; Eser (2002), p. 767 (at 783) on «broad» and «narrow» concepts of derivation respectively, that include or exclude the principal offender’s culpability or «guilt». See also Herlitz (1992), p. 52 on the so-called «complicity object». 193 Miller (2007), p. 283. See Fletcher (1978), p. 642 («complicity as a matter of imputing the liability of one person to another») and for a critical perspective Stewart (2012b), p. 165 (at 187 et sqq.). 194 Hamdorf (2002), pp. 181, 267, 302 et sqq.

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many, Spain, and also France195. Both in the US and the UK, the criminal responsibility of so-called accessories is seen as derived from that of the so-called principal196. This creation and at times legislative fixation of additional attribution rationales may be prompted by a restrictive approach to causation: The accomplice’s act cannot cause the criminal result, the voluntary and responsible act of perpetration interrupts the causal chain so that the criminality of acts of complicity must be established by extensional rules, embodied e.g. in statutory modes of participation197. The distinction between perpetrators and accomplices, in this vein, emerges as a consequence of a restrictive notion of causation 198. In legal orders where complicity is established as derivative and a «perpetrator behind the perpetrator» is recognized, e.g. the leader of a power apparatus, this strict approach to causation is, however, not pervasively applied199. The same is true if the rule underlying derivation of criminality from the principal’s of-

195 §§ 26 and 27 gStGB, Art. 27, 28 (a) and 29 eCP and Art. 121-1, 121-4, 121-6, 121-7 fCP. For France (emprunt de criminalité) see Conte/Du Chambon (1996), No. 406; Salvage (2005), §§ 121-6 et 121-7, No. 1 and Zorzi Giustiniani (2009), p. 417 (at 424 et sqq.); Weißer (2011), pp. 85, 93. For the German concept of limitierte Akzessorietät, where the Unrecht, or criminal wrong, of the accomplice’s act is in part derived from that of the principal, see Hamdorf (2007), p. 208 (at 210 et sqq.); Hamdorf (2002), pp. 260 et sqq. and also Herlitz (1992), pp. 287 et sqq.; for the similar approach taken in Spain, see Mir Puig (1990), p. 391; Muñoz Conde/García Arán (1998), p. 488. 196 Section 8 of the Aiders and Abettors Act as amended by the Criminal Law Act (UK) and 18 United States Code § 2. Regarding the US, see again Dressler (2008), p. 427 (at 433 et sq.): «Anglo-American complicity law, including its derivative nature, is centuries old». Yet Husak (2014), p. 41 (at 45) has recently pointed out that it has remained unclear thus far what exactly is meant by the terms «derivative liability». Regarding the UK, see Smith (1991), pp. 73, 88 («bedrock principles») and The Law Commission (2007), pp. 23 et sq.; Hamdorf (2007), p. 208 (at 218 et sqq.). See also Herlitz (1992), pp. 90, 96; Zorzi Giustiniani (2009), p. 417 (at 422 et sqq.); Vest (2011), p. 179. 197 See Miller (2007), pp. 272, 286 with reference to Hruschka (1998), p. 581 (at 588 et sqq.) on German criminal law and Kadish (1985), p. 323 (at 336 et sqq.); Dressler (2008), p. 427 (at 430) on complicity in the US. 198 Hruschka (1998), p. 581 (at 588). 199 See Miller (2007), p. 286 with reference to Hruschka (1998), p. 581 (at 606 et sqq.) on § 25 (1) gStGB (mittelbare Täterschaft).

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fense consists of indirectly causing that offense’s criminal result by the accomplice200. 2.3.4.1.2. Implications for the sentencing stage From a comparative perspective, therefore, the scope of the term and notion of commission is generally conceived by recourse to diverging forms and underlying rules of attribution. The restrictiveness or expansiveness of the term and notion of commission has implications for the sentencing stage as well. Regarding sentencing, mainly two approaches can be distinguished, complemented by hybrid forms: On the one hand, the restriction201 of sentencing by modes of participation, i.e. the statutorily mandated or advised (non-)mitigation of punishment for particular types of participants such as aiders and abettors, thus assuming there are typically (quantitative) differences in «punishability» between modes of participation which are fixed by statutory modes of participation; on the other hand, the lack of such a «restriction», thereby relegating the scope of punishment to judiciary discretion without assuming that modes of participation typically differ in «punishability»202. This latter approach reigns in both the UK and the US, where all participants may be punished «as principals» and individual sentencing is left to judicial discretion203, and also in France204. In Germany, the former approach is chosen, the punishment of assistant accomplices (Beihilfe) being mandatorily mitigated relative to the punishment range foreseen for principals, while for instigators the

200 See Miller (2007), p. 287 on §§ 26, 27 gStGB, positing that the refusal to accept a restrictive notion of causation strips this derivative approach to complicity of «deductive stringency» (my translation). 201 See above in 2.2.1.1.2 and again ICC - Trial Chamber I, Separate opinion of Judge Fulford, 14.03.2012 – ICC-01/04-01/06-2842 (§ 11). 202 See Miller (2007), p. 303 («Strafwürdigkeit», my translation). The concept of «punishability» is arguably used here to designate the amount of punishment the conduct in question deserves. On diverging approaches to the concept, see also Roxin (2006b), p. 223 and Eisele (2010), mn. 13. 203 Section 8 of the Aiders and Abettors Act as amended by the Criminal Law Act (UK) and 18 United States Code § 2 (US). On the UK, see Smith (1991), p. 90; The Law Commission (2007), p. 22; Weißer (2011), pp. 59 et sq.; Ambos (2014), pp. 273 et sq. and on the US Fletcher (2011), p. 179 (at 188). 204 Art. 121-6 fCP («sera puni comme auteur le complice […]»). See Salvage (2005), §§ 121-6 et 121-7, mn. 98 and Weißer (2011), pp. 92 et sq., 95.

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range of punishment is equal to that of principals205. Jurisdictions that (mutually) attribute physical contributions to participants based on a unitary form of attribution such as Denmark, Austria and Sweden often disregard statutory modes of participation entirely at the sentencing stage, but nevertheless offer guidance to judges in statutory sentencing factors unspecific to modes of participation206. Italy possesses statutorily obligatory and facultative sentencing criteria which are specific to the unitary (collectivist sub-) form of attribution and which either mitigate or aggravate individual sentences (i.e. «punishability») based on the role of the accused and/or the importance of her contribution within the collective attribution context207. If statutory modes of participation are disregarded entirely at the sentencing stage, their purpose appears to exclude from the scope of criminal responsibility conduct that does not fit statutory descriptions, i.e. to serve the principle of legal certainty208. These approaches arguably mirror the choices made with a view to forms of attribution. Regarding attribution and sentencing, legal certainty conflicts with the need to do justice to atypical cases: The combination of a qualitative distinction between (principal) perpetrators and (secondary) accomplices on the basis of distinct forms of attribution with statutorily mandated typical «punishability» – greater for «central figures»209, lesser for those at the margins of the criminal event – arguably advances legal certainty to a considerable degree; at the same time, when faced with atypical cases, jurisdictions without qualitative distinctions between participants and flexible sentencing stages arguably gain considerable advantages in legal certainty, in particular if sentencing is guided by (cumulative) sentencing criteria210.

205 Miller (2007), p. 303. See also Hamdorf (2002), p. 283 on § 27 (2) gStGB. 206 See Hamdorf (2002), pp. 276, 278, 280 on Denmark, Norway, Austria, and Sweden, where statutory rules for mitigation or aggravation of punishment are not linked to modes of participation but to other factors that establish the actual weight of a participant’s contribution, e.g. being involved in a «subordinate manner» or «position of dependency» mitigates punishment in Austria, respectively Norway while these factors do not have relevance in Denmark. 207 Art. 111, 112, 114 iCP. See Mantovani (2002), p. 271 and Miller (2007), pp. 306, 159 et sq.; Weißer (2011), p. 122. 208 Miller (2007), pp. 301 et sq., 292. 209 On this notion, see below in 2.4.1.1. 210 Miller (2007), pp. 302, 303 et sq. Cf. also below in fn. 494.

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2.3.4.2. Representativeness and consistency In terms of representativeness, neither particular forms of attribution nor a particular scope of the term and notion of commission can claim universal acceptance in the Roman-Germanic and Anglo-American legal systems. There is nevertheless a characteristic divide between those jurisdictions which resort to only a single form of attribution and those which combine two or more forms of attribution in order to structure the relationship between crime and accused211. However, as regards this choice as well, neither is representative for the legal systems polled. As a consequence, neither a form nor a combination of forms of attribution is representative of the legal systems polled. The comparative perspective must remain ambiguous in this regard – a fortiori concerning the underlying rules of attribution. The criterion of consistency does not provide for a conclusive answer either. It requires taking into account the specificities of international (criminal) law to ensure the suitability of answers given in response to the issue of structuring the relationship between crime and accused to the Rome Statute. This, in turn, presupposes a thorough review of precisely those specificities of international (criminal) law that are to be taken into account. These specificities have thus far not been elaborated on sufficiently in the textual, legal certainty, and punishment perspectives presented above212. 2.3.4.3. Results As a consequence, the scope of the notion of commission under Article 25 (3) RS remains ambiguous also from the comparative perspective on commission as attribution. Concerning forms and rules of attribution as well as the choice of relegating the responsibility distinctions to the sentencing stage, a representative model did not emerge from the above review of jurisdictions213. Instead, the comparative perspective demands that attribu-

211 See again Eser (2002), p. 767 (at 781 et sqq.). 212 See below in 2.4.1.3, 2.4.3.1 and 2.4.3.2 for a review of the positions of Vest and Ambos in particular. 213 See also again ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§ 17) on the «radical fragmentation» of the law of commis-

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tion and the scope of the term and notion of commission under the Statute be devised with the specificities of international criminal law in mind. 2.3.5. Results and outlook: Towards overcoming ambivalence Neither the text of Article 25 (3) RS nor arguments that relate to legal certainty or to the rationale behind punishment under the Statute have been able to conclusively guide our inquiry into the Statute’s term and notion of commission; the same is true of a comparative approach under Article 21 (1) RS. While these approaches allowed gaining valuable insights into the interdependence of attribution and sentencing, neither has provided for a sufficient consideration of the specificities of international criminal law. To determine whether business actors such as Caterpillar management employees in the Corrie case example214 can indeed be held responsible for committing an offense under the Rome Statute (or merely as secondary participants), I thus suggest that we turn to the interplay between the Rome Statute’s law and the reality of genocide, crimes against humanity, and war crimes. 2.4. Law and reality structures: Re-conceiving commission Under German criminal law the question of Täterschaft, of (principal) perpetration has been treated (also) as a methodological issue. In his fundamental analysis of the matter, Roxin had argued early that observing and structuring reality was an important source to finding the law of Täterschaft. In this vein, the Eichmann case served as an important template for his notion of control by means of a power apparatus. German scholar Schünemann has since expanded upon this approach to finding the law by recourse to its reality structures, and upon observing ICC jurisprudence, one may find evidence that a hint of this methodology has made its way to the Rome Statute in applying Roxin’s control by means of a power apparatus. The following sections are concerned both with exploring in greater detail these past developments and with operationalizing said methodolo-

sion in domestic criminal legal orders and the resulting lack of a general principle of law. 214 See above in 1.

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gy, thus devising a typological account of the term and notion of commission in the Rome Statute for the purpose of determining the scope of business actor’s criminal responsibility under the Statute. 2.4.1. Commission and the law’s subject matter: A typological approach to perpetration In 1963, under the impression of the Eichmann trial in Jerusalem215, German scholar Roxin has devised the doctrine of Organisationsherrschaft or control by means of a power apparatus, whereby indirect perpetrators may control the crime by virtue of an organized power apparatus: Mittelbare Täterschaft (indirect perpetration), he argued, is possible not only as «control based on error»216 or «control based on coercion»217, which both presuppose a deficit in the direct actor’s criminal responsibility, but also based on the fungibility of executors within an organization that, without depending on the individual executor, functions «so to speak automatically» and, as a whole, operates outside the legal order218. The inception of such Organisationsherrschaft draws on methodological ground work whose evolution in German scholarship will be the focus of this section.

215 On the repercussions of the Eichmann trial for international criminal law in general, see Schabas (2013), p. 667. 216 So-called «Willensherrschaft kraft Irrtums», translation pursuant to Werle/ Burghardt/Roxin (2011), p. 191 (at 198). See also Jeßberger/Geneuss (2008), p. 853 (at 860) («control […] as a result of […] superior knowledge»). 217 So-called «Willensherrschaft kraft Nötigung», translation pursuant to Werle/ Burghardt/Roxin (2011), p. 191 (at 198). See also Jeßberger/Geneuss (2008), p. 853 (at 860) («control […] as a result of […] predominant will»). 218 Roxin (1963), p. 193 (at 200, 204) (my translation). See also Roxin (2000), p. 55 (at 56) and Roxin (2003c), p. 47 stating that his concept could have been helpful to adjudicate Nazi crimes («NS-Gewaltverbrechen»). See more extensively on the notion’s inception Kreß (2006a), p. 304 (at 305, 306); Jeßberger/Geneuss (2008), p. 853 (at 860); Wilt (2009a), p. 158 (at 177); Weigend (2011), p. 91 (at 101); Werle/Burghardt/Roxin (2011), p. 191 (at 191 et sqq.); Vest (2011), p. 184; Osiel (2009), pp. 93 et sqq. (but see below for caveat). See also on the general importance of the Eichmann trial for international criminal law, Schabas (2013), p. 667 (at 667 et sqq.).

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2.4.1.1. Roxin’s Zentralgestalt: Indirect perpetration and the openness of control The law, Roxin has famously argued, is faced with «a singular case, in which the decision-making freedom of an undeceived, uncoerced actor is, to the initiator, no obstacle to the criminal goal»; while this «responsible will […] would otherwise place an insurmountable wall between the person behind the scenes and the act and exclude the person giving the order from perpetration, [it] does not have this effect within an organized power structure», this being «the circumstance that forces us to assume the existence of control, and thus indirect participation, on the part of the initiator of the crime»219.

In Roxin’s view, if an apparatus with such «specific functioning» operates at the disposal of an actor behind the scenes, «figuratively speaking […] sitting at the nerve center of the organizational structure, pushing the button and issuing an order to kill», she can be certain that her order to kill will be carried out220. As soon as one of the numerous organs involved in the commission of the offense shirks from his task, another will take her place without the overall plan being affected – the individual organization member is merely «an anonymous, interchangeable figure, a cog in the machine of the power apparatus which can be replaced at a moment’s notice»221. It is this «structure of an apparatus that continues to operate, unconcerned with the loss of an individual» that leads to orders being executed with greater certainty than in cases of ordinary instigation222. The «specific functioning», Roxin proposed, requires the apparatus’ leadership and executing organs not to bind themselves, in principle, to a legal order independent of themselves; otherwise, a directive to commit criminal offenses cannot be the basis for control since laws are of a higher rank and will, realistically, rule out the execution of illegal orders and thus the con-

219 Roxin (1963), p. 193 (at 201) as translated in Werle/Burghardt/Roxin (2011), p. 191 (at 199). 220 Roxin (1963), p. 193 (at 200) as translated in Werle/Burghardt/Roxin (2011), p. 191 (at 198). 221 Roxin (1963), p. 193 (at 200) (my translation). See also Werle/Burghardt/Roxin (2011), p. 191 (at 198) and the similar translation in ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 515) of Roxin (2006c), p. 245. 222 Roxin (1963), p. 193 (at 201 et sq.) as translated in Werle/Burghardt/Roxin (2011), p. 191 (at 200).

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trol of those acting behind the scenes – and an illegal directive is then unable «to set the apparatus in motion»223 but only to initiate a «private endeavor»224. In his most recent publication on the matter, and taking into account almost 40 years of scholarly debate on it, Roxin states the following three prerequisites that must be met to establish control over an organization: The accused individual issuing a directive must exercise his power of command within an organization (1); the organization must be detached from the law in the ambit of its criminally relevant activities (2); and individual direct actors must be replaceable (fungible), so that in the case of one direct actor’s refusal, another will take her place (3)225. According to Roxin, these prerequisites lead to a heightened disposition of the direct perpetrator to commit the offense, since the directive issued within a power organization creates a pressure to conform, since the detachedness from the law substantiates the assumption by the direct perpetrator that his actions will not have consequences in criminal law, and since the replaceability of the executor will make her opine that her behavior does not matter since else another would commit the offense anyway226. Control is what constitutes perpetrator responsibility, and control by means of a power apparatus is in turn constituted by the certainty in achieving the criminal result ordered – yet not by controlling the direct actor or executor, who remain autonomous227. This certainty is, in his view, far greater than in cases of instigation228. The methodological backdrop to his well-known concept of Organisationsherrschaft, or control by means of a power apparatus, consists of an

223 Roxin (1963), p. 193 (at 204) (my translation). 224 Roxin (1963), p. 193 (at 204) as translated in Werle/Burghardt/Roxin (2011), p. 191 (at 202, 203). 225 Roxin (2012), p. 395 (at 396). In his reception of Roxin’s concept, Jain (2011-2012), p. 159 (at 172, 174) has formulated the following prerequisites: «(1) the existence of a hierarchical vertically-structured organization (power apparatus), (2) the unlimited exchangeability of the direct actor within the power apparatus (fungibility); and (3) the working of the apparatus outside of the legal order (detachedness from the law)». But see below on Roxin’s most recent acceptance of informal organizations in Roxin (2012), p. 395 (at 408 et sq.). 226 Roxin (2012), p. 395 (at 396). 227 Roxin (2012), p. 395 (at 400). But see Weigend (2011), p. 91 (at 104). 228 See Roxin (2012), p. 395 (at 400, 410 et sq.) and more explicitly on the greater certainty of success compared to instigation, Roxin (2006a), p. 293 (at 296, 299).

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effort to fulfill the task of criminal doctrine «to describe in its elements» this kind of control after it had been «enabled to emerge by circumstances of reality» 229. In a slightly later work, Roxin posited that in particular control by means of a power apparatus stresses this methodological take on «control over the crime as an open term», aiming to «distill descriptively from the immediate observation of the manifestations of life and its analysis the typical structures of control which are set out [angelegt] in the law’s subject matter»230. This process must take into account the legislator’s value judgments231: Criminal law doctrine is to be premised upon (normative) legal policy «guiding ideas», which are applied to «the subject matter of the law, the empirical reality» to produce results to legal problems which are adequate to reality232. This application or «unfolding» of «central ideas» will usually yield «case group-based solutions», given that «the law’s subject matter can be arranged in differentiated structures in light of normative standards»233. In this vein, legal terms are to be given shape and content by «perambulating the subject matter of the law»234 with such «guiding ideas» in mind. A central «guiding idea» is that the perpetrator is the «central figure in the unfolding of the criminal event»235. Roxin deduces this «guiding idea» from the text of statutory modes of participation in the German criminal code: By use of the words «carry out» for the Täter, or perpetrator, on the one hand and «instigate» and «assist» for accomplices on the other hand as descriptions of three kinds of conduct in the unfolding of a criminal offense, the legislator positioned the Täter, or perpetrator, as the «center and

229 Roxin (1963), p. 193 (at 207) («Sobald aber die äußeren Gegebenheiten einer solchen Herrschaftsform die Möglichkeit zur Verwirklichung bieten, wird es zur Aufgabe der Dogmatik, sie in ihren Elementen zu beschreiben […]», my translation). See also Werle/Burghardt/Roxin (2011), p. 191 (at 205). 230 Roxin (2006c), pp. 122 et sqq., 251 («Tatherrschaft als offener Begriff», «aus der unmittelbaren Anschauung der Lebenserscheinungen und ihrer Analyse die typischen, im Rechtsstoff angelegten Strukturformen der Herrschaft beschreibend herauszudestillieren», my translation). 231 Roxin (2006c), p. 26. 232 Roxin (2003b), p. 423 (at 427 et sq.) (my translation). 233 Roxin (2003b), p. 423 (at 428) («fallgruppenbezogene[] Lösungen», my translation). 234 Roxin (2006c), p. 529 («Durchschreiten des Rechtsstoffes», my translation). See also Schünemann (1995), p. 49 (at 82). 235 Roxin (2006c), p. 25 («Zentralgestalt des handlungsmäßigen Geschehens», my translation)

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key figure of the criminal event» while the accomplices were positioned «outside of the center and grouped around» the perpetrator236. Control over the crime determines the actor’s «central position»237: «It is impossible», Roxin argues, «to control a crime more distinctly than by carrying it out oneself»238. Control by means of a power apparatus thus emerges as one «case group-based solution» of the unfolding of the «guiding idea» of the central figure. He has also applied this approach to the sister notion of mittelbare Täterschaft, or indirect perpetration, as control over another’s will239. Again synthesizing empirical observation with structures embedded in the law to shape legal terms, such control is not to be established based on psychological assertions of the direct actor’s ability to decide on his own but, in Roxin’s view, must instead be limited to situations of psychological pressure that relieve the direct actor of responsibility240: Where criminal law thus relieves the direct actor of her responsibility for decisions made and actions taken, the law must be understood to shift its focus and to assign responsibility only to the Hintermann who creates or makes use of such a situation; it is he who is thus regarded to take the relevant decision and to whom criminal law may consequently accord the «central position» of a perpetrator241. In line with German criminal law, sufficient pressure arises only under duress242. The presented line of argument on which this 236 Roxin (2006c), p. 26 («Ausführen», «Mittelpunkt und Schlüsselfigur des Deliktsvorganges», my translation). Roxin originally made reference to §§ 47-49 gStGB which have since been revised in 1975. See Roxin (2006c), pp. 546 et sqq. for an extension of his original argument to the novel §§ 25-27 gStGB. 237 Roxin (2003b), p. 423 (at 428) (my translation). 238 Roxin (2006c), p. 127 (my translation). 239 On applying this notion under Article 25 (3) (a) RS, see ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 495) and Ambos (2013c), pp. 154 et sq. 240 Roxin (2006c), pp. 146 et sq., 685, 686. 241 Roxin (2006c), pp. 146 et sq., 685, 686 (my translation). 242 Roxin (2006c), pp. 146 et sq., 685, 686. See § 35 (1) gStGB as translated by Bohlander, Translation of the German Criminal Code provided by Prof. Dr. Michael Bohlander, 2012, available at http://www.gesetze-im-internet.de/englisch_stgb/en glisch_stgb.html (last visited: 30.06.2015): «A person who, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply if and to the extent that the offender could be expected under the circumstances to accept the danger, in particular, because he himself had caused the danger, or was under a special legal obligation to

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form of control is said to rest has been called «responsibility principle»243. The deficiency that prevents the direct actor’s responsibility establishes the «central position» and thus perpetrator responsibility of the Hintermann; the deficiency is constituted by a lack of autonomy under duress, whereby control can be said to arise over the direct actor’s will. In contrast to control by means of a power apparatus where the direct actor’s autonomy remains intact, such control, as a consequence, is also normative in nature and linked both to the non-autonomy and the non-responsibility of the instrument. Roxin has stressed that this notion of «control» is constituted – as are supposedly all legal terms pursuant to his methodology of finding the law – by an «interweavement of empirical and normative circumstances» and relies on neither exclusively: «The […] normative criterion […] regulates […] delimitation on the scale of intensity of very real pressure»244. 2.4.1.2. Schünemann’s «base type» of Täterschaft: Law and relevant reality structures On a critical note to both Roxin’s approach to perpetration under German criminal law, which relies heavily on «case group-based solutions» or topoi such as the hierarchical power apparatus in order to develop the term and notion of the perpetrator as the «central figure»245 and to scholarly opinions that deplore the lack of legal certainty involved in Roxin’s reliance on both normativity and facticity to conceive of the perpetrator as the «central figure»246, German scholar Schünemann has extensively re-

243 244 245 246

do so; the sentence may be mitigated pursuant to section 49(1) unless the offender was required to accept the danger because of a special legal obligation to do so» (my emphasis). Roxin (2006c), pp. 685 et sq. («Verantwortungsprinzip», my translation). See also Sliedregt (2012a), pp. 82 et sq. and Weigend (2011), p. 91 (at 96, 101 et sqq.) on this issue. Roxin (2000), p. 55 (at 55) («Verflechtung empirischer und normativer Gegebenheiten», my translation). Schünemann (2006), p. 301 (at 306); Schünemann (2007a), mn. 66. See also Roxin (2006c), p. 25. Critics have particularly highlighted said tension as ambivalence, arguing that the control approach relies on both normative and factual criteria: on the one hand control over the will within the boundaries of the so-called responsibility principle (strictly normative) and on the other hand regarding control by means of a

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searched the «illusion» of treating legal notions of this level of abstraction as «classificatory terms» that can be defined by recourse to necessary attributes or criteria – and concluded that the quest for such a classificatory term of Täterschaft, or perpetration, belongs to the «methodological stone age»247. The «diversity of life» instead turns Täterschaft, or perpetration, into a legal term so complex that Schünemann proposes to take a methodological turn, proposing to conceive Täterschaft or perpetration as a socalled type (term)248. 2.4.1.2.1. Offense descriptions and the reality structure relevant to the protection of legal interests Schünemann partakes in Roxin’s methodological approach of unfolding the legislator’s normative «guiding ideas» with a view to the law’s subject matter249. In his terminology, «guiding ideas» or normative principles de-

power apparatus conceived of as certainty of the result ordered irrespective of the direct actor’s autonomy (strictly factual), see Herzberg (2000), p. 33 (at 46 et sqq.); Haas (2008), pp. 26, 39 and also Ambos (2011b), p. 137 (at 147 et sq.) on the «naturalistic» and «normative» perspectives on control. Depending on and pointing to the particularities of the situation to be assessed by criminal law, Roxin has himself both openly acknowledged divergence from a strictly normative approach in order to avoid assaults on empirical reality and warned against departing from a normative foundation (i.e. the responsibility principle) so as to avoid legal uncertainty, Roxin (2000), p. 55 (at 55) (indirect perpetration in case of the direct actor’s error iuris) and Roxin (2003c), p. 25 (indirect perpetration in case of the direct actor’s duress). Contrary to Roxin’s insistence on the suitability of the responsibility principle, German scholar (and disciple of Roxin) Schünemann has argued for its demise under German criminal law, subsequently outlining how to conceive indirect perpetration under the control approach without recourse to the responsibility principle, Schünemann (2006), p. 301 (at 301 et sqq.); Schünemann (2007a), mn. 38, 66; Schünemann (2011), p. 799 (at 807 et sqq.). This aspect of the discussion is of lesser importance under the Rome Statute; here, the regardless-clause in Article 25 (3) (a) RS arguably does away with the so-called responsibility principle statutorily. 247 Schünemann (2011), p. 799 (at 806, 811 et sq.) («klassifikatorischer Begriff», my translation). 248 Schünemann (2006), p. 301 (at 306) asserting that the delimitation of forms of perpetration is but a «methodological problem» (my translation) and Schünemann (2007a), mn. 38 et sq., 68 («Mannigfaltigkeit der Lebensgestaltungen», my translation). See also Schünemann (2011), p. 799 (at 809). 249 Roxin (2003b), p. 423 (at 428).

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termine the relevance of certain reality structures to finding the law; to render these principles more concise, the «fine structures» of such relevant reality structures must be taken into account250. In doctrinal research aiming to unfold such principles, normative and ontological perspectives are in that vein complementary and interlocked «like gear-wheels»251: Criminal law’s fundamental normative principle is to prevent the violation of certain legal interests or goods. To achieve this end, the legislator must address prohibitory norms at those who are in a position to violate such interests or goods. From the «large arsenal of graphic descriptions» of offenses in «all modern [domestic] criminal codes» which refer to executing the described conduct by one’s own hand, Schünemann determines as the principal addressee in the relation’s «core area» the actor who is in «control of one’s own behavior»252. Consequently, «control over one’s own bodily movements as the reason for the […] criminal result» emerges as an «undisputed and undisputable» reality structure of criminal law’s means-end-relation253. Yet in order to achieve its end of prevention, criminal law must arguably address prohibitory norms as a means in a broader fashion: In the view of Schünemann, prohibitions must generally be addressed at those who «are able to take the decisions significant for the violation of protected goods or interests», respectively for the occurrence of the criminal result254. From an ontological point of view, he proposes, such a significant decision can be taken either through one’s own conduct, or through another one controls, or through cooperation with another in division of labor255. This ability to take the significant decision – put differently: «con-

250 Schünemann (2001), p. 1 (at 30). 251 Schünemann (2001), p. 1 (at 30) («greifen wie Zahnräder ineinander», my translation). 252 Schünemann (2011), p. 799 (at 808 et sq.) («im Kernbereich der Zweck-MittelRelation stehende[] Alleintäterschaft», my translation) and Schünemann (2007a), mn. 39 («Herrschaft über das eigene Verhalten», my translation). 253 Schünemann (2007a), mn. 39 («Herrschaft über die eigene Körperbewegung als Grund des […] Erfolges», my translation) and Schünemann (2011), p. 799 (at 808 et sq.) («Zweck-Mittel-Relation […] für die die Tatbestandshandlung des Alleintäters die unbestrittene und unbestreitbare sachlogische Struktur abgibt», my translation). 254 Schünemann (2007a), mn. 38, 68 («die die wesentlichen Entscheidungen über den Eintritt der Rechtsgutsverletzungen zu treffen vermögen», my translation). See also Schünemann (2011), p. 799 (at 808 et sq.). 255 Schünemann (2007a), mn. 38; Schünemann (2011), p. 799 (at 808 et sq.).

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trol over the reason for a (criminal) result»256 – therefore emerges as the fundamental reality structure relevant to criminal law’s means-end-relation257. It characterizes the «key figure[s]» of the criminal event258. 2.4.1.2.2. The «base type» of perpetration In Schünemann’s view, given the complexity of «diversity of life»259 captured by it, Täterschaft, or perpetration, should be conceived of not as a «classificatory term» but instead as a so-called type or type term260. Unlike «classificatory terms», type terms cannot be defined by recourse to necessary criteria but can only be rendered more concrete by help of «case-bound rules of similitude»: According to recent scholarship in legal theory, a type term is conceived of as possessing several «gradual attributes» or dimensions that are able to compensate each other261. Whether

256 Schünemann (2007a), mn. 39 («Herrschaft über den Grund des Erfolges», my translation). «Herrschaft über den Grund des Erfolges» has also been translated as «having the power to dominate some essential conditions of the materialization of the typical event» at the 1984 AIDP International Congress of Penal Law, Schünemann (1995), p. 49 (at 74 with fn. 106). Schünemann (2011), p. 799 (at 809); Schünemann (2009a), p. 303 (at 314) has referred to «Herrschaft über den Grund des Erfolges» also as «possession of the significant decision-making position» respectively «control over a decisive aspect of the event as a whole» («Inhaberschaft der maßgeblichen Entscheidungsposition», «Herrschaft über einen wesentlichen Aspekt des Gesamtgeschehens», my translations). See also Schünemann (2007a), mn. 68. 257 Schünemann (2011), p. 799 (at 808 et sq.). 258 Schünemann (2007a), mn. 38 and also Roxin (2006c), p. 26 («Schlüsselfigur(en)», my translation). 259 Again: Schünemann (2007a), mn. 38 et sq., 68 («Mannigfaltigkeit der Lebensgestaltungen», my translation). 260 Schünemann (2006), p. 301 (at 306) («klassifikatorischer Begriff», «Typus», my translations) and Schünemann (2011), p. 799 (at 812). See already Puppe (1989), p. 15 (at 29, 33). 261 Schünemann (2006), p. 301 (at 306) («fallgebundende Ähnlich-keitsregeln», «abstufbare[] Merkmale[]», my translation) and also Schünemann (1993), p. 299 (at 305 et sq.); Schünemann (1995), p. 49 (at 74 et sq.); Schünemann (2007a), mn. 38, 68; Schünemann (2011), p. 799 (at 809, 812) with recourse to the research of Puppe (1989), p. 15 (at 30 et sq.) and Kuhlen (1992), p. 101 (at 119 et sqq.). For earlier conceptions of the type (term), see Kuhlen (1977), pp. 163 et sqq.; Bloy (1985), pp. 302 et sqq.; Larenz (1991), pp. 461 et sqq.; Bydlinski (1991), pp. 543 et sq. and Kaufmann (1982), pp. 47 et sqq., 50 of which Spanish and Italian

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or not a case situation is a manifestation of a particular type term which satisfies a legal prerequisite depends on sufficient overall expression of these dimensions in the instant case: This determination requires establishing the situation’s sufficient similitude based on comparing the situation’s dimensional expression with the dimensional expression of other situations which have been deemed to satisfy the legal prerequisite in question262. This process of concretizing a type with a view to the case at hand renders possible classificatory decisions even though the legal prerequisite was not conceived of as a classificatory term263. Maybe surprisingly so, this combination of dimensions is argued to increase legal certainty264. For while the appeal of classificatory terms to criminal law doctrine and jurisprudence arises from their ability to establish the equality of objects, there is a price to be paid: Vagueness often ensues given that definitions must also be geared towards border areas of the term265. In contrast, cases which are doubtful with regard to one dimension of a type are turned into undoubtful cases if another dimension is present to an extent that makes up for this lack266. Schünemann posits that «control over the reason for a (criminal) result» can be derived from criminal law’s means-end-relation as the «base type»

262 263

264 265 266

translations have been published as Kaufmann/Barros Bourie (1976); Kaufmann/ Carlizzi (2004). Earlier conceptions of the type (term) have been received unfavorably in German legal scholarship, see Schünemann (1993), p. 299 (at 305 et sq.). Schünemann (2006), p. 301 (at 306) with recourse to Kuhlen (1992), p. 101 (at 117 et sqq., 124). To guide the decision on sufficient similarity in the instant case, Kuhlen suggests to rely either on a «net of similitude relations» established by recurring jurisprudential practice, and in lack of such a practice, he proposes to take recourse to the methodologically less desirable «overall assessment of all relevant circumstances of a case», Kuhlen (1992), p. 101 (at 121 et sq.) («Netz von Ähnlichkeitsrelationen», «Gesamtwürdigung aller relevanten Fallumstände», my translations). The resulting «rule[s] of similitude» help to meet the need of jurisprudential practice to make a classificatory decision even though the legal prerequisite at issue was not conceived of as a classificatory term, Kuhlen (1992), p. 101 (at 120), who speaks of a «classificatory cut» («klassifikatorischer Schnitt», my translation). See also Puppe (1989), p. 15 (at 28 et sqq.). See Schünemann (2006), p. 301 (at 306); Schünemann (2007a), mn. 66 in refuting Roxin’s topoi-based approach. But see Roxin (2006c), p. 124. See Puppe (1989), p. 15 (at 21, 33) and also Kaufmann (1982), pp. 50 et sq. Cf. already above in 2.3.2. Puppe (1989), p. 15 (at 31).

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of all statutorily designated forms of perpetration, of which committing the offense oneself (direct perpetration), through another (indirect perpetration) and with another (co-perpetration) are manifestations267. Owing to the identical legal consequence attached to all forms of perpetration, all manifestations of the «base type» must be construed as sufficiently similar268. And given that «control of one’s own behavior» has emerged as the «core area» of said means-end-relation, determination of sufficient similarity of forms of perpetration is to be guided by such control269. To determine whether a physical act – as a manifestation of the «base type» of perpetration – satisfies the prerequisite of indirect or co-perpetration then requires «careful analysis of the ‹empirical subject matter›», «to interweave normative and empirical arguments» – in other words: recourse to «casebound rules of similitude» in the above sense270. Such rules, according to Schünemann, have been established in decades of scholarship and jurisprudential practice: Indirect perpetration, for example, is a sufficient manifestation in the above sense only if the Hintermann dominates the event by coercing the direct actor (duress), if the Hintermann pilots the event in the background by creating or making use of an error on the part of the direct actor, or if the Hintermann sits at the nerve center of a power apparatus271. The «base type» of perpetration thus corresponds to the fundamental reality structure of criminal law’s means-end-relation; a typological approach to perpetration as the ability to take the decision significant for the violation of protected legal goods or interests, for the bringing about of criminal results, therefore enables the doctrine of perpetration to unfold criminal law’s means-end-relation with a view to its empirical subject matter, and thus to find the law from both a normative and an ontological perspective272. In this approach, statutory offenses and modes of participa-

267 Schünemann (2006), p. 301 (at 306 et sq.) («Grundtypus aller Täterschaftsformen», my translation). In a similar vein, Schünemann (2007a), mn. 39; Schünemann (2011), p. 799 (at 808). See already Puppe (1989), p. 15 (at 29, 33). 268 Schünemann (2007a), mn. 39; Schünemann (2011), p. 799 (at 809). 269 Schünemann (2011), p. 799 (at 808 et sq.). 270 Schünemann (2006), p. 301 (at 306 et sq.); Schünemann (2011), p. 799 (at 808, 812). 271 Schünemann (2007a), mn. 68. 272 See again Schünemann (2001), p. 1 (at 30) and also Schünemann (1995), p. 49 (at 75) (my translation).

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tion contain descriptive approximations of types273. Accordingly, in German criminal law, perpetration pursuant to § 25 gStGB not only describes «control of one’s own behavior» in its formulation of «die Tat […] selbst begeh[en]» or committing the offense oneself but additionally includes commission through another and joint commission as manifestations of «control over the reason for a (criminal) result»274. 2.4.1.2.3. Perpetration and attribution Attribution, in Schünemann’s view, is predetermined by the law’s subject matter275. In this vein, creatorship of the result is premised in offense descriptions of the direct perpetrator upon controlling one’s behavior; from a review of the empirically given possibilities to violate a legal good or interest emerges – by means of a generalization – as the rationale of perpetrator attribution the ability to take the decision significant to bringing about such violations, respectively «control over the reason for a (criminal) result»276. In other words: The notions of «key figure» in the criminal event and of creator of the criminal event are aligned beyond the offense description’s hands-on executor; creatorship of results is established as belonging to those who possess «control over the reason for a (criminal) result277. Consequently, to hold criminally responsible those individuals who are not «key figure[s]» in Roxin’s sense or, in Schünemann’s words, who

273 Kaufmann (1982), pp. 49 et sq.; Bloy (1985), p. 310. 274 Schünemann (2007a), mn. 39 («Herrschaft über das eigene Verhalten ist also der in allen modernen Gesetzbüchern auf den Begriff der unmittelbaren Täterschaft gebrachte Ausgangspunkt, dem die Herrschaft über andere bei der mittelbaren Täterschaft und die gemeinsame Herrschaft durch Arbeitsteilung […] in § 25 beigestellt sind»). For a translation of § 25 gStGB, see Bohlander, Translation of the German Criminal Code provided by Prof. Dr. Michael Bohlander, 2012, available at http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html (last visited: 30.06.2015): «(1) Any person who commits the offence himself or through another shall be liable as a principal. (2) If more than one person commit the offence jointly, each shall be liable as a principal (joint principals)». 275 Schünemann (1971), pp. 235 et sq.; Schünemann (2007a), mn. 39 and also Roxin (2003c), p. 23. 276 See Schünemann (1971), pp. 235 et sq.; Schünemann (2007a), mn. 39 («sachlogische[r] Grund für die Zurechnung ist […] Herrschaft der Person über den Körper«) and also Schünemann (2009a), p. 303 (at 313 et sq.). 277 See again above in 2.4.1.2.2 and in general on attribution in 2.3.4.1.

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do not possess the ability to take the significant decision, additional rationales of attribution are required278. 2.4.1.2.4. Perpetration and criminality According to Schünemann, the «perpetrator is nothing but the subject of offense descriptions», perpetration being thus but «a question of […] criminality»279. This brief reference to the relationship between perpetration and criminality is rather complex: The control approach let’s one regard as «subject of the offense description» not only the direct actor but also those actors who violate the protected legal good or interest through another or jointly with others280. In this vein, perpetrator attribution allows establishing the criminality of results of physical acts which consist of taking a significant decision in the above sense; not only those who carry out the described act with their own hands but – in Schünemann’s words281 – generally those who take the significant decision (through another which they control or through cooperation with one or several others in division of labor) author criminal results. The relevant reality structure mandates that not every physical act causal of a result is prohibited as perpetration of the offense but only such causing of the result which consists of taking a significant decision; events are therefore attributed to individuals as criminal perpetrators only insofar as they have acted with «control» in the above sense282. In other words: Once creatorship of results is established as belonging to those who have taken the significant decision283, offense descriptions can subsequently be applied as the heuristic rule which deter-

278 On the «secondary» nature of non-perpetration under German criminal law and derivation of criminality from the perpetrator’s offense as an integral part of the rationale of accomplice attribution see again Roxin (2006c), p. 26 and Schünemann (2011), p. 799 (at 809) and also Schünemann (2007b), pp. 6 et sq. 279 Schünemann (2007a), mn. 39 with reference to Roxin (2003a), mn. 34 («daß der Täter nichts anderes ist als das Subjekt der Deliktsbeschreibungen […], daß seine Feststellung mithin eine Frage des tatbestandlichen Unrechts […] ist», my translation). 280 Roxin (2003a), mn. 34. 281 See above in 2.4.1.2.1 and again Schünemann (2007a), mn. 38; Schünemann (2011), p. 799 (at 808 et sq.). 282 See Roxin (2006c), pp. 30 et sq. and also Bloy (1985), p. 311. 283 See again above in 2.4.1.2.2 and generally on attribution in 2.3.4.1.

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mines the criminality of such decision-taking284. This alignment of «key figure[s]» and creatorship therefore is an expression of criminal law’s fundamental means-end-relation: Prohibition and punishment are addressed at those who are in a position to violate protected legal interests. As a consequence, a dichotomy between (principal) perpetrators and (secondary) accomplices arises: In principle, only the former produce original criminality, while the criminality of acts of accomplices must be conceived of as derivative – unless, of course, attribution is construed more broadly, extending the notion of the «subject of offense descriptions» to accomplices as well285. 2.4.1.3. The law’s subject matter and the ICC: A region-specific account of the power apparatus in Katanga In Katanga and Ngudjolo Chui, PTC I has held regarding non-state armed groups that «attributes of the organization other than fungibility may also enable automatic compliance»286. It is «the leader’s ability to secure this automatic compliance with his orders» that «is the basis for his principal – rather than accessory – liability»287. In stark contrast to Roxin’s original concept, the Chamber considers fungibility and detachedness from the law as dispensable prerequisites to establishing control – and thereby to the term and notion of commission as (principal) perpetrator responsibility under Article 25 (3) (a) RS. The Court’s approach has been accepted by many in scholarship: In Ambos’ view, the Court’s approach in Katanga and Ngudjolo Chui thus set the stage for an «empirical perspective» on the notion of control by means of a power apparatus that is not restricted to power potential residing in the fungibility of subordinates288. Herzig argues in a similar way: In line

284 See above in 2.3.4.1 and again Hruschka (1991), p. 449 (at 453, 455, 458). 285 Cf. already above in 2.3.4.1.1. 286 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 518). ICC - Pre-Trial Chamber II, Prosecutor v. Ruto, Kosgey and Sang, 23.01.2012 – ICC-01/09-01/11 (§§ 317 et sqq.) has more recently opined that even payment and punishment mechanisms may suffice to establish such compliance. 287 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 518). 288 Ambos (2011b), p. 137 (at 156).

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with the empirical character of Roxin’s concept, PTC I «translated» said concept from its application to the large and bureaucratic organizations of Nazi Germany to the realities of the Congolese civil war289. This step may be read as an answer290 to the criticism of Roxin’s concept voiced by Osiel, who had scrutinized the explanatory power of the «bureaucratic account» which is seen to be at the heart of Roxin’s concept: «Roxin’s analysis may assume 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, in which the organizational chart perfectly mirrors the behavior of the people occupying positions within it»291. Not only had organization theory since «greatly qualified this model, documenting and conceptualizing the many empirical departures from it»292, the reality of mass atrocity had also been shown to diverge from the «bureaucratic account», departing «conspicuously» from the suggestions of «rational orderliness, de-sanitized precision and efficiency» in earlier etiologies of the Holocaust293. Instead, Osiel had argued, episodes of mass atrocity ought to be grasped as carried out by complex social networks294 in which «replacing reluctant inferiors […] may be possible in theory but […] often difficult in practice» and inferiors will follow orders for reasons enjoy «latitude […] in determining the fate of their victims»295. Osiel, as a consequence, had warned against reading «Roxin’s approach to managerial control» into the law of superior responsibility for «it could easily have devastating consequences for prosecutions of mass atrocity»296. More recently then, Osiel has praised the Court for recogniz-

289 Herzig (2013), p. 189 (at 196). In this vein also Ambos (2011c), p. 837 (at 846) (adaptation to «the particular structure of African militia groups», my translation). 290 In this vein also Jain (2011-2012), p. 159 (at 194). See also Osiel (2009), p. 101 (reliance by the Court on fungibility alone would have rendered the theory inapplicable in the case at hand). 291 Osiel (2005), p. 1751 (at 1835) (my italics) See now Osiel (2009), p. 100 arguing that his «analysis assumes the existence» of such a bureaucracy. 292 Osiel (2005), p. 1751 (at 1835). 293 Osiel (2005), p. 1751 (at 1834). 294 Osiel (2005), p. 1751 (at 1790). 295 Osiel (2005), p. 1751 (at 1836). See now Osiel (2009), pp. 102 et sq. and in a similar vein, Manacorda/Meloni (2011), p. 159 (at 171). 296 Osiel (2005), p. 1751 (at 1835) (my italics). But see Ambos (2011b), p. 137 (at 149) positing that «the doctrine of Organisationsherrschaft reflects adequately the ‹bureaucratic nature of mass atrocity, without going so far as to ground liabil-

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ing in its deferral to alternative means of securing compliance that «Roxin’s analogy of human interaction within a complex organization to interchangeable parts of a machine, producing criminal acts from subordinates ‹almost automatically›» is «merely a metaphor» that «offers an indicator of only one type of control exercised over an organization’s members»297. He proposes that «sufficient control […] may arise by means other than a highly formal, rigidly hierarchical organization»298 and to amend Roxin’s concept so as to account for these other «institutional means» that exist in «informal networks […] [that] generate much collective violence»299. Indeed, PTC I (and following suit, TC II300) was right to do so. Ambos, while admitting to the «true core» of Osiel’s work 301, calls for greater precision in criticizing Roxin’s concept302. He argues that it is by no means tied to the bureaucratic account of mass atrocity but, due to its empirical nature, open to concretization based on relevant case material303: Consequently, as evinced by the practice of international criminal law in Africa, the «strictly hierarchical and anonymous structure» as the «classical pattern of explanation» of control by means of a power apparatus may be replaced or at least supplemented with regard to paramilitary militia groups by «informal, ‹softer› structural features» as long as «a hierarchically-ver-

297 298 299 300 301 302

303

ity on mere organizational membership›» (my emphasis) and thus somewhat misquoting Osiel (2009), p. 95 in his appraisal of the concept; Osiel had explicitly questioned the bureaucratic account of mass atrocity. The full quote should read: «Roxin’s key insight, then, is that the more powerful parties behind the scene may, through the organizational resources at their disposal (including the culpable inferior) be said to commit the offense. This tack may be viewed as a creative effort to give juridical acknowledgement to the bureaucratic nature of mass atrocity, without going so far as to ground liability on mere organizational membership. Its appeal lies precisely in how it performs both tasks at once.» (my italics). Osiel (2009), p. 103. Concurring, Jain (2011-2012), p. 159 (at 195). Osiel (2009), p. 114. Osiel (2009), p. 115. See already Osiel (2005), p. 1751 (at 1835 with fn. 381). ICC - Trial Chamber II, Prosecutor v. Katanga, 07.03.2014 – ICC-01/04-01/07 (§ 1410). Ambos (2011c), p. 837 (at 841, 848) (my translation) Ambos (2011c), p. 837 (at 841 with fn. 34, 842) (remarking that Osiel has not read Roxin’s work in German and has overlooked, first, that Roxin himself had explicitly recognized the problem of applying the notion of control by means of a power apparatus to non-state organizations, limiting its scope to those non-state organizations who act like a «state within the state» and, second, that Roxin did not take recourse to Weber in conceiving the notion). Ambos (2011c), p. 837 (at 842).

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tical structure with an articulate chain of command» is retained304. Control of the organization and thus of subordinates, however, no longer rests «primarily on the formality of a hierarchy (or on other formalities)» but on «softer» factors which, taken together, amount to a kind of «‹personal› authority of the militia leader» under the condition that the organization is sufficiently large to maintain the anonymity of the pressure to act towards all of its members305. What has thus emerged is a region-specific account of the power apparatus. The Court, alongside a number of scholars, has on the one hand recognized the open nature of the term and notion of control (by means of a power apparatus) as one of its strengths306. Roxin has recently agreed to the Court’s elaboration of the concept’s self-proclaimed openness, in concreto openness for the informally hierarchical power apparatus, similarly retaining the prerequisite of a large organization that may continue to exist independently of the change of its members due to «a sufficiently great number of subordinates»307. At the same time, he calls for further conceptual work on such informal characteristics of organizations, while in the Katanga case control by means of a power apparatus could arguably have been established «in any case» by the interchangeability of low-ranking soldiers and their following orders without asking questions308. On the other hand, the Court can be read to have understood that – as Chouliaras has argued – «the appraisal of international criminal law, both in form and

304 Ambos (2011c), p. 837 (at 848 et sq.) (my translation). 305 Ambos (2011c), p. 837 (at 849 with fn. 86) (my translation) with reference to Urban (2004), pp. 159 et sqq., 263 et sq. who had argued that «the hierarchically mediated pressure» will be too diminished to establish control if «a close personal relationship between those at the top of the organization and subordinates» exists. 306 In this vein also Vest (2011), p. 358. But see Weigend (2011), p. 91 (at 107) who has called the Court’s recourse to strict training regimens «a sign of weakness». 307 Roxin (2012), p. 395 (at 407 et sqq.). 308 Roxin (2012), p. 395 (at 409). He refers thereby to ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 546 et sq.) («one of the main characteristics of the militias […] is interchangeability of the lowest level soldiers» and «because the soldiers were young, were subjected to a brutal military training regime and had allegiance to the military leaders of their ethnic groups, they were likely to comply with the orders of those leaders almost automatically, without asking any questions») but, interestingly, skips both the training regime and ethnic allegiance as reasons for their likelihood to follow orders.

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content, is connected to the degree that it succeeds in expressing in normative terms the reality of international criminality»309. In order to find the law of the Rome Statute – particularly of «commission» as perpetration in Article 25 (3) (a) RS – the Court has taken recourse, in other words, to the law’s subject matter: In accepting both informal and formal power structures310 it has arguably appreciated not only the graduated nature of a fundamental characteristic of commission as perpetration by means of control and as such a typological approach to perpetration as a legal term. It has thus also acknowledged that finding the Statute’s law is premised upon recourse to such structures of reality which are relevant in terms of the Statute’s aim to prevent the violation of fundamental human rights in Africa311. Without elaborating upon the contents of these structures, the Court has implicitly asserted the sufficient similarity (in a typological sense) of – broadly speaking – formal and informal means of achieving the criminal result desired by leadership personnel in organizational setting and has done so by reviewing and comparing empirical characteristics of the case at hand. 2.4.1.4. Results and outlook: A normative-empirical perspective on commission under the Rome Statute According to Schünemann’s proposal (on the basis of Roxin’s groundwork) complex legal terms such as «perpetration» (or «commission») must be conceived of as types or type terms with dimensions, as terms therefore which cannot be defined but only be rendered more concrete with a view to the case at hand. For domestic criminal law, Schünemann has suggested «control over the reason for a (criminal) result» – on the one hand – as the reality structure relevant to the means-end-relation of protecting certain legal goods or interests by addressing prohibitory criminal law norms at those who are in a position to violate these goods or interests, and – on the other hand – as the «base type» of Täterschaft or perpetration. This typological approach stresses the importance of interweaving

309 Chouliaras (2010), p. 65 (at 65 et sq.). In a similar vein, Smeulers/Holá (2010), p. 175 (at 178); Ambos (2010a), p. 153 (at 153 et sq.); Parmentier/Zinsstag (2010), p. 439 (at 440). 310 See below in 2.4.2.3.2.2 on such structures in greater detail. 311 See below in 2.5.4.3.1 on the Statute’s protective aim.

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normative and empirical perspectives and in doing so provides a means to overcoming intuitive teleological analyses of legal terms in favor of a rationally more manageable production of law in the course of statutory interpretation312. It can be argued to provide an account of perpetration beyond mere «intuitive persuasiveness»313. For our purposes, I intend in the following sections to operationalize this methodology in an interpretation of the Rome Statute’s term and notion of commission with a view to business actors. To determine the «key figure[s]»314 of criminal events of mass atrocity such as genocide, crimes against humanity, and war crimes, the normative and empirical specificities of international criminal law and their difference to those of domestic criminal law must duly be taken into account. It is my contention that such an approach is not only to be favored for the sake of a rational production of law; it can also draw on implicit support from recent ICC jurisprudence and accompanying scholarly contributions, which have aimed to substantiate the notion of control by means of a power apparatus by recourse to the law’s subject matter. 2.4.2. The type of commission under the Rome Statute The Rome Statute aims to protect fundamental human rights from their violation in events of large-scale atrocity315. Who are «key figure[s]»316 in these criminal events, who must consequently be addressed by the Rome Statute’s prohibitions in order to prevent violation of these human rights? To answer this question by recourse to Schünemann’s approach to law and relevant reality structures laid out above317, this section aims to extract from offense descriptions in Articles 6 to 8 RS the reality structure(s) relevant to the Statute’s protective aim and, subsequently, to provide access to an understanding of the notion of commission under the Rome Statute as a

312 See Kuhlen (1992), p. 101 (at 128) and also Bydlinski (1991), p. 548. 313 But see Weigend (2011), p. 91 (at 104 et sq., 107) who sees Roxin’s method as based on the «shaky ground» of intuition and myth. 314 Again: Roxin (2006c), p. 26 (my translation). 315 For a detailed analysis, see below in 2.5.4.3.1. 316 Again: Roxin (2006c), p. 26 (my translation). 317 See again above in 2.4.1.2.

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two-dimensional type and to its concretization to cases at hand, in particular to the conduct of business actors. 2.4.2.1. Offense descriptions under the Rome Statute: Key figures in genocide, crimes against humanity, and war crimes It is commonly known that the reality of crimes described in offenses under the Rome Statute differs fundamentally from that of crimes under domestic criminal law318. Unlike the «graphic descriptions» of single-handed execution of physical acts in domestic criminal codes, Articles 6 to 8 RS contain complex descriptions of conduct in collective contexts. This reality described in Articles 6 to 8 RS has been the subject of intense scholarly debate which has thus far been framed primarily as a dispute regarding the status of (collective) reality features as material (contextual) or jurisdictional elements of crimes. As an important basis for the discovery of relevant reality structure(s) in the following section, this section will first focus on scholarly and jurisprudential contributions on the elements of genocide, crimes against humanity, and war crimes, extracting from these contributions the reality of offenses as described in Articles 6 to 8 RS. In a second step, by implication of the crimes’ described reality, it will attempt to grasp the anatomy of human involvement in the unfolding of said crimes in order to determine, ultimately, who are the «key figure[s]» in the criminal events described by the Statute’s offenses. 2.4.2.1.1. Elements of genocide, crimes against humanity, and war crimes Chouliaras has pointed out that all crimes under the Statute have an «organizational dimension» which is «implied» in particular by their contextual elements: Article 7 RS requires individual acts to be «part of» a widespread or systematic attack which, in turn, must be pursuant to or in furtherance of a State or organizational policy to commit such an attack, and the Elements stress that the State or organization must actively promote or encourage such an attack; Article 8 RS, in his view, excludes «isolated acts which do not correspond to a plan or scheme», if Article 8 (1)

318 See Chouliaras (2010), p. 65 (at 67 et sqq.).

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RS («in particular when committed as part of a plan or policy or as part of a large-scale commission») is read in the context of Article 5 RS («concern to the international community as a whole»); and genocide in Article 6 RS requires «the existence of a genocidal plan or policy» by way of a «contextual element» contained in the Elements (whereby the conduct must take «place in the context of a manifest pattern of similar conduct directed against that group» or be able to «itself effect such destruction»), this provision of the Elements expressing the drafters’ intent to rule out acts of isolated individuals as acts of genocide and (re-)approximating genocide to its historical origin as a crime against humanity319. These claims to a collective or organizational reality of crimes under the Statute are subject to dispute with regard to genocide and war crimes; they are accepted only with regard to crimes against humanity. 2.4.2.1.1.1. Crimes against humanity As regards crimes against humanity under Article 7 RS, the plan or policy prerequisite is widely accepted as a material (contextual) element320. In this vein, individual conduct must be «part of» an organized collective effort321. The ICC has clarified the terms «organizational», opining «that the

319 Chouliaras (2010), p. 65 (at 78 et sq., 80 et sqq.). 320 See Fletcher (2007), p. 335; Werle/Jeßberger (2014), p. 334, and also ICC - PreTrial Chamber II, Situation in the Republic of Kenya, 31.10.2010 – ICC-01/09 (§§ 97 et sq.). For the discussion on a possible divergence from customary international law where a policy prerequisite is disputed, see Cryer (2010), pp. 237 et sqq. 321 Dixon/Hall (2008), p. 10: «Of particular significance [in determining whether an individual accused’s act can be regarded as being part of an attack] will be the manner in which the accused’s acts are associated with, or further the policy underlying the attack» (footnotes omitted). ICC jurisprudence has thus far only held that it will consider «the characteristics, the aims, the nature or consequences of the act» to determine whether in was committed «as part of» an attack, ICC - PreTrial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§ 86) and in a similar vein ICC - Pre-Trial Chamber II, Situation in the Republic of Kenya, 31.10.2010 – ICC-01/09 (§ 135). For qualifying «single […] one-time act[s]» leading to large numbers of injuries as attacks on account of the «object and purpose of the norm alone» whilst arguing that «spontaneous and isolated acts are not punishable as crimes against humanity», see Werle/Jeßberger (2014), pp. 338 et sq., 340, and more restrictively focusing on whether the individual act

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formal nature of a group [as State-like] and the level of its organization should not be the defining criterion» but instead «a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values»322. In this vein, as described by Article 7 RS, physical acts are part of the reality of crimes against humanity only as constituents of a concerted collective effort. 2.4.2.1.1.2. Genocide The «systematic element» of genocide is seen by prominent scholars to reside only in the intent to destroy prerequisite: Werle, for example, argues that the Elements requiring either conduct as part of a manifest pattern directed against a group or conduct destructive by itself oppose the ordinary meaning and telos of Article 6 RS and may therefore not constitute a contextual but merely a jurisdictional element323. Ambos supports the view that the Elements do oppose ordinary meaning but argues that teleological reasoning – accounting for a necessary «threshold of objective scale and gravity»324 – allows incorporating the Elements’ prerequisite into the definition of genocide under the Rome Statute as a contextual element325. Other scholars argue that the nature of genocide as a «systemic crime»326, its «characteristic interplay between individual and collective act» is, in their view, expressed by the Elements in the first alternative when they describe the «typical case of genocide» as individual conduct taking place in the context of a manifest pattern of similar conduct directed against that group – but omitted in the definition of the crime327. To reconcile this typical nature of genocide with the crime’s legal definition, Kreß proposes that «interpretation of the concept of genocidal intent» re-

322 323 324 325 326 327

would have been less dangerous had the attack and its underlying policy not existed, Ambos (2011a), p. 258. ICC - Pre-Trial Chamber II, Situation in the Republic of Kenya, 31.10.2010 – ICC-01/09 (§ 90). Werle/Jeßberger (2014), pp. 311 et sq. Cryer (2010), p. 219. Ambos (2011a), pp. 230 et sq. with reference to Cryer (2010), pp. 218 et sq. Kreß (2005), p. 562 (at 572). Kreß (2006b), p. 461 (at 470). See also Ambos/Wirth (2001), p. 769 (at 789) stating that «structurally organized and centralized guidance or control […] will probably be present in most cases» of genocide.

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quires such intent to «be realistic»; it «must thus be understood to require more than a vain hope» of destruction and therefore, «for all practical purposes, have an overall genocidal campaign as an objective point of reference»328, respectively the context of a manifest pattern of similar conduct directed against that group329. In his opinion, this «objective point of reference» is, however, not «an addition to the crime’s actus reus» in order to avoid «the debate about an additional mental element»330. Both Schabas and Kirsch similarly argue against entertaining «the hypothesis of a lone genocidal maniac» to determine the structure of genocide under the Rome Statute,331 which as a theory constitutes only «a distraction for judicial institutions»332. This theory ignores blatantly «the specificity of the crime of genocide as a systemic crime»333. The ICC has maintained that genocide under Article 6 RS requires, by way of a «contextual element», that «the relevant conduct presents a concrete threat to the existence of the targeted group, or a part thereof»334. This jurisprudence has been critically received by both of the above factions. While the former have outright denied its validity on the premise that the Elements’ contextual element cannot be incorporated into the definition of genocide under Article 6 RS335, the latter have welcomed it as «a significant nod of approval»336 towards their view, albeit criticizing the prerequisite of a «concrete threat» as vague, overly restrictive and uncalled for by the Elements 337. While there is indeed little in the Statute and the Elements to commend its take on Article 6 RS whereby a «concrete

328 Kreß (2006b), p. 461 (at 472). 329 Kreß (2009), p. 297 (at 305 et sq.). See also Fisher (2012), p. 39 («And, of course, a pervasive scheme, the goal of which is the destruction of a group, is almost necessarily born of, and carried out by, a politically organized group»). 330 Kreß (2009), p. 297 (at 299, 305). 331 Schabas (2011a), p. 103; Schabas (2005), p. 871 (at 877) and Kirsch (2009), p. 347 (at 352 et sqq.). See also Cryer (2010), p. 207 and Kreß (2006b), p. 461 (at 470). But see Cassese (2008), pp. 124 et sq. (génocidaire with a weapon of mass destruction or single attack against group leadership that endangers the group’s existence). 332 Schabas (2005), p. 871 (at 877). 333 Kreß (2006b), p. 461 (at 471). 334 ICC - Pre-Trial Chamber I, Prosecutor v. Al Bashir, 04.03.2009 – ICC-02/05-01/09 (§ 124). 335 See again Werle/Jeßberger (2014), pp. 309 et sqq. 336 Schabas (2010), p. 104. See also Kreß (2009), p. 297 (at 305). 337 Kreß (2009), p. 297 (at 306).

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threat» is necessary338, in applying the Statute to the case at hand, the Court seems to have recognized an «overall genocidal plan» as an «objective point of reference» of the accused’s (i.e. Al Bashir’s) intent: Holding that individual intent is premised upon collective intent, and that the government of Sudan possessed such collective intent, Al Bashir’s intent is required by the Court to refer to a genocidal plan as an «objective point of reference», Kreß argues, once governmental intent is translated into «a plan to carry out a genocidal campaign»339. 2.4.2.1.1.3. War crimes The presence of an armed conflict is regarded as a contextual (material) element of war crimes340. Correspondingly, scholars have identified a socalled nexus or functional relationship prerequisite between the conduct and the armed conflict in the Elements, which define war crimes as conduct which «took place in the context of and was associated with an (international) armed conflict»341. The Court has repeatedly concerned itself with this nexus requirement, with the need for «a functional relationship between the respective acts and the conflict»342, arguing that «the armed conflict must play a substantial role in the perpetrator’s decision, in his or her ability to commit the crime or in the manner in which the conduct was ultimately committed»343 and that inter alia «the fact that the act may be said to serve the ultimate goal of a military campaign»344, while not prerequisite to, is indicative of that nexus. According to van der Wilt, the accused must at least «be part of – or closely related to – the military power apparatus that has been established to fight an international or internal enemy» and «have access, and be able, to employ the methods and means of

338 See again Kreß (2009), p. 297 (at 306). 339 Kreß (2009), p. 297 (at 305 et sq.) with reference to ICC - Pre-Trial Chamber I, Prosecutor v. Al Bashir, 04.03.2009 – ICC-02/05-01/09 (§§ 147 et sqq.). 340 Werle/Jeßberger (2014), p. 170. 341 See also Werle/Jeßberger (2014), p. 422; Cryer (2010), p. 285. 342 Again: Ambos (2014), pp. 142 et sq. 343 ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§ 287). 344 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 382).

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warfare»345. Cassese, more restrictively and arguing in line «with the rationale behind the punishment of war crimes», requires in terms of a nexus that the offense was «committed to pursue the aims of the conflict or, alternatively, it must have been carried out with a view to somehow contributing to attaining the ultimate goals of a military campaign or, at a minimum, in unison with the military campaign»346. Beyond the nexus prerequisite, the reference to the existence of a planned or large-scale commission in Article 8 (1) RS has given rise to discussion of the question of isolated acts of war crimes. Scholars have expressed that the reference is «a guide rather than a requirement» as evinced by the addition of «in particular», enabling the Court to prosecute isolated war crimes as long as they are of sufficient gravity347. According to Werle, this «threshold clause» relates to «a particular quality of war crime» as «a requirement for jurisdiction of and prosecution by the International Criminal Court» and does not constitute «a limitation of the substantive requirements for liability»348. In a similar vein, the Office of the Prosecutor has argued that the threshold «is not an element of the crime» but does «provide Statute guidance that the Court is intended to focus on situations meeting those requirements»349. Yet Fletcher argues that it is precisely this prerequisite that determines «the collective element of the execution of the [war] crime», the character of war crimes as «a form of collective action», even of those war crimes which «appear to be subject to commission by solitary soldiers violating the discipline of their unit» such as willful killing; for not «outliers causing harm» but only conduct issued from «armies gone awry» is of concern to the international commu-

345 Wilt (2012), p. 1113 (at 1127) and concurring Ambos (2014), p. 143. 346 Cassese (2008), p. 78. In this vein also Ambos (2014), p. 142. 347 Cryer (2010), pp. 289, 267. In a similar vein, Ambos (2011a), p. 275; Ambos (2014), p. 18 and also Fisher (2012), p. 40. 348 Werle/Jeßberger (2014), p. 191, and in this vein also Ambos (2014), p. 119. See also Cassese (2008), p. 80. 349 Office of the Prosecutor (2006). The issue of a threshold for war crimes was controversial during the Statute’s drafting. The «threshold clause» in Article 8 (1) RS is argued to confirm a shared concern that a «safeguard against the exercise of jurisdiction over isolated cases» by the Court was needed and that «isolated incidents of war crimes» were a matter for national courts; it was expressed subsequently by the wording «in particular», see Hebel/Robinson (1999), p. 79 (at 107 et sq.).

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nity as a whole350. Other war crimes such as declaring that no quarter will be given cannot even be committed by individual soldiers – «the practice of taking and caring of prisoners […] requires a level of administrative organization and geographical permanence» – and thus constitute «a form of collective action» in the first place351. 2.4.2.1.1.4. Results and outlook: The reality of offenses under the Rome Statute as an organized effort The status of collective reality references in terms of material, jurisdictional elements or other points of reference remains disputed. There is, nevertheless, reason to conclude that the reality described in Articles 6 to 8 RS (and in the corresponding Elements of Crimes) is entirely a collective reality. This conclusion can be drawn on the basis of offense descriptions regardless of classifications such as whether the «genocidal campaign» is established as an «objective point of reference» but not as a material element (Kreß) or appears merely in a mental element but is accompanied by a pattern or destructive conduct prerequisite as a contextual (Ambos) element of genocide; it does not depend upon the shaping of the nexus prerequisite as demanding the armed conflict to have played a «substantial role» in the accused’s ability to commit the war crime as it was committed (ICC) or that the accused have acted «in unison with the military campaign» (Cassese) with «access […] to […] the means of warfare» (van der Wilt) and is independent of the dispute relating to the contextual or jurisdictional element quality of the prerequisite of a planned or large-scale commission of war crimes (Chouliaras, Werle)352. Instead, this reality emerges simply from the «graphic descriptions» in Articles 6 to 8 RS. This is most straightforwardly so with a view to the description of crimes against humanity by recourse to the organizationally crafted attack in Article 7 RS. But it is also the case regarding genocide and war crimes, where descriptions in both Articles 6 and 8 RS as well as in the Elements make reference to the reality of a collective concerted ef-

350 Fletcher (2007), p. 335 (my emphasis). 351 Fletcher (2007), p. 335. 352 But see below in 2.4.3.3.1 on the relevance of the Statute’s fundamental reality structure for the construction of criminality; the perspective developed on such construction militates against a mere jurisdictional quality of said element.

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fort to bring about harm. The «graphic descriptions» in Articles 6 and 8 RS assign «central position[s]»353 not to isolated individuals but to individuals in a context of organization: Genocide is described in the Elements as a kind of conduct which is integrated into a genocidal campaign, into a pattern of concerted action which is established by organization pursuant to a policy, plan, or intellectual design. Scholars have asserted that this nature of genocide as a «systemic crime» must be reflected by an «objective point of reference» in its mental element. And the organization of individuals and resources is an essential characteristic of any conduct to be described as (part of) a war crime under the Rome Statute; for not only the description of particular war crimes such as declaring that no quarter be given is premised upon access to personal and material organizational resources and policy guidance, but war crimes in general are described as conduct which takes place as a (dysfunctional) instance of the collective efforts of military organization in armed conflict. This insight is revealed both by the descriptions in Article 8 RS and in the Elements (the «conduct took place in the context of or was associated with an armed conflict») and is affirmed in scholarship and jurisprudence by the so-called nexus requirement between individual conduct and an armed conflict as a legal prerequisite, positing the need for «a functional relationship between the respective acts and the conflict» (Ambos) which amounts to the accused pursuing a military campaign (Cassese) or at least acting in close contact with the military apparatus and with access to its resources (van der Wilt). In this vein, neither the lone génocidaire nor the isolated soldier is part of the offense descriptions in Articles 6 and 8 RS, respectively. Instead, the offenses describe the bringing about of harm by organizing, accessing, or constituting personal and material resources in accordance with an intellectual design as an essential feature of the reality of offenses under the Rome Statute. The implementation of a genocidal campaign (Article 6 RS), of a widespread or systematic attack (Article 7 RS), as well as of a (dysfunctional) military campaign (Article 8 RS) all rely upon such intellectual designs and the organization and making use and constituting of material and personal resources in conformity to it. In a similar vein, Chouliaras posits that the crimes’ «seriousness and pervasiveness of their consequences […] indicate that a high level of orga353 See Roxin (2003b), p. 423 (at 428) (my translation) and above in 2.4.1.1 and 2.4.1.2 on the individual’s «central position» in domestic criminal law and its «key figure[s]», respectively.

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nization is required which by and large characterizes state and state-like entities»354. He usefully distinguishes the reality of domestic criminal law from that of international criminal law by pointing out the indispensability of the «group or collective element» to the latter and its exceptionality to the former: Domestic criminal law is concerned with «interpersonal violence», while international criminal law deals with «collective violence» – violence which is marked by the joint and coordinated contribution of individuals who identify as a group and instrumentalize violence in order to achieve their political, social, or economic objectives355. Also, van der Wilt has posited that the Statute’s concern with «the intricacies of large scale system criminality» as a real-world phenomenon must account for «three strongly-interrelated features»: First, that the scope of system criminality always involves a multitude of perpetrators; second, that «meticulous planning and hierarchical organization» is required by the «need to cluster forces and human resources into concerted action»; and third, that individuals in «top positions» of military or civil government agencies usually do not physically commit core crimes but organize so that their orders be executed «by the subservient rank and file»356. And Olásolo thus rightly asserts that «political and military leaders […] usually [as in: realistically] require the support of sizeable organizations organized into a hierarchy to carry out a widespread or systematic attack against a civilian population, to implement a plan, policy or large scale campaign of war crimes, to set into motion a manifest pattern of genocidal acts, or to carry out acts of such a magnitude that can cause in and of themselves the destruction of a targeted group in whole or in part»357.

354 Chouliaras (2010), p. 65 (at 78 et sq., 80 et sqq.). 355 Chouliaras (2010), p. 65 (at 67 et sqq.). See also Parmentier/Zinsstag (2010), p. 439 (at 439 et sq.), who have characterized collective violence as referring to «multiple realities»: first, commission of acts not by isolated individuals but by groups with cohesion in planning and execution; second, motives are not individual but political, social, economic; and third, violence takes place as part of a larger context such as an armed conflict. 356 In a different order, Wilt (2009b), p. 307 (at 307 et sq.) and in a similar vein, Nollkaemper/Wilt (2009), p. 338 (at 340). 357 Olásolo (2009), pp. 132 et sq. referring to Articles 6-8 RS as well as to the Elements of Crimes (footnotes omitted, my emphasis).

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The pervasiveness of «purposive collective action context» in which crimes under the Statute are committed is highlighted also by Vest358. Finally, even Osiel, who argues on the one hand that «[e]ven the term ‹division of labor› […] exaggerates the degree of detailed planning and centralized, self-conscious coordination evident in most episodes of mass atrocity» and «ignores how authoritarian rulers often foster interagency rivalries, through overlapping jurisdiction», stresses on the other that «such organizational structures initially appear completely irrational, from a Weberian bureaucratic perspective» but «often prove highly efficient in eliciting proactive problem solving in service of criminal state policies»359 – indeed, organization and intellectual design may become manifest not only in bureaucratic hierarchies but also in «spontaneity from below» which is «actively encouraged by state authorities from above»360. 2.4.2.1.2. An anatomy of human interaction and involvement in genocide, crimes against humanity, and war crimes According to scholarly opinions genocide, war crimes or crimes against humanity are concerned with «systemic-collective structures»361, with «organized, collective wrongdoing» and «masterminded violence»362, with individuals acting «in a certain collective context»363, with «unexceptional people often acting under the authority of a state or, more loosely, in accordance with the political objectives of a state or other entity»364, with the «cogs in a larger system» who do not act on their own initiative but either «carry out the plans of other, higher placed individuals» or «act on behalf, or as a part, of a state or other large collective»365. Indeed, the reality of Articles 6 to 8 RS as organized efforts implies a particular reality of

358 Vest (2011), pp. 395 et sq. («zweck-bezogene[r] kollektive[r] Aktionszusammenhang», my translation). 359 Osiel (2005), p. 1751 (at 1795). 360 Osiel (2005), p. 1751 (at 1798) arguing that in such cases «we have neither a bureaucracy nor a network united by ‹common purpose› but something more like ‹anomie› and resulting ‹crowd behavior›». 361 Vest (2011), p. 398 (my translation). 362 Sliedregt (2012b), p. 1171 (at 1174). 363 Ambos (2013c), p. 84. 364 Tallgren (2002), p. 561 (at 575). 365 Nollkaemper (2009), p. 1 (at 1, 4).

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human interaction and involvement in said crimes. Scholarly contributions have provided insights into that reality. Vest not only considers hierarchical organizations as «the central instruments for the organization and execution of core crimes»366, he also establishes a three-level «quasi-model» for participation in crimes under the Rome Statute367 which is supposed to act as a «matrix»368, «saturated with reality» and in which instances of reality can be arranged369. In his view, this «quasi-model» should distinguish three levels of hierarchy (and of responsibility) to which participants are assigned in accordance with their control370: At the leadership level, participants possess «decision-making control», deciding upon the «if» of the occurrence of the «systemic-collective context of events» (so-called «Gesamttat», defined in scope by Vest as the situation pursuant to Article 13 RS, which in turn is defined factually by recourse to time and space parameters371) as well as on the category and number of victims372; at the planning or organization level, participants possess «designing and/or managing control» over the whole or a part of the Gesamttat, contributing to the concrete course of the Gesamttat by determining the (direct) perpetrators and their means373; and at the execution level, participants possess the «immediate power of action» in carrying out individual criminal acts within the Gesamttat374. In a similar vein, on the crime of genocide, Ambos speaks of the importance of individual «status and role» when accounting for the «reality of genocide» in structuring the offense of genocide375, and distinguishes on that basis between masterminds/leaders/planners, coordinators and executors who occupy the top, middle or bottom level in a hierarchy of «perpe-

366 367 368 369 370 371 372 373 374 375

Vest (2011), p. 433. Vest (2011), pp. 433, 435, 409 (my translation). Vest (2011), p. 412. Vest (2011), pp. 414, 411 with fn. 113 (my translation). Vest (2011), p. 410. He also refers to these levels as «types» in the above sense (see in 2.4.1.2), see Vest (2011), pp. 410, 412 et sqq. and also below in 2.4.3.2. For a translation, see also Ambos (2013c), pp. 178 et sq. Vest (2011), p. 415. Vest (2011), pp. 411, 400 («Entscheidungsherrschaft», my translation). Vest (2011), p. 411 («Gestaltungs- und/oder Steuerungsherrschaft», my translation). Vest (2011), p. 411 («unmittelbare Aktions- bzw. Tatmacht», my translation). Ambos (2010a), p. 153 (at 153, 160).

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trators»376. In terms of status, he refers to the individual’s membership in a state or in a private organization and points out that the top level can only be attained by members of the former; without «direct and structural state support» a «full-fledged genocidal plan» cannot be implemented even if an individual belongs to the «top level of the respective group or organization»377. And focusing in particular on the characteristics of those who «commit» genocide, crimes against humanity, and war crimes, Smeulers and Holá have distinguished between several (sociological) types of participants (inter alia criminal masterminds, careerists, fanatics, devoted warriors, sadists, profiteers, ordinary criminals, otherwise law abiding citizens, and compromised perpetrators) which are then assigned to a level of culpability corresponding primarily to their instrumentality in creating or sustaining the social reality in which core crimes are regarded as acceptable, as necessary, and as legitimate; this instrumentality, in turn, is seen to depend upon the individual’s authority and autonomy (order/adapt/submit) as well as upon their role and function (planning/instigating, organizing/ executing, following) within the system378. 2.4.2.1.3. Results and outlook: Designers and implementers of organized action as key figures Articles 6 to 8 RS do not describe the reality of isolated individual acts. The reality descriptions of crimes under the Statute reference the organization of personal and material resources pursuant to an intellectual design relied upon by a genocidal campaign (Article 6 RS), a widespread or systematic attack (Article 7 RS), or a (dysfunctional) military campaign (Article 8 RS). Such organized action, in turn, is realistically shaped, sustained, accepted by or forced upon individuals in different roles and positions. Distinctions in scholarship can be reduced to a distinction between designing masterminds and design implementers; such implementation of an intellectual design, in turn, occurs by measures which allocate personal and material organizational resources, by measures which make use of such resources and by measures which provide for resources as foreseen by the 376 Ambos (2010a), p. 153 (at 163 et sqq.). 377 Ambos (2010a), p. 153 (at 164). 378 Smeulers/Holá (2010), p. 175 (at 180 et sqq., 183).

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design. This insight will subsequently serve to describe the reality structure relevant to the Statute’s means-end-relation from a typological perspective. 2.4.2.2. The Statute’s fundamental means-end-relation and its reality structure According to its Preamble and to Article 5, the Rome Statute is concerned with the prevention of «the most serious crimes of concern to the international community as a whole». In this vein, and with a view to genocide, the ICC has posited that «the penal norm defining the crime of genocide [serves] as an ultima ratio mechanism to preserve the highest values of the international community»379. Generally speaking, the preservation of humanity’s highest values, respectively the prevention of the most serious crimes as an end is pursued by (State Parties to) the Rome Statute by addressing prohibitions at individuals. As is domestic criminal law, international criminal law under the Rome Statute is characterized by this fundamental means-end-relation as a normative principle380. In pursuit of that normative principle, and unlike in most domestic criminal codes, Articles 6 to 8 RS do not address isolated conduct but instead conduct organized pursuant to an intellectual design381. It is not the execution of conduct by one’s own hands that constitutes the reality of offenses under the Rome Statute but instead the execution of conduct which organizes personal and material resources, constitutes and draws upon the organization of personal and material resources. Prohibitory criminal law norms in pursuit of preventing «the most serious crimes of concern to the international community as a whole», in turn, are addressed at individuals whose conduct takes place within an organizational context. More precisely, only those who devise and implement such an intellectual design together «are able to take the decisions significant for the violation of pro-

379 ICC - Pre-Trial Chamber I, Prosecutor v. Al Bashir, 04.03.2009 – ICC-02/05-01/09 (§ 124). 380 Cf. also below in 2.5.4.3.1. 381 In a similar vein, Vest (2011), p. 396.

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tected goods or interests»382. Mere control over one’s bodily motions, unlike in domestic scenarios, does not produce this ability. In this vein, not individuals acting in isolation but individuals acting with others, more precisely individuals together devising or implementing the intellectual design which organizes personal and material resources are the «key figure[s] of the criminal event»383. Possession of a significant decision-taking position by devising and implementing of an intellectual design therefore emerges as the reality structure relevant to the normative principle of preserving the international community’s highest values, i.e. to the fundamental means-end-relation of international criminal law under the Rome Statute. 2.4.2.3. The Statute’s commission type The ability to take significant decisions by devising or implementing an intellectual design has emerged as the reality structure of the Rome Statute’s means-end-relation. Design masterminds and design implementers are «key figure[s]» in the criminal events described by Articles 6 to 8 RS. In order to accommodate this complex reality structure to the Statute’s means-end-relation in applications to cases at hand, I propose to conceive commission of Articles 6 to 8 RS as a type in Schünemann’s sense384. This commission type assimilates the Statute’s fundamental reality structure. From a typological perspective, commission is thus not defined but described in Articles 6 to 8 RS as the ability to take decisions significant for the violation of protected legal goods or interests by devising or implementing an intellectual design and applied by recourse to the dimensions exhibited by conduct in a case at hand385. Articles 6 to 8 RS contain, in this sense, descriptive approximations of the Statute’s commis-

382 Cf. Schünemann (2007a), mn. 38, 68 («die die wesentlichen Entscheidungen über den Eintritt der Rechtsgutsverletzungen zu treffen vermögen», my translation) and also Schünemann (2011), p. 799 (at 808 et sq.). 383 Cf. Roxin (2006c), p. 26 («Ausführen», «Mittelpunkt und Schlüsselfigur des Deliktsvorganges», my translation). Roxin originally made reference to §§ 47-49 gStGB, which since were revised in 1975. See Roxin (2006c), pp. 546 et sqq. for an extension of his original argument to the novel §§ 25-27 gStGB. 384 Cf. above in 2.4.1.2. 385 Cf. above in 2.4.1.2.2.

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sion type386. Again drawing from the reality described in Articles 6 to 8 RS, I propose that commission as a type possesses two dimensions which are abstractions of empirical characteristics of conduct in an organizational context 387. The type’s dimensions will subsequently serve in classifying commission for the purposes of applying the commission type to cases at hand. 2.4.2.3.1. The resource dimension of commission The resource dimension is an abstraction of circumstances which characterize the personal and material resources organized to serve the implementation of an intellectual design in the above sense. Its degree of expression is relative to the resourcefulness upon which conduct can and in the instant case did rely in devising, respectively in implementing the intellectual design. Circumstances expressed on the resource dimension are for example the organization’s monetary wealth and its membership size but also its structural effectiveness388 in the implementation of goals set by

386 Cf. on the gStGB Kaufmann (1982), pp. 49 et sq.; Bloy (1985), p. 310. See also above in 2.4.1.2.2 and below in 2.4.4. According to Vest, Articles 6 to 8 RS «typify systemic-collective structures» (my translation), Vest (2011), p. 398. 387 The methodology applied to establishing the dimensions of the type of commission follows Schünemann’s reference to Kuhlen: Accordingly, dimensions of commission are abstractions of circumstances of the reality structure relevant to the Statute’s means-end-relation, see above at fn. 262 and again Kuhlen (1992), p. 101 (at 120 et sq.). To determine these circumstances and subsequently the dimensions of commission, I draw both on the descriptions of the realities of Articles 6 to 8 RS and – to enhance the understanding of this reality – on research into such reality provided by disciplines other than jurisprudence, in particular by organization theory and social psychology. In relation to social science research, I have no scholarly expertise; I therefore limit myself to such (external) plausibility review of the arguments offered therein as would most legal scholars or judges. 388 Conceptualizing and measuring organizational effectiveness is a difficult task and (therefore) a highly contested terrain. From the multitude of approaches suggested in organization and management theory, I propose to rely on one of the oldest: organizational effectiveness in terms of accomplishment of organizational goals. While this approach is contested in scholarship due to the conflicting goals involved when different stakeholders are taken into account (and may thus be less suitable from a management perspective), it suits the perspective of international criminal law, which is concerned with violating protected legal interests as the outcome and goal of organizing. The «goal model» is best suited (and most pre-

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the intellectual design. If design implementation consists of contributing to organizational resources as foreseen by the intellectual design, dimensional expression reflects upon the resourcefulness provided towards the design’s implementation. Due to its size and access to material resources, many state-sponsored organizations will be able to provide greater structural support than nonstate sponsored organizations389. Conduct of individuals in state-sponsored organizations can thus have greater expression of the resource dimension. As members of business corporations in pursuit of the maximization of profit or minimization of loss390, i.e. of (policy) goals which are on their face unrelated to intellectual designs underlying e.g. a genocidal campaign, the conduct of individual business actors may exhibit expression on the resource dimension nevertheless, given that this expression is established solely by recourse to their contributing personal or material organizational resources and thus independent of their membership in a (legal) business organization such as a corporation.

ferred) when «[g]oals are clear», Carton/Hofer (2007), p. 50 with further references. On the goals perspective, see Jones (1998), pp. 22 et sqq., 30 et sqq. and for the diverging perspectives on organizational effectiveness Gibson/Ivancevich/ Donnelly (2012), pp. 9 et sqq.; Carton/Hofer (2007), pp. 52 et sqq.; Mansfield (1986), pp. 20 et sqq. From the goals perspective, organizations are either well or not so well structured or designed in order to most effectively attain organizational goals (e.g. innovation, material wealth, organizational survival, or genocide), see Mansfield (1986), pp. 62 et sqq.; Jones (1998), pp. 30 et sqq. E.g. military organizations, aiming inter alia at defeating the enemy, often possess a highly hierarchical structure with strict compliance mechanisms and, considering the difficult choices to be made by individual organization members, are arguably most effective structured in this way. But also beyond military organizations, hierarchical bureaucracy structures, due to their potential to provide for simplification of communication and command processes, are often believed to be associated with organizational effectiveness, and are seen to therefore persist throughout the organizational landscape in spite of their disadvantages (e.g. remote decision-making, rigidity and resistance to change), see Linstead/Fulop/Lilley (2004), pp. 135 et sq., 146 et sq., 149 et sq.; Child (2009), p. 393; Clegg/Courpasson/ Phillips (2010), pp. 134 et sq.; Huczynski/Buchanan (2013), pp. 549 et sq. 389 See Ambos (2010a), p. 153 (at 163 et sq.) and also Smeulers/Grünfeld (2011), p. 198 on the Rwandan genocide: «The major cause of both the mass participation and the extreme nature of the violence was the fact that killing Tutsis was ordered, planned and incited by the political and military authorities and many perpetrators started to believe that they were doing the right thing». 390 See from a criminological perspective Huisman (2010),, pp. 23 et sqq.

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2.4.2.3.2. The creative dimension of commission The creative dimension is an abstraction of circumstances which characterize the individual’s position and interaction within the organizational context in violating the protected legal interest, i.e. in bringing about the criminal result, by her conduct. It reflects upon the variety of ways to implement the intellectual design (e.g. to mastermind, to give orders, to instigate, to follow orders, to provide support without being ordered391) in (para-) military or civilian contexts. Its degree of expression is relative to the individual’s creative or formative potential towards implementing the intellectual design, which has materialized by organizing resources, by use of organizational resources towards the design’s implementation or by their constitution392 in accordance with the design. Circumstances which can be expressed on the creative dimension are in particular circumstances determining the individual’s power within the organization393 as well as

391 See above in 2.4.2.1.2 and again Smeulers/Holá (2010), p. 175 (at 180 et sqq.). 392 The constitution of resources is therefore relevant not only as regards the resource dimension, i.e. as regards the resourcfulness of conduct; it is also relevant here, i.e. in the sense that resourcefulness will often increase formative potentials within an organizational context by granting power over others. 393 Power in organizations has been the subject of intense debate among scholars; this debate has produced a host of competing perspectives in organization and management theory. For a critical review. see Clegg/Courpasson/Phillips (2010), pp. 7 et sqq. For the purposes of international criminal law, the so-called behavioral perspective on power in organizations is most suitable as it focuses on decision-making and its outcomes; it was proposed from this perspective that power from a multitude of sources matches particular methods of influence and can occur with higher and lower participants: physical power corresponds with force (threats, punishment) as a method of influence, resource power (material and immaterial) with exchange (bargaining, providing incentives, bribing), position power (entitlements of one’s position also affect resource power, e.g. control of information, rights of access and to organized) with instituting rules and procedures, expert power and personal power (charisma) with persuasion and magnetism (popularity), see Linstead/Fulop/Lilley (2004), pp. 187 et sqq. with reference to Handy (1993), p. 133. As Clegg/Courpasson/ Phillips (2010), pp. 7, 52 et sqq., 140 describe, it was «a concern with efficiency that gave birth to power in management and organizations», management intervention being conceived of as an exercise of power in situations where routines were not working: The notion of power was long treated by perspectives to which «hierarchy is hegemonic» as «the illegitimate antithesis to authority», as «that which escaped rationality», and it was only later that «the normalcy of organization power embedded in authority and hierarchy that enables many things to be

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her structural autonomy within the organization394. E.g. the physical act that devises the coordinative intellectual design and the allocation of organizational resources both personal and material towards policy execution exhibits greater formative potential than does the physical act which (merely) implements policies as ordered395. In my opinion, it is in this discourse on creative dimensional expression that qualitative distinctions Vest has introduced with a view to control must be accounted for396. 2.4.2.3.2.1. Empirical complexity Circumstances expressed on the creative dimension are empirically complex. Research presented by social sciences, in particular organization theory and social psychology, can be of use in order to better understand in particular obedience and its relationship with organizational power and influence. Such perspectives are therefore the subject of the following section. What is more, important studies such the Milgram and Zimbardo experiments397 and conclusions drawn from them have produced both posi-

394

395 396 397

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done in its name that are morally reprehensible» (regarding the Holocaust) and the political perspective on organizations in general were discovered. See also Linstead/Fulop/Lilley (2004), pp. 194 et sqq. Organization membership not only grants power and influence but often results in a loss of autonomy. As Linstead/Fulop/Lilley (2004), p. 212 point out, «[p]articipation in organized human activity inevitably involves constraints on individual action, if the whole of organized action is to exceed the sum of its parts», «[c]ontrol, therefore, seems an essential feature of organizations». While such control is intricately linked to power, influence and being under control are not mutually exclusive but can co-exist, e.g. on a middle hierarchical level. See Smeulers/Holá (2010), p. 175 (at 180 et sq.). See above in 2.4.2.1.2, below in 2.4.3.2 and again Vest (2011), pp. 410 et sqq., 419 et sqq. (my translations). In the Milgram experiments, participants were asked, under the observation of an experimenter, to administer as teachers electric shocks to discipline students for giving false answers; the study’s goal was to determine how far participants would go and its result was argued to be compelling evidence that normal men and women would go so far as to kill a stranger merely because they were ordered to do so, see Kelman/Hamilton (1989), pp. 148 et sqq.; Smeulers/Grünfeld (2011), pp. 212 et sqq.; Haslam/Reicher (2012), p. 1 (at 1) on Milgram (1974). Zimbardo, in 1973, assigned two groups of study participants the roles of either prison guard or prison inmate to study interaction between these groups in the absence of a malevolent authority; the experiment had to be aborted after serious

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tive and skeptical reactions in social science scholarship. This goes to show that from an empirical perspective, power within organizations remains a contested field of research. Normative claims made on its basis must therefore be carefully explained. 2.4.2.3.2.1.1. Kelman and Hamilton on crimes of obedience Kelman and Hamilton have supported an application of Milgram’s findings to a variety of organizational realities including government agencies and business corporations where the «interplay between binding and opposing forces» of Milgram’s authority situation can, in their view, be observed (with variations) to result in «crimes of obedience», i.e. crimes that «would not have taken place without authorization»398. In their research, they identify in particular «the presence and clarity of a chain of command» as a factor which strengthens «binding forces», respectively «the presence and clearly identified targets to be harmed» as a factor which strengthens «opposing forces»399. They explain in this framework that – in civilian bureaucratic hierarchies (governmental and corporate), the existence of an «explicit and sometimes extended chain of command»

abuse by the «prison guards» had occurred and was interpreted as showing that people descend into tyranny simply as a consequence of role conformity prescribed by authorities, see Smeulers/Grünfeld (2011), pp. 232 et sqq.; Haslam/ Reicher (2012), p. 1 (at 2) on Haney/Banks/Zimbardo (1973), p. 1. 398 Kelman (2009), p. 26 (at 27). 399 Kelman/Hamilton take Milgram’s results as a model for their findings on crimes of obedience, which relies on an interplay of binding and opposing forces, Kelman/Hamilton (1989), pp. 150, 156 et sqq., 308 et sqq.: Binding forces reinforce the authority structure of a given situation (direct presence of an authority, salience of the perceived consequences of disobedience, fear of embarrassment, actions of comparable others, symbols of authority, and clearly articulated hierarchical structures) while opposing forces are situational features that increase the subject’s reluctance to engage in actions demanded (physical and psychological closeness of the victim, perceived personal causation of the victim’s suffering, which can, in turn, be mediated by bureaucratic diffusion of responsibility, routinization processes, normalization and de-individuation). In a similar vein, Smeulers and Grünfeld have argued that «Milgram has clarified the nature of an authority structure, the pressures which go along with an authority structure and human reactions to such authority structures» and these general insights should thus have a firm place in the etiology of the Holocaust and other events of mass atrocity, Smeulers/Grünfeld (2011), pp. 231 et sq., 240 with further references.

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strengthens binding forces such as «the existence of a system of sanctions, the conspicuousness of authoritative surveillance, and the opportunity for observing others’ conformity to orders» while the «absence of an explicit target of harm» in institutional goals as well as routinization reduce the likelihood that opposing forces will be activated; and – in «military, para-military and social control agencies» (soldiers, security agents, police), the explicit chain of command backs binding forces such as severe sanctions, strict surveillance and observable conformity, routinization and systematic dehumanization of targets while the institutional requirement to do harm may encourage opposing forces; and – in «professional relationships», binding forces are limited to anticipated embarrassment (no formal sanctions, no conformity observations due to privacy) and, lacking a chain of command, are «characteristically unable to activate obligations to obey»400. Kelman and Hamilton further note that the «conflict between binding and opposing forces» will be resolved individually, and «the question of who holds responsibility in an authority situation», in their view, will determine the «actual response to questionable orders» to a large extent: Denial of individual responsibility, associated with rule orientation (obedience is regarded as a necessity arising from a sense of powerlessness in a hierarchy) and role orientation (obedience is regarded as an obligation that arises from identification with a citizen role in a powerful state) will dispose subordinates to obey; in contrast, assertion of responsibility, associated with value orientation (moral judgment vis-à-vis the exercise of authority is exercised independently) will dispose them to disobey questionable orders401. They have argued that the relationship between situational forces and these dispositional orientations is reciprocal: Binding and opposing forces may affect the strength of a rule, role, or value orientation (e.g. punishment serves as a reminder of an individual’s role requirements402) and, vice versa, dispositional orientations may increase or decrease an individ-

400 Kelman/Hamilton (1989), pp. 310 et sqq. 401 Kelman/Hamilton (1989), pp. 315 et sqq. 402 Kelman/Hamilton (1989), p. 159.

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ual’s sensitivity to binding and opposing forces403. Kelman has recently reiterated these claims also with regard to international (core) crimes404. 2.4.2.3.2.1.2. Total institutional power relations Also concerned with the relationship of power and obedience, Clegg, Courpasson, and Phillips have proposed «[t]wenty ways [sic] of constructing total institutional power relations», abstracted from case studies such as the Holocaust, the German Democratic Republic, or Abu Ghraib prison before the backdrop of contributions by (again) Milgram and Zimbardo but also by Goffman, Foucault, and Bauman, mirroring in part the results of Kelman and Hamilton, with additional recourse to sociological studies405. Total institutions are «organizations that contain the totality of the lives of those who are their members» such as «a professional army, a boarding school […] or a monastery», in which «members lose a degree of autonomy because of an allencompassing demand for conformity to the authoritative interpretation of rules»406.

403 Kelman/Hamilton (1989), pp. 320 et sq. 404 Kelman (2009), p. 26. The research of Milgram and Zimbardo has been reflected by (international) criminal law scholars. According to Schlösser, pressure resulting from role conformity and other group dynamic processes such as neutralization techniques and the division of labor cause the «power to decide» to pass from subordinate to superior in organizational contexts and subjective delegation of responsibility, the difficulty to distinguish right from wrong as well as collective neutralization techniques support a «disposition to obey» of subordinate organization members, Schlösser (2004), pp. 277 et sqq., 290, 308 et sq. («Entscheidungsgewalt», «Befolgungsbereitschaft», my translations). To warrant for these pre-sumptions on relationships of authority, Schlösser relies inter alia on the Milgram experiments on obedience, Schlösser (2004), pp. 277 et sqq. Vest argues in a similar vein, calling for international criminal law to take into account the «situational constraints» («group conformity pressures, situational obedience to authority, effects of professional roles») evinced in the works of inter alia Milgram and Zimbardo, Vest (2011), p. 101 (my translation). 405 Clegg/Courpasson/Phillips (2010), pp. 176 et sqq. with references to Milgram (1977); Goffman (1961); Foucault (1979); Bauman (1989). 406 Clegg/Courpasson/Phillips (2010), pp. 147 et sq.

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In this context, they argue, the «essential core of organization» is power, and «power is sanctified as authority» if people obey orders voluntarily407. Among the «techniques of total institutional power» are the following: «[c]onstruct organizational politics premised on identity/non-identity»; «[c]oncentrate and marshal bodies on the basis of clearly inscribed identities in a specific space»; «[d]elegate authorities to enact centrally conceived power projects»; «[u]se expert knowledge to render power efficiently»; «[s]trip members of markers of individual identity»; «[p]ay systematic attention to means while accepting ends»; «[a]pply intrinsically instrumental and valuefree science»; «[h]ave the highest authority sanction the organizational action in question»; «[r]outinize the actions that enact organizational power»; «[d]ehumanize those subject to power»; «[m]aintain a distance between the designated exercisers and subjects of power: division of labor in complex chains of power enable elites to maintain distance from power’s effects»; «[o]bedience to power is encouraged where organization work is a ceaseless round of activity with little room for reflection»; «[m]ake those who are the subjects of power complicit in its exercise»; «[b]e convinced that the regime of the total institution is the best for all concerned, both those in and those out with; wrap its purpose in the rhetoric of being in the ‹real› interest of both the other and the society at large»; «[m]inimize the possibility of escape attempts»; and «[r]eward the institution’s keepers with perks and benefits and keep them secret from other members»408.

2.4.2.3.2.1.3. Critical voices Research expanding on Milgram and Zimbardo does not stand uncontested, however409. According to Reicher and Haslam, the power of said scholarship derives from its claim to give empirical substance to the notion of the «banality of evil» and has thus resulted in a «conformity bias» which put focus on compliance and disregarded clues for resistance and disobedience, operationalizing «an apparent tragedy of the human condition: our desire to be good subjects is stronger than our desire to be sub-

407 Clegg/Courpasson/Phillips (2010), p. 148. 408 Clegg/Courpasson/Phillips (2010), pp. 176 et sqq. with examples of how these techniques were applied during the Holocaust and in other «total institutions». 409 See Burger (2009), p. 1 (at 2 et sq.): «[D]iscussion and debate about how to interpret the findings have never ended. Nonetheless, most social psychologists appear to agree on one point. The obedience studies are a dramatic demonstration of how individuals typically underestimate the power of situational forces when explaining another person’s behavior» (references omitted).

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jects who do good» 410. In their view, however, the «banality of evil» thesis does not hold up to empirical scrutiny for disregarding, first, «copious evidence of resistance even in studies held up as demonstrating that conformity is inevitable», and second, that those who «do heed authority» do so «not blindly, actively not passively, creatively not automatically», «out of belief, not by nature, out of choice, not by necessity» and should, therefore, «be seen – and judged – as engaged followers not as blind conformists»411. Regarding the research by Milgram and Zimbardo, it is their claim that Milgram’s study is less about blindly following directives but about «getting people to believe in the importance of what they are doing» and that Zimbardo’s show of tyranny was enabled by enthusiastic engagement instead of «leaden conformity of automatons»412. In their own research on the BBC Prison Study recreating Zimbardo’s experiment, they found that it was not «passive conformity to roles or blind obedience to rules» but «creative leadership and engaged followership within a group of true believers» that enabled a tyrannical outcome413. Re-formulated in terms of power, these insights point to a notion of «power through» instead of «power over», i.e. leadership not by telling people what you want them to do but by «harnessing what people want to do themselves»414.

410 Haslam/Reicher (2012), p. 1 (at 2). 411 Haslam/Reicher (2012), p. 1 (at 3). 412 Haslam/Reicher (2012), p. 1 (at 2). Haslam and Reicher point out that while the Milgram experiments are remembered widely to show that people obey orders, the experiments can be read to show they in fact do not as soon as requests are framed as orders, i.e. as soon as «the experimenter imposes himself on the participant»; in their view, obedience with requests is «predicated upon perceptions of shared identity», i.e. in the Milgram experiments, obedience followed from a belief «in the nobility of the scientific enterprise», Reicher/Haslam (2011), p. 163 (at 168); Reicher/Haslam, Stanley Milgram taught us we have more to fear from zealots than zombies, 2011, available at http://www.guardian.co.uk/science/blog/ 2011/sep/01/stanley-milgram-research-zealots-zombies (last visited: 30.06.2015); Haslam/Reicher (2012), p. 1 (at 3). Participants in Zimbardo’s study, they argue, «used ingenuity and initiative» in responding to instructions given by Zimbardo (such as «You can create in the prisoners… a sense of fear in some degree»); they question Zimbardo’s claim that brutality was primarily caused by «role-related scripts» as the only source of guidance, see Haslam/Reicher (2012), p. 1 (at 2). 413 Haslam/Reicher (2012), p. 1 (at 3). 414 Haslam/Reicher/Platow (2011), p. 61. See also Clegg/Courpasson/Phillips (2010), pp. 190 et sq., 196 on the distinction between the «facilitative power to conception» and the «prohibitive» conception of «power over»; they stress that only rarely will power fit just one of these conceptions, the «effects of power as

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Power, thus conceived, is not about directives and orders but about «articulating the nature of group identity and its implications for action in context»415. Tyranny flourishes, Reicher and Haslam conclude, not because people are helpless and ignorant of the consequences of their actions but because perpetrators «actively identify with those who promote vicious acts as virtuous»; it is this conviction which then makes them «work energetically and creatively to ensure its success»416. These insights are based also on skepticism towards transferring Milgram’s findings from laboratory to social reality, their use in terms of a «Milgram paradigm»417. In this vein, Darley has cautioned against generalizing said findings beyond the «Milgram situation» in which phenomenologically, «the principal completely specified the actions that the agent was to take» and «the principal could and did observe every action that the agent took» and in which the principal «had [scientific] expert power, and power legitimated by his place within a scientific hierarchy»418. Reicher and Haslam have pointed to other scholarship on the «Milgram paradigm» which revealed that small

415 416 417

418

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productive or negative» being «strictly contingent» on the situation and agents involved, i.e. on the «point of view taken». Haslam/Reicher/Platow (2011), p. 61. Haslam/Reicher (2012), p. 1 (at 3). See Darley (1995), p. 125 (at 127) («We now tend to believe that when a person is ordered to do so by an authority figure, he will commit destructive actions on other people, including giving them obviously dangerous and potentially lethal electric shocks; when a person is ordered to do so he might even kill people; and when a person is under the orders of an authority, he displays a blind, robot-like obedience to that authority») and Haslam/Reicher (2012), p. 1 (at 1) on the scholarly and popular presumption that «people inevitably succumb to the demands of authority, however immoral the consequences». Darley (1995), p. 125 (at 138). In a similar vein, based on his meta-analysis of 35 years of research on the Milgram experiment, Blass (1999), p. 955 (at 963). Fenigstein (2000), p. 54 (at 54) critically assesses the explanatory power of Milgram’s laboratory findings with regard to the Holocaust, pointing out that «the contrast between the two events, at every level of analysis, are striking». See also Burger (2009), p. 1 (at 2 et sqq.) who explains «the Effect» observed in Milgram’s study by reference to four situational features: obedience to authority (legitimated by the experimenter’s relation to the study, the university «or even science»), gradual increase in demands (going from 15 volts to 450 volts), limited sources of information in a novel situation (in particular lacking the observation of other people’s behavior, having only the experimenter as a source of information) and lack of personal responsibility (experimenter took responsibility).

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changes in Milgram’s carefully calibrated set-up «could have very dramatic consequences for the amount of obedience that was found»419. 2.4.2.3.2.2. Fungibility re-visited: On the empirical substrate of the (corporate) power apparatus In particular the notions of binding and opposing forces as well as of strengthening factors, of (total) institutional power techniques and of power over vs. power through can guide an analysis of the reality of interaction in organizational contexts. As social science research has advised, each situation must be carefully analyzed in order to avoid the trap of a «conformity bias»420. «[R]eplaceability» (fungibility)421, the existence of «intensive, strict, and violent training regimens»422, «allegiance to the military leaders of their [the subordinates’] ethnic groups»423 or the «capacity to hire, train, impose discipline and provide resources to his subordinates» have appeared in ICC jurisprudence as an organization leader’s «means to exercise control [by means of a power apparatus]» under Article 25 (3) (a) RS424, i.e. as means to safeguard «automatic compliance» with orders425, so that the organization leader «not merely order[s] the commission of a crime, but through his control over the organization, essentially decides whether and how the crime would be committed»426. These allusions to patterns of interaction within an organization can be scrutinized in their

419 Reicher/Haslam (2011), p. 163 (at 164). For an elaboration on such changes, see Pina e Cunha/Rego/Clegg (2010), p. 291 (at 303 et sqq.). 420 See again Haslam/Reicher (2012), p. 1 (at 2). 421 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 516, 518, 546). 422 ICC - Pre-Trial Chamber I, id. (§§ 518, 547). 423 ICC - Pre-Trial Chamber I, id. (§ 547). 424 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 547). In a similar vein ICC - Pre-Trial Chamber II, Prosecutor v. Ruto, Kosgey and Sang, 23.01.2012 – ICC-01/09-01/11 (§§ 317 et sqq.) on payment and punishment mechanisms. 425 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 514 et sq., 517). 426 ICC - Pre-Trial Chamber I, id. (§ 518) (my emphasis). See also ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§ 330) on defining control over the commission of a crime as deciding on its whether and how.

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suitability as an empirical substrate of «control» enabled by a «power apparatus» on the basis of the above research. Replaceability as a symbol for hierarchical bureaucratic organization design involving delegation, division of labor, routinization appears as the conglomerate of a number of (total) institutional power techniques and as such may result both in power and obedience, particularly as the presence of a chain of command will strengthen other binding forces such as observations of conformity; violent training regimes relate to physical force as a source of power, to binding factors such as fear of sanctions as well as to dehumanization of subjects of power as an institutional power technique, all of which may produce highly obedient subordinates; ethnic allegiance appears either in terms of «power over» as the result of identity-premised organizational politics, supported by and supporting role orientations or as «power through», linked more to personal power than to position power and involving not obedience but identification and creativity; the institutional power technique of rewarding the institution’s keepers with perks and benefits – i.e. resource power – may be recognized in the Court’s reference to a leader’s capacity to distribute material resources. And on a related note, if doctrine commands that power and obedience – control – is to result from the organizational context per se, the interplay between situational and dispositional427 characteristics has thus far been overly disregarded. Jurisprudence of the German BGH has moreover aimed to apply the notion of a power apparatus to business corporations, a move which has been

427 Carsten and Uhl-Bien have recently reiterated the claim to obedience on the basis of Milgram’s (and others’ who have expanded upon Milgram) findings and, from their perspective, one could call into question altogether the situational dimension of social control which is argued to arise specifically in organizational contexts: They point out, on the one hand, that «a large body of research supports the strong link between an individual’s propensity to displace responsibility and their subsequent obedience to authority figures» based on the perception that the authority figure has «greater agency than they do», but argue on the other that this propensity should be viewed as «a trait-like characteristic» to be distinguished from a situational characteristic, Carsten/Uhl-Bien (2013), p. 49 (at 51). But see Burger (2009), p. 1 (at 10) pointing to evidence on personality traits related to participants’ reactions which was «not entirely consistent or easily interpretable», concluding that «the relationship between personality and obedience remains speculative».

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widely criticized in German scholarship 428. Authority and obedience in the organizational setting of a business corporation pursuant to Kelman and Hamilton are seen to depend in great part on the explicitness and clarity of a chain of command, in other words: on the presumption of a business corporation as a (formal) bureaucracy429 – a presumption that is contested in more recent scholarship on corporate organizations430: While such an analysis might be fruitful in smaller companies with linear and hierarchical structures of management, scholars argue that it becomes increasingly unrealistic as the size of a business organization increases431. The fulfillment of tasks will be divided among a greater number of collaborators; centralized forms of management are replaced by less centralized forms of «lean management», where important decisions are no longer made only «at the top» but on all hierarchical levels432; hierarchies of employees and patterns of «top-down» delegation of tasks and competences are dissolved as functionally independent433 sub-units or groups of employees emerge («project teams»434); areas of competence are increasingly less regulated and therefore difficult to demarcate435; areas of competence constantly change as enterprise structures are continually optimized, as employees are transferred or let go436. As a consequence, in many corporate business organizations, the empirical substrate for power-apparatus style control will be absent.

428 BGH, Mittelbare Täterschaft bei uneingeschränkt verantwortlichem Tatmittler (Strafrechtliche Verantwortlichkeit von Mitgliedern des Nationalen Verteidigungsrats der DDR für vorsätzliche Tötungen von Flüchtlingen durch Grenzsoldaten der DDR), 26.07.1994 – 5 StR 98/94, BGHSt 40, 218 (at 237). For an overview of the discussion and critique of the BGH, see Roxin (2003c), pp. 55 et sq. who argues that lacking detachedness from the law, business corporations do not grant their leaders control over the crime. 429 See Kelman/Hamilton (1989), p. 310 whereby corporate and governmental hierarchies «can be viewed as fundamentally similar to each other». 430 See in particular Schmitt-Leonardy (2013), pp. 238 et sq. 431 Burchard (2010), p. 919 (at 924). 432 Bock (2011), p. 81. 433 Bosch (2002), p. 12. 434 Schmitt-Leonardy (2013), p. 238. 435 Bock (2011), p. 81 arguing that psychological studies concerning corporate leadership have hinted at the fact that self-organization and autonomy in authority free spheres increase employee productivity. 436 Bock (2011), p. 82.

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2.4.2.3.3. The commission type and prerequisite degrees of dimensional expression Recourse to dimensional expression of conduct thus far only enables comparative statements to the extent that the greater degree of dimensional expression, the more this conduct is a manifestation of the type of commission described in Articles 6 to 8 RS. Yet in applying the Rome Statute to cases at hand, this comparative statement must evolve into a qualitative assessment of conduct as satisfying or dissatisfying commission as a prerequisite in the chapeaux of Articles 6 to 8 RS («acts [...] committed» respectively «crimes […] committed») – in other words: Commission as a type must be concretized with a view to determining whether Articles 6 to 8 RS apply to the conduct in question. To guide such classificatory tasks, Schünemann has suggested taking recourse to sufficient overall dimensional expression, i.e. to assessing the dimensional profile of the act as sufficiently similar (or not) to such profiles deemed acts of commission437. In this vein, Kuhlen speaks of «making a classificatory cut» at particular degrees of dimensional expression, ideally on the basis of a «net of similitude relations» which emerges from jurisprudential practice438. If a «net of similitude relations» is lacking for the time being, Kuhlen suggests recourse to «overall assessment of all relevant circumstances of a case»439. For domestic criminal law, Schünemann has posited that sufficient similarity must be established with a view to «control of one’s own behavior», given that such control constitutes the «core area» of domestic criminal law’s means-end-relation440. He has considered the plethora of German scholarship and jurisprudence to have established a «net of similitude relations» in the above sense, providing for «rules of similitude» to determine whether conduct is a manifestation of the «base type» of perpetration sufficiently similar to «control of one’s behavior» so that the prerequisite of direct, indirect or co-perpetration is satisfied441.

437 Cf. above at fn. 262 and again Kuhlen (1992), p. 101 (at 120 et sqq.). 438 Kuhlen (1992), p. 101 (at 120 et sq.) («einen klassifikatorischen Schnitt ziehen», my translation). In a similar vein, Puppe (1989), p. 15 (at 29 et sq.). 439 See above in fn. 263 and again Kuhlen (1992), p. 101 (at 121 et sq.). 440 See above in 2.4.1.2.2 and again Schünemann (2011), p. 799 (at 808 et sq.). 441 See above in 2.4.1.2.2 and again Schünemann (2007a), mn. 68.

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Under the Rome Statute, scholarship and jurisprudence have only tentatively and implicitly embraced the task of classificatory cutting. In the interpretation of statutory modes of participation as degrees of responsibility, debate has focused on the relationship between control, authority, and responsibility, with the goal of substantiating the claim to commission as perpetration as the highest degree of responsibility. In this vein, regarding perpetration by means of a power apparatus, the ICC has followed conclusions drawn during the Eichmann trial where «a person’s blameworthiness has also been described as increasing in tandem with a rise in the hierarchy: the higher in rank or the farther detached the mastermind is from the perpetrator, the greater that person’s responsibility will be»442. This general tendency is prominent also in scholarship443; Vest in particular has associated his distinction between «decision-making control», «managing control» and «immediate power of action» with three decreasing levels of responsibility444. Below the highest degrees of responsibility associated with Article 25 (3) (a) RS, debate has focused on and struggled with distinguishing (substantial) assistance in sub-section (c) from (significant) contributions in sub-section (d)445, as well as ordering (as principal indepen-

442 See ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 502 et sqq.). 443 See Werle (2007), p. 953 (at 954); Jeßberger/Geneuss (2008), p. 853 (at 866); Werle/Burghardt (2010), p. 849 (at 852) (on the relationship between control and responsibility «within networks of collective action») and Ambos (2013c), p. 87 with fn. 46 (the argument for «mitigation of punishment for the numerous midand low-level executors […] flows quite naturally from the distribution of responsibility between the leaders and the minor participants», my emphasis). As Schabas points out with regard to genocide, those who are physically remote from murder and brutality are «often the real villain[s]», Schabas (2000), p. 286. This argument was embraced already by Roxin (1963), p. 193 (at 202), translated in Werle/Burghardt/Roxin (2011), p. 191 (at 200). For an analysis of «mitigation of penalties of those who commit horrendous crimes» based on «the distribution of guilt between offender and society», see Fletcher (2002), p. 1499 (at 1542 et sqq.). 444 See above in 2.4.2.1.2, below in 2.4.3.2 and again Vest (2011), pp. 410 et sqq., 419 et sqq. (my translations). 445 ICC - Pre-Trial Chamber I, Prosecutor v. Mbarushimana, 16.12.2011 – ICC-01/04-01/10-465-Red (§§ 284 et sq.). See also above in 2.2.1.1.1 on the view of ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 999). There is broad consensus among scholars that propagate a differentiation of responsibility under Article 25 (3) RS that Article 25 (3) (c) and (d) RS constitute a lesser degree of responsibility than sub-section (a), see

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dent perpetration) from inducing (as secondary dependent responsibility) in sub-section (b)446. Yet, while suggesting that (circumstances of) dimensional expression might play an important part in establishing different degrees of responsibility, the debate proves less helpful for the task of determining sufficient overall dimensional expression for conduct of those devising and implementing intellectual designs to satisfy commission as a classificatory prerequisite. Until a «net of similitude relations» has come into existence, concretization of the type of commission under the Rome Statute must therefore take recourse to overall assessments. It is precisely such an overall assessment which has recently been endorsed by PTC I in Mbarushimana447 and other decisions by the Court448 in the functionally equivalent context of providing outer limits for criminal responsibility under the Rome Statute: In giving normative content to the prerequisite of «significant contribution» under Article 25 (3) (d) RS and thus to the lower limit of criminal responsibility under the Rome Statute, PTC I has promoted a case-by-case analysis of criteria such as the «sustained nature of participation after acquiring knowledge of the criminality of the group’s common purpose», the undertaking of preventive efforts, the accused’s role of planner or executor, her position in or relative to the group, and «perhaps most importantly the role the suspect played vis-à-vis the seriousness and scope Ambos (2013c), p. 164 on sub-section (c) and Manacorda/Meloni (2011), p. 159 (at 168, 176); Werle/Jeßberger (2014), p. 220 on sub-section (d). The «internal» differentiation between (c) and (d) is, however, disputed; for (d) as the lowest degree, see Manacorda/Meloni (2011), p. 159 (at 168, 176); Werle/Jeßberger (2014), p. 219, for a case-by-case assessment, see Vest (2011), pp. 349, 367; Ambos (2013c), pp. 164 et sq., 167. 446 See Ambos (2013c), p. 163 (for perpetration) and also ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 517) (against perpetration and for accessory responsibility). Critical of this distinction also ICC - Trial Chamber I, Separate opinion of Judge Fulford, 14.03.2012 – ICC-01/04-01/06-2842 (§ 8) and ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§§ 23, 56) proposing to distinguish relative to the participant’s «degree of actual control and influence». 447 ICC - Pre-Trial Chamber I, Prosecutor v. Mbarushimana, 16.12.2011 – ICC-01/04-01/10-465-Red. 448 See in particular ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 993 et sqq.) as well as ICC - Trial Chamber II, Prosecutor v. Katanga, 07.03.2014 – ICC-01/04-01/07 (§§ 1632 et sqq.). See also Ambos (2013c), pp. 147, 153, 164 et sqq. for further references.

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of the crimes committed»449 – of criteria, therefore, which may be expressed on the resource and creative dimensions of commission. As in domestic criminal law, a «core area» of the Statute’s means-end-relation can provide guidance to establishing sufficient similitude in overall assessments: Articles 6 to 8 RS do not focus on hands-on execution of acts but on organized collaboration as the result of complex human interaction. In this vein, access to and constitution of organizational resources is arguably core to the Statute’s means-end-relation across different roles, functions, and occupations which devise and implement the intellectual design. That an expression of the creative dimension is given in the instant case thus proves indispensable to the classificatory task of deciding whether or not the legal prerequisite of commission is satisfied. Finally, overall assessments in this sense not only require considering all relevant circumstances but are required to produce a rational decision: Reasons for judgments of degrees of expression must be given, and they must be understandable450. In this vein, while recourse to degrees of dimensional expression implies recourse to a measure by which such degrees may be scaled, this scale need not be a scale of quantity. In fact, resourcefulness and materialized creative potentials cannot be scaled quantitatively alone. The measure need instead be such that it is rationally comprehensible. In this regard, I propose that dimensional expression be scaled to low, moderate or high degrees; this «crude triadic model» is, in my view, sufficient for the task at hand451: To justify by means of rational arguments both why a particular conduct is assessed to exhibit a low, mod-

449 ICC - Pre-Trial Chamber I, Prosecutor v. Mbarushimana, 16.12.2011 – ICC-01/04-01/10-465-Red (§§ 285, 284) (my emphasis). 450 See Alexy (2003), p. 433 (at 439) and for a parallel discussion below in 2.5.4.2.1.2.1. 451 I thereby confide in Alexy’s assessment that a finer (or infinitely fine) structure is not always useful, a point he makes by citing Aristotle: «‹We must…not look for precision in all things alike, but in each class of things such precision as accords with the subject-matter›», Alexy/Rivers (2002), p. 413. «The triadic scale has, compared with its alternatives, the advantage that it fits especially well into the practice of legal argumentation […] Graduation in terms of light, moderate or serious is often difficult enough as it is. In some cases one can just barely distinguish light and serious, and in some cases even that seems impossible. Legal scales can thus only work with relatively crude divisions, and not even that in all cases […] The propositions expressing the classifications, however, must be understandable, for they have to be justified, and justification presupposes understanding. This is the reason for the limits of refinements of scale», Alexy (2003),

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erate, or high degree of dimensional expression and why a particular combination of resource and creative dimensional expression is overall sufficient to concretize the Statute’s commission type. 2.4.2.4. Results and outlook: The commission type and individual criminal responsibility As Osiel points out, it is a highly complex task to establish a truthful configuration of «the organization» in instances of mass atrocity, i.e. to avoid employing the organization as a «fictional device»; the decisive questions to that end are, in his view: Which patterns of interaction are relevant to its scope and what is its overarching goal452? The typological approach to commission intends to provide answers not only from an empirical but also from a normative perspective. Unlike in domestic criminal law, in international criminal law under the Rome Statute it is not the individual in control of her bodily motions (and therefore of the crime) who is a «key figure» in the unfolding of the criminal event; here, design masterminds and design implementers have emerged from a review of the reality described in Articles 6 to 8 RS to occupy «central positions» together. Only in such an organizational context can a decision be taken that is significant for the violation of goods or interests protected by the Rome Statute. Commission of an offense in Articles 6 to 8 RS is thus adequately described as conduct with resource and creative dimensional expression. To concretize the Statute’s commission type in order to assess whether or not the commission prerequisite in the offenses’ chapeaux is satisfied, whether or not Articles 6 to 8 RS apply to the conduct in question, a sufficient degree of expression must be established and justified in rational legal argumentation. Let us assume with regard to the Corrie case example453 that management employees issued a directive to service Caterpillar bulldozers already owned by the IDF to ready them for the raids. According to what plaintiffs have alleged in the Corrie case, the IDF undertook raids against

p. 433 (at 440, 443, 445). See also Griffin (1988), p. 75: «Our powers of measurement may be limited. But our demand on measurement may also be limited». 452 Osiel (2005), p. 1751 (at 1803, 1794). 453 See above in 1.

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Palestinian civilians as part of a «home destruction policy»454. This destruction policy, devised as a counter-insurgency security measure with punitive character455, amounts to the prerequisite intellectual design by which IDF members and Caterpillar employees as well as weapons materials and vehicles are organized into a (dysfunctional) military campaign. Management employees who issued directives to service bulldozers and IDF forces on the ground have implemented this intellectual design by constituting those material resources which had been foreseen by it456, by making use of personal and material resources, respectively, as devised by it. This conduct can subsequently be classified as commission of Article 8 RS by reviewing degrees of dimensional expression: Together, Caterpillar employees and IDF forces arguably constitute a resourceful organization, state-sponsored and efficiently structured by a hierarchical command infrastructure and reliable supply lines. The formative potential of Caterpillar management employees exercised by way of their directives to sell, lease or service bulldozers in the course of the intellectual design’s implementation is diminished largely by their lack of integration into the hierarchical command infrastructure as well as by the contractual constraints imposed upon them. This conduct therefore exhibits a high degree of resource dimensional expression, while the degree of creative dimensional expression achieved is low. Given that their directives constitute the material organizational resources foreseen in the intellectual design, and thus lie at the core of the Statute’s means-end-relation, such conduct nevertheless amounts to commission of Article 8 RS by management employees. It is arguable then that offenses under the Rome Statute are, in this sense, collective in nature. As was famously held in Tadic, such «crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal de-

454 United States Court of Appeal for the Ninth Circuit, Corrie v. Caterpillar, 17.09.2007 (at 12490). 455 For details on this policy from a human rights perspective, see Amnesty International (2004), pp. 10 et sqq. 456 In type concretization, design implementation is determined from an ex ante perspective. Given that international criminal law is concerned with preventing the commission of crimes by altering individual conduct, conduct only amounts to commission with a view to pre-existing intellectual designs. See also below in 2.4.3.3.1 and in 2.5.4.

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sign»457. Of course, in the words of Werle, «the collective nature of crimes under international law does not absolve us of the need to determine individual criminal responsibility»458. The Rome Statute indeed aims to hold «single individuals» criminally responsible for genocide, crimes against humanity, and war crimes. But how is individual criminal responsibility to be established when the relevant conduct takes place in an organizational context, when commission is premised upon sufficient dimensional expression in the above sense? This question turns in particular on the form of attribution applied to establishing creatorship of the criminal event, of the criminal results. The following sections are therefore dedicated also to the relationship between attribution and criminality. 2.4.3. The subject-matter’s influence on attribution, criminality, and individual degrees of responsibility Attribution is concerned with establishing creatorship of the event (or the result) described and assessed as criminal in the offense459. In ICC jurisprudence and in scholarship, important accounts of (principal) perpetrator responsibility under Article 25 (3) (a) RS have focused on control over the crime in order to connect individual conduct to results described in Articles 6 to 8 RS. This section will scrutinize these accounts as well as their take on (degrees of) individual criminal responsibility and subsequently present an alternative aligned with the Statute’s type of commission, i.e. with the law’s subject-matter.

457 ICTY - Appeals Chamber, Prosecutor v. Tadic, 15.7.1999 – IT-94-1-A (§ 191). The full quote reads «[m]ost of these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design». As regards the Rome Statute, however, it is my contention that the qualifier «most» is not in order. 458 Werle (2007), p. 953 (at 953). 459 See above in 2.3.4.1.

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2.4.3.1. ICC: A dysfunctional control approach to indirect co-perpetration Recall that the Majority in Lubanga has based co-perpetration on the notion of collective control460, and that in Katanga, PTC I had argued for the need to complement this horizontal dimension with a vertical dimension of top-down indirect perpetration by means of an organized power apparatus in order to adequately reflect the responsibility of senior leadership461. The indirect «perpetrator behind the perpetrator» is, in this view, held responsible based on her ability to «produce[] the [criminal] result ‹automatically›»462. Attribution and thus creatorship of the criminal event is therefore premised upon two combined463 notions of control over the crime, joint or collective control, and control by means of a power apparatus, which have been referred to by the Court as the ability to decide «whether and how the crime would be committed»464. The former is owed to an essential contribution to a common plan465, the latter to «automatic compliance» with the accused’s orders in a hierarchical organization466. Attribution on the basis of control thus produces the category of perpetrators as those «most responsible»467.

460 See above in 2.2.1.1.1 and again ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 994). 461 See above in 2.2.1.2.1 and again ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 493). 462 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 519 et sqq. and 497, 515). 463 On indirect co-perpetration as a combination of indirect and of co-perpetration in terms of a mere «factual coincidence», see again Weigend (2011), p. 91 (at 110 et sq.). 464 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 518) and also ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 920). 465 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 524) and also ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 1005 et sq.) and Roxin (2006c), p. 279. 466 See ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§§ 514 et sq., 517) and again Roxin (1963), p. 193 (at 200) («sitting at the nerve center of the [power apparatus] pushing the button»). 467 See ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 518). For co-perpetration, the Court has itself referred to «mutual attribution», ICC - Pre-Trial Chamber I, Prosecutor v. Katan-

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Thus combining a horizontal and vertical perspective on the events described in Articles 6 to 8 RS, the Court acknowledges the need to reflect upon the interrelatedness of leadership and executive functions which is constitutive of any offenses’ reality under the Rome Statute. The ability to take the decision significant to harming the protected legal good or interest468 requires both horizontal and vertical interaction of design masterminds with design implementers. Yet – while a step in the right direction – the Court’s conception of the ability to decide «whether and how the offense would be committed», in other words: the ability to take the significant decision to harming the protected legal good or interest469 still appears rather adjusted to the prototypical actors of domestic offenses. It remains particularly unclear whether such actors’ central positions, owed to an essential contribution to a common plan470 or to the «ability to secure automatic compliance» with the leaders’ orders471, may indeed arise (merely) because this contribution or that leadership position endows them with the abilities of harming legal interests in the same way a handson actor could: as a matter of controlling the crime by control over her bodily movements. Indeed, the Court quotes Roxin as opining that «the [hands-on] perpetrator is […] a mere gear in the wheel of the machinery of power who can be replaced at any time, and this […] perspective places the intellectual author alongside the perpetrator at the heart of events»472. This view, precisely, considers as «the heart of events» the hands-on execution to where the organization leader must then be «place[d]» – which, in the domestic context, makes sense473. But, with respect to Articles 6 to 8 RS, «intellectual author[s]» – design masterminds and implementers – need not be «place[d]» at the «heart of events» on account of the hands-on executors’ replaceability; they are there as the event’s constitutive «key figure[s]» already on account of the reality structure of the Statute’s

468 469 470 471 472 473

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ga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 520) and also ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 994, 999); ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§ 325) and. See again above in 2.2.1.1.1 and 2.2.1.2.1. See above in 2.4.1.2.1. See above in 2.4.1.2.1. ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 524) See ICC - Pre-Trial Chamber I, id. (§ 518). ICC - Pre-Trial Chamber I, id. (§ 515). See again in 2.4.1.2.1 on this context.

2.4. Law and reality structures: Re-conceiving commission

means-end-relation474. The «heart of events», in other words, is of a different nature here than in domestic legal orders. And «[d]esigning the attack, supplying weapons and ammunitions, exercising the power to move the previously recruited and trained troops to the fields; and/or coordinating and monitoring the activities of those troops», writes the Majority, «may constitute contributions that must be considered essential regardless of when are they exercised (before or during the execution stage of the crime)»475. Yet, as regards Articles 6 to 8 RS, such contributions – acts of resourceful cooperation – are constitutive of any «execution stage of the crime»; the Court, while correctly acknowledging the essentiality of such contributions, apparently has an overly narrow perspective on what «the crime» actually is. In continuing to speak of control over the crime in this indistinct manner with a view to Articles 6 to 8 RS, in silencing the fundamental difference between domestic legal orders and the Statute’s law, the Court does not duly recognize the decisive role played by the law’s subject-matter, i.e. by indispensable, organized and resourceful cooperation. And recalling the insight that in aligning creatorship of the event to the «key figure[s]» of the criminal events attribution, too, is to be pre-determined by the law’s subject-matter – in this vein, the ability to take significant decisions for harming protected legal interests emerges as an attribution rationale476 – the Court’s combination of horizontal division of labor on the leadership level and of automatic compliance with orders in a hierarchical setting remains unsatisfactory from an attribution perspective as well: The Court excludes from (co-) authorship of the criminal events described in Articles 6 to 8 RS in particular those «key figure[s]» who access and constitute personal and material organizational resources below the leadership level. And if criminal responsibility is based on conduct which is not an instance or concretization of the Statute’s commission type, i.e. conduct which does not devise or implement an intellectual design with (the prerequisite degree of) resource and creative dimensional expression, the Court holds individuals responsible in a manner that is not covered by the Statute’s protective means-end-relation which, as we have seen, applies only to a specific reality structure. It is in particular the resourcefulness of

474 See above in 2.4.2.1, also on the implications for attribution. 475 ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 526). 476 See above in 2.4.1.2.3.

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cooperation which is apparently – but wrongly – without merit in the Court’s construction of commission as (indirect co-) perpetration. As a consequence, the Court’s control approach is largely dysfunctional. It fails to grasp the essential pretense of its discoverer (Roxin), to whose work it however constantly refers - i.e. to produce the law as an «interweavement of empirical and normative circumstances»477. 2.4.3.2. Ambos and Vest: Multi-staged control Ambos and Vest have taken important steps to overcome the limits of indirect co-perpetration. Aiming to establish a «notional schema saturated with reality» Vest has proposed to distinguish between «decision-making», «managing», and «execution» as three hierarchical levels in terms of types of participation478. As criteria which may initially serve to concretize these types and ultimately enable the classification of participants in terms of these levels, he proposes «quality» – i.e. each level corresponds to either «decision-making control», «managing control», or «immediate power of action» –, «dimension» – i.e. each level corresponds to either the «overall offense», a «complex of offenses» or «individual offenses» –, and «intensity […] of control»479. Vest has most recently received support from Ambos, opining that control approaches must take into account the «collective or systemic dimension of the criminal events»; in this vein, «mutual domination of the commission as required in the context of co-perpetration» loses its significance and must be replaced by a «system of ‹organizational domination in stages›» such as that proposed by Vest480. Both authors aim to reflect their consciousness of the organizational context of conduct also from an attribution perspective. Ambos argues that attribution in international criminal law requires a «dual perspective» to «describe the collective context of commission»: In «a kind of double imputation model», a collective perspective that «focuses on the context ele477 See again Roxin (2000), p. 55 (at 55) («Verflechtung empirischer und normativer Gegebenheiten», my translation) and above in 2.4.1.1 and 2.4.1.2. 478 Vest (2011), pp. 409 et sqq., 414 (my translation). 479 Vest (2011), pp. 411 et sq., 417 et sqq. («Gesamttat», «Tatenkomplex[]», «Einzeltat», my translations) See also above in 2.4.2.1.2. Vest refers to Kuhlen (1992), p. 101 (at 119 et sq.) as the conceptual basis of his approach to the type (term). On this basis, see above in 2.4.1.2.2. 480 Ambos (2013c), p. 178.

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ment belonging to all participants» (i.e. on the «supra-individual collective context or situation») must be complemented by an individual perspective wherein «this context is attributed as a whole or in parts to individual participants taking recourse to concrete rules of attribution (yet to be established)»481. He suggests that «the overall act or situation (Gesamttat) and the criminal enterprise or organization which controls this situation [must] take center stage and serve as the points of reference for imputation»; individual contributions must accordingly «be assessed in light of their effect on the criminal plan […] pursued by the criminal apparatus or organization»482. As regards Article 25 (3) (a) RS, indirect perpetration by means of a power apparatus is to be limited to those who can «dominate the unfolding of the criminal plan undisturbed by other members of the organization», only they are «from a normative perspective, the main perpetrators […] in the implementation of the criminal enterprise»483. Those who can be disturbed by their superiors «normally lack unlimited control» and should, in his view, «qualify rather as co-perpetrators»; and mere executors of the plan appear «from a normative perspective» as «accomplices in the implementation of the criminal enterprise»484. As regards such accomplices, he proposes in his interpretation of Article 25 (3) RS that they be held responsible based on «a mixed theory combining the autonomous wrong inherent in each complicity conduct and the partaking in the wrong of the main act»; such «secondary participation […] is not a crime in itself or even a completely autonomous form of participation», it is «at least [sic] factually dependent on a main act or crime»485. Vest too posits that such a «degradation of the executing perpetrator to an assistant» is plausible; he maintains, however, that it is «doctrinally untenable» unless a «relational systemic perspective» on individual criminal responsibility extending to all participants in the «systemic-collective context of events»486 is enabled in «a new concept of attribution»487. He de-

481 Ambos (2006), p. 660 (at 663 et sq.); Ambos (2013c), pp. 84 et sqq. See also Ambos (2011a), p. 149. 482 Ambos (2013c), pp. 177 et sq. 483 Ambos (2013c), pp. 159 et sq., 177 et sq. 484 Ambos (2013c), pp. 159 et sq., 177 et sq. See also Ambos (2010a), p. 153 (at 153 et sq.). 485 Ambos (2013c), pp. 147 et sq., where it remains unclear what «at least» makes reference to. 486 See above in 2.4.2.1.2 and again Vest (2011), pp. 411 et sq. (my translations). 487 Vest (2011), p. 375 (my translations).

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tails this concept in three steps: As to the first step, he proposes to contextualize the accused’s conduct based on her role and her knowledge-perspective, i.e. to connect her and others’ «factual conduct and the result» in order to establish a «reference for judgment»; in the second step, he posits to subsequently determine the appropriate mode of participation pursuant to Article 25 (3) RS providing thus «a first (at least) quantitative measure of the personal share of the criminal wrong»; here, (principal) perpetration requires «the – always individually attributable – bringing into existence of all elements of an offense» while (secondary) complicity does not488. Individual sentencing lastly assesses the «factual conduct and the result» in its «specific quality as criminality and blameworthiness»489. At the sentencing stage, a decision is thus taken on the «(quantitatively conceived) weight» of the accused’s contribution490. Drawing on post-WWII trials of so-called war criminals, Vest argues that hands-on execution will not «cogently» be indication of greater responsibility than assistance to a crime; instead, as distance increases, if coupled with a particular position, so will responsibility491. In his complex proposal, Vest aims to safeguard the expressive potential of a categorical distinction between perpetrators and accomplices while avoiding this distinction’s flaw of subjectivist categorizations from a legal certainty perspective492. He arguably posits to achieve this aim by incorporating his hierarchical participation types into the sentencing stage as conceptual guidance to the sentencing judge493. Control therefore no longer serves as an attribution rationale to establish creatorship of events but instead as a sentencing criterion among others494. Unlike Ambos, who

488 Vest (2011), pp. 374 et sqq. with fn. 145, 414 et sqq., 427 («Bezugsgrösse des Urteils», «eine erste (zumindest) quantitative Gewichtung des persönlichen Anteils am Unrecht», my translations). 489 Vest (2011), p. 377 (my translation). 490 Vest (2011), p. 374 (my translation). 491 Vest (2011), p. 343. See also Vest (2007), p. 781 (at 784 et sq.). 492 Vest (2011), pp. 377, 427. See also above in 2.3.2. 493 See Vest (2011), p. 421. 494 See above in 2.3.4.1.2. His approach thus operationalizes control over the crime in a new way. Thus far, under control over the crime approaches, (principal) perpetration was to be established as creatorship of the criminal event by recourse to control over the crime, and thereby the original criminality of the «subject of the offense description». On this basis, one could plausibly argue that non-perpetration involves less (or qualitatively different) criminality, given that (secondary) accomplices are not «subject[s] of the offense description» so that the criminality

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appears to uphold the qualitative distinction between perpetrators and nonperpetrators on the basis of distinct attribution rationales, Vest proposes recourse to a comprehensive attribution rationale which applies to all participants in the «systemic-collective context of events»495 and aggregates their physical acts in a collective attribution context. Creatorship of the event is thereby assigned to participants in the attribution context collectively496. Following this equality from an attribution perspective, participants are subsequently classified at the sentencing stage pursuant to their level of participation. Statutory modes of participation such as indirect perpetration by means of a power apparatus (Article 25 (3) (a) RS) or ordering (Article 25 (3) (b) RS) not only materialize on different levels of participation497, they also assign typical shares of criminal wrong in hierarchically decreasing amounts from (a) to (d)498. Given that the level of participation corresponds to a level of responsibility, recourse to participation types, then, arguably enables the sentencing judge to assess the accused’s degree of responsibility accordingly499. Both approaches share what Vest has called a «relational systemic perspective» in order to achieve a distribution of responsibility for the criminal events attuned to the reality of committing genocide, crimes against humanity or war crimes pursuant to Articles 6 to 8 RS. Both recognize that, in this reality and unlike in the reality of domestic offenses, organization of personal and material resources is indispensable. By way of their multi-staged approach to control and its reference to the unfolding of the

495 496 497 498 499

of their physical acts had to be established by rules extending the scope of application of offenses. This was the domain of derivation of criminality and of prescriptive statutory modes of participation which function as extensional rules. Here indeed, statutory modes of participation had to be conceived as prescriptively containing attribution rationales and indication as to the criminality of physical acts. See above in 2.4.2.1.2 and again Vest (2011), pp. 411 et sq. (my translations). Vest (2011), pp. 415 et sq. («kollektive[s] Werk»). See also Vest (2011), p. 425. See Vest (2011), pp. 409, 415. In his most recent contribution to the issue, Vest clarifies his proposal as a «‹twostep model›»: «The sentencing determination, therefore, must consider first, the mode and second, the degree of participation. Accordingly, the mode of participation will often not be decisive in a case, as instigation may weigh heavier than perpetration […]. Accordingly, Article 25(3) should best be understood as revealing astructured but rather flexible frame or network conceptualized for a nuanced jurisprudence», Vest (2014), p. 295 (at 308 et sq.).

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criminal plan (Ambos), respectively to the systemic-collective context (Vest), they acknowledge that significant decisions for violating the protected legal interests or goods are taken also by individuals who occupy neither top leadership nor bottom hands-on executing positions but, for example, allocate the organization’s personal resources («managing control»). From an attribution perspective, creatorship of the events described in Articles 6 to 8 RS is therefore assigned to a collective of individuals by recourse to an attribution context, and criminal responsibility arises relative to the contribution the accused has made to the collective effort. However, to my mind, neither the contours of that creatorship nor its relationship with criminality have been sufficiently clarified – perhaps intentionally, given the lack of conceptual foundations in international criminal law which induces the «more modest claim» Vest’s «notional schema» makes500. Ambos closes his study of individual criminal responsibility before the ICC by stating that «the magic formula of imputation has not yet been found»501. Vest, in turn, focuses his study on what he calls «Täter», or (principal) perpetrators; while he also alludes to «Teilnehmer», or (secondary) accomplices, as members of the attribution context502, it remains unclear which (if any) characteristic of their conduct enables aggregation and creatorship of the event. Vest also briefly mentions sub-contexts of attribution corresponding to each hierarchical level of participation, thus creating a plurality of creatorships to which corresponds a plurality of «partial offens[es]»503. The concept of a «partial offense» and its relationship to Articles 6 to 8 RS, however, is not explained beyond the remark that «partial offense» refers to a «crime complex»504. It must have, more-

500 See Vest (2011), p. 410 and also Vest (2011), pp. 434 et sq. on the preliminary character of his premises and conclusions. 501 Ambos (2013c), p. 179. 502 Vest (2011), p. 414. 503 See Vest (2011), pp. 415 et sq. («Teiltat[en]», my translation) with reference to Dencker (1996), p. 252. 504 Vest (2011), pp. 415 at fn. 145 («Verbrechenskomplex», my translation). This refernce calls for a general remark on Vest’s complex proposal: Vest draws insight principally from the works of Dencker, Hamdorf, and Miller whose proposals are, in important aspects, fundamentally different from each other and from what Vest has proposed, see Vest (2011), pp. 374 et sqq. with fn. 147, 144 and 143, 415 with fn. 145. To my mind, Vest does not sufficiently account for these differences, which amount to tension in his proposal. While Dencker aims to mutually attribute «real-world changes» brought about by conduct «integrated into a common project of action» (my emphasis and translation) positing that each partici-

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over, escaped my diligence which participation type, if any, he has in mind for participants who do not possess either «control» or «immediate power of action». Finally, Vest does not shed light on either his premise that statutory modes’ of participation offer «a first (at least) quantitative measure of the personal share of the criminal wrong» or on how this measure of a personal share of the «criminal wrong» (which is a double quantification) relates to the level of responsibility assigned to each participation type505. How is such a share established and pursuant to which criteria is it measured? 2.4.3.3. Collective criminality and individual degrees of criminal responsibility at the sentencing stage In the following proposal, my goal is not to provide a «magic formula» in Ambos’ sense; instead I aspire to stimulate discourse in the ever evolving field of international criminal law. To this end, I aim to adapt the framework provided by Roxin and Schünemann to the specificities of interna-

pant commits a «partial offense» («Teiltat», my translation) which is constitutive of an «overall offense» («Gesamttat», my translation) in the sense that the former is «(significant) conduct which causes the events of the overall offense» («[wesentliche] Handlung, die für einen gesamttatbestandsmäßigen Sachverhalt ursächlich ist», my translation) and the latter «a project-conform overall event which can be subsumed under the overall offense’s elements» («ein projektmäßiger Gesamtsachverhalt, der sich unter den Gesamttatbestand subsumieren lässt», my translation) and that differences between participants arise quantitatively in relation to their contribution (Dencker [1996], pp. 160, 163, 269 et sq., my translations), Miller conceives of a «common project of action» which consists of and mutually attributes physical acts, quantitatively distinguishing between participants as qualitatively equal participants in the attribution context only at the sentencing stage, Miller (2007), pp. 354 et sqq. (my translations). Unlike Vest, who retains indirect perpetration as a mode of participation, Hamdorf conceives of Dencker’s proposal as a unitary perpetrator model, wherein only direct and co-perpetration as modes of participation are retained, Hamdorf (2002), pp. 48, 160 et sq., 305, 396 et sq. See also below in 2.4.3.3.1. 505 In his most recent contribution, Vest concludes that «[i]n the end, in order to institute a process of sentencing guided by criteria, it seems important to develop some theoretical distinction between different modes and grades of participation at the sentencing level, or at the very least assess the concrete degree of participation», Vest (2014), p. 295 (at 307) (footnotes omitted, emphases in the original). See below in 2.4.3.3 for a development in this vein.

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tional criminal law, thereby advancing and contrasting the above proposals made by the ICC, by Ambos, and by Vest. 2.4.3.3.1. Cooperative conduct, shared creatorship of the result and individual quotas of criminality Criminality can prima facie be divided into conduct criminality and result criminality: In this vein, the violation of the legal good or interests protected by Articles 6 to 8 RS (as a result) constitutes result criminality while the manner of bringing about said violation by conduct as described in Articles 6 to 8 RS constitutes conduct criminality506. This prima facie distinction correlates with the conceptual dichotomy of criminal law norms as (primary) conduct norms and (secondary) sanction norms507. The conduct norm contains imperatives intended to prospectively govern behavior – e.g. not to kill or cause the death of a human being – whose violation constitutes (only) conduct criminality; the sanction norm retrospectively specifies that violations of these imperatives and their results – e.g. the death of a human being as a result of human conduct – are condemned by the law, satisfaction of the prerequisites of the sanction norm then establishes (also) result criminality508. Yet, while conceptually distinguishable, conduct and result criminality are also interdependent: Criminal law only condemns violations of protected legal goods or interests (results) brought about controllably and foreseeably by human conduct509, i.e. the risk created in violation of the conduct norm’s imperative and thus constitutive of conduct criminality must materialize in the violation of protected legal in-

506 Cf. on German criminal law Jescheck/Weigend (1996), p. 240. 507 Sanction norms are addressed at the deciding judge and precede conduct norms addressed at the law’s subjects with the imperative to omit what is condemned by the sanction norm, see Renzikowski (2002), p. 3 (at 3 et sqq., 12 et sq.) on this distinction and its roots in both Roman-Germanic (Binding) and Anglo-American scholarship (Bentham, Hart) with reference to Hart (1994), pp. 80 et sq., 92. See Roxin (2006b), pp. 321 et sqq. for a German and Cornacchia (2004), pp. 61 et sqq. for an Italian perspective. The distinction arguably amounts to a general principle of law under Article 21 (1) (c) RS. See also above in 2.3.4. 508 See Renzikowski (2002), p. 3 (at 11 et sq.) with reference to Hart (1994), pp. 97 et sq., 40 et sq. See also Roxin (2006b), p. 324; Miller (2007), pp. 263 et sq. 509 Roxin (2006b), p. 325.

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terests or goods which then constitutes result criminality510. Result criminality can therefore only arise on the basis of conduct criminality511. In this vein, it is arguable that results brought about not by chance but instead controllably and foreseeably by human conduct are as well addressed in the conduct norm and thus constitute not only result but also conduct criminality512. As «rule[s] of conduct»513 Articles 6 to 8 RS assess as criminal the events described therein. Pursuant to the commission type described therein, the imperative of the conduct norm prohibits devising and implementing an intellectual design which organizes personal and material resources into a genocidal campaign (Article 6 RS), an attack (Article 7 RS), or a (dysfunctional) military campaign (Article 8 RS)514. Individual resource and creative dimensional expression of conduct account for the manner of bringing about the violation of the protected legal interest or good. This allows establishing an individual quota of conduct criminality515. This quota can be aligned with the triadic scale of dimensional expression, i.e. 510 Roxin (2006b), pp. 325 et sq. See also Ambos (2007), p. 2647 (at 2666 et sq.) and specifically with a view to the Rome Statute Heyer (2013), pp. 405 et sq. See also below in 2.5.4. 511 Roxin (2006b), p. 325. 512 Roxin (2006b), pp. 325 et sq. with fn. 146, 327. 513 Cf. already above in 2.3.4.1 and on German law also Roxin (2006b), pp. 310, 321 (typification of criminality). 514 See above in 2.4.2.3. 515 Based on statutory typification of such quotas in modes of participation, cf. Lesch (1992), pp. 198 et sq. («Täterschaft und Beihilfe bezeichnen also nicht die Zurechnung an sich, sondern bloß die jeweilige Haftungsquote als Teilmoment der Zurechnung; es handelt sich um in die Zurechnung integrierte und zu unterschiedlichen Beteiligungsformen vertypte Strafzumessungserwägungen, die sich am jeweiligen Quantum der Beteiligung orientieren.») and Weezel (2006), pp. 60 et sq., 65, 355, 361 («Gestaltungsquanten», i.e. modes of participation as relative quantities in shaping the offense within a qualitatively uniform joint responsibility) and also Jakobs (2003), p. 561 (at 570 et sq.) (no qualitative differences between direct perpetrators and other participants, but quantitative distinctions pursuant to «degrees of severity in sentencing» [«Schweregrade bei der Strafzumessung», my translation]) and Jakobs (2012), pp. 79 et sq. (distinction between participants pursuant to the «quantity of breach of duty» [«Quantität der Pflichtverletzung», my translation]) as well as generally on quantitative approaches to participation of offenses from a comparative perspective Guanarteme Lázaro Sánchez (2008), p. 299 (at 300); Ambos (2011a), p. 151 («liability quotas», «Haftungsquoten», my translation) as well as Hamdorf (2002), pp. 160 et sq.; Kim (2007), pp. 117 et sqq.; Miller (2007), pp. 281, 304.

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of low, moderate, or high degrees516. It is important to keep in mind as well that the degree of expression of the creative dimension (CDE) is dependent upon the degree of expression of the resource dimension (RDE)517. Based on the distinction which has emerged from a review of the reality of offenses under the Statute between intellectual design masterminds, design implementers in a resource allocation capacity and design implementers without this capacity518. I propose the following schema:

516 Again: «The triadic scale has, compared with its alternatives, the advantage that it fits especially well into the practice of legal argumentation […] Graduation in terms of light, moderate or serious is often difficult enough as it is. In some cases one can just barely distinguish light and serious, and in some cases even that seems impossible. Legal scales can thus only work with relatively crude divisions, and not even that in all cases […] The propositions expressing the classifications, however, must be understandable, for they have to be justified, and justification presupposes understanding. This is the reason for the limits of refinements of scale», Alexy (2003), p. 433 (at 440, 443, 445). See again on such a model Alexy/Rivers (2002), p. 413 and also Griffin (1988), p. 75: «Our powers of measurement may be limited. But our demand on measurement may also be limited». 517 See above in 2.4.2.3.2. 518 See above in 2.4.2.1.3 and 2.4.3.2 and cf. again in particular Vest (2011), pp. 410 et sqq. for a similar three-fold distinction between participants.

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High degree RDE e.g. State CDE organization High deMastergree minded intellectual design Moderate Allocated degree resources for execution of intellectual design

Moderate degree e.g. militia

Masterminded intellectual design or allocated resources for execution of intellectual design Low degree Otherwise Allocated reimplement- sources for ed intellec- execution of tual design intellectual design or otherwise implemented intellectual design

Low degree e.g. business corporation

Resulting individual criminality quota519 Rather large than moderate

Rather moderate than large or small

Masterminded Rather small intellectual de- than moderate sign, allocated resources for execution of intellectual design or otherwise implemented intellectual design

Those who are able to take decisions significant to harming the protected legal interests or goods by devising and implementing the intellectual design are «key figure[s]» of the criminal event520. Their cooperative conduct amounts to commission, if it exhibits sufficient dimensional expression521. The norms’ imperative is then neither addressed at isolated individuals but only at individuals who thus cooperate in pursuit of an intellectual design: Conduct and result criminality under the Rome Statute are

519 Due to the gradual nature of dimensional expression, individual quotas are phrased as comparative statements, cf. already above in 2.4.2.3.3 on comparative statements as a result of greater or less dimensional expression. 520 Cf. above in 2.4.2.2. 521 Cf. above in 2.4.2.3.3.

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the product not of many individual violations of imperatives but of one cooperative and collective violation of said imperative522. To speak with Roxin and Schünemann: Design masterminds and implementers together are one collective «subject of offense descriptions»523. Nor is every physical act causal of a result prohibited but only such acts that implement an intellectual design: The risk creation by devising and implementing an intellectual design from an ex ante perspective is required to materialize in the occurrence of the (criminal) result, in the violation of protected legal interests or goods, from an ex post perspective524. Criminality, then, goes beyond the cooperative manner of violating protected legal goods or interests; it also accounts for the results of violations of protected legal goods or interests which are authored by such cooperation. Creatorship or authorship of the results of violations of legal goods or interests protected by Articles 6 to 8 RS is assigned to those who by means of their cooperative conduct took a significant decision, who de-

522 On this distinction generally, see Miller (2007), pp. 298 et sqq. and also Lesch (1992), pp. 189 et sq., 289. Based on the same distinction between conduct criminality («Handlungsunrecht») and result criminality («Erfolgsunrecht»), Heyer posits with a view to Article 25 (3) (d) RS that «attribution of result criminality must be grounded upon the identification of mirror-inverted conduct criminality», Heyer (2013), pp. 446, 405 (my translations). The specific result criminality of international criminal law, she argues, is the materialization of a «collective offense project» («Gesamttat-projekt»), a «common result criminality»; in her view, the corresponding collective conduct criminality can, however, only constitute the guilt and criminal responsibility of the collective but not of individuals, Heyer (2013), pp. 405, 446 (my translation). Therefore, she concludes, attribution can only comprise individual parts of the collective result criminality to which individual conduct criminality corresponds, Heyer (2013), p. 446. However, in my view, the «common result criminality» is ill-conceived as merely the product of added individual risk creations which can be re-individuated as individual conduct criminality by means of subtraction. If conduct criminality is constituted by the manner in which the violation of protected legal goods is brought about, it is precisely organization which defines that manner of bringing about violations of protected legal goods under Articles 6 to 8 RS. Organization is therefore not only an integral part of risk realization but already an integral part of risk creation: Isolated, un-organized risk creation is not addressed by Articles 6 to 8 RS; the Rome Statute is concerned only with the manner of violating protected legal goods as an individual participating in an organized effort. Individualization by subtraction, as Heyer proposes, is therefore not an option. 523 Cf. above in 2.4.1.2.4. 524 In greater detail on this so-called risk standard, see above in 2.3.4.1 and below in 2.5.4.

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vised or implemented an intellectual design: Results which occurred in the course of individual conduct implementing an intellectual design, such as the death of a member of a protected group (Article 6 (a) RS), are mutually attributed in a collective attribution context525; these results are regarded as the doing of those devising and implementing an intellectual design together526. In this vein, devising or implementing an intellectual design

525 Similar attribution contexts have been the subject of scholarly debate: According to Dencker «the result of the behavior of others and of one’s own, […] real-world changes, […] the joint realization of a joint project of action» are mutually attributed premised on the notion that «everyone’s acts are connected by integrating into a project innate to everyone», Dencker (1996), p. 269 («[…] [das] Ergebnis fremden und eigenen Tuns, […] Außenweltveränderungen […] sofern die Handlungen aller durch Einordnung in ein allen gemeinsames Handlungsprojekt verbunden sind, […] die gemeinsame Verwirklichung eines gemeinsamen Handlungsprojektes», my translation and emphasis) and Dencker (2002), p. 525 (at 534). Such mutual attribution occurs without a distinction between participants as perpetrators or non-perpetrators, see Dencker (2002), p. 525 (at 537). Dencker additionally suggested to limit attribution to individual behavior which is «wesentlich», i.e. essential or substantial, Dencker (2002), p. 525 (at 534, 536). Miller argues for a unitary form of attribution in Article 25 (3) RS, Miller (2007), pp. 354 et sqq., 298, 280 et sqq., 310 et sq. («gesamttatorientiertes Einheitsmodell»). Unlike Dencker, who conceives of the attribution exclusively of results, he suggests that physical acts (i.e. not normatively evaluated, punishable acts) carried out by the accused herself and those realized by others are, in a first step, concentrated in a collective attribution context («Gesamttat als überindividuelles, objektives Geschehen»), which is then, in a second step, in toto attributed to each accused as a «common project of action» («gemeinsame[s] Handlungsprojekt», my translation). In his view, the first step requires a rule to determine the scope of the collective attribution context (objective instrumentality of the contribution to collective context); the second step necessitates an individual rule of attribution (individual intent towards participation in the joint project). While differences in attribution between individual participants can arise in relation to their intent (which is not mutually attributed), all participants are held responsible on the same (qualitative) level, i.e. based on the same rationale of instrumentality of contributions to a common project, and are to be distinguished (quantitatively) only at the sentencing stage. Miller likens his approach to the collectivist subform of attribution applicable in Italian criminal law, see above in 2.3.4.1.1. See also above in 2.4.3.2 and extensively on Dencker’s proposal from a comparative perspective, Hamdorf (2002), pp. 262 et sqq. 526 Cf. above in 2.3.4.1. Causation is an indispensable premise of that assessment. On this difficult issue see Stewart (2012a), p. 1189 (at 1210 et sqq.), who has highlighted the issue of «[o]verdetermined atrocities»: In his view, international criminal law should avoid dispensing with causation by recourse to language without «appreciable meaning», to a «smokescreen» (citing ICTY jurisprudence

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constitutes the rationale for (mutual) attribution of such results under the Rome Statute527. Aligning «key figure[s]» in the events described in Articles 6 to 8 RS with creatorship of results in these events, this attribution rationale draws upon the reality structure of the Statute’s means-end-relation: The assignment of shared creatorship of the criminal event to individuals organized pursuant to an intellectual design acknowledges that attribution in criminal law is predetermined by reality structures528. Following Dencker, such an intellectual design need not have come into existence under the involvement of other participants of the context nor is at-

that requires the accused’s conduct not to have been «conditio sine qua non of the commission of the crime» but merely to have «made a difference»), neither should it adopt domestic solutions such as «assessing events as they actually transpired», agreeing with Dencker (1996), pp. 106 et sq. that «using the concrete result adopts a condition for the description of the event that one is already certain about» is to be rejected as a circularity. Stewart also shares with Dencker (1996), pp. 137, 164 the conclusion that jurisprudence has thus far not produced a rational account to tackle the issue of overdetermination, Stewart (2012a), p. 1189 (at 1216). Dencker posits that we are consequently left with a conventional or consented solution, accepting that it is impossible to assess causation of a plurality of physical acts in the way we would assess it for an individual physical act and proposing, therefore, an entirely novel perspective on causation that is constituted by mutual attribution of «real-world changes» as common to all those within the attribution context, Dencker (1996), pp. 137, 164, 250. Relatedly, German scholar Marxen has produced an account of commission of crimes adjusted to the particularities of international criminal law, Marxen (1998), p. 220 (at 228, 231 et sq.). In his view, the systemic (or: system-specific) and organized nature of criminality captured in core crimes creates a structural tension with the conventional concept of crime that is geared towards individual conduct and individually produced criminal results. Marxen proposes, therefore, to re-structure this conventional concept of crime for the purposes of international criminal law by recourse to three elements and two connectors: If an individual (first element) participates (first connector) in a supra-individual criminal context such as a group, a program, or a scheme (second element) and this supra individual-criminal context leads (second connector) to the violation of protected interests in terms of a criminal result (third element), said individual can be held responsible for the criminal result. His approach thereby also «bridges» the requirement of causation between individual conduct and the criminal results that occur within the collective context, see Roßkopf (2007), pp. 179, 188 and Ambos (2011a), p. 149. 527 Cf. again Dencker (1996), p. 198 and Miller (2007), p. 301 on mututal attribution and also Ambos (2013c), p. 85. Cf. above in 2.4.1.2 on Schünemann’s parallel construction in domestic criminal law. 528 See above in 2.4.1.2.3.

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tribution to be premised upon a communicative act among all participants529. In sum, one collective violation of the conduct norm (as opposed to several separate violations) thus leads to one satisfaction of the sanction norm, constituting both collective conduct and result criminality of one offense530. In terms of their criminality, therefore, instances of conduct are

529 Cf. Dencker (1996), pp. 159 et sq., 198, 224 et sq., 269 on commission as the contributions of a plurality of individuals coordinated as a common project; such a common project requires that contributions are «subordinated to» or «integrated into» an «intellectual design» which serves to coordinate contributions of a plurality of individuals. In a similar vein, Lesch (1992), pp. 272 et sqq. The integration prerequisite relates to a similar debate that has informed co-perpetration under German criminal law. Here, in particular Jakobs (1991), p. 617 has proposed that co-perpetration does not require a subjectively held common plan but merely a «decision to integrate by which the […] participant connects his contribution with the acts of the executor» («Einpassungsentschluss», my translation). Roxin has opposed this position on the premises that it violates the text of the gStGB and that it renders the law impossible to distinguish, on the one hand, between co-perpetration and mere secondary complicity and, on the other hand, between co-perpetration and mere independent but parallel perpetration, Roxin (2006b), pp. 100 et sq.; Roxin (2006c), pp. 723 et sq. Under the Rome Statute and the here-proposed unitary approach to commission, these problems do not arise: Neither is the Statute’s text violated nor is a categorical distinction between perpetrators and accessories a result of attribution. Cf. also Heyer (2013), pp. 554, 514 et sq. on «contributing to a collective offense» as a prerequisite of Article 25 (3) (d) RS. 530 On the question of singularity vs. plurality of offenses in light of the participation of several individuals and on answering this question by recourse to conduct and result criminality cf. also Miller (2007), pp. 298 et sqq. However, according to Lampe, «relations between human beings organized towards criminal goals» create a «new quality of criminality which goes beyond isolated conduct criminality», i.e. «‹system› criminality» as «criminality of goals pursued by the system as a whole, and the criminality of organization by which it pursues them», as a «state of criminality which can but need not be affirmed in conduct», Lampe (1994), p. 683 (at 687 et sqq., 690, 703, 715) («Strafrechtliche Unrechtssysteme sind auf Unrechtsziele hin organisierte Beziehungen von Menschen […] Ein solches System begründet eine neue Qualität des Unrechts, das System-Unrecht, welches über isoliertes Verhaltensunrecht hinausgeht», «das Unrecht der Ziele, die das System als ganzes verfolgt, und das Unrecht der Organisation, mittels deren es sie verfolgt», my translation). On this notion of «system criminality» see also Vest (2011), pp. 402 et sqq., 425 et sq. and 313 et sq. In my view, under the Rome Statute «isolated conduct criminality» does not exist; yet unlike «system criminality», collective criminality in the above sense does not arise as a «state of criminality» but only as a quality of cooperative conduct.

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factually dependent upon each other; a qualitative distinction between participants as in original vs. derivative criminality does not arise. This qualitatively equal and collectively brought about criminality can, nevertheless, be in part graduated in terms of quantity by recourse to the dimensional expression of conduct, establishing thus an individual quota of conduct criminality. However, to speak of criminality presupposes criminality and culpability as distinct categories of criminal responsibility, in other words: a distinction between «rules of conduct» which benchmark that which someone did as criminal doing and «rules of [normative] attribution» which are concerned with the individual demerit of such criminal doing531. It therefore makes reference to the delicate «question of the system» which relates (above all but not only) to the question of a distinction between wrong and culpability532. According to Ambos, the Rome Statute itself does not provide an answer but contains a host of provisions which «may be interpreted in one or the other direction»; «to read such a decision into the Statute would overstate the theoretical level and depth of the discussions in New York and Rome» and amount to «academic wishful thinking»533. I posit, therefore, to take the above analysis as one argument in favor of incorporating said distinction under the Rome Statute. 2.4.3.3.2. Sentencing and degrees of criminal responsibility as labels Unlike in some domestic jurisdictions, the Rome Statute does not establish statutory modes of participation as typical quantitative measures of «punishability» by recourse to mandatory punishment ranges534; as a consequence, Article 25 (3) RS is misconstrued as either prescribing mandatorily «a first (at least) quantitative measure of the personal share of the criminal wrong» (Vest)535 or as a «hierarchical structure» regarding «the degree

531 Cf. above in 2.3.4.1 and again Hruschka (1991), p. 449 (at 450 et sqq.). In this vein, the conduct norm is addressed as well e.g. at the mentally disabled or at children, cf. Roxin (2006b), p. 324. 532 From a comparative perspective, see Ambos (2007), p. 2647 (at 2667 et sq.) and on historical development in Germany Roxin (2006b), pp. 855 et sqq. See also below in fn. 733. 533 Ambos (2007), p. 2647 (at 2668 et sqq.). 534 Cf. above in 2.3.4.1.2. 535 See above in 2.4.3.2.

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of wrongfulness and blame» (Ambos)536 or an expression of «different degrees of responsibility» (ICC)537. The Statute allows instead conceiving the individual degree of responsibility as a «phenomenon of sentencing»538, relegating the determination of individual degrees of criminal responsibility to the sentencing stage539. The Statute determines in Articles 77, 78 RS that sentencing shall take into account in particular the gravity of the crime and individual circumstances of the convicted person. Under the Rome Statute, the gravity of the crime is determined inter alia by the nature of the unlawful behavior and the means employed to execute the crime as well as by the degree of participation of the convicted person as provided for in Rule 145 (1) (c) ICC RPE540. And according to Melloh, recourse to Article 21 (1) (b) and (c) RS allows substantiating these criteria by the individual «measure of breach of duty» which, in turn, depends on the manner of or attack route towards violating the protected legal good or interest541. To reflect this particular aspect of the concrete gravity of the crime in sentencing in a structured and therefore predictable manner in the interest of Article 23 RS542, I propose recourse to the individual quota of conduct criminality. In this vein, an attempt is made to correlate criminality with the ill inflicted upon the convicted individual in punishment with a view to positive general prevention – punishment serves to communicate the continued validity of international law in spite of the breaking of its norms manifest in the

536 537 538 539

See above in 2.2.2.1. See above in 2.2.1.1.1. Cf. Lesch (1992), p. 284 («Phänomen der Strafzumessung», my translation). For similar positions in jurisprudence and scholarship cf. above in 2.2.1.1.2 and 2.2.1.2.2 (Judges Fulford and van der Wyngaert) as well as 2.2.2.2 (in particular Miller, Mitschgut). Cf. also Vest’s approach above in 2.4.3.2. 540 Melloh (2010), p. 522; Book (2011), p. 297. See also Ambos (2014), p. 295. 541 Melloh draws this conclusion based on a detailed analysis of ad hoc jurisprudence and national jurisdictions of Germany, Sweden, France, England/Wales, United States (Minnesota), and Australia (Victoria), Melloh (2010), pp. 311, 351 et sq., 377, 504 et sq., 519 et sq., 522, 541 et sq. («Maß der Pflichtwidrigkeit», my translation). This manner also comprises the actor’s intent, which has not been the subject of this study, see below in fn. 548. See also Book (2011), p. 298 on the relevance of ad hoc jurisprudence for sentencing under the Rome Statute. 542 On the principle of nulla poena sine lege, see Ambos (2014), pp. 271 et sqq., 277 as well as Melloh (2010), p. 62.

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offense, thereby reinforcing an integrative global legal consciousness – as the preeminent punishment rationale in international criminal law543. What is more, in the interest of the Statute’s expressive capacity, i.e. in order to tell the narrative of «where more blame lies»544, so-called degrees of responsibility can be used in sentencing. These degrees are best conceived strictly as labels. They should make reference to the accused’s role (design masterminds, design implementers in a resource allocation capacity and design implementers without this capacity) and be combined with the qualifiers of most, moderately or least responsible depending on the individual conduct criminality quota. Concerning expressivity of the law, such descriptive language on roles and functions of an individual can yield similarly or even more convincing results than the perpetrator category alone545. 2.4.3.4. Results and outlook The Appeals Chamber in Lubanga has posited that the control over the crime doctrine is «convincing and adequate […] because it assesses the role of the person in question vis-à-vis the crime»546. But what is the crime? Indeed, crimes under the Rome Statute «do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality»: Crimes «are carried out by groups of individuals acting in pursuance of a common criminal design»547. To hold individuals to account in this context, I have accordingly proposed notions of collec-

543 See Melloh (2010), pp. 153 et sq., 493, 501, 541, 545 arguing that positive general prevention demands a proportionate penalty to strengthen adherence to the law; proportionality, in turn, refers to the correlation between criminality and penalty. On this rationale, see also Werle/Jeßberger (2014), pp. 37 et sq.; Ambos (2013c), pp. 71 et sq. and in greater detail below in 2.5.4.3.1 and 4.2.1. 544 See again Weigend (2012), available at http://opiniojuris.org/2012/03/22/ljil-weig end-comments/ (last visited: 30.06.2015) and above in 2.4.2.3.3 and 2.3.3. 545 Cf. already above in 2.3.3. 546 ICC - Appeals Chamber, Prosecutor v. Lubanga, 01.12.2014 – ICC-01/04-01/06 A 5 (§ 469). 547 Cf. ICTY - Appeals Chamber, Prosecutor v. Tadic, 15.7.1999 – IT-94-1-A (§ 191) and above in fn. 457 for the full quote, which is unfortunately less resolute in including the qualifiers «most» and «often».

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tive criminality, shared creatorship and, as a matter of sentencing, individual degrees of responsibility. This proposal is – on the one hand – an evolution of the perspectives developed in ICC jurisprudence (indirect co-perpetration) and in the scholarship of Ambos and Vest in particular. In this vein, and examining the law’s subject matter, it advances the deconstruction of the domestic notion of Täterschaft or perpetration as hands-on execution of crimes and the construction of realistic Zentralgestalten or «central figures». On the other hand, it is in stark opposition to these perspectives: It abandons the qualitative distinction between participants in terms of attribution as well as their quantitative distinction in terms of hierarchical degrees of responsibility as prescriptions made by statutory modes of participation, conceiving degrees of responsibility as a sentencing stage phenomenon. Both advancement and contrast are, in my view, beneficial to the rational interpretative production of the Rome Statute’s law with a view to both the reality of genocide, war crimes and crimes against humanity and to the rational production of sentences, in typical as well as in atypical cases548. Advancement and contrast are, indeed, the product of seeking «guidance from approaches developed in other jurisdictions in order to reach a coherent and persuasive interpretation of the Court’s legal texts» 549, albeit not in the Appeal’s Chamber’s way. Instead of beautifying the direct recourse to the law developed in these jurisdictions as «guidance», the approach conceived here productively operationalizes a methodology developed in such a jurisdiction and thereby demonstrates that such direct recourse is inappropriate not only for lack of a suitable general principle550 but, most importantly, for lack of a gap in the law551. Perhaps surprisingly, the above exploration of the Statute’s term and notion of commission has thus far not taken into account the text of Article 25 RS itself, to which ICC jurisprudence and scholarship have dedicat-

548 Constraints of time and space have moved me to leave aside the exploration of the implications of intent in particular for the assessment of (collective) criminality. This issue has, however, been discussed at some length by Lesch (1992), pp. 189 et sqq., 289 et sq. with a view to German criminal law. See also Jescheck/ Weigend (1996), pp. 241 et sq. who argue that intent as the will to act directed against the norm’s conduct imperative is an integral part of conduct criminality. 549 ICC - Appeals Chamber, Prosecutor v. Lubanga, 01.12.2014 – ICC-01/04-01/06 A 5 (§ 470). 550 See again above in 2.3.4. 551 See again above in 2.1 on the gap prerequisite.

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ed most of their efforts. This discrepancy of attention is owed to the (mostly) descriptive nature of the provision. It will be the subject of the next section. 2.4.4. Commission and Article 25 (3) RS: Re-visiting the text from a typological perspective A central argument in favor of the prescriptively qualitative (in terms of attribution) and quantitative (in terms of degrees of responsibility) distinction in statutory modes of participation relies on the text of Article 25 (3) RS. We have seen that this argument is less persuasive that previously assumed in scholarship and ICC jurisprudence. But is sub-section (3) indeed «devoid of sense»552, given that the approach proposed here adopts neither of the above distinctions? Types cannot be statutorily defined; in criminal law provisions, the legislator is therefore limited to either naming it or attempting its descriptive approximation by way of a casuistic enumeration553. From a typological perspective, statutory modes of participation in Article 25 (3) (a) to (d) RS are therefore a refining approximation of the commission type which has already emerged from a review of the reality of Articles 6 to 8 RS554; Article 25 (2) RS merely repeats the commission type term. As is to be expected from legislative approximations of types, the descriptions in Article 25 (3) RS are neither comprehensive nor exact – indeed, they cannot be given the complexity of social interaction phenomena to which criminal law is applied555. In this vein, referring to individuals with a common purpose, sub-section (d) is the most concise descriptive approximation in Article 25 (3) RS; it re-affirms the Statute’s commission type as the ability of significant decision-taking by devising and implementing an intellectual design,

552 See again Burghardt (2010), p. 81 (at 91 et sq.) and above in 2.2.2.1. 553 Again: Kaufmann (1982), pp. 49 et sq.; Bloy (1985), p. 310. 554 See already above in 2.4.2 on the act type of commission and on the underlying methodology in 2.4.1.2. Cf. also in favor of a descriptive nature of Article 25 (3) RS Mantovani (2003), p. 26 (at 34 et sq.); Militello (2007), p. 941 (at 949 et sq.); Di Martino (2007), p. 429 (at 431, 434 et sq.). 555 Cf. again Kaufmann (1982), pp. 49 et sq.; Bloy (1985), p. 310 and on the difficulty of capturing the «diversity of life» in legal terminology Schünemann (2007a), mn. 38 et sq., 68 («Mannigfaltigkeit der Lebensgestaltungen», my translation) and Schünemann (2011), p. 799 (at 806, 812).

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and is thus – from the typological perspective – undeserving of the harsh criticism it has drawn from scholars556. Sub-sections (a), (b), and (c) point to paradigmatic roles and functions of participants both in a more abstract manner (e.g. to act jointly with others or through another) and rather concretely (e.g. to issue orders to other participants or to assist other participants in the course of design implementation). Commission through another, then, arguably makes reference to conduct with higher degrees of creative dimensional expression. However, this typological perspective on Article 25 RS must deal with two particular obstacles which require attention in spite of the approximatively character of the provision. 2.4.4.1. Commission as an individual? Sub-section (a) partially focuses on the singular actor. From the typological perspective this reference in Article 25 (3) (a) RS to commission as an individual is a descriptively inaccurate representation of the reality of offenses in Articles 6 to 8 RS – of the insight that significant decisions for harming legal interests by devising or implementing an intellectual design can only be taken together. As Kaufmann, a pioneer of typological thinking, has duly noted, legislative attempts at typological description are not always successful; they are prone to being misguided by a lack of intuition in particular during times of change, during turns of an era557. The inception of individual criminal responsibility in international law for mass atrocity events is, indeed, a turn of an era in which establishing the ICC on

556 On such criticism, see Eser (2002), p. 767 (at 803) (only «symbolic relevance», «lack of expertise in criminal theory when this provision was developed»), Ambos (2008), mn. 28 («drafted without regard to basic dogmatic categories»), Ohlin (2009), p. 406 (at 407 et sqq., 416) (describing the provision as both «a mystery», an «intolerable» confusion and «doctrinally incoherent», pointing to the «scholarly consensus» that the provision «betrays the drafters’ basic ignorance of criminal law theory» and calling for «revision» as «the only available course of action»), Schabas (2010), p. 436 («minor role») and Burchard (2010), p. 919 (at 942 et sqq.) («legislative nonsense») and also Ambos (2013c), p. 167 with further references. Heyer, in contrast, points to the potential of Article 25 (3) (d) RS for adequately capturing criminality in its collective result aspect, Heyer (2013), pp. 445 et sq. 557 Kaufmann (1982), p. 49.

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the basis of the Rome Statute marks a «milestone[]»558. The Rome Statute’s development has taken place in a «highly politicized climate» of negotiations559; given that an attempt was made not only to incorporate the wisdom generated in domestic legal orders around the world but also to consolidate the advances made by international courts, development has been fraught with particular uncertainty560. This difficult task was assigned not primarily to scholars of (international) criminal law but to diplomats, who subsequently struggled with the conceptual depths of diverging approaches to assigning individual criminal responsibility561 and, in that struggle, might have lost sight of the importance of accounting above all for the realities of genocide, crimes against humanity, and war crimes. In essence, the drafting of Article 25 (3) RS was not only, as Bassiouni describes it, rather chaotic562; with Ambos, one could also point out not to «overstate the theoretical level and depth of the discussions in New York and Rome»563. 2.4.4.2. Prescriptive terminological elements in a descriptive provision From the typological perspective, it is conceivable to combine descriptive approximations with prescriptive terminological elements in statutory modes of participation to safeguard the characteristics of attribution and criminality in a particular criminal legal order564. It is not true, in this regard, that «sophisticated deconstruction» of Article 25 (3) RS «will yield little of interest»565.

558 See Werle/Jeßberger (2014), pp. 1 et sqq., 17 et sqq. on this development with further references. 559 Ambos (2007), p. 2647 (at 2672). 560 See Werle/Jeßberger (2014), pp. 17 et sqq. with further references. 561 See Ambos (2007), p. 2647 (at 2672). 562 See Bassiouni (1998), p. 1 (at 29 et sqq.). 563 Ambos (2007), p. 2647 (at 2672). 564 Cf. Bloy (1985), p. 310 on §§ 26, 27 gStGB. 565 Cf. above in 2.3.1.3 and again Schabas (2010), p. 431 for the opposing view.

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2.4.4.2.1. The regardless- and commission-clauses The regardless-clause in sub-section (a) has been deemed evidence both for the Statute’s reference to indirect perpetration by means of a power apparatus in Roxin’s sense and declared a (redundant) statement of the obvious566. The former prescriptive reading of Article 25 (3) RS by Ambos implicitly relies upon control over the crime as an attribution rationale567; yet this presumption has no support from a typological perspective on commission in Article 25 RS568. It is preferable, therefore, to read the regardless-clause as safeguarding shared creatorship and collective criminality in committing an offense pursuant to Articles 6 to 8 RS: Criminal responsibility arises not for individual but for collective violations of the imperative prohibiting the devising and implementing of an intellectual design which organizes personal and material resources into a genocidal campaign, an attack, or a (dysfunctional) military campaign569. It necessarily arises without regard to the criminal responsibility for conduct of «that other person» in isolation, and in this sense regardless of whether that other person is criminally responsible. As a prescriptive element, the formulation «induces the commission of a crime» in sub-section (b) and its parallel formulations in sub-sections (c) and (d) can either function to implement a qualitative distinction between (principal) perpetrators who «define» the crime and (secondary) accomplices who merely participate in the crime defined by the perpetrator570 or merely reflect the factual interdependence of conduct in a collective attribution context571. By recourse to the typological perspective, however, it emerges – on the one hand – as a descriptive approximation of the fact that design masterminds and implementers are only able to take significant decisions together, resulting in the need for a convergence of individual instances of conduct, a need which is expressed in sub-sections (b) to (d)

566 567 568 569 570

See above in 2.3.1.3 and again Ambos (2013c), p. 154; Hamdorf (2002), p. 396. See above in 2.2.2.1 on Ambos’s approach to Article 25 (3) RS. See above in 2.4.3. See above in 2.4.3.3.1. See above in 2.2.2.1 and again ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 998) and also Werle (2007), p. 953 (at 954, 957, 967, 970). 571 See above in 2.2.2.2 and 2.2.2.1 and cf. again Miller (2007), p. 311 («quantitative Akzessorietät») and see also Ambos (2013c), pp. 147 et sq. proposing «at least» factual dependence under Article 25 (3) RS.

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by reference to a host of paradigmatic additions to design implementation572. On the other hand, the commission-clause presents itself as a prescriptive element to safeguard collective criminality: According to the above, instances of conduct are factually interdependent in terms of their criminality573. 2.4.4.2.2. (Additional) Intent prerequisites in sub-sections (c) and (d)? Both sub-sections (c) and (d) include, at first sight, (additional) intent prerequisites in their formulations of «for the purpose of facilitating» respectively «intentional», «with the aim of furthering» and «in the knowledge of the intention of the group»574. Intent prerequisites as prescriptive elements could, again, complement the descriptive approach claimed to be at the heart of Article 25 (3) RS. At closer inspection, however, «for the purpose of facilitating the commission of such a crime» in Article 25 (3) (c) RS does not contain reference to a particular form of intent575 but instead is the (redundant) expression of a fundamental characteristic of assistance: Providing the unnecessary is not assistance; assistance is only that which objectively serves to «make good» a deficit in the physical or psychological situation of the addressee(s) vis-à-vis her/their objective576. In this vein, the term and concept of assistance is embedded in a means-end-relationship577. If «facilitating» and «assists» are considered synonyms, the Statute’s formulation of «for the purpose of facilitating […], aids, abets or otherwise assists»

572 See again above in 2.4.2.2 and 2.4.2.3. 573 See again above in 2.4.3.3.1. 574 For a review of scholarly contributions on the purpose prerequisite as a form of intent see below in 2.5.2. Among scholars who conceive these formulations as intent prerequisites, the relationship of these prerequisites with the «default rule» of Article 30 (1) RS is subject to dispute, see Ambos (2013c), pp. 165 et sq., 168 et sq. and also Ohlin (2009), p. 406 (at 418). 575 See also Gallagher (2010), p. 745 (at 765 et sq.): «‹[F]or the purpose of facilitating the commission› in Article 25 (3) (c) of the ICC Statute is related to the nature of the assistance and its link to the commission of an offence, rather than the mental state». In a similar vein, Heyer (2013), pp. 495 et sqq. 576 See Kindhäuser (2007), p. 355 (at 361) on the German term and concept of «Hilfe», which is an accurate translation of «assistance» as the umbrella term of «aids, abets or otherwise assists». 577 Kindhäuser (2007), p. 355 (at 360).

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merely emphasizes this means-end-relationship. Two premises support this claim: According to (dictionary) ordinary meaning, «facilitating» is indeed synonymous to «assists»578, i.e. «for the purpose of facilitating» is synonymous to «for the purpose of assisting». And the ordinary meaning of purpose is given in Black’s Law Dictionary as both a «goal» and as an «end»579; the American Heritage Dictionary defines purpose as both an «object toward which one strives» and an object «for which something exists»580. These definitions explain purpose both as a (subjectively) desired object, goal, or aim – an act «for the purpose of facilitating» is an act by which one desires to achieve facilitating something – and as an (objectively) existing end – an act «for the purpose of facilitating» exists for facilitating something. In this latter reading, the act of assistance is rendered precisely as being embedded in a means-end-relationship; it is undertaken to serve the objective of another as its end581. Article 25 (3) (d) RS makes reference to «with the aim of furthering the criminal activity or criminal purpose of the group» in sub-section (i) and «in the knowledge of the intention of the group to commit the crime» in sub-section (ii) as alternatives («or»). It has been suggested in scholarship that the «aim of furthering» refers to «special intent with regard to the common purpose of the group»582, respectively to «specific intention to promote the practical acts and ideological objectives of the group»583, to 578 Simpson, Oxford English Dictionary (2013), available at http://www.oed.com/vie w/Entry/67460 (last visited: 30.06.2015). 579 Garner/Black (2009), keyword «purpose». 580 Pickett, The American Heritage Dictionary of the English Language (2013), available at http://ahdictionary.com/word/search.html?q=purpose (last visited: 30.06.2015): «Her purpose in coming here is to talk to you» and «The purpose of an airliner is to transport people». 581 See also Heyer (2013), pp. 494 et sqq., 353 et sq., proposing that «to act for the purpose of facilitating implies objective finality» and describes «objectively the attribution relationship between conduct which promotes an offense and the result in the shape of one or several isolated principal offenses» (my translation); reading it as a particular form of intent would be counter to the Statute’s ordinary meaning (the diverging meanings of its different language versions create ambivalence which cannot be resolved), context, and telos (purpose as intent would, inter alia, create difficult questions of proof, would lead to the «objective concretization of a minimum threshold of attribution» [my translation] remaining unresolved, would oppose customary international law as practiced by the ad hoc tribunals on aiding and abetting). 582 Eser (2002), p. 767 (at 803). 583 Ambos (2008), mn. 29. See also Ambos (2013c), p. 169.

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«ideological overlap»584. In an effort at contextual coherence I consider it preferable to determine the scope of the term and concept of «with the aim» (respectively «con el propósito» in Spanish and «viser à» in French) aligned to the term and concept of «for the purpose» (respectively «con el propósito» in Spanish and «en vue de» in French) as established above, the Spanish language versions being identical in sub-sections (c) and (d) and the dictionary meanings of «aim»585 or «viser à»586 overlapping with those of «purpose» or «en vue de» and neither possessing a specialist meaning587. Consequently, «with the aim of furthering» could be read as the expression of an objective means-end-relation in which to embed contributions under Article 25 (3) (d) RS588. Unlike with assistance, this means-end-relationship, however, does not result from the term and concept of «contribution». «Intentional» and «in the knowledge of intention of the group» in subsection (ii) remain as intent prerequisites which complement the typological perspective on Article 25 (3) RS. Their further analysis and relationship with Article 30 (1) RS lies beyond the scope of this dissertation589. 2.4.4.3. Results From the typological perspective, sub-section (3) is not at all «devoid of sense»590. To a large extent, descriptive approximation in Article 25 (3) RS underlines the ability to take significant decisions by devising and im-

584 Burchard (2010), p. 919 (at 944). 585 Simpson, Oxford English Dictionary (2013), available at http://www.oed.com/vie w/Entry/4347 (last visited: 30.06.2015) («an objective, a goal; a purpose») and Pickett, The American Heritage Dictionary of the English Language (2013), available at http://ahdictionary.com/word/search.html?q=aim (last visited: 30.06.2015) («a purpose»). 586 Jeuge-Maynart, Dictionnaire Larousse, available at http://www.larousse.fr/diction naires/francais/viser/82187?q=viser#81220 (last visited: 30.06.2015): «avoir quelque chose en vue». 587 «Viser à» is not defined in Guillien/Vincent/Guinchard (2005) or in Cornu (2004). Curzon (1993) and Garner/Black (2009) do not define «aim». 588 Similarly against conceiving «with the aim» as a form of intent, Heyer (2013), pp. 517 et sq. 589 See already above in fn. 548 and on these prerequisites Ambos (2013c), pp. 168 et sq. 590 See again Burghardt (2010), p. 81 (at 91 et sq.) and above in 2.2.2.1.

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plementing an intellectual design as the Statute’s commission type. Recall Schabas’ position that the drafters’ intent in conceiving the provision arguably was an exhaustive codification of complicity, drawing as a means for doing so on concepts familiar to jurists from their domestic jurisdictions; the text of Article 25 (3) RS is thus but «an attempt to cover complicity generally»591. With a view to the complex reality of offenses under the Rome Statute and the pervasiveness of organization of personal and material resources to individual conduct as well as to the drafters’ limited understanding of criminal law592, this shotgun approach is entirely comprehensible. It would, however, be misguided by the conception that recourse to whatever forms of attribution in existence in domestic jurisdictions would be able to account for the specificities of international criminal law. The provision is indeed «an attempt to cover complicity generally» – albeit descriptively. The ambivalence resulting from a perspective which attempts to read it in a prescriptive manner is, therefore, unsurprising593. 2.4.5. Commission and joint criminal enterprise: Lessons learned? Commission thus devised will undoubtedly be likened to the ad hoc tribunals’ notion of joint criminal enterprise (JCE) responsibility. According to Ambos, the «underlying rationale of a JCE, its core feature, is the combined, associated or common criminal purpose of the participants in the enterprise. The common purpose is the collective element of the JCE doctrine which links the members among themselves and turns it into a theory of collective responsibility based on an institutional-participatory or systemic model of imputation of attribution»594. As a form of attribution and the «overriding mode of individual criminal responsibility» before the ad hoc tribunals, it has been and still is heavily criticized in scholarship595, in particular from the perspective of the so-called culpability principle: An 591 592 593 594 595

See again above in 2.3.1.3 and Schabas (2010), p. 431. See again above at fn. 533. See above in 2.3.1 on this ambivalence. Ambos (2013c), p. 161 (emphases and footnotes omitted). See Farhang (2010), p. 137 (at 137 et sq.) with further references: «Instead of recoiling under protracted criticism, the concept of joint criminal enterprise (JCE) has gained significant currency in the jurisprudence of the ad hoc criminal tribunals».

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«evident» conflict with this principle is argued to arise once the common purpose is relinquished «as the only legitimate basis of reciprocal attribution» in JCE’s extended form where acts of JCE members that constitute foreseeable consequences of the realization of the common purpose or plan are also mutually attributed596. As Vest points out, however, JCE is a very potent instrument to reflect the reality of core crimes and the resulting «systematic ambivalence between individual attribution and collective action context in the Gesamttat» – he proposes, therefore, to improve upon it instead of relinquishing it597. In the following, I will take up important criticisms of JCE with a view to avoiding its drawbacks in conceiving collective attribution under the Rome Statute. I will also address the question of whether mutual or collective attribution as proposed has been excluded under the Rome Statute by the rejection of JCE. 2.4.5.1. JCE responsibility re-visited Scholarly contributions have highlighted the appeal of JCE responsibility in prosecutorial strategies that aim to maximize convictions, arguing that «this enhanced accountability […] comes at the expense of key criminal law principles»598. However, JCE’s attraction with prosecutors may also be described in terms of the aptness of JCE to reflect upon the reality of core crimes. As both Osiel and Vest have argued, unlike other modes of participation that rely notions of (effective) control (over the crime), JCE is able to capture the «variety of relationships» in mass atrocity which are «more multifarious, though no less pernicious than that of dominationsubordination» as well as the idea of «successful leaders […] striving to coordinate, not to dominate or control»599. Vest and Danner and Martinez are correct, therefore, in asserting that in scholarship and jurisprudence efforts should be aimed primarily at improving upon JCE to preserve its ad-

596 Ambos (2013c), pp. 174, 123 et sq. See also Vest (2011), pp. 331 et sq. 597 Vest (2011), p. 338 (my translation). 598 Danner/Martinez (2005), p. 75 (at 134 et sqq.). See also Ambos (2013c), pp. 172 et sqq. 599 Osiel (2005), p. 1751 (at 1788 et sq.). See Vest (2011), p. 338 and also Ambos (2013c), pp. 160 et sq. («For this ‹systemic reason› the concept, at least in its basic form, fulfills an important function in the context of ICL»).

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vantages600. By implication, there is reason to assume that collective attribution based on a coordinative intellectual design as proposed here is a helpful notion also under the Rome Statute. Yet, in JCE before the ad hoc tribunals, such collective attribution has faced a number of issues to which this section is dedicated. 2.4.5.1.1. Central issues A central issue collective attribution seemingly faces is to couch in concise legal terms the empirically complex nature of the organization and its underlying intellectual design as the foundation of the collective attribution context601. With regard to JCE responsibility, scholarly criticism has in particular attached to the vagueness of the enterprise’s scope. Olásolo points out in this vein that «the application of the traditional notion of joint criminal enterprise to mid and high ranking political and military leaders who are geographically and structurally remote from the physical perpetrators presupposes the existence of such broad joint criminal enterprises that they become a sort of legal fiction»602. The scope of the enterprise has depended largely upon prosecutorial discretion, prosecutors arguably deriving from the resulting factual complexity of the charges an increase in convenience to maximize convictions: «The broader the JCE alleged, the more likely it is that the defendant can be found guilty of making some contribution to its ultimate purpose»603. The ICTY has held itself that «liability for participation in a criminal plan is as wide as the plan itself, even if the plan amounts to a ‹nationwide government-organized system of cruelty and injustice›»604.

600 Vest (2011), pp. 338, 386. In this vein also Danner/Martinez (2005), p. 75 (at 146, 150 et sqq.). 601 But see above in 2.4.1.2 on conciseness of legal terminology when referring to empirical complexity. 602 Olásolo (2009), p. 190. In this vein also Osiel (2005), p. 1751 (at 1802). 603 Danner/Martinez (2005), p. 75 (at 134 et sqq.). See also Osiel (2005), p. 1751 (at 1800 et sq.); Vest (2011), p. 317. 604 ICTY - Appeals Chamber, Prosecutor v. Brdanin, 03.04.2007 – ICTY-99-36-A (§ 423) with reference to ICTR - Appeals Chamber, Prosecutor v. Rwamakuba, 22.10.2004 – ICTR-98-44-AR72.4 (§ 25). In a similar vein, Vest (2011), p. 316 and also Danner/Martinez (2005), p. 75 (at 136).

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In Vest’s view, in order to account for the complex reality of «systemic crimes against humanity, and war crimes» as constituted by «fluctuating and more or less integrated perpetrator collectives» and therefore potentially constantly changing in scope and as a limit to prosecutorial discretion, collective attribution must be restricted to the leadership or organization level605; at the hands-on executing level, he proposes to rely on the «classic» forms of participation amounting to (principal) perpetration or (secondary) complicity606. Also, in the course of his discussion of the Brdanin case, Vest opposes limiting collective attribution to a context in which a direct or physical perpetrator is present607. The Brdanin Trial Chamber had suggested the prerequisite that «the person who carried out the actus reus of the crime(s) in question» must participate in the enterprise608, a requirement that was later struck down on appeal609. In Vest’s view, the proposed prerequisite inclusion of a «direct perpetrator» in a single attribution context is neither conceptually sound – for «the implementation of a systemic crime is regularly delegated downwards and therefore does not directly touch the leadership or planning respectively organization level» – nor does it do justice to the «direct perpetrator» herself – for it would constitute a «fatal expansion of responsibility» to become «partly responsible for the overall project» that would disregard «the structurally different character» between «system criminality» on the leadership and organization level and «individual criminality» on the execution level610. As regards JCE, he favors instead the solution proposed by the Brdanin Appeals Chamber 611, i.e. to construct, as Ambos explains, «a form of indirect co-perpetration (or co-perpetration by way of others) for the members of the JCE with regard to the direct perpetrators»612. On this basis, attribution to members of the JCE of the physical acts of those external to the JCE is based on «a link between the accused and the crime charged […] to

605 Vest (2011), pp. 311, 323 et sq., 337. In this vein also Ambos (2013c), p. 161. See also above in 2.5.3.3. 606 Vest (2011), pp. 325, 417. 607 Vest (2011), p. 313. 608 ICTY - Trial Chamber, Prosecutor v. Brdanin, 01.09.2004 – IT-99-36-T (§§ 264, 344). See also Olásolo (2009), pp. 194 et sqq. 609 ICTY - Appeals Chamber, Prosecutor v. Brdanin, 03.04.2007 – ICTY-99-36-A (§§ 410 et sq.). See also Olásolo (2009), pp. 203 et sqq. 610 Vest (2011), pp. 313 et sq., 325 (my translation). 611 Vest (2011), p. 315. 612 Ambos (2013c), p. 125.

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be found in the fact that the members of the joint criminal enterprise use the principal perpetrators as ‹tools› to carry out the crime»613. A related claim has been raised by Danner and Martinez. In their view, JCE responsibility is over-expansive in a sense that cannot be remedied at the sentencing stage614. Their concern relates to the ad hoc tribunals’ practice to hold all participants in a JCE responsible as (principal) perpetrators615. The relationship between modes of participation and sentencing being «too murky» as of «today» in ad hoc tribunal jurisprudence, in particular the individual accused’s role not being a «primary consideration» in sentencing, they fear that sentencing cannot provide an accurate account of the role played by each member of the joint criminal enterprise616 – and that JCE thus endangers the «didactic function» of international criminal law617. In my discussion of the ICC’s control over the crime approach, a similar concern has surfaced in the shape of an argument in favor of distinctions between participants before the sentencing stage618. Finally, Osiel as well has pointed out the distinction of participants at the sentencing stage under JCE doctrine as an important issue: «Instead of

613 ICTY - Appeals Chamber, Prosecutor v. Brdanin, 03.04.2007 – ICTY-99-36-A (§§ 413 et sq.). 614 Danner/Martinez (2005), p. 75 (at 141). 615 See ICTY - Appeals Chamber, Prosecutor vs. Vasiljevic, 25.02.2004 – IT-98-32A (§§ 111, 182) and Olásolo (2009), p. 185; Ambos (2013c), pp. 161 et sq. In Tadic, where JCE was originally conceived of, the ICTY has held that «[m]ost of the time these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design. Although only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less – or indeed no different – from that of those actually carrying out the acts in question»; the ICTY has founded these observations in particular on «the very nature of many international crimes which are committed most commonly in wartime situations», ICTY Appeals Chamber, Prosecutor v. Tadic, 15.7.1999 – IT-94-1-A (§ 191). 616 Danner/Martinez (2005), p. 75 (at 141 et sq.). See also Ohlin (2007), p. 69 (at 88) («sentences, by their nature, stem from the gut-level moral determinations of the judges», so that degrees of responsibility must be determined «at the level of the criminal offence») and Vest (2011), pp. 337, 377. 617 See Danner/Martinez (2005), p. 75 (at 145). 618 Cf. above in 2.3.2.

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a binary opposition, a choice between acquittal and conviction, the law now has a range of possibilities», he writes, «permitting more subtle and fine-grained assessment of the relative importance of different contributors to the harm»; yet, he stresses with regard to joint criminal enterprise before the ad hoc tribunals that the «breadth of the rule’s reach permits even the most minor participant in an enterprise to be liable for these grave offenses, offenses that necessarily heap opprobrium on anyone convicted of them» and concludes that it «is hence unsatisfactory to defer issues about his degree of responsibility and the extent of his wrongdoing until after he has already been judged guilty of these»619. 2.4.5.1.2. … and responses It has been remarked in scholarship and on appeal in the Brdanin case that overbreadth of the attribution context risks rendering the link between individual accused «too tenuous» and the imposition of criminal responsibility «inappropriate»620. Indeed, the scope of the collective attribution context cannot solely depend upon prosecutorial discretion but must be guided by a sound conceptual basis621. As regards my proposal for the Rome Statute, the collective attribution context is limited by the notion of implementation of an intellectual design; relying on Dencker, I have conceived of implementation of the intellectual design as an objective prerequisite. This choice aims to reflect on the reality of genocide, crimes against humanity, and war crimes as organized efforts 622. It also mitigates Vest’s concerns as to an unrealistic prerequisite of «coordinative reciprocity»623 and acknowledges his proposal to limit (JCE) responsibility by what Ambos has endorsed as the prerequisite of a «ratio materiae link»624. Moreover, the above proposal does require the inclusion of a so-called physical or

619 Osiel (2005), p. 1751 (at 1789) (my emphasis). 620 ICTY - Appeals Chamber, Prosecutor v. Brdanin, 03.04.2007 – ICTY-99-36-A (§ 418). 621 See again Osiel (2005), p. 1751 (at 1801). 622 There is, of course, ample opportunity to optimize the proposed implementation prerequisite based on the analysis of this reality with criminological expertise in future studies. 623 Vest (2011), p. 385 («koordinative[s] Wechselseitigkeitserfordernis», my translation). 624 Vest (2011), p. 324 and Ambos (2013c), p. 161.

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hands-on perpetrator; instances of conduct are in this vein factually interdependent in terms of their criminality625. This inclusion of the physical perpetrator with other designers and implementers of the intellectual design – to speak with Vest: of different hierarchical participation types626 – in one attribution context should not be opposed on grounds of an insurmountable difference between individual and so-called system criminality: To my mind, this difference – in spite of the important efforts undertaken by Lampe627 – should not inform interpretation of the Rome Statute until it can rely upon a robust conception of system criminality as a «state of criminality» and its relevance to individual guilt. Finally, excessive tenuity is but a claim thus far lacking foundation in a concept of collective responsibility construed for international criminal law – in other words: in a «theory of culpability» attuned to the realities of mass atrocity628 – and therefore appears more postulated than substantiated; whether it is excessive and thus inappropriate to hold individuals responsible on the basis of collective attribution or whether it is indeed «morally justified» 629 depends precisely on the premises established in such a theory, and these premises remain yet to be established630. Tenuity is thus above all an issue of diligently establishing facts both by the prosecution and the Court631. With a view to «murky» sentencing, recourse to dimensional expression can serve to alleviate the concerns voiced by Danner and Martinez: Sentencing pursuant to Articles 77, 78 RS and Rule 145 ICC RPE is guided specifically with a view to the reality of offenses632. This recourse to dimensional expression and the proposed relationship between «key figure[s]» in and shared creatorship of the criminal events described in Articles 6 to 8 RS may also serve to alleviate Osiel’s concern to undeservedly

625 See above in 2.4.3.3.2 and also Miller (2007), p. 311; Ambos (2013c), pp. 147 et sq. 626 See above in 2.4.3.2. 627 See above in fn. 530 and Lampe (1994), p. 683 (at 691) positing himself that «the explanation for ‹new qualities› [of criminality] remains contentious until today» (my translation). 628 On such theories, see Fletcher (2007), pp. 329, 332 et sqq. and also Ambos (2007), p. 2647 (at 2652 et sqq., 2670 et sq. with fn. 125); Ambos (2013c), pp. 93 et sqq. 629 See Danner/Martinez (2005), p. 75 (at 146). 630 See Ambos (2013c), p. 94 and also below in 2.4.5.2. 631 In this vein also Vest (2011), pp. 316 et sq. 632 See above in 2.4.3.3.2.

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«heap opprobrium»633 upon minor participants; in fact, any assessment of the minority of certain participants is precluded before the sentencing stage. Relatedly, the claim that all participants are to be punished as (principal) perpetrators and the subsequent need to find conceptual instruments that establish such equivalence – as Danner and Martinez propose by recourse to the prerequisite of a substantial contribution to the JCE634 – is rendered moot as well: Participants in the collective attribution context are not punished as anything but for their contribution, relative to dimensional expression. And yet, as is the nature of legal theorizing, the (practical) necessity to make a decision in favor of a particular concept – in this case: to undertake the distinction between participants only at the sentencing stage – does not reflect upon the decision’s cogency. Alternative truths of the assessment of individual criminal responsibility do exist. For reasons discussed in the above, however, it is my conviction that these alternatives do not constitute the best possible approach for the task awarded to the International Criminal Court. 2.4.5.2. JCE, the genesis of Article 25 (3) (d) RS, and collective responsibility Concerning JCE as a form of attribution, jurisprudence of the ICC as well as scholarly comments disfavor its applicability to Article 25 (3) (d) RS based on arguments that relate to the primacy of the Rome Statute over secondary sources of law. Does this rule out recourse also to collective attribution and shared creatorship under the Rome Statute in general? In Lubanga, Pre-Trial Chamber I held that the concept of Article 25 (3) (d) RS is «closely akin to the concept of joint criminal enterprise or common purpose doctrine adopted by the jurisprudence of the ICTY»635; in Mbarushima, it decided that «JCE and 25(3)(d) liability are not identical, as similar as they may appear» but share a concern for group criminality

633 Osiel (2005), p. 1751 (at 1789) (my emphasis). 634 Danner/Martinez (2005), p. 75 (at 150). Cf. also below in 2.5.2.1.2 on the complexity of complicity on the basis of equivalence of principals and accessories at common law. 635 ICC - Pre-Trial Chamber I, Prosecutor v. Lubanga, 29.01.2007 – ICC-01/04-01/06 (§ 335) (my emphasis).

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and actions on the basis of a common plan636. In constructing Article 25 (3) (d) RS as a statutory mode of participation, Pre-Trial Chamber I then merely relied on «the modern formulation of JCE’s concept of a ‹significant contribution›»637 but did not relate to other prerequisites of JCE responsibility, JCE in all its variants being too different in those prerequisites from what is postulated in the ordinary meaning of Article 25 (3) (d) RS638. These differences between JCE and statutory requirements in Article 25 (3) (d) RS have also been discussed in scholarship. Cassese has promoted that Article 25 (3) RS fully embraces JCE: Sub-section (d), in his view, applies to contributors outside the enterprise, while sub-section (a) incorporates JCE responsibility of inside members as co-perpetration639. Opposing the inside/outside distinction advanced by Cassese, Ohlin has argued – on the one hand – that Article 25 (3) (d) RS «represents a statutory surrogate for joint criminal enterprise» but has posited – on the other hand – that due to the many «doctrinal tensions» the incompetently drafted provision causes, it should not be interpreted but revised640. Vest has promoted the view that Cassese’s interpretation is neither unthinkable nor is it cogent from an ordinary meaning or systematic perspective, merely hinting at JCE’s «foothold» in Article 25 (3) (d) RS as a reason to continue conceptual discussion of JCE responsibility641. And Ambos has pointed out that differing statutory prerequisites in sub-section (d) prevent JCE responsibility under the provision – JCE I is a form of co-perpetration, which under Article 25 (3) resides in sub-section (a) only, the intent prerequisite conflicts with JCE III’s foreseeability standard – and in more general terms reasons that JCE, being a form of «collective responsibility», it was rejected in any case by the Statute’s drafters alongside other forms of «collective responsibility» such as conspiracy or membership in

636 ICC - Pre-Trial Chamber I, Prosecutor v. Mbarushimana, 16.12.2011 – ICC-01/04-01/10-465-Red (§ 282). 637 ICC - Pre-Trial Chamber I, id. (§ 282). 638 See ICC - Pre-Trial Chamber I, id. (§ 282) (defendant must not be in the group acting with a common purpose, contribution not to common purpose but to the crimes committed, difference in required mental elements). 639 Cassese (2008), pp. 212 et sq. 640 Ohlin (2009), p. 406 (at 408, 410) and Ohlin (2009), p. 406 (at 411, 415 et sq.) on Cassese’s position. 641 Vest (2011), pp. 378 et sq., 386.

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an organization responsibility, given they implemented Article 25 (3) (d) RS as a «compromise»642. As I neither argue for a transfer of JCE per se to the Rome Statute643 nor share Ambos’ (implicit) position that statutory modes of participation contain forms of attribution644 but merely propose recourse to a functionally similar form of attribution, I will focus my efforts on Ambos’ very general claim regarding the drafters’ hostility towards any forms of «collective responsibility». First of all, there is little evidence as to the drafters’ intent with respect to Article 25 (3) (d) RS. The provision itself and the reasons for its implementation alongside sub-sections (b) and (c) have largely remained in the dark645. While Saland alludes to conspiracy as a «very divisive issue» in the drafting process, he merely states that adoption of the provision was «easy» and the conspiracy issue «tremendously helped by the successful negotiation of the […] Convention for the Suppression of Terrorist Bombings, which had been adopted by consensus»646. An earlier draft of Article 25 (3) (d) RS had read, «[…] agrees with another person or persons that such a crime be committed and an overt act in furtherance of the agreement is committed by any of these persons that manifests their intent», and this language «evoking the conspiracy concept» was then entirely replaced during the Rome Conference647. What Saland implicitly refers to is the fact that already in negotiating the

642 Ambos (2013c), pp. 172 et sqq. See also Ambos (2008), mn. 24; Ambos (2010b), p. 161 (at 172, 173); Ambos (2011a), p. 165 with fn. 175; Di Martino (2007), p. 429 (at 445); Cassese (2008), p. 213; Manacorda/Meloni (2011), p. 159 (at 176 et sqq.); Vest (2011), pp. 342, 350, 378 et sq. For a more optimistic perspective, see Reggio (2005), p. 623 (at 647) («Little doubt may exist that it is the textual basis for joint criminal enterprise; it remains to be seen for what kind of joint criminal enterprise», footnotes omitted) and Sliedregt (2012a), p. 146. 643 See again Werle (2007), p. 953 (at 961 et sq.) and also ICC - Pre-Trial Chamber I, Prosecutor v. Katanga and Ngudjolo Chui, 30.09.2008 – ICC-01/04-01/07 (§ 508) warning not to mechanically transfer doctrine from the ad hoc Statutes to the Rome Statute. 644 See above in 2.3.1.2, 2.4.3.2 and also 2.3.4.1.1. 645 See Ohlin (2009), p. 406 (at 407 et sq., 410, 419). 646 Saland (1999), p. 189 (at 199 et sq.). 647 Schabas (2010), pp. 436, 437 («Language evoking the conspiracy concept disappeared») with reference to United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (09.07.1998), Working Paper on Article 23 Paragraph 7 (e): UN Doc. A/Conf.183/C.1/ WGGP/L3, p. 50.

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1998 UN Convention on the Suppression of Terrorist Bombings and the partially replicated Article 2 (3) (c), said Article had served to settle disputes about the inclusion of conspiracy as a mode of complicity648. Apparently, both sides on the conspiracy divide, supporters and opponents, were able to read into Article 2 (3) (c) of the Convention their preferred solution to the issue. In this sense, Article 25 (3) (d) RS is not only a compromise with a view to resolving the divisive conspiracy issue but also a fruit of the «previously agreed text principle»649. And indeed, by way of its ordinary meaning, Article 2 (3) (c) of the Convention both excludes and accommodates a wide range of complicity concepts650: «In any other way contributes» apparently excludes both participation «as an accomplice» and organizing or directing others to offend but seems to accommodate any other conceivable way to participate. If we can therefore assume that conspiracy was purposely left out of the Statute by the drafters, need the same also be true for other, less expansive forms of collective attribution such as proposed above?

648 See Informal summary of the discussions in the plenary and in the Working Group, prepared by the Rapporteur in United Nations General Assembly, Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996: Official Records of the Fifty-second Session, 31.03.1997, p. 37. 649 Clark (2008), p. 519 (at 545) («There is a presumption that whoever negotiated it knew what they were doing, so it is safe to use it»). 650 Article 2 reads: «(1) Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss. (2) Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1. (3) Any person also commits an offence if that person: (a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2 of the present article; or (b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2 of the present article; or (c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 of the present article by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.» (my emphasis).

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What strikes me as more important than such interpretative guesswork, however, is to clarify that collective attribution is different from the scarecrow that is «collective responsibility». As Vest notes, without a sufficient understanding of collective action (and its implications for responsibility concepts), the rejection of «collective responsibility» concepts is «suspended in mid-air»651. This understanding, he argues, has not yet seeped into legal scholarship and jurisprudence from (other) social sciences such as sociology and philosophy, creating a «black hole» between individual and collective guilt652. In this vein, Vest asserts that the problem with JCE is not collective responsibility but overburdening the individual within the collective context of which she is a part653. Yet reference to such overburdening is equally problematic as is the reference to JCE’s tenuity: Neither has thus far been awarded sufficient attention to serve as conclusion or argument, their implicit point of reference remains a concept of «collective responsibility», which – as Vest correctly asserts – must still be construed (not: discovered) for the purposes of international criminal justice654. Collective criminality in the above sense655 may arguably provide a first component towards such construction. 2.4.6. Results and outlook: Business actors’ individual criminal responsibility for commission The typological perspective on the Statute’s term and notion of commission has been productive. It has yielded a path to conceiving both the scope of individual criminal responsibility and individual degrees of responsibility under the Rome Statute with a view to the reality of genocide, crimes against humanity, and war crimes. This approach leans against the qualitative and quantitative distinctions between participants as a matter of Article 25 (3) RS in a prescriptive capacity, which have been at the heart of ICC jurisprudence and important scholarly contributions, and takes into account concerns which have been raised against JCE as a functional

651 652 653 654

Vest (2011), p. 333 (my translation). Vest (2011), p. 333. Vest (2011), p. 334. See again on the «principle of culpability» before the ICC and in Nuremberg, Ambos (2007), p. 2647 (at 2670 et sq.). 655 See above in 2.4.3.3.1.

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equivalent. It aims to still the need, as Judge van den Wyngaert opined, to have not «abstract legal categories» but «the factual circumstances of the case» determine the blameworthiness of the accused656. It thusly has an important advantage over the prevailing view: Instead of having to fit highly diverse typical and atypical cases into seemingly pre-determined categories of a «value-oriented hierarchy of participation»657, it allows to carve out criminality with a view to each case and its factual specificities. I posit that this approach, by recourse to rational arguments that establish degrees of dimensional expression, satisfies both Roxin’s demand that assessments of responsibility must not occur behind closed doors but be premised on doctrine658 and Osiel’s call to strive for avoiding the use of «fictional device[s]» in legal argumentation concerning mass atrocity659. This attention to the subject-matter of the law, unfortunately, is lacking in current ICC jurisprudence; to render its own control approach functional, the Court would be well advised to follow the lead of PTC I in Katanga with its keen eye for the reality of instances of serious human rights violations in conceiving the Statute’s law of commission660. In this perspective, then, the issue of a business actor’s individual criminal responsibility under the Rome Statute is therefore not an issue of distinction between sub-sections (a), (b), (c), or (d) of Article 25 (3) RS; it is instead an issue of type concretization, collective criminality, and individual criminality quotas. Unlike alleged by the Court and in academia, business actor’s conduct can amount to commission, owed also to the fact that the constitution of organizational resources, for example of equipment or of funds, is located within the core area of the commission type. To illustrate the implications of these insights for a business actor’s individual criminal responsibility, let us focus again on the Corrie case example, where management employees allegedly issued directives to sell, lease or service bulldozers used by the IDF for a deadly revenge campaign661. Directives to service bulldozers have already been established as 656 Cf. ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§ 24) (my emphasis) and also above in 2.2.1.2.2. 657 Werle (2007), p. 953 (at 957); see also above in 2.2.2 on this issue from other scholars’ point of view. 658 See again above in 2.3.2 on the legal certainty perspective on commission. 659 Again: Osiel (2005), p. 1751 (at 1803, 1794). 660 See again above in 2.4.1.3. 661 See above in 1.

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concretizations of the Statute’s commission type term662. These directives enabled IDF members to carry out their campaign with the bulldozers serviced. In this regard, Caterpillar management individuals’ directives to service bulldozers created a risk which subsequently became material in violations of protected legal goods or interests: Civilians’ lives were taken, property was destroyed. Nevertheless, management employees’ conduct criminality quota would be rather small than moderate, given the high degree of resource and low degree of creative dimensional expression of their conduct. The directives’ implementing of an intellectual design which coordinates individuals into a (dysfunctional) military campaign is pertinent also from an attribution perspective. Management individuals who issued such directives participate in the collective attribution context, alongside IDF members implementing the design both on the ground (e.g. steering the bulldozer in accordance with superior orders) and in remote locations (e.g. selecting raid locations and issuing the orders to raid). The destruction of property, the loss of lives is their doing. As regards their individual degree of responsibility in sentencing, the labels «least responsible», «otherwise implemented intellectual design» would be appropriate given the individual criminality quota. In the real-world case, i.e. Corrie v. Caterpillar, the domestic district court hesitated to adjudicate «doing business» as aiding and abetting under international law so as to avoid the «disastrous effects on international commerce» it feared would come about upon such a finding663. The next section will be concerned with this particular limit to the scope of individual criminal responsibility for commission under Article 25 (3) RS, i.e. the question of the social (un-)desirability of business actors’ conduct which was already raised (but intentionally neglected in the example) by the risk standard. The following will address this question from a human rights perspective.

662 See above in 2.4.2.3.3. 663 United States District Court Western District of Washington at Tacoma, Corrie v. Caterpillar, 22.11.2005 – 403 F.Supp.2d 1019 (at 1024) with reference to United States District Court Southern District of New York, In Re South African Apartheid Litigation, 29.11.2004 – 346 F. Supp. 2d 538 (at 554).

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2.5. Social value of conduct, Article 21 (3) RS and the ICC as a just global institution An important question has thus far remained unanswered: How can we avoid imposing criminal responsibility under the Rome Statute for conduct which – in principle – constitutes an offense but is at the same time too socially valuable to be prohibited? Which provision of utilities and funding, serving in the commission of genocide, crimes against humanity, and war crimes, deserves to be privileged from criminal responsibility664? Schabas was among the first to set the stage for this debate on limiting individual criminal responsibility for acts of business exchange in international criminal law. After a review of post-WWII and ad hoc tribunal jurisprudence on the law of complicity, he asked whether the thus produced «general principles of complicity» may be «extended to the case of contemporary atrocities», i.e. «to a supplier of small arms, the managing director of an airline that ships prohibited weapons or even a diamond trader»665. Concerning these kinds of business actors, he concludes that «assistance that is ostensibly ambiguous in nature»666 can be criminalized – as many domestic jurisdictions propose – as long as the accomplice (the merchant) is aware of the principal’s (the customer’s) intended «end use» of the merchandise and as long as her assistance was substantial in nature667. This «knowledge of the end use should generally be less difficult [to establish] because of the scale and nature of the assistance»668. Before the ICC and in scholarly contributions, the question of privileging socially valuable acts of business exchange has (naturally) been treated most vividly in the context of interpreting the statutory modes of participation in Articles 25 (3) RS. These contributions in essence refine or reject the traditional combination of knowledge and substantiality proposed by Schabas. In line with my findings on the scope of commission under the Statute, I propose that the issue must and can be approached without regard to distinctions drawn on the basis of statutory modes of participa-

664 See above in Introduction and scope of inquiry and also Reggio (2005), p. 623 (at 653 et sqq.) for examples. 665 Schabas (2001), p. 439 (at 449). 666 Schabas (2001), p. 439 (at 449). 667 Schabas (2001), p. 439 (at 450 et sq.). 668 Schabas (2001), p. 439 (at 449).

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tion669. In spite of this fundamental difference, the following will first scrutinize approaches presented in scholarship and jurisprudence before taking recourse to a risk standard on the basis of Article 21 (3) RS which evaluates the social value of acts of business exchange from a human rights perspective. 2.5.1. The notions of proximity and remoteness The matter of «Transnational Business and International Criminal Law» has received prominent attention in a Special Edition of the Journal of International Criminal Justice. In this edition, prominent scholars of international criminal law have presented their take on limiting individual criminal responsibility for socially desirable conduct. Most notably Huisman and van Sliedregt as well as Burchard have attempted to operationalize a proximity criterion that was first introduced by the International Commission of Jurists as proximity «in time and space and relationship» of the business actor to physical perpetrators and their victims670. According to Huisman and van Sliedregt, who reason from the insights of an extensive review of the Dutch van Anraat and Kouwenhoven cases – individual business actors tried in domestic court for their sale of weapons materials and weapons allegedly used in the commission of war crimes, respectively –, this criterion cannot by itself serve to establish «corporate complicity» but must instead be scrutinized cumulatively with knowledge and causation671.

669 Cf. with a view to §§ 25 et sqq. gStGB also Rotsch (2009), pp. 372, 412 et sqq. arguing that a system of qualitative and quantitative distinctions between participants before the sentencing stage prevailing in Germany «breaks down» in light of «socially adequate conduct», given that such conduct extends beyond secondary complicity (my translation). And for an opposing view regarding Article 25 RS, see Heyer (2013), pp. 39 et sq., 478 and below in 2.5.4.5.3. 670 International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability (2008a), p. 23 and International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability (2008b), pp. 17 et sq. See also Kaleck/Saage-Maass (2010), p. 699 (at 721 et sq.). 671 Huisman/Sliedregt (2010), p. 803‐828.

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More concisely, writing on «corporate-political core crimes», Burchard embeds the issue of proximity in the context of «criminal law policy, criminal law theory and criminal law doctrine»672. From these perspectives, he engages in a review of «multiple layers of accumulated (factual and normative) remoteness: ‹causal remoteness› due to the ancillary and neutral character of business conduct, which either takes place preceding or following the commission of a core crime; ‹motivational remoteness› as the businessman is acting for different purposes and interests than a political entity that condones core crimes and finally ‹organizational and structural remoteness› evident in the division of labour in a transnationally operating corporate entity»673. While the criminological point of view, in his view, fails to establish the «grave and socially injurious» nature of such criminality for a lack of relevant empirical data, it serves to demonstrate the commonalities of «the ‹ordinary› mid-level international criminal (the Eichmann-type ‹paper pusher›) and transnational corporate officers»: Both may be seen to «exhibit a comparable ‹banality of evil› due to their relative amoral mindset» and a «‹corporate culture› that stops at nothing in the furtherance of wealth, revenue and shareholder value» may emerge as the analogon to the mythologies of ethnic, national, racial, or religious superiority that perpetrator collectives in macro criminality share674. With respect to the Rome Statute, he proposes to integrate this point of view de lege ferenda in the creation of «particularized regulatory offences» in order to «denominate and criminalize a specific set of business contributions, such as the financing of criminal political regimes»675. 2.5.2. Focusing on intent: The Rome Statute’s alleged underinclusiveness vis-à-vis acts of business exchange As regards the lex lata, Burchard deems Article 25 (3) (c) and (d) RS unfit to remedy «the scenario of prima facie ‹ancillary and neutral› business contributions to ‹corporate-political core crime›»; his assessment stems largely from restrictive understandings of «for the purpose of facilitating»

672 Burchard (2010), p. 919 (at 925). 673 Burchard (2010), p. 919 (at 925). 674 Burchard (2010), p. 919 (at 927, 928 et sq.). On such mythologies, see Drumbl (2005a), p. 539 (at 568 et sq.). 675 Burchard (2010), p. 919 (at 934 et sq.).

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(c), «the aim of furthering» (d), and «knowledge of the crime» (d)676. Regarding these prerequisites as particular forms of intent, Burchard partakes in the «pessimism» as to the Statute’s capacity for holding to account business actors who support the commission of core crimes which is widespread among scholars677. As a consequence of restrictive intent prerequisites, the Rome Statute is regarded as underinclusive with respect to contributions made by the «ordinary business man»678 – inverting the domestically pressing issue of overbreadth of criminal law vis-à-vis socially desirable acts of business exchange. The following sections will analyze three diverging views on «for the purpose of facilitating» in Article 25 (3) (c) RS. The first view restrictively reads «for the purpose of facilitating» as «a certain animus auctoris»679 which arguably requires a desire of the successful commission of the crime assisted. A second position is staked out by Ambos, who refers purpose as desire only to the act of facilitation but not to the crime’s successful commission680. To remedy underinclusiveness, the third view reads «for the purpose of facilitating» as comprising certainty knowledge681. In spite of my diverging conception of the Statute’s reference to purpose in Article 25 (3) (c) RS682, I include this discussion here given that restrictions on criminal responsibility by recourse to the accomplice’s intent implicitly reflect upon thresholds of social desirability of the accomplice’s conduct683 – and are thus of interest also from a typological perspective on the Rome Statute concerned with such thresholds.

676 Burchard (2010), p. 919 (at 935, 941, 944). 677 See Burchard (2010), p. 919 (at 938) as well as Sliedregt (2012a), p. 129 («The [purpose] clause will make it difficult to bring to justice those entrepreneurs who play a role in financing violent conflicts in which international crimes have been committed») and Finnin (2012), p. 201 and Schabas (2010), p. 436: «In practice, this ‹purpose› will be deduced from the acts of the accused», which will pose difficulty if the acts of assistance involved are «ambiguous». Stewart (2012b), p. 165 (at 197) generally warns of «serious underpunishment» as a consequence of a purpose prerequisite. See also Reggio (2005), p. 623 (at 673); Vest (2010), p. 851 (at 863); Meyer (2013), p. 56 (at 68, 70 et sq.). 678 See Burchard (2010), p. 919 (at 928). 679 Burchard (2010), p. 919 (at 941). 680 Ambos (2013c), p. 166. 681 Vest (2011), pp. 203 et sq. See also Vest (2010), p. 851 (at 862). 682 See above in 2.4.4.2.2. 683 See also below in 2.5.4.1.2.2.

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2.5.2.1. Genesis: Purpose as desire intent à la Learned Hand? The drafting history of Article 25 (3) (c) RS is obscure; in fact, there is no written document explaining how the provision came into existence684. Yet, Article 25 (3) (c) RS strongly resembles Article 2 (3) of the 1996 ILC Draft Code685. As Schabas has noted, the text of Article 25 (3) (c) RS was proposed early during the sessions of the Preparatory Committee and remained untouched subsequently – as a result, the preparatory documents contain no explanation on how to construe its specific language686. While both the 1996 ILC Draft Code687 and the 1998 draft by the Preparatory Committee688 contained templates for an «aiding and abetting» provision, neither required the assistant accomplice to act with purpose. Clearly, the provision was re-shaped late in the drafting process, in the working group phase of the Rome Conference; the competent Working Group on the General Principles of Criminal Law was chaired by Saland, who gives no explanation of why neither template was adopted689. In light of this obscurity and resemblance, Ambos, who was a member of the German delega-

684 See Cassel (2008), p. 304 (at 310); Schabas (2010), p. 431; Sliedregt (2012a), p. 129. 685 The draft provision reads: «An individual shall be criminally responsible for a crime […] if that individual […] (d) knowingly aids, abets, or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its commission; […]» (emphasis added). 686 Schabas (2010), p. 431. 687 Article 2 (3) reads: reads: «An individual shall be criminally responsible for a crime […] if that individual […] (d) knowingly aids, abets, or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its commission; […]» (emphasis added). 688 The proposal in Article 23 (d) reads: «[with [intent][knowledge] to facilitate the commission of such a crime,] aids, abets or otherwise assists in the commission», United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (14.04.1998), Report of the Preparatory Committee on the Establishment of an International Criminal Court: UN Doc. A/ CONF.183/2, p. 31. 689 See in particular Schabas (1998), p. 400 (at 400 et sqq.); Cassel (2008), p. 304 (at 310 et sq.) but also Kirsch (1999), p. 451 (at 454 at fn. 11); Bassiouni (1998), p. 1 (at 31) for an overview of the drafting process of Article 25 (3) (c) whereby the provision was passed on directly to the competent Working Group, and Saland (1999), p. 189, failing to mention subsection (3) (c) in his report. See generally Bassiouni (1998), p. 1 (at 29 et sqq.) for the rather chaotic drafting process in the working group phase.

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tion at the Rome Conference and, therefore, arguably «in a position to know»690, has suggested that sub-section (c) adopted a purpose prerequisite from the American Model Penal Code (MPC)691. Indeed, Article 25 (3) (c) RS contains «an almost literal transcript»692 of § 2.06 (3) MPC, which reads: A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he aids […] such other person in […] committing it.

Purpose or acting purposely has been defined in § 2.02 (a) MPC: A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

This apparent borrowing has inspired Burchard to refer to the MPC’s genesis as a solution to the interpretation of the Rome Statute. He has suggested that «for the purpose of facilitating» in Article 25 (3) (c) RS should be interpreted in accordance with court rulings issued by Judge Learned Hand in United States v. Peoni693 and United States v. Paglia694; he argues that the MPC was «inspired» by the «purposeful intent approach» presented in these rulings so that «predictability and legal certainty» in interpreting «for the purpose of facilitating» as an «almost literal transcript» of

690 Cf. Cassel (2008), p. 304 (at 309). Consider, however, the caveat formulated by Schabas (2011a), p. 215 with regard to the lesser value of personal experiences over what is contained in official documents. 691 Ambos (1999), p. 1 (at 10); Ambos (2002a), p. 639; Ambos (2008), mn. 23; Ambos (2013c), p. 165 («The expression […] is borrowed from the Model Penal Code»). In this vein also Badar (2013), pp. 408 et sq. 692 Burchard (2010), p. 919 (at 940). 693 United States Court of Appeal for the Second Circuit, United States v. Peoni, 12.12.1938 – 100 F.2d 401; the case regarded Peoni’s charge of aiding and abetting the possession of counterfeit bills by the purchaser’s purchaser, Dorsey, by selling said bills to the purchaser, Regno. 694 United States Court of Appeal for the Second Circuit, United States v. Paglia, 19.07.1951, 190 F.2d 445 (at 448) (emphasis added); the case concerned transporting counterfeit checks in interstate commerce.

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§ 2.06 (3) (a) MPC can only be obtained by (also) looking at said jurisprudence «behind the MPC»695. In the course of this jurisprudence, Judge Hand had posited that common law definitions of aiding and abetting (dating back to the 14th century) carry «an implication of purposive attitude towards it [the principal offender’s venture]»696 by which he understood that an accessory must «in some sort associate himself with the venture»697, «have a stake in its outcome»698, «seek by his action to make it succeed»699, even «make the venture his own»700 – the so-called «Hand standard» of accomplice responsibility701. Consequently, Burchard posits that the presumed accomplice must act «with a certain animus auctoris» to be criminally responsible under Article 25 (3) (c) RS; the concept of animus auctoris, in turn, is relied upon by the German BGH to characterize (principal) perpetrator responsibility as opposed to (secondary) accomplice responsibility702. Yet, as the following discussion will reveal, a two-fold objection is in order.

695 Burchard (2010), p. 919 (at 940 et sq.). 696 United States Court of Appeal for the Second Circuit, United States v. Peoni, 12.12.1938 – 100 F.2d 401 (at 402). 697 United States Court of Appeal for the Second Circuit, id. (at 402). 698 United States Court of Appeal for the Second Circuit, United States v. Falcone, 09.12.1940 – 109 F.2d 579 (at 581). 699 United States Court of Appeal for the Second Circuit, United States v. Peoni, 12.12.1938 – 100 F.2d 401 (at 402). 700 United States Court of Appeal for the Second Circuit, United States v. Paglia, 19.07.1951, 190 F.2d 445 (at 448). 701 Weisberg (2000), p. 217 (at 251). See Weiss (2002), p. 1341 (at 1424 et sqq.) for a critical review of United States Court of Appeal for the Second Circuit, United States v. Peoni, 12.12.1938 – 100 F.2d 401, asserting that the case was not at all concerned with the immediate aider’s state of mind but with refuting the doctrine of «natural and probable consequences»; the jurisprudence of Judge Hand in toto nevertheless vividly expresses his support of a purpose requirement for aiding and abetting under federal law. 702 See Burchard (2010), p. 919 (at 941).

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2.5.2.1.1. Methodological objection: Re-reading the MPC’s drafting history The presented interpretation rests on weak methodological grounds: After all, to consider the MPC and its highly complex drafting history703 as interpretative guidance is to assume that both the Code and its genesis were available to the Rome Statute’s drafters and were included within «a collective intention of those who drew up the treaty»704. Yet, again, official documentation on how to construe the language of Article 25 (3) (c) RS is lacking705 and personal recollections of the drafting process are only of limited value706. And while it has been asserted that «the explanation of the extent and effect of […] ‹borrowing› may play a clarificatory role» in the process of genetical interpretation707, the mere fact of having borrowed from another legal instrument without any explanation is another matter,

703 The MPC was drafted by the American Law Institute; while vast commentaries have been published, it is nevertheless difficult to interpret its genesis: The most extensive and coherent explanation of the drafting process is contained in Part I of the Revised Comments of 1985; the Revised Comments were, however, redacted in the 1970s, i.e. after the publication of the MPC’s official draft, and, while intended not to dilute «the force of the Commentary […] by the academic evaluation of persons who had not participated in its original drafting or approval» in order to be «faithful to the purposes of the Institute in the formulation of the Code», were not approved by the Institute but merely «authorized as […] a useful exposition» whose authority, therefore, is said to rest on the scholarship and competence of the commentators alone, The American Law Institute (ed) (1985), pp. xlii, xiv. More authoritative accounts on the drafting are arguably contained both in the Institute’s Proceedings, which refer to the «debate on the floor of the Institute», see e.g. The American Law Institute (ed) (1985), pp. 318 at fn. 58 and the original comments, published in 1953 - 1955 alongside the socalled tentative drafts (The American Law Institute [ed.] [1953 – 1960]), which were the immediate basis for the Institute’s decisions relating to the drafting of the MPC’s provisions. 704 Cf. generally Gardiner (2008), p. 348 and also above in 2.1. 705 Schabas (2010), pp. 431, 435. 706 Schabas (2011a), p. 215 posits that any analysis of the Statute’s genesis should «preferably» be based on what appears in official documents rather than on memories and personal experiences of those involved in the drafting process. 707 Cf. Gardiner (2008), pp. 342 et sq. with reference to a decision by the ECtHR, considering that the preparatory work to Article 12 ECHR, which notes that the article was based on Article 16 UDHR, proves useful in the textual interpretation of the provision.

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in particular if from this fact alone one intends to derive a rather complex doctrine. What is more, exclusive recourse to the Hand standard to explain the MPC’s purpose prerequisite misreads the genesis of § 2.06 (3) (a) MPC. While in many respects, the Hand standard did play an important part in shaping both the wording of § 2.06 (3) (a) MPC and the concepts underlying the Code’s complicity provisions, it differs in important others. The Code’s drafters did – on the one hand – reject an earlier draft which criminalized acts of complicity as long as they were substantial in nature and conducted with knowledge («knowingly, substantially facilitated», § 2.04 (4) (b) MPC 1953) on the basis of arguments advanced by Judge Hand in his jurisprudence708, and they also reflected his (and many common law

708 US complicity law is overshadowed by a paradigmatic conflict between Judge Hand of the Second Circuit and Judge Parker of the Fourth Circuit. Parker ruled in 1940 that «[g]uilt as an accessory depends, not on ‹having a stake› in the outcome of the crime […] but on aiding and assisting the perpetrators. […] The seller may not ignore the purpose for which the purchase is made even if he is advised of that purpose, or wash his hands of the aid that he has given the perpetrator of a felony by the plea that he has merely made a sale of merchandise. One who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price for the gun; and no difference in principle can be drawn between such a case and any other case of a seller who knows that the purchaser intends to use the goods which he is purchasing in the commission of a felony. In any such case, not only does the act of the seller assist in the commission of the felony, but his will assents to its commission, since he could refuse to give the assistance by refusing to make the sale», Circuit Court of Appeals, Fourth Circuit, Backun v. United States, 10.06.1940 – 112 F.2d 635 (at 637) (emphasis added). In this conflict, as did many federal judges, the MPC eventually sided with Judge Hand (who served on the Advisory Committee for the Code), revising the Code’s draft to express his dictum of a purposive attitude, see Weisberg (2000), p. 217 (at 239). In the comments on the earlier draft, in support of Parker’s position, it had been submitted that «the draft […] should not embrace the Peoni limitation» as knowing and substantial facilitation is «a proper object of preventive effort by the penal law»; when the actor’s only interest is «his wish for freedom to forego concern of the criminal purposes of others», this interest is «properly subordinated» to the larger interest in prevention when the actor knowingly and substantially facilitates the achievement of said purposes, The American Law Institute (ed) (1953), p. 27 et sqq. Presenting the involved conflict of interests in the (seemingly paramount) case of vendors («that of the vendors in freedom to engage in gainful and otherwise lawful activities without policing their vendees, and that of the community in preventing behavior that facilitates

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scholars›) skepticism toward establishing accomplice responsibility on the basis of causing harm709. In fact, both drafts of the MPC do allude to a ra-

the commission of crimes»), the comments argue that as «the considerations are the same whether the charge be conspiracy or complicity in the substantive crime» if it is «leveled against a person whose relationship to a criminal plan is essentially peripheral», «the Draft will resolve the issue in favor of demanding proof of purpose to promote or to facilitate the commission of the crime» – which in their view can be inferred not only from «such circumstances as, for example, quantity sales, the seller’s initiative or encouragement, continuity of the relationship, and the contraband nature of the materials sold» but also «knowledge of [the criminal] objective and conscious assistance may justify an inference of such purpose», The American Law Institute (ed) (1960), p. 107 et sq. (my emphasis). This reasoning was then bolstered on the basis of arguments found in the jurisprudence of Judge Hand: The commentary argued, first, that while «[p]robabilities have an important evidential bearing on these issues[,] to make them independently sufficient is to predicate the liability on negligence when for good reason, more is normally required before liability is found», and second, «if anything, the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent», The American Law Institute (ed) (1985), p. 312 and at fn. 42. As known to the drafters (in the commentary, they have cited extensively from Peoni and Falcone), both arguments were advanced by Hand, who was just as concerned with not convicting the innocent on the basis of «sweeping complicity charges», equally disregarded the «congressional intent» of eliminating the differences between principals and accessories under federal law (which precludes a different mental element) and fervently rejected the doctrine of «natural and probable consequences» (which allows to hold the aider and abettor liable for additional crimes of the principal as long as they are such a probable consequence of the aided and abetted crime). See also United States Court of Appeal for the Second Circuit, United States v. Falcone, 09.12.1940 – 109 F.2d 579 (at 581), where, in an effort to prevent prosecutors to «sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders», Hand (who was of the opinion that conspirators are «in substance the same thing» as abettors) put forward that conspirators «must in some sense promote their [i.e. the principals] venture himself, make it his own, have a stake in its outcome» and not merely «not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use» (my emphasis). And see Weiss (2002), p. 1341 (at 1424 et sqq., 1370) on Peoni and the doctrine of «natural and probable consequences» and on Hand’s refusal to follow congressional intent. 709 See Weisberg (2000), p. 217 (at 235) on how the MPC «disingenuously elide[s] the problem of harm causation at the heart of complicity law» in § 2.06 (3) (a) (ii) MPC («aids or attempts to aid»).

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tionale for complicity responsibility traditionally shared at common law, i.e. complicity as association. Being the common law’s «traditional theory for explaining the equal treatment» of principals and accomplices, it reflects the notion of non-imputability of causal responsibility to an accomplice710. In this view, the accomplice’s intent to assist is regarded as voluntary identification with the principal party711; by intentionally assisting, the accomplice is seen as authorizing the principal’s conduct and accepting it as one’s own712. This rationale floats well on the strong current in common law which locates «the essence of complicity not in the conduct of [the accomplice] but in [his] attitude to [the principal’s] conduct», and in which «[the accomplice’s] conduct becomes essentially evidence of his attitude to [the principal’s] conduct, it being irrelevant that his conduct may lack any facilitative, let alone casual, impact on the commission of [the principal’s] offence»713, so that «in an ideal world, […] to be an accessory, [one] would have to share [the principal’s] purpose to bring about the commission of the crime»714.

710 See Stewart (2012b), p. 165 (at 200) for a review of this idea traceable to Hart/ Honoré (1959), pp. 41, 129, whereby the perpetrator’s decision interrupts all earlier causal influence. See also Wilson (2002), pp. 198, 201 et sq. 711 Kadish (1985), p. 323 (at 354). 712 In principle, criminal complicity is treated in accordance with civil agency law, where the notion of agreement is the paradigm mode by which a principal becomes liable; in criminal law, the intent to assist is regarded as an equivalent to such consent, Kadish (1985), p. 323 (at 354). See also Williams (1961), pp. 381 et sqq. and critically Dressler (1985-1986), p. 91 (at 110). 713 Sullivan (1988), p. 641 (at 641) relating to the debate about purposive complicity in English law and describing the conceptual background to his preference of a purpose requirement. 714 Williams (1990), p. 4 (at 18) relating to the same debate (my emphasis). In Kadish’s words, it is «the intention to further the acts of another which creates liability under the criminal law», Kadish (1985), p. 323 (at 354) (emphasis added). For subjective approaches to complicity, see Kadish (1985), p. 323 (complicity based on civil agency); Kadish (1997), p. 369 (reckless complicity); and more recently Simester (2006), p. 578 (complicity liability independent from principal offense based on the accomplice’s own wrong as established via her state of mind), The Law Commission (2007) (liability requires comparable culpability which requires purpose) and also Kutz (2007), p. 289 (at 300) arguing for a concept of causeless complicity on the basis of Kadish (1985), p. 323 (at 354) in which causation is necessary in complicity not for the determination of criminal responsibility but (merely) for the purpose of establishing a class of responsibility.

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On the other hand, while § 2.06 (3) (a) (ii) MPC («aids or attempts to aid») expresses vividly this idea of «subjectivity at the core of liability»715, the drafters have significantly modified the meaning of that subjectivity when compared to the Hand standard. In order «to combine the policy that accomplices are equally accountable [i.e. equal to principals] within the range of their complicity with the policies embodied in the definitions of particular crimes»716, i.e. «the policies underlying those crimes defined according to results»717, the Revised Comments submit that «[s]ubsection (3) (a) requires that the actor have the purpose of promoting or facilitating the commission of the offense, i.e. that he have as his conscious objective the bringing about of conduct that the Code has declared to be criminal […], [that] he must have the purpose to promote or facilitate the particular conduct that forms the basis of the charge, and thus he will not be liable for conduct that does not fall within his purpose»718. This idea was consequently expressed in § 2.06 (4) MPC: When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. The Revised Comments explain that this subsection constitutes «a desirable extension of accomplice liability beyond the principles stated in Subsection (3)»719, and to give an example, state that a particular «homicidal act is attributed to both participants, with the liability of each measured by his own degree of culpability toward the result [i.e. recklessness, knowledge or purpose]»720. Where does this leave us with regard to the Rome Statute? If indeed, as Burchard suggests, looking «behind the MPC»721 shall inform the interpretation of Article 25 (3) (c) RS, one would have to account for the limited relevance of the Hand standard proper, i.e. formulate a purpose requirement that distinguishes between the (principal) offense’s conduct and

715 716 717 718 719 720

Cf. Smith (1991), p. 170 referring to UK law. The American Law Institute (ed) (1953), p. 34. The American Law Institute (ed) (1985), p. 321. The American Law Institute (ed) (1985), p. 310 (emphasis added). The American Law Institute (ed) (1985), p. 322 (emphasis added). The American Law Institute (ed) (1985), p. 321 (emphasis added). See also Weisberg (2000), p. 217 (at 240 with fn. 51). 721 Burchard (2010), p. 919 (at 940).

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result elements. Assuming a thorough reading of the MPC and its genesis by the Rome Statute’s drafters in spite of any documentary evidence to that effect, the lack of a provision like § 2.06 (4) MPC in the presence of «an almost literal transcript»722 of § 2.06 (3) (a) MPC might then hint at the Statute’s drafters’ intent to have Article 25 (3) (c) RS reflect the unaltered Hand standard, not limiting purposiveness to the principal’s conduct723. However, one could just as well assume that, as the Rome Statute only contains so-called result crimes, in adopting the MPC’s approach as intended by its drafters, the Statute’s drafters saw no indication to include a provision to the effect of § 2.06 (4) MPC724. While either assumption might accurately reflect the alleged unfortunate lack of criminal law expertise during the drafting process725, it appears that a genetical approach would establish the limits of complicity liability on the basis of interpretative guesswork.

722 Burchard (2010), p. 919 (at 940). 723 While it would certainly be conceivable to arrive at an autonomous interpretation of the Hand standard in the ICC framework, one needs to keep in mind as well that US federal courts have re-interpreted and applied the Hand standard in «at least six different ways», while state courts have approached it in four different ways. On federal jurisprudence, see Weiss (2002), p. 1341 (at 1373): «Although the cases uniformly adopt Judge Hand’s standard in Peoni, they disagree as to what the Peoni standard is». Weiss (2002), p. 1341 (at 1375, 1376) identifies the following approaches: purposeful intent; bad purpose; knowledge is sufficient in most cases; knowledge is sufficient in a small number of particularly grave cases; knowledge is sufficient whenever coupled with a substantial act; the aider and abettor's mental state is a derivative of that of the principal. Regarding state courts, see Westerfield (1980), p. 155 (at 161): «(1) those requiring proof of purposeful conduct; (2) those requiring proof of a pecuniary interest or conspiracy; (3) those allowing inference of intent from knowledge and circumstantial evidence; and (4) those requiring knowledge only». 724 In a similar vein also Stewart (2012b), p. 165 (at 191) on the «perhaps unfaithful[]» reliance of the Rome Statute on the «similar» purpose standard of the MPC. 725 See Ambos (2007), p. 2647 (at 2672) warning not to «overstate the theoretical level and depth of the discussions in New York and Rome».

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2.5.2.1.2. Substantive objection: The purpose prerequisite’s deep roots in common law In Peoni, Judge Hand leaned both on definitions of the terms aiding and abetting from the 14th to 18th century common law and on constitutional guarantees which are supposed to shield defendants from far-away trials; neither can be said to apply to the Rome Statute where no such constitutional guarantees are in place and the notions of aiding and abetting cannot be read as common law terms alone726. Hand’s considerations are also based upon a concept of mens rea thus far unconfirmed under the Rome Statute: Criminal law in the US combines the idea of a stake in the principal offense with the statutory mandate of equal treatment of principals and accomplices, a combination most recently explained by Husak: Recourse to a restrictive mens rea standard is argued to function as justification of equal treatment727. This idea, in turn, relates not only to a psychological theory of guilt identifying «guilt with subjective states»728, but more pre-

726 There is no indication in the drafting history to the effect that aiding and abetting are notions which are to stem from 14th century common law, which precludes this interpretation both in confirmative and in determinative mode of recourse to genesis, see above in 2.5.2.1. 727 Husak (2014), p. 41 (at 53). See also Stewart (2012b), p. 165 (at 197) and already Dressler (1985-1986), p. 91 (at 108 et sq.). Cf. also The Law Commission (2007), pp. 68 et sqq., 74 et sq. indicating that purpose as a prerequisite on behalf of the accessory serves to establish a particular level of culpability «comparable» to that of the principal, sufficient to justify punishment for the principal offense. See also Duff (1990a), p. 165 (at 168): «[…] English law recognises no distinct and lesser offence of ‹facilitation›. Courts must either convict those who facilitate the commission of an offence of that offence itself, as accessories, or acquit them altogether, unless there happens to be a separate offence with which they can be charged. But courts may then sometimes be torn between the thought that the defendant ought to be convicted of something, since she culpably assisted the commission of an offence, and the conflicting thought that her role was too slight to justify convicting her of that offence itself. Decisions favouring a narrow interpretation of ‹intention to assist› [purpose] might thus reflect a desire not to convict of the substantive offence those who are not (that) guilty, while decisions favouring a broader interpretation of that notion [knowledge] might reflect the desire to convict a culpable defendant of something rather than of nothing. The solution to this conflict is then clear. We should […] convict as accessories only those who truly make themselves parties to a crime by acting with the purpose of assisting its commission […]». 728 Fletcher (2007), pp. 307 et sq. See also Ormerod/Hogan/Smith (2011), p. 105 («Mens rea concerns legal not moral guilt») and in general Fletcher (2007), pp.

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cisely to a concept of ranked mental (i.e. here: culpability) elements based on (greater) (moral) identification of the actor with the outcome: To identify more closely with evil is to act more blameworthily, to act purposely is to directly manifest such identification or unloyalty729. In Fletcher’s view, «[t]hese rankings are entrenched in the way [common law] lawyers think»730. In this vein, Van Sliedregt explains that it is the temporal and physical distance that suggests an involvement by the accomplice which is in principle less deserving of punishment and must therefore be accompanied by a stricter mens rea requirement731. The MPC, in contrast, approaches mens rea (also) from a treatmentist perspective732. And under the Rome Statute neither is the equal treatment of principals and accessories mandated statutorily nor has such a «nature» and relationship of intent with blameworthiness been determined733 nor is

729

730 731 732

733

307 et sqq., 315, 327 and Ambos (2007), p. 2647 (at 2657 et sq., 2668) on the distinction between descriptive (referring to «psychological mental elements») and normative mens rea (referring to «legal responsibility») adopted in US scholarship. This view conceptually conflates intention with blameworthiness, turning blameworthiness into an attitude which expresses hostility towards the sphere of protected legal interests, see Stuckenberg (2007), pp. 418 et sq., 435. See also Fletcher (2007), p. 308 («identification of guilt with subjective states»). For a similar view, see Ohlin (2007), p. 69 (at 80) and generally, Bayles (1982), p. 5 (at 7, 10) (mental elements display different attitudes toward harm). Fletcher (2007), p. 315. See Sliedregt (2012a), p. 114. See also Stewart (2012b), p. 165 (at 196 et sq.). As Dubber (2002), p. 113 explains with regard to § 2.06 (3) (a) (ii) MPC which creates liability for purposive attempted aid, the MPC’s exclusive underlying rationale for punishment is «the perspective of penal treatment», and «the penological diagnosis of dangerousness is the same regardless whether an actor succeeds in crime, or merely does everything she can to succeed, but then fails in the end, for one reason or the other». The assumption of a (so-called) psychological theory of guilt under the Rome Statute is far from definite. As Fletcher argues, a «reflective person seeking to understand command responsibility must come to the recognition that a principle of normative responsibility or culpability underlies the entire Rome Statute»; negligence in Article 28 RS (should have known) cannot be explained «on the premise that guilt is identifiable with conscious mental states», Fletcher (2007), p. 325 and in a similar vein, Ambos (2007), p. 2647 (at 2671) on the «normative impact of negligence» and recently Ambos (2013c), p. 95. In Fletcher’s view, negligence is a not only a state of consciousness but an «evaluative judgment[] about the quality of the risk taken and the culpability of the person who engages in that risk» and a theory of guilt must therefore reflect this inherent normativity,

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it desirable to do so in the future: It is inadequate to establish a ranking of culpability based on purposiveness for (greater) unloyalty734, and a purposive act cannot be presumed to be generally more dangerous735.

i.e. the question «whether blame properly attaches for failing to know of the risk», Fletcher (2007), pp. 327, 329. Blame or guilt then no longer refers to a psychological state of mind but to «deviance from the normative reasonable standard despite [the] ability to act otherwise», Ambos (2007), p. 2647 (at 2652). Cf. generally with a view to Gemany Frisch (1983), pp. 51 et sqq. In turn, assessing blameworthiness in terms of «states of mind» is drawing an incomplete picture. See also Ambos (2007), p. 2647 (at 2652, 2662, 2668 et sqq.) and already above in 2.4.3.3.1. 734 But cf. on common law Brady (1996), p. 183 (at 195) («The greater hostility displayed by the intentional action makes it more culpable even though the probability of harm is less») and above in fn. 727 (on the Law Commission’s position on the accessory’s mens rea). The identification approach seems to presuppose, however, that intention is to be based on idea of dolus malus, presuming that the intentional actor acts in the awareness to violate the (criminal) law. Yet, knowledge or purposiveness cannot be evidence of a particular attitude of unloyalty or hostility as the actor may – mistakenly – consider her acts permissible. If indeed such awareness to violate is generally presumed in a psychological approach to guilt, the resulting concept of guilt would be severely de-individualized: Guilt would then be based on an objectified presumption, leaving individual autonomy entrenched in a fictional concept of moralized criminality. For the above criticism, see Stuckenberg (2007), pp. 365, 420 and also Blomsma (2012), p. 66. On the affirmative position, see Hall (1960), pp. 383, 387: If «the criminal law represents certain moral principles», then «to recognize ignorance of law or mistake of law as a defense would contradict those values». See also Ambos (2007), p. 2647 (at 2659, 2670) on the doctrine of ignorantia iuris under the Rome Statute (presuming knowledge of the law is a fiction in international criminal law and Article 32 (2) RS must therefore be interpreted restrictively). 735 Stuckenberg (2007), pp. 439, 422, 425: Perseverance cannot in abstracto compensate a lesser overall probability to succeed; it merely describes the accused and her dispositions but not characteristics of the criminal act. However, respecting individual autonomy demands that guilt is made dependent upon wrongful conduct in a particular instance, not on an inference of character traits, which in a particular instance may or may not be true, and, if true, would attach the stigma of criminal liability to a datum beyond an individual’s influence. Cf. critically also Fletcher (2007), pp. 238, 320; Roxin (2006b), p. 864; Blomsma (2012), p. 65 with further references («The highest degree of culpability is grounded in reasons of [greater] control and choice»). Arguing in favor of the assumption of a greater danger, see Kenny (1966), p. 642 (at 650).

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2.5.2.2. Purpose and (the perception of) normalcy Putting the «high subjective threshold» of «for the purpose of facilitating» in Article 25 (3) (c) RS into perspective, Ambos has recently argued that this threshold be limited «to the relation between the contribution and the execution of the crime (‹facilitation›)»736. This is a thought more complex than meets the eye: In a discussion of English complicity law, Duff has relatedly given deeper thought on how acting only «in order to facilitate» a crime’s commission «without being committed to its successful commission» is indeed conceivable, taking recourse to the structure of intent in general737. Given that the ordinary meaning of «for the purpose of facilitating» may be construed as acting «in order to facilitate»738, and assuming that Article 25 (3) (c) RS could be interpreted to accommodate his arguments on the structure of purpose as desire intent, Duff’s contribution might serve to inform Ambos’ proposal related to the Rome Statute’s purpose prerequisite. 2.5.2.2.1. Two scenarios Duff analyzes two scenarios: In both scenarios, a «shopkeeper» knows her customer’s intention to use the product she has on offer for the commission of a crime. This feature is a reasonable assumption also with regard to business actors who materially support those who commit crimes under

736 Ambos (2013c), p. 165. 737 Duff (1990a), p. 165 (at 166, 169) (emphasis omitted). 738 The ordinary meaning of the term purpose is «‹something one sets before oneself as a thing to be done; the end one has in view›», «an object in view», Garner (2001), keyword «purpose»; Simpson, Oxford English Dictionary (2013), available at http://www.oed.com/view/Entry/154972 (last visited: 30.06.2015). In Black’s Law Dictionary it is defined as «an objective, goal, or end», and referring to English law, Curzon defines purpose as «that which one seeks to accomplish», Garner/Black (2009), keyword «purpose»; Curzon (1993), keyword «purpose». See also Duff (1990a), p. 165 (at 166, 169) who explains «direct intention» as referring to an act in order to; in doing so, he references Williams (1987), p. 417 (at 418, 421) who explains «direct intent» as «desire intent» and purpose as implying such desire. In Duff’s view, one acts with intention to assist «if my reason for action is that I believe that by acting thus I will assist its commission», a proposition he has elaborated on in a philosophical treatise on human action, see Duff (1990b) and Gardner/Jung (1991), p. 559 for a critical review.

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the Rome Statute; knowledge of intended use will often be established e.g. through reporting in the media739. Perhaps surprisingly, Duff’s analysis of the structure of intent ultimately also touches upon the need to conceptualize «the normative […] links between the contribution and the crime rather than requiring a minimum level of contribution»740. In the first scenario, «a supplier of the tools of crime who sells untraceable guns, or specially adapted equipment, to intending criminals, but who has no stake in the actual success of their crimes (neither her payment nor her future business depend on their success) […], does not just know that her actions will in fact facilitate those crimes, but offers, and sells, these items because (for the reason that) they are well-suited to her customer’s intended crimes (she might also offer advice as to which equipment would be most suitable)»741.

As a consequence, in the first scenario, «[s]he acts as she does, that is, in order to facilitate the commission of those intended crimes. She thus also intends that the equipment which she supplies should contribute efficiently to the commission of the crime – that if the crime fails, this should not be because the advice or equipment which she provided was faulty or unsuitable. […] But she need not act with the intention or in the hope that the crimes which she intends to assist should be successfully committed; she might even hope that they are unsuccessful. For her customers could be prevented from completing their crimes by factors having nothing to do with the advice or equipment which she supplied, and such failures by her customers to complete their crimes need not detract from the success of her action of supplying equipment or advice which would assist the commission of those crimes. Since her actions can thus succeed without the crimes actually being committed, she does not act […] in order to ensure (as far as she can) that they are successfully committed»742.

In the second scenario, a «shopkeeper» sells a product «which her customer has chosen himself. She realises, through overhearing [his] conversation with a companion, that he intends to use it to commit a [crime], but completes the sale anyway - because she does not want to lose the profit on the sale, and thinks that [his] intentions are not her business»743.

739 In this vein also Reggio (2005), p. 623 (at 652). 740 Cf. ICC - Appeals Chamber, Prosecutor v. Mbarushimana, 30.05.2012 – ICC-01/04-01/10 OA 4 (§§ 10, 12 of the separate opinion) and below in 2.5.3. 741 Duff (1990a), p. 165 (at 170) (emphases added) 742 Duff (1990a), p. 165 (at 170) (emphases added). 743 Duff (1990a), p. 165 (at 171).

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In this scenario, Duff argues, the seller does not act in order to facilitate the crime’s commission but merely in order to help, «as she would help any customer»744: Even though she «intends ‹to sell [her customer] [the product]› because this is what [her customer] wants, and she knows [her customer] wants her to sell him [the product] because this will help him commit [the crime]», Duff denies the claim that «the act she intends (‹selling [her customer] [the product] he wants›) is the very act which assists his commission of a crime» on grounds that «the intended action of ‹selling [her customer] [the product]› counts as one of ‹assisting [his] crime› only in virtue of its contingent relation to [her customer’s] further ends; a relation which need play no part in [her] reasons for acting as she does», because there is «nothing intrinsic to the action of selling [the product] that connects it to [the customer’s] criminal purposes (as there is to the action of ‹selling a tool adapted for [a crime]). She would have sold [her customer] the screwdriver even if she thought it unsuited to his criminal purpose. The success of her intended action does not depend on the screwdriver actually facilitating that enterprise»745.

He argues that, for her to act «in order to assist the commission of the crime», it would have to be shown that the sale in question was «not simply a normal commercial transaction», because e.g. she helped to select the appropriate product for the customer’s purposes or because she charged a special price746. Such divergence from «normal practice» or from «(as [the shopkeeper] sees it) […] normal course of business» would, in his view, establish a presumption of acting in order to assist the commission of the crime747. As long as the action which «in fact assists the commission of an offence» is «done simply because it is part of her ordinary business or job (a job not itself geared towards the facilitation of crime)» the shopkeeper can (plausibly) deny that she acts in order to facilitate the commission of a crime748.

744 745 746 747 748

Duff (1990a), p. 165 (at 171). Duff (1990a), p. 165 (at 171 et sq.). Duff (1990a), p. 165 (at 172). Duff (1990a), p. 165 (at 173). Duff (1990a), p. 165 (at 174).

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2.5.2.2.2. The issue of normalcy According to these explanations, there is indeed merit in pursuing the conceptual separation between a stake in the crime committed and the desire to assist a customer in achieving his purposes. Moreover, knowledge of a customer’s purposes and of the suitability of the product sold does not automatically allow the inference of a desire to assist a customer in achieving his purposes – instead, as Duff argues, such inferences require an additional information basis concerning the (perceived) normalcy or ordinariness of the transaction749. The somewhat striking commentary by a Caterpillar representative to allegations of support of war crimes («We do not base sales on customer’s intended use of our product»750) can be seen in this light as well: While individual business actors at Caterpillar conducting the sale of machinery to the IDF would not need not have a stake in the successful commission of core crimes, their knowledge of the IDF’s (allegedly) criminal purposes being established e.g. through media coverage, to (plausibly) establish their acting «for the purpose of facilitating» would then additionally depend upon the question of the (perceived) normalcy of the commercial transaction. As a consequence of such reasoning, reading the purpose prerequisite as desire intent limited to facilitation, as Ambos proposes, would require a concept of such (perceived) normalcy. This concept, in turn, would arguably presuppose a socially and normatively consented judgment relating to its scope. It is per se normatively empty751. This take on the purpose prerequisite would consequently merely evince (but not answer to) the need for a rational normative basis on which to base the limits of criminal law when faced in particular with the conduct of business actors. It would depend, in other words, upon determinations of social value and desirability thus far unavailable to interpretative efforts.

749 In fact, what constitutes assistance always depends upon the context in which it is given. Di Martino and Schild have argued in a similar vein: The presumed assistant must also be aware of facts constituting the context of the offense; otherwise there can be no knowledge of what constitutes assistance, see Di Martino (2007), p. 429 (at 443) (on the Rome Statute) and cf. Schild (2010), mn. 14 (on the German law of criminal assistance). 750 Again: Skinner (2006), p. 14 quoting Caterpillar management. 751 Cf. in general Fletcher (1978), p. 676 and Rackow (2007), p. 534.

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2.5.2.3. Context and ordinary meaning: Purpose as certainty intent? Consider the following example which is paradigmatic752 in many domestic legal orders: P plants a bomb on an aircraft in order to destroy it while in midair; the bomb explodes, killing all passengers aboard – a consequence of detonating the bomb which P has foreseen with certainty. Or: Q provides militia fighters with weapons in order for him to satisfy contractual obligations (motive: make economic profit), and the weapons are used to commit war crimes – a consequence of the sale Q has foreseen with certainty. Or: R pays a militia commander in order to be granted permission to extract oil from a militia-controlled oil site, and the money is then used to pay for weapons later used to commit war crimes – a consequence of her payment R has foreseen with certainty. Consider also the following proposal made by the Law Reform Commission of Canada to define acting purposely in clause 2 (4) (b) of the Code of Substantive Criminal Law of Canada: A person acts purposely as to a consequence if he acts in order to effect: (A) that consequence; or (B) another consequence which he knows involves that consequence753.

Under this definition, we could subsume both the actions of P, Q, and R as purposive – but does «for the purpose of facilitating» as a particular form of intent indeed include acting with (virtual or practical754) certainty of fa-

752 For similar versions, see Duff (1990b), p. 75; Ormerod/Smith/Hogan (2005), p. 99 and Jakobs (1991), p. 268; Roxin (2006b), p. 444 and also Muñoz Conde/ García Arán (1998), p. 301. 753 Department of Justice Canada, Law Reform Commission of Canada (1987), pp. 22 et sq. 754 Owing to epistemological constraints that prevent certainty knowledge particularly of future events (such as the commission of an offense given aid to), a prerequisite of certainty can only refer to practical certainty, i.e. to the actor’s subjective conviction that a consequence will ensue with certainty, to her conviction that her assumptions are reliable grounds for her acts, in other words: certainty is awareness of practical certainty, see Stuckenberg (2007), p. 291, also generally on epistemological constraints on knowledge as a mental element in criminal law and Stewart (2012b), p. 165 (at 193, 195). The The Law Commission (1993), pp. 33, 43, 108 et sq., 113 thus refers to the term «belief». Frisch (1983), p. 500 has proposed to construe the perception of certainty as the perception of a «particularly intensive danger». See also ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§ 1012) on knowledge as defined in Article 30 (2) (b) RS: «The co-perpetrators only ‹know› the consequences of their conduct

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cilitation, even though such facilitation is undesired? This section is dedicated to elaborating on this claim, which – compared to purpose as desire intent – could considerably widen the scope of criminal responsibility of business actors for assistance. 2.5.2.3.1. Vest: The context of Article 25 (3) (c) RS In order to avoid the (unduly) restrictive approach following from a purpose prerequisite under the Rome Statute e.g. in the sense advanced by Burchard, Vest has proposed to conceive «for the purpose of facilitating» in Article 25 (3) (c) RS as certainty intent; he posits that the purpose prerequisite is satisfied also if the accomplice acted in certainty knowledge of the consequences of her acts, supporting his position on contextual grounds: First, one may consider the commission of the principal offense («Haupttat») as a consequence of the act of assistance; second, since Article 30 (2) (b) RS defines purpose («Absicht») in the same way as Article 30 (3) RS defines knowledge («Kenntnis»), there is no normatively relevant difference between the mental elements of purpose and knowledge under the Rome Statute – this normative indifference should, in turn, be applied also to the purpose requirement in Article 25 (3) (c) RS, expanding its scope to comprise certainty knowledge («sicheres Wissen»)755.

once they have occurred. At the time the co-perpetrators agree on a common plan and throughout its implementation, they must know the existence of a risk. […] A low risk will not be sufficient.» However, as Stuckenberg (2007), p. 290 argues, in conceptualizing mental elements, there is little sense in relying on quantified degrees of probability that are elusive in everyday life where decision-making occurs swiftly and burdened with imponderability; he suggests to rely only on «certain» and «not certain», i.e. «possible» (my translations). Cf. on the related German concept of «sichere Voraussicht» Kudlich (2004), pp. 381 with fn. 899, 382; Rackow (2007), p. 545 and see Bundesgerichtshof (BGH), 12.02.1953 – 3 StR 718/52, BGHSt 4, 107 for a similar approach to the term Absicht (dolus directus of the first degree) in German criminal law, interpreting the term «nach der rechtlichen Natur der strafbaren Handlung und nach dem jeweils verfolgten Zweck der Strafdrohung» as encompassing dolus directus of the second degree pursuant to «the legal nature of criminal conduct and the purpose of the threat of punishment» (my translation) and on that decision Roxin (2006b), p. 438. 755 Vest (2011), pp. 203 et sq. (my translations). See also Vest (2010), p. 851 (at 862).

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Two objections against such an approach are pertinent. First, the «default rule» mandate of Article 30 (1) RS («unless otherwise provided») does not refer to the definitions of subsections (2) and (3), Article 30 (2) and (3) RS consequently contain only limited powers of definition for the scope of mental elements756. Whether the purpose requirement in Article 25 (3) (c) RS is indeed identical to a prerequisite contained in Article 30 (2) or (3) RS or whether it is «otherwise provided», i.e. normatively distinct from the concepts of intent and knowledge in Article 30 RS, must therefore be determined by an autonomous approach to Article 25 (3) (c) RS757. Second, Vest’s contextual arguments rest on an additional terminological and conceptual fusion between intent and purpose, a necessary intermediary step if Article 30 (2) (b) RS (which regards only intent) is to have any significance for the interpretation of purpose758. While the definition of intent as purpose (but not vice versa) is widely acknowledged at common law, and Roman-Germanic legal orders such as Germany, Switzerland, and Spain equate Absicht (so-called direct intent) with sicheres Wissen (so-called oblique intent), Vest provides no indication as to why these approaches are valid interpretations precisely of Articles 30 and 25 (3) RS. The unresolved point at issue thus remains whether purpose under Article 25 (3) (c) RS (not: so-called direct intent in traditional common law) can indeed be normatively equated to certainty of (undesired side-) effects by means of interpretation. This issue might, however, be resolved in an ordinary meaning perspective on Article 25 (3) RS.

756 Lüders (2004), p. 97; Roßkopf (2007), p. 110. 757 In this vein arguably, Eser (2002), p. 767 (at 801). See also Vest (2010), p. 851 (at 862), acknowledging the possibility of the purpose requirement being «otherwise provided» and Werle/Jeßberger (2005), p. 35 (at 44) («It is necessary to examine the definitions on a case-by-case basis to determine whether the different wordings involve a departure from the standard laid down in Article 30 ICCSt.») with further references. 758 See Vest (2010), p. 851 (at 862): «This writer prefers an interpretation of ‹intent› which includes certain knowledge as a mode of intent which should be treated equal to ‹purpose› or ‹conscious object› [in the MPC]» (references omitted).

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2.5.2.3.2. The ordinary meaning of Article 25 (3) (c) RS: Language differences and certainty intent In an article on genocidal intent, Kreß commented on the concept of dol spécial in French law and argued: «There is, accordingly, no conceptual problem in also characterizing the knowledge-based definition of individual genocidal intent as a form of dol spécial because such knowledge would refer specifically to the occurrence of the destructive result»759. With «knowledge-based definition», Kreß refers to Greenawalt’s proposal on how to conceive genocidal intent under the Genocide Convention: «In cases where a perpetrator is otherwise liable for a genocidal act, the requirement of genocidal intent should be satisfied if the perpetrator acted in furtherance of a campaign targeting members of a protected group and knew that the goal or manifest effect of the campaign was the destruction of the group in whole or in part»760. As Desportes explains, the expression en vue de in provisions of the French Code Pénal alludes to the prerequisite of dol spécial761. In referring to en vue de faciliter, the French-language version of Article 25 (3) (c) RS in its ordinary meaning thus arguably refers to the French concept of dol spécial762. Could Article 25 (3) (c) RS encompass the Canadian definition of purpose via its French-language version? In order to conceive the purpose requirement from this angle, it is important to broadly consider other authoritative language versions as well763. To this end, and limited by my foreign language proficiency, I make reference to the English and Spanish language versions of the Statute. 2.5.2.3.2.1. Dictionary approach In English, Article 25 (3) (c) RS requires assistance «for the purpose of facilitating», in French assistance en vue de faciliter and in Spanish assistance con el propósito de facilitar. Specialist dictionaries yield definitions

759 760 761 762

Kreß (2005), p. 562 (at 568). Greenawalt (1999), p. 2259 (at 2288) (my emphasis). Desportes/Le Gunehec (2009), pp. 437 et sq. See also Ambos (2002a), p. 640 with fn. 575, who inexplicitly makes reference to a definition of dol spécial in his interpretation of en vue de. 763 See above in 2.1 on interpretation of the Rome Statute and its language versions.

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of purpose that refer to «an object in view», to «that which one seeks to accomplish»764; they yield definitions of propósito that similarly define it as a goal to be achieved765; en vue de figuratively signifies to act «in the (precise) intention of» or «in consideration of»766. 2.5.2.3.2.2. Conceptual approach An ordinary meaning approach may require recourse not only to (specialist) dictionary translations but more prominently to the legal concepts embedded in the terminology used767. Pursuant to Article 31 (4) VCLT, I intend to do so here in order to account for the Rome Statute being a treaty of criminal law; the particular field covered by the treaty requires recourse to «the ordinary meaning in the particular context» of criminal law768. In

764 The ordinary meaning of the term purpose is «‹something one sets before oneself as a thing to be done; the end one has in view›», «an object in view», Garner (2001), keyword «purpose»; Simpson, Oxford English Dictionary (2013), available at http://www.oed.com/view/Entry/154972 (last visited: 30.06.2015). In Black’s Law Dictionary it is defined as «an objective, goal, or end», and referring to English law, Curzon defines purpose as «that which one seeks to accomplish», Garner/Black (2009), keyword «purpose»; Curzon (1993), keyword «purpose». 765 Real Academia Española, Diccionario de la Lengua Española (2001), available at http://lema.rae.es/drae/ (last visited: 30.06.2015): «Objeto, mira, cosa que se pretende conseguir» and «Ánimo o intención de hacer o de no hacer algo». 766 Académie Française, Dictionaire de l'Académie Française (1935), available at http://www.cnrtl.fr/definition/academie8/vue (last visited: 30.06.2015): «Il signifie figurément [d]ans l'intention de, en considération de.» And Jeuge-Maynart, Dictionnaire Larousse, available at http://www.larousse.com/fr/dictionnaires /francais/vue/82638/locution#184627 (last visited: 30.06.2015): «dans l’intention précise de». 767 Cf. generally Gardiner (2008), pp. 176, 373 et sq. who discerns the need to «enter into the content of law» when looking for a term’s ordinary meaning pursuant to Article 31 VCLT but also cautions with regard to reconciling diverging language versions pursuant to Article 33 VCLT that «an interpreter will need to decide how far it is necessary to pursue terms into the legal system in which a particular language leads them (though this in itself may raise difficulties where a language is associated with different legal systems)» and «[t]here is no hard and fast rule which can be offered, but the best guide will probably be the context, supported if appropriate by preparatory work». In his view, legal concepts behind treaty terms in diverging languages should not prevent the birth of autonomous concepts based on dictionary translations. 768 Cf. generally Dörr (2012a), mn. 105; Gardiner (2008), p. 291.

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this regard, the English term purpose and the French en vue de are terms employed to describe criminal intent or dol; the Spanish con el propósito is not769 but does appear in the current Spanish Criminal Code770. 2.5.2.3.2.2.1. Purpose as direct but not oblique intent With regard to criminal law in the UK, Williams posits that «[w]ith one exception, an act is intentional as to a consequence if it is done with (motivated by) the wish, desire, purpose or aim (all synonyms in this context of producing the result in question)», the exception being that «a person can be held […] to intend an undesired event that he knows for sure he is bringing about»771. He adds that «[w]here the defendant desires result x, and anyone can see, by merely considering x, that another result, y (forbidden by law), will also be involved, as the direct consequence of x and almost as part and parcel of it, then the defendant will be taken to intend both x and y»772. A court or jury «may also find that a result is intended […] when (a) the result is a virtually certain consequence of the act, and (b) the actor knows that it is a virtually certain consequence»773. Virtual certainty is considered not a substitute but «a basis for finding [intent]»774. Consequently, while purpose is understood as a synonym of desire, both desire and certainty knowledge will suffice for a finding of intent. The terminological and conceptual distinction between direct («desires») and oblique intention («knows for sure») is normatively annulled775. Quite contrarily, but reflecting a similar terminological distinction in defining culpability first as purpose («conscious object»), second as knowledge (requiring the actor to be aware of a practical certainty that his conduct will cause a particular result), and third as recklessness, § 2.02 MPC does not equate these culpability forms but requires them to be applied with distinction in its general and special parts. The MPC’s defini-

769 Ambos (2002a), pp. 640 at fn. 575. 770 Article 20 Código Penal, 1°: El trastorno mental transitorio no eximirá de pena cuando hubiese sido provocado por el sujeto con el propósito de cometer el delito o hubiera previsto o debido prever su comisión. (my italics). 771 Williams (1987), p. 417 (at 418) (emphasis added). 772 Williams (1987), p. 417 (at 419). 773 Ormerod/Smith/Hogan (2005), p. 94. 774 The Law Commission (2007), p. 72. 775 In a similar vein, Roßkopf (2007), p. 24.

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tions of culpability have been adopted widely in US state law and are seen as a major innovation over the traditional concept of intent776. Similarly with a view to innovation, the Canadian proposal above replaces the term intent with the term purpose but maintains its dual nature as desire and certainty knowledge777. 2.5.2.3.2.2.2. En vue de as dol spécial In French law, dol spécial is defined as the intention (i.e. the awareness and the will) of bringing about a proscribed result778 and is required by the law only for certain offenses (e.g. murder requires the intention to kill). If dol spécial is not required by statute, dol général suffices, constituted by the intention to violate the criminal law779. The distinction between dol spécial and dol général therefore relates not to quality but to the object of intent as «the occurrence of a specific result»780. Moreover, as Pradel points out, the distinction between dol direct and dol indirect (in terms of a distinction between direct and oblique intent) is practically unknown781. He argues that the practice of French jurisprudence instead assimilates dol indirect into dol direct (leading to a finding of murder for shooting at a vital part of the victim’s body while foreseeing with certainty the victim’s death782; as murder statutorily requires dol spécial, certainty of [undesired

776 See Greenawalt (1999), p. 2259 (at 2266 et sqq.) on the obscurity inherent in the common law term «intent». 777 See above in 2.5.2.3. 778 Desportes/Le Gunehec (2009), pp. 437 et sq.: «l’intention d’atteindre un certain résultat prohibé par la loi pénale». 779 Merle/Vitu (2001), no. 542 («la conscience et la volonté infractionnelles«) and Pin (2009), pp. 144 and 143 («l’intention de violer ‹la› loi pénale»; «il y a intention lorsque l’agent a recherché le résultat délictueux (il a agi volontairement) et en a eu conscience (il a agi sciemment)»). 780 Kreß (2005), p. 562 (at 567). See also Desportes/Le Gunehec (2009), p. 436 («Toutefois, de manière générale, toute incrimination supposant que soit atteint un certain résultat, implique la prevue d’un dol spécial»). 781 But cf. Hennau-Hublet/Verhaegen (2003), p. 321 on Belgian criminal law (in French) where the distinction is recognized. 782 Pradel (2004), no. 502: «la volonté de l’agent est tendue vers la recherche d’un résultat» (dol direct), i.e. the agent’s will is directed towards seeking to bring about of a result; «l’agent sait que son acte réalisé volontairement va entraîner (certainement ou quasi-certainement) un résultat qui n’était pas vraiment

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side-] effects would thus suffice for a finding of dol spécial). In this vein, awareness of the result, without it being desired, could thus be subsumed under dol spécial. The prerequisite of en vue de faciliter would consequently be satisfied in case of awareness of facilitation without it being desired. 2.5.2.3.2.2.3. Con el propósito Regarding the Spanish-language version, we can take note of the fact that con el propósito in Article 20 of the Spanish Código Penal both references a particularly strong planning or design element783 and is constituted as an alternative to foresight, hinting at the exclusion of certainty with regard to (undesired) side-effects from the term and concept of con el propósito. 2.5.2.3.2.2.4. Result: Difference of meaning Coming back to Article 25 (3) (c) RS, en vue de faciliter arguably refers to the French concept of dol spécial, which may be extended beyond desire to awareness of an (undesired side-) effect784. En vue de faciliter could then include certainty of facilitation/assistance even though such facilitation is undesired. Regarding the English language version, this interpretation would conform, on the one hand, to the Canadian proposal of defining purpose and present, on the other hand, a contrast to the English and American positions where the term and concept of purpose excludes cer-

recherché« (dol indirect), i.e. the agent’s knows that his voluntary act will entail with certainty or quasi-certainty a result which he has not sought to bring about; and referring to jurisprudence in Crim., 20 octobre 1955, B.C., n° 415 and 2 avril 1979, B.C., n° 131: «le meurtre réside aussi bien dans la conscience que les coups peuvent donner la mort que dans la volonté tendue vers ce résultat précis qu’est la suppression de la vie«. 783 See Muñoz Conde/García Arán (1998), p. 423: «cuando la situación de inimputabilidad […] haya sido buscada de propósito» but not «si la situación [...] se ha provocado dolosa [...] pero no con el propósito de delinquir [...]» (my emphasis). 784 The scholarly debate concerning the nature of dol spécial (purposiveness with regard to the criminal result or merely awareness) is commented on by Geck (1967), p. 8 but in recent times seems to have been resolved in favor of the latter position.

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tainty of (undesired) side-effects even though both purpose and certainty may ultimately serve to establish intent. Irrespective of this equal treatment of direct and oblique intent, conceptually, while «[i]ntention need not involve desire», «‹[u]ndesired purpose› is a contradiction in terms»785. And under the MPC, so-called purpose culpability is made distinct both conceptually and normatively from knowledge. The term and concept of purpose in the English and US-American sense would exclude undesired but certain facilitation from the scope of Article 25 (3) (c) RS. This is true even though normatively, desire and certainty are treated equally in the UK under the heading of intent. Taking into consideration the Spanish-language version of the Rome Statute, the ordinary meaning of con el propósito must also be understood to exclude certainty of (undesired side-) effects from its scope. 2.5.2.3.2.3. Resolution pursuant to Article 33 VCLT Therefore, as regards the inclusion of certainty of (undesired side-) effects, between French on the one hand and English and Spanish on the other, we are left with a difference in ordinary meaning that takes into account the particular context of the Rome Statute as criminal law. Methodologically, in the case of a plurality of authentic language versions, Article 33 (1) VCLT establishes their equal authority and Article 33 (3) VCLT presumes their identical meaning. The above discerned difference in ordinary meaning could serve to rebut the presumption of identical meaning pursuant to Article 33 (4) VCLT if said difference in ordinary meaning also prevailed in contextual, teleological, and genetical review786. In that case, the interpreter is authorized by Article 33 (4) VCLT to reconcile different meanings in light of the object and purpose of the treaty787. Therefore, once it is established that interpretation pursuant to Articles 31 and 32 VCLT does indeed rebut the presumption of equality in Article 33 (3) VCLT, pursuant to Article 33 (4) VCLT the «interpretative effort is released from the strings of the general rules of interpretation, and the purpose of the treaty is singled out as the essential guiding element of interpretation»788; what is

785 786 787 788

Williams (1987), p. 417 (at 418). Cf. Dörr (2012c), mn. 33 et sq. and also Gardiner (2008), p. 365. See Dörr (2012c), mn. 35 et sqq. for further references. Dörr (2012c), mn. 35 et sq.

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more, the term «best» adds even greater «non-determination» to the operation that is «inescapably subjective (but not arbitrary!)»789. Interpretation should therefore make «every effort […] to find a common meaning for the authentic texts before preferring one to the other»790. Under the Rome Statute, moreover, such reconciliation must respect the boundaries set by Article 22 RS791. A relatively straightforward approach to finding a common meaning for the authentic texts – taking recourse to the prevalence of a particular text over the others either due to an agreement or de facto due to treaty interpretation792 – is unavailable with respect to Article 25 (3) (c) RS793. Not yielding guidance as to the meaning of purpose under Article 25 (3) (c) RS, genetical review is without further merit at this point. Contextual considerations are similarly moot: The Spanish translation con el propósito reappears in the substantive law of the Rome Statute under Article 25 (3) (d) (i) where the English version speaks of «with the aim of» and the

789 Papaux/Samson (2011), mn. 89. 790 Dörr (2012c), mn. 30 with reference to the ILC’s commentary on article 29 of the VC’s 1966 draft, expressed in The International Law Commission (ed.) (1966), p. 225. 791 See above 2.1. 792 Gardiner (2008), p. 368; Dörr (2012c), mn. 32. 793 Negotiations have occurred in a multitude of languages, see Bassiouni (1998), p. 1 (at 29, 30, 31); Saland (1999), p. 189 (at 200). However, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (14.04.1998), Report of the Preparatory Committee on the Establishment of an International Criminal Court: UN Doc. A/CONF.183/2, was redacted in English in the original version, whereas other language versions are mere translations. If one accepts that the original draft de facto takes priority over later translations, as Gardiner and Dörr suggest, one can argue that at least regarding those parts of the Rome Statute which have been adopted from the Draft Statute without modifications, the ordinary meaning derived from the English version overrides other language versions pursuant to Articles 33 (3), (4) and 32 VCLT, cf. Gardiner (2008), p. 368 and Dörr (2012c), mn. 32. Regarding other parts such as e.g. Article 25 (3) (c) and (d) RS which have been shaped in the Working Group phase of the Rome Conference in a variety of working languages, there is no de facto dominant language available, see on these parts Kirsch (1999), p. 451 (at 454 at fn. 11); Bassiouni (1998), p. 1 (at 31); Saland (1999), p. 189.

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French version of «viser à»; however, «aim»794 and «viser à»795 are both synonyms of «purpose» and «en vue de» respectively, and do not possess a specialist meaning796. As regards the provision’s telos, Article 33 (4) VCLT in principle commands to first examine the ratio legis with a view to discovering the texts’ meaning pursuant to Article 31 VCLT in an effort to establish their presumed equality, before the ratio legis can serve with a view to reconciling texts797. Yet, the ratio legis of the purpose prerequisite is arguably unresolved in particular with a view to the paramount issue of the alleged social value and desirability of acts of business exchange. Are risks created by such conduct for the violation of protected legal goods or interests condoned by the Statute’s purpose? Instead of embracing the need for «inescapably subjective (but not arbitrary!)»798 choices pursuant to Article 33 (4) VCLT in order to implement purpose as certainty intent under Article 25 (3) (c) RS at this point, I propose to take a closer look at the Statute’s purpose and its relationship with the normative foundations of such desirability in the following sections. 2.5.3. The emergence of the risk standard Plausible interpretations of «for the purpose of facilitating» as desire or certainty intent are dependent upon guidance from a distinct normative assessment as to the social value and desirability of acts of business exchange. Neither of the above proposals incorporates such an assessment. As the presentation and review of the subsequent positions in jurisprudence and scholarship will show, this misgiving is highlighted by the

794 Simpson, Oxford English Dictionary (2013), available at http://www.oed.com/vie w/Entry/4347 (last visited: 30.06.2015) («an objective, a goal; a purpose») and Pickett, The American Heritage Dictionary of the English Language (2013), available at http://ahdictionary.com/word/search.html?q=aim (last visited: 30.06.2015) («a purpose»). 795 Jeuge-Maynart, Dictionnaire Larousse, available at http://www.larousse.fr/diction naires/francais/viser/82187?q=viser#81220 (last visited: 30.06.2015): «avoir quelque chose en vue». 796 «Viser à» is not defined in Guillien/Vincent/Guinchard (2005). or in Cornu (2004). Curzon (1993) and Garner/Black (2009) do not define «aim». 797 Cf. generally speaking Papaux/Samson (2011), mn. 74, 79 et sq. 798 Cf. again Papaux/Samson (2011), mn. 89.

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emergence of the risk standard by recourse to which the issue of the social value and privileging of (otherwise) criminal conduct is confronted in the Rome Statute’s interpretation. 2.5.3.1. Essential transactions The first elaborate attempt at limiting individual criminal responsibility of business actors for socially desirable conduct under the Rome Statute has been presented by German scholar Rackow: He argues that criminal law must privilege a particular class of social interactions in order to prevent a slowing down of social life generally that results from diligence for fear of criminalization and in a deprivation of participation and development opportunities granted in principle to every member of society799. He identifies this class of transactions as «essential business transactions»800 and suggests for the sake of maintaining a functional social life that risk permissions be granted to such transactions by means of a justification defense801. This risk permission finds its limits in the idea that it is not «reasonable» to accept a risk of destroying the individual capacity to participate for the sake of uninhibited existence of the possibility to participate; business transactions which contribute to a principal offense directed against life, personal integrity or liberty are thus excluded from this privilege802. The involvement of business actors in present-day macro criminality, e.g. by way of providing material resources, then exceeds the scope of such «essential business transactions» and must therefore not be privileged from criminalization803.

799 800 801 802 803

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Rackow (2007), pp. 536, 551 et sq. Rackow (2007), pp. 551 et sq. («Jedermannsgeschäft», my translation). Rackow (2007), pp. 535 et sq. Rackow (2007), p. 538 (my translation). Rackow (2007), pp. 551 et sq.

2.5. Social value of conduct, Article 21 (3) RS and the ICC as a just global institution

2.5.3.2. «Substantial» assistance, «significant» contributions, and overbreadth in Prosecutor v. Mbarushimana PTC I in Mbarushimana has dealt with acts of business exchange under the heading of overbreadth of Article 25 (3) (d) RS804 as a matter of the material element of contribution. In an attempt to restrict the impact of the law on socially valuable interactions, the Court has argued – that «without some threshold level of assistance», Article 25 (3) (d) RS would «become over-extended», and «every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability» for merely providing «commodities»805, and – that «it would be inappropriate for such liability to be incurred through any contribution to a group crime» since the drafters intended the Statute to be limited in applicability not only to cases but also to crimes of sufficient gravity pursuant to Article 17 (1) (d) RS806, and – that in line with both the «residual nature» of Article 25 (3) (d) RS encompassing conduct that does not fall within the scope of sub-sections (a) to (c) and their arrangement in a «‹value-oriented hierarchy›», the threshold must be both below that of essential (under (a)) and that of substantial contributions (under (c))807. The Court has subsequently concluded that in order to exclude «infinitesimal contribution[s]»808, «a person must make a significant contribution to the crimes committed or attempted», the «extent of the person’s contribution» and its significance being «determined by considering the person’s relevant conduct and the context in which this conduct is performed» by recourse to criteria derived from past jurisprudence in international criminal law on a case-by-case basis such as the «sustained nature of participation after acquiring knowledge of the criminality of the group’s common purpose», the undertaking of preventive efforts, the accused’s role of plan-

804 ICC - Pre-Trial Chamber I, Prosecutor v. Mbarushimana, 16.12.2011 – ICC-01/04-01/10-465-Red. 805 ICC - Pre-Trial Chamber I, id. (§§ 277 with fn. 656). 806 ICC - Pre-Trial Chamber I, id. (§ 276). 807 ICC - Pre-Trial Chamber I, id. (§§ 283, 279) citing Werle (2007), p. 953 (at 957). 808 ICC - Pre-Trial Chamber I, Prosecutor v. Mbarushimana, 16.12.2011 – ICC-01/04-01/10-465-Red (§ 277).

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ner or executor, her position in or relative to the group, and «perhaps most importantly the role the suspect played vis-à-vis the seriousness and scope of the crimes committed»809. On appeal, and in spite of objections presented by the Prosecution that a threshold of significance was against both the wording and genesis of Article 25 (3) (d) RS whereby «any» contribution should suffice 810, the Appeals Chamber refused to enter into the matter on the grounds that an error related to the scope of criminal contributions «would not have materially affected the decision» 811. ICC decisions before and after Mbarushimana have reached similar conclusions on the scope of Article 25 (3) (d) and also (c) RS812. In her separate opinion, Judge Fernández de Gurmendi opposed the PTC’s reasoning; she argued that while the provision’s wording does not call for a threshold813, one should nevertheless analyze «the normative and causal links between the contribution and the crime rather than requiring a minimum level of contribution», and that such an analysis should not be guided by admissibility criteria but instead by turning to «the real issue» which «is that of the so-called ‹neutral› contributions»814. Indeed, promoting reliance on admissibility to this end is a false promise: According to Hörnle, «[…] looking to criminal procedure as the starting point for conclusions about the substantive law is misleading. The relation of procedural law to substantive law is merely auxiliary. We do not invent substantive law to give content to trials – rather, the sequence works the other way: criminal procedure serves to maintain the norms embodied in the substantive law»815. To provide for sufficient legal certainty, significance (or substantiality, to take the parallel restriction promoted for sub-section

809 ICC - Pre-Trial Chamber I, id. (§§ 285, 284) (my emphasis). 810 ICC - Appeals Chamber, Prosecutor v. Mbarushimana, 30.05.2012 – ICC-01/04-01/10 OA 4 (§ 60). 811 ICC - Appeals Chamber, id. (§ 66). 812 See in particular ICC - Trial Chamber I, Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 993 et sqq.) as well as ICC - Trial Chamber II, Prosecutor v. Katanga, 07.03.2014 – ICC-01/04-01/07 (§§ 1632 et sqq.) and Ambos (2013c), pp. 147, 153, 164 et sqq. with further references. 813 ICC - Appeals Chamber, Prosecutor v. Mbarushimana, 30.05.2012 – ICC-01/04-01/10 OA 4 (§ 9 of the separate opinion). 814 ICC - Appeals Chamber, id. (§§ 10, 12 of the separate opinion). On this terminology, see Burchard (2010), p. 919 (at 921 at fn. 6) referring to the distinction between approved and socially unacceptable dangers to protected legal interests, the former constituting «neutral» contributions from the perspective of criminal law. 815 Hörnle (2008), p. 1 (at 17).

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(c)) arguably must be conceived not descriptively but normatively; under standards recurring on significance (or substantiality) as a descriptive concept, it is not sufficiently foreseeable which conduct is criminalized816. As the Court also considers, significance (or substantiality) can indeed only be determined with recourse to attributes of significance (or substantiality); without an elaborate and rationally established normative basis, however, the selection of those attributes and the assessment of their importance risks being arbitrary and the significance (or substantiality) risks cloaking highly opaque judicial decision-making on which conduct is socially valuable under the Statute and which is not817. The Court’s reasoning lacks precisely such a basis; its somewhat arbitrary polling of judicial decisions rendered in international criminal law for authoritative assessments of attributes of significance cannot serve in this regard. The attributes selected remain inconclusive by themselves: Precisely under what premises is the «role […] played vis-à-vis the scope and seriousness of the crimes committed» to be assessed? For lack of a normative foundation, in the case-by-case approach suggested by the Court, it remains to be justified how said contextual attributes will establish the contribution’s status as «infinitesimal» or as socially valuable818.

816 Ambos (2008), mn. 21. The substantiality standard was criticized in both the Roman-Germanic and the Anglo-American legal systems as overly vague, see Rackow (2007), p. 137 referring to the German equivalent of «wesentlich» and Williams (1961), p. 379 referring to «substantially facilitated» in the 1953 draft of the MPC. See also Reggio (2005), p. 623 (at 671). 817 Cf. Kudlich (2004), p. 111; Rackow (2007), pp. 137 et sqq., 131 relating to the concept’s German translation («wesentlich»). Cf. also The Law Commission (1993), p. 102 on the required difficult issues of judgment – and on the conclusion that they are ultimately policy issues, and The Law Commission (2007), p. 305 («We think that to introduce such a requirement would lead to uncertainty and difficulty»). See also Di Martino (2007), p. 429 (at 443) on Article 25 (3) (c) RS (problem merely shifted to judiciary, term in need of specification) and Stewart (2012b), p. 165 (at 200) («But, alas, [to require a substantial effect] merely adds new layers of ambiguity to already opaque waters»). See also Stewart (2012a), p. 1189 (at 1207) on the uncomfortable «quantitative vision of causation» that is implied by the substantial prerequisite in international criminal law. 818 But see above in 2.4.2.3.3 where the circumstances referenced by the Court were taken into account from a typological perspective to establish a threshold of commission; this threshold is, however, not the final word in terms of the conduct’s criminality. See below in 2.5.4.

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2.5.3.3. Ambos and Vest: Limiting (secondary) participation to socially undesirable acts by recourse to a risk standard In an attempt at filling this normative void, and on the premise that assistance and contribution do not connote «a different quality of the contribution required», Ambos has suggested to require a «substantial» contribution both under Article 25 (3) (c) and (d) RS; more specifically he proposes that the qualifier «substantial» be understood as a reference to the prerequisites that the accused’s conduct create or increase «the risk that the crime be committed», that the risk be «realized through the commission of the (main) crime» and that «the risk created or increased […] be disapproved of by the legal order»819. The proposal on limiting the scope of complicity by recourse to this risk standard has widespread support among German scholars of international criminal law and is also expressly suggested by Vest820. According to Ambos, the «risk-based approach» is particularly «helpful with a view to criminal liability for so-called ‹neutral contributions›, for example by delivering (e.g., food, petrol, or other ordinary marketable commodities) to a criminal enterprise», i.e. «in order not to criminalize socially desirable and legitimate conduct, but only a significant deviation from standard social and commercial behavior»821. Ambos proposes that one must consider «the specific purpose which was pursued by the respective contribution», implying by his reference to Vest (who similarly relies on a risk standard) that such «purpose» is the (objectively determined) «designated use» of the commodity provided822. At least in cases where this «designated use» is «adapted» to the criminal offense in question, the contribution is to be considered within the scope of Article 25 (3) RS823. Both authors thereby aim to establish – albeit only implicitly – a class of permitted risks under the risk standard. Both point out, however, that for

819 Ambos (2013c), pp. 165, 167. See already Ambos (2008), mn. 21. 820 Vest (2010), p. 851 (at 864); Vest (2011), p. 208. On limiting the scope of assistance under Article 25 (3) (c) RS by recourse to this risk standard, see Eser (2002), p. 767 (at 801 with fn. 141); Burchard (2010), p. 919 (at 938) and most extensively, Heyer (2013), pp. 405 et sqq. 821 Ambos (2013c), p. 165. 822 Ambos (2013c), pp. 165 with fn. 559, 166 referring to Vest (2011), pp. 204 et sq., 208 et sq. 823 Vest (2011), pp. 208 et sq. («Verwendungszweck auf die Haupttat abgestimmt», my translation).

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lack of in-depth analyses of the issue it has thus far remained unclear whether the provision of «ordinary commodities» should be criminal also beyond cases of an «adapted designated use»824. 2.5.3.4. Heyer: Crime-specific risks and the securing of livelihood Following both a control over the crime approach and a risk standard, Heyer proposes in her study on «acts within relationships of economic exchange which are independent of the offense» that individual criminal responsibility for non-perpetration under Article 25 (3) (c) and (d) RS be limited to the creation of «socially inacceptable» risks825. Socially inacceptable are those risk creations that neither are «minor» respectively «remote» nor «benefit competing values»826. The former category of minor or remote risks is characterized by a low probability of the occurrence of harm that is in turn dependent upon the kind and proximity of the created risk827. The latter category is established by weighing «aims and purposes of international criminal law against benefits resulting from rational exercise of individual liberties» whereby «[s]ocial context elements that may influence the evaluation include securing existential liberties by way of rational activity and rejecting responsibility that has not actively been assumed»828. «Social acceptance», Heyer concludes, is to be determined «in accordance with realizing optimal rational choice liberty from a utilitarian perspective»829.

824 Ambos (2013c), p. 165; Vest (2011), p. 209. See also Vest (2010), p. 851 (at 863 et sq.). 825 Heyer (2013), pp. 35, 554 («Handlungen innerhalb tatunabhängiger wirtschaftlicher Austauschbeziehungen», my translation). 826 Heyer (2013), p. 555. 827 Heyer (2013), p. 555. In this regard, Heyer (2013), p. 466 refers to the «qualitative potency» of the assisting act («qualitative Wirkmächtigkeit der tatfördernden Handlung», my translation). 828 Heyer (2013), p. 555. 829 Heyer (2013), p. 555.

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2.5.3.4.1. A utilitarian premise In her thorough explanation of that proposal, Heyer makes elaborate reference to the notion of the social contract to render a legitimate account of the scope of individual criminal responsibility under the Rome Statute830. She assumes that a global social contract to which individuals and states are parties has endowed the ICC with the legitimacy to enforce society’s post-contractual state of being, namely world peace by punishing crimes under its Statute831. In this contractarian framework, she sets out to develop «the fundamental notion of socially acceptable choice that refers to general thresholds of penalization» on the basis of «formal-procedural rationality» as «a mode of decision-making global society can agree on as a value as such»832. Heyer aims to establish normativity by recourse not to metaphysical but to reasonable (i.e. instrumentally rational) arguments which may subsequently shape positive law as well833. In this vein, Heyer posits, those who contribute to offenses by way of business activity must be able to understand why their «decision to secure a livelihood pursuant to their own well-understood long-term interest is to be normatively disapproved of by society»834. From Heyer’s «utilitarian perspective»835, the conflicting values of business actors’ personal liberty to conduct business exchange and of the preservation of social peace by punishing statutory crimes are to be balanced by recourse to the contractarian purpose to ensure the optimal exercise of «rational choice liberties»: Individual instrumentally rational acts of business exchange are socially accepted as part of a «social consensus on reciprocal instrumental rationality as the basis and organization principle of today’s global economic life» and as such do not require penalization under the Rome Statute so long as their value to society exceeds the social value attached to their penalization 836. This is the case as long as the individual exercise of «rational choice liberties» in conducting acts of business exchange is beneficial to the socially desired optimal exercise of

830 831 832 833 834 835 836

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Heyer (2013), pp. 466 et sqq. Heyer (2013), pp. 391 et sqq. See also Heyer (2013), pp. 472, 474. Heyer (2013), p. 555. See also Heyer (2013), p. 468. Heyer (2013), pp. 473, 422. Heyer (2013), p. 473 (my translation). Heyer (2013), p. 555. Heyer (2013), pp. 474 et sq., 478 et sq., 481 (my translation).

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«rational choice liberties» of all: «An optimal solution […] requires minimizing the overall damage»837. Such beneficialness, Heyer argues, is inherent to acts of business exchange which not only serve to «secure one’s livelihood in the sense of economic well-being» but also provide for «the basis of functioning societies», i.e. for their peaceful existence as well as for their restoration after macro conflict 838 – and whose protection thereby serves society’s interests better than does the protection of legal goods from such acts of business exchange839. Consequently, she posits, conduct that causally contributes to the harming of legal goods protected by international criminal law but constitutes at the same time the securing of one’s livelihood may not be criminalized so long as or insofar as it does not oppose the optimal enabling of instrumentally rational behavior in society as a whole840. Social beneficialness in this sense is also inherent to the (results of the) division of labor and of competences: In Heyer’s perspective, the division of labor and competences is indispensable to the functioning of modern business ventures as well as to (global) economic life as a whole; as a result, criminalization must not interfere with its beneficial effects by imposing responsibility on those merely following superior directives without possessing proper decision-making competences841. Finally, Heyer proposes that a low «probability of the occurrence of harm» may constitute social acceptability – and therefore of normative permissibility – of risk creation842. In her view, it is the «qualitative potency» of the assisting act that is decisive to establish the probability of harm, i.e. the probability of that act becoming effective in the principal offense as determined by a

837 Heyer (2013), pp. 472 with fn. 177, 473 et sq., 478 («Eine im Interesse aller optimale Lösung erfordert einen möglichst geringen Gesamtschaden», my translation). 838 Heyer (2013), pp. 555, 482. 839 Heyer (2013), pp. 481 et sq., 485 («Existenzsicherung im Sinne materiellen Wohlergehens», my translation). Individual exercise of «rational choice liberties» in acts of business exchange protects individuality and thereby serves humanity, it constitutes economic interaction and thereby serves to secure society’s existence, it integrates into society and thereby serves to reconstruct it after episodes macro conflict, see Heyer (2013), pp. 479 et sqq. 840 Heyer (2013), pp. 481, 485, 487. 841 Heyer (2013), p. 490. She premises her conclusion on very brief sketches on doctrine proposed originally by Rudolphi (1987), p. 863 (at 867 et sq.). 842 Heyer (2013), pp. 555, 463 et sqq.

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neutral observer ex ante843. In her view, such «probability of the occurrence of harm» is to be entered into the process of balancing the interests – on the one hand – in peace and – on the other hand – in carrying out the harmful act of business exchange844. 2.5.3.4.2. … and its implementation in a risk permission To establish (limits of) individual criminal responsibility – more specifically: of criminality of conduct – under the Rome Statute, Heyer relies on a risk standard. Criminal risk creation is limited to creating a «crime specific risk», i.e. a risk that «may be conceived of as designed to further the occurrence of the particular harm»; acts of economic exchange which created (merely) an «everyday risk […] intrinsic to the way markets are organized, the way labor is divided, and the way responsibility is dispersed» shall not incur criminal responsibility845. To avoid the verdict of «socially inacceptable risk creation» derived both in substance and in its legitimacy from her contractarian framework, i.e. to be permitted, risk creation must therefore produce only a low probability of the occurrence of harm846, and must have occurred in the course of securing one’s livelihood847 and in accordance with «corporate division and organization of decision making and labor», i.e. individual «decision making authority over the act in question» must have existed in the sense that the individual’s act was merely an «act within the scope of directives issued» without «discretion in discharging» duties848. Acts of perpetration (with control over the crime) are, however, never socially acceptable in Heyer’s view; they «touch upon the core of the guarantee to protect [legal interests from violations]»849.

843 Heyer (2013), pp. 466, 555 («qualitative Wirkmächtigkeit der tatfördernden Handlung», my translation). 844 Heyer (2013), p. 466. 845 Heyer (2013), pp. 556, 487. See also Heyer (2013), p. 520 where she more clearly expresses this two-staged approach. 846 Heyer (2013), p. 555. 847 See again Heyer (2013), pp. 555 et sq. 848 Heyer (2013), pp. 557, 489 et sq. See also Heyer (2013), p. 482. 849 Heyer (2013), p. 478 («[…] berühren diese [Rechtsgutsverletzungen] doch den Kernbereich der Schutzgarantie», my translation).

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2.5.3.5. Results and outlook Recent references to risk permissions share a common understanding: In relying on a normatively charged notion of risk permissions they depart from defining criminal conduct only in ontic categories, acknowledging that not all risks are to be disapproved of by the legal order. According to Roxin, the risk standard indeed constitutes a normative turn which brings to light a key issue in every criminal law order, i.e. the need for a balancing of interests in security on the one hand and in personal liberty on the other850. The fundamental imperative of neminem laede cannot claim exclusive normative authority in legal orders whose legitimacy rests on striving to maximize the liberty of its subjects851. In that sense, the risk standard provides the category of permitted risks as an indispensable852 forum853 in which to discuss the limitation of criminal responsibility to that which is socio-politically necessary854. This complex question thus no longer resides (merely) in the subjective evaluation of the deciding judge of normatively «blind» categories of causation855 such as (descriptive) substantiality in the particular case at hand856 or of a sufficient degree of (normative) remoteness or proximity857 but can be embedded in rationally consented normative standards on which every criminal legal order rests. In this vein, Judge Fernández de Gurmendi has ably pointed out on ICC jurisprudence in Mbarushimana that one should analyze «the normative and causal links between the contribution and the crime rather than requiring a minimum level of contribution»858. The emergence of the risk standard is, therefore, a highly welcome development. But how does the risk standard apply to the Rome Statute, and in particular to the provision of material resources towards the commission of genocide, crimes against humanity, and war crimes? And what are the Rome Statute’s foundational normative standards? Do they indeed exclude

850 851 852 853 854 855 856 857 858

Roxin (2004), p. 929 (at 930 et sq.). Schürer-Mohr (1998), p. 165. Schürer-Mohr (1998), p. 166. Rackow (2007), p. 65. Roxin (2004), p. 929 (at 932). Roxin (2004), p. 929 (at 932). See above in 2.5.3.2 and also Frisch (1988), p. 272. See above in 2.5.1. ICC - Appeals Chamber, Prosecutor v. Mbarushimana, 30.05.2012 – ICC-01/04-01/10 OA 4 (§§ 12 of the separate opinion).

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a privilege for providing material resources in the course of business activity as non-essential business transactions in Rackow’s sense? In this regard, Heyer has already provided the debate with important insights by means of her attempt at a doctrinal implementation of a utilitarian premise into the risk standard. To advance the approaches of Ambos, Vest and to contextualize the proposition made by Heyer, I will subsequently explore the normative foundation of a risk permission for socially valuable acts of business exchange under the Rome Statute from a human rights perspective. 2.5.4. Risk permissions from a human rights perspective: Liberty vs. security and business activity As Roxin explains, since the inception of modern criminal law, we recognize two limits to the State’s power to prosecute and punish, causality and nullum crimen nulla poena sine lege, which are both insufficient: Causality is limitless and does not allow distinguishing between permitted and prohibited conditions of violations of protected legal goods; and the text of offense descriptions – so long as we assume that all causal conduct can satisfy these descriptions – does not offer a meaningful limitation to the interpreter either 859. In the words of Fletcher, «[b]ecause the causal link is limitless, some new concept must be devised to eliminate far-flung effects from the range of liability»860. In domestic criminal law, many «new concept[s]» have been devised to the end of limiting attribution on the basis of causation alone. In the Anglo-American legal systems, the key concepts are those of proximity and remoteness861; in Roman-Germanic legal systems, many domestic jurisdictions rely on so-called «normative attribution», which, in turn, is constituted (also) by a risk standard that has been devised in its present form by Roxin and has since garnered considerable support beyond Germany862.

859 Roxin (2003b), p. 423 (at 433 et sq.). 860 Fletcher (1978), p. 590. See also Reggio (2005), p. 623 (at 671). 861 See Stewart (2012a), p. 1189 (at 1203) with further references on the «popular notion of proximate cause». 862 See Stewart (2012a), p. 1189 (at 1204) and on the international reception of his risk standard both in Europe and Latin America, Roxin (2006b), pp. 371 et sqq., 374. See also Heyer (2013), p. 494 and above in 2.3.4.1.

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To achieve a meaningful limitation, Roxin advises to rely on the (policy) purpose of criminal law norms to protect legal goods only from socially inacceptable (prohibited) risks863. Offense descriptions in criminal law, he argues, are concerned only with conduct that creates prohibited risks as well as with consequences that are materializations of such prohibited risk creation – i.e. to the foreseeable, controllable and socially undesirable bringing about of harm to protected legal interests864. In line with his aforementioned methodological approach to criminal law doctrine, he proposes guiding the normative decision as to the scope of prohibited risks by «the subject matter of the law, the empirical facts»; framing permitted risks as socially acceptable risks allows drawing the line between individual liberty and the State’s power to intervene in determinations of the scope of individual criminal responsibility865. In this vein, Schünemann explains that holding individuals criminally responsible for a certain result is meaningful from a criminal policy perspective only insofar as it serves prevention of the criminal result in question, both from an ex ante (i.e. in the instance of the individual’s act) and from an ex post perspective866. He argues that criminal law norms, in their function to influence (prohibit) behavior ex ante, must therefore take into account the individual addressee’s

863 Roxin (2003b), p. 423 (at 434) (my translation). The risk standard draws on the insight that criminal law can only serve its protective function by criminalizing risks and their subsequent realization: Criminal law addresses its prohibitions at the human will in order to shape human conduct and thereby prevent the violation of protected legal goods; such prohibitions can therefore only refer to that which as a consequence of the commitment of the human will is foreseeable and controllable - what is not even foreseeable in this sense cannot be taken into account even under threat of criminal sanctions. In this view, it is only the creation of risks which criminal law provisions can reasonably be addressed to for every course of events will, at some point in its development, leave the realm in which it can be willed, dominated, commanded – purposed – by the individual who has set it in motion. On the above from a German perspective, see Roxin (2006b), p. 378; Miller (2007), p. 267; Lenckner/Eisele (2010), mn. 92, and also Ambos (2007), p. 2647 (at 2666), each with further references. As a consequence of such reasoning, causality is indispensable as the basis of risk realization; for in the case of its lack, human conduct will not – not even in its naturalistic, descriptive dimension – be foreseen or regarded as a condition for the occurrence of the prohibited harmful event or result, see Frisch (1988), p. 520. 864 Roxin (2003b), p. 423 (at 434). See also Schürer-Mohr (1998), p. 173; Schünemann (1999), p. 207 (at 219) and Heyer (2013), p. 307. 865 Roxin (2003b), p. 423 (at 434, 427). See also above in 2.4.1.1. 866 Schünemann (1999), p. 207 (at 214 et sqq.).

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perspective (her situation and even her knowledge867), and in their function to evaluate (sanction) behavior ex post must account for the delicate balance between the interest in individual liberty on the one hand and the interest in protecting legal goods on the other868. These insights have commonly been formulated in criminal doctrine as the requirements of risk creation, materialization of that risk in the result in question, and prohibition of said risk creation by the legal order869. In order to achieve both a rational limitation when faced with socially valuable conduct and to account for the Statute’s protective aim both from an ex ante and an ex post perspective, I propose recourse to these insights under the Rome Statute 870. Permission of risk creation exempts individual conduct from (collective) criminality and thus from criminal responsibility871. Before turning to the Rome Statute’s specifics and its implications for the criminality of acts of business exchange, there is merit in adopting a comparative perspective on the issue of criminalizing socially (in-)valuable business conduct in domestic jurisdictions. 2.5.4.1. Balancing liberty and security and the fate of the shopkeeper: Exemplary domestic perspectives on risk permissions This section will provide but a brief overview of how domestic jurisdictions of both Anglo-American and Roman-Germanic legal orders have approached the issue of socially valuable conduct and propose an understanding of these approaches from the risk standard’s perspective. This understanding will subsequently facilitate conceiving risk permissions for acts of business exchange under the Rome Statute.

867 The ex ante perspective may also conclude that the individual who acts on an incomplete knowledge basis was obliged to complete said knowledge basis, Schünemann (1999), p. 207 (at 217 with fn. 42). 868 Schünemann (1999), p. 207 (at 214 et sqq., 219). 869 See Roxin (2006b), p. 372 and also Ambos (2007), p. 2647 (at 2666); Ambos (2013c), pp. 165, 167. 870 For views also in support of a risk standard under the Rome Statute, see Eser (2002), p. 767 (at 801 with fn. 141); Burchard (2010), p. 919 (at 938); Vest (2010), p. 851 (at 864); Vest (2011), p. 208; Ambos (2013c), pp. 165, 167; Heyer (2013), pp. 405 et sqq., 494 et sqq., 515 et sqq. 871 See already above in 2.4.3.3.1 and also below in fn. 1218.

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2.5.4.1.1. Balancing interests and protecting trust In order to mitigate the «invasiveness of complicity» in light of the «social value of conduct»872, common law jurisdictions have discussed as a way to restrict criminalization the excluding of responsibility for knowing facilitation, i.e. to instate a purpose-intent requirement873. In this vein, the American Law Institute has argued to dismiss the knowing but substantial assistance approach from its 1953 draft of the MPC in favor of a purposive intent approach; in the conflict between promoting either autonomy and free trade or social control, the Law Institute eventually opted for the former874. «If the law, as a matter of social policy, should respond to the issue that «people otherwise lawfully conducting their affairs should not be restrained by fear of liability for what their customers will do»875, the UK Law Commission has stressed the need to balance «the social interest in inhibiting crime by cutting off its materials and the social and personal interest in not unduly inhibiting the conduct of business by the imposition of criminal sections»876. Both in the UK and the US, the pivotal issue was that of the ordinary merchant877: «A shopkeeper who sells an ordinary item in the knowledge that the customer intends to use it to commit an offence might claim that to make the seller of an ordinary marketable commodity ‹his buyer's keeper in criminal law› would be ‹too wide an extension of criminal responsibility›»878. As Ashworth pointed out, it is the «effect of that narrower doctrine to ensure that citizens are not treated as their fellow citizens’ keepers»879. There is particular appeal in this subjective approach pursuant to the conceptual basis of complicity at common law where arguably a most trivial assistance is sufficient to satisfy the prereq872 Simester (2006), p. 578 (at 591) and see Kadish (1985), p. 323 (at 354): «A pall would be cast on ordinary activity if we had to fear criminal liability for what others might do simply because our actions made their acts more probable.» 873 See Kadish (1985), p. 323 (at 354 at fn. 71); Duff (1990a), p. 165 (at 176 et sqq.). 874 See above in fn. 708 and Ashworth (2006), p. 424 (likening the MPC’s purpose standard to a «sturdy individualist approach» and the rejected knowledge-based option to a «a more social and less individualistic notion of [criminal] responsibility») and Sliedregt (2012a), p. 115; Stewart (2012b), p. 165 (at 191). 875 Kadish (1985), p. 323 (at 354). 876 The Law Commission (1993), p. 118. 877 For a powerful critique of common law approaches at restricting complicity, see Rackow (2007), pp. 450 et sqq., 455. 878 Duff (1990a), p. 165 (at 177) citing Williams (1961), p. 373 (my emphasis). 879 Ashworth (2006), p. 424 and Sliedregt (2012a), p. 115.

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uisites of complicity responsibility as long as it is carried out with a sufficiently culpable state of mind880. A similar debate has informed German legal thinking on the scope of complicity, undue restriction of business activity again figuring as the pivotal issue881. It was particularly in the early jurisprudence of the Reichs-

880 In the UK, where accomplices either aid (assist), abet (encourage), counsel, or procure the offense, the accomplice’s assistance, encouragement, or counselling need not make a material difference to the outcome of the principal offense; it is sufficient that there is «a connection» between the accomplice’s conduct and the commission of the principal offense, the nature of which is, however, «elusive»: The Law Commission has suggested that it «is best understood, at least where [the accomplice’s] conduct consists of assistance, as meaning that [her] conduct has made a contribution to the commission of the offence», see The Law Commission (2007), pp. 31 et sq., 67. For a more restrictive position, see Ormerod/ Smith/Hogan (2005), p. 172 (assistance must make the commission of the principal offense easier or more secure). Punishment is justified by the associationbased position not on the grounds of the accomplice’s personal connection with the punishable harm but for her decision to join a criminal enterprise, Dressler (1985-1986), p. 91 (at 122). In other words: Criminal responsibility for complicity is chosen, not caused, see Wilson (2002), p. 201. This is different with regard to procurement accomplices, where a causal link is required between the act of procurement and the principal offense, Ormerod/Smith/Hogan (2005), p. 174. Both the Hand standard and the MPC have entrusted accomplice responsibility to an internal responsibility requirement; in § 2.06 (3) (a) (ii) MPC («aids or attempts to aid») extends complicity «even to those cases where the would-be accomplice was of no use to the principal whatsoever»; as Dubber explains with regard to § 2.06 (3) (a) (ii) MPC, the MPC’s exclusive underlying rationale for punishment is «the perspective of penal treatment», and «the penological diagnosis of dangerousness is the same regardless whether an actor succeeds in crime, or merely does everything she can to succeed, but then fails in the end, for one reason or the other», Dubber (2002), p. 113. See also Kutz (2007), p. 289 (at 295) and for a critical perspective on the common law approach, Dressler (2008), p. 427 (at 435 with fn. 39), who argues that personal criminal responsibility, i.e. a determination of guilt and punishment proportional to moral desert requires considering the (causal) link between the accomplice’s acts and the social harm or violation of a protected legal interest inflicted by the principal offender. See Smith (1991), pp. 78, 89 for a similar endorsement of a «causal contribution rationale». Kutz, Complicity, 2000, pp. 184 et sqq. refutes a cause-effect relationship between the accomplice’s act and the criminal harm and instead advocates an approach based on the collective accountability of e.g. all gun merchants who knowingly, but without sharing the principal offender’s objectives, provide assistance. 881 See extensively on the issue of complicity by business activity under German law, Kudlich (2004); Rackow (2007) with further references.

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gericht that a responsibility corrective was also sought on the subjective level, requiring a desire to advance the principal offense882. More recent proposals have sought to «neutralize» acts of assistance via restrictions on the objective level, e.g. by requiring «substantial assistance»883 or an act of assistance which derives its meaningfulness distinctly from its support towards criminal behavior884. The most prominent approach, devised by Roxin and adopted in principle by the BGH885, argues to combine objective with subjective restrictions on the law of complicity, requiring in order to establish the (secondary) assistant’s criminal responsibility both – that the act of assistance be of use to the principal only for the purpose of the principal offense and – that the assistant possess knowledge of the principal’s criminal plans or, if the assistant was merely aware of the possibility of the use of his assistance in the commission of a crime, that the principal was «discernibly disposed to commit a criminal offense»886. This last restriction («discernibly disposed to commit a criminal offense»), which arguably applies to the bulk of business activity, has been premised by Roxin on the need for criminal law policy to secure a «normative protection of trust»: If each (business) actor were at risk of criminal responsibility whenever her conduct «offered another the possibility to commit a crime»887, she would need to take into account the possibility that others (may) conduct themselves in a criminal manner during every (business)

882 Reichsgericht RGSt 37 (1905), p. 321. (requiring a so-called «Tatförderungswille»). 883 Weigend (1998), p. 197 (at 208, 212) («wesentliche Hilfeleistung», my translation). 884 I.e. the conduct’s only plausible object is the criminal conduct of another so that it derives its meaningfulness from the former, the conduct in that case being as unworthy of protection as is the conduct from which it derives its meaningfulness; lacking such meaning, assistance can be criminalized after a weighing of interests in accordance with duress principles, see Frisch (1988), pp. 280, 288 with footnote 198, 289 et sqq.; Frisch (2002), p. 539 (at 546); Frisch (2003a), p. 215 (at 229) («deliktischer Sinnbezug»). See also Kudlich (2004); Rackow (2007) for extensive discussion of other approaches in German literature. 885 See Roxin (2003c), p. 218. 886 Roxin (2003c), pp. 208, 214 («erkennbare Tatgeneigtheit», my translation) with a discussion of diverging concepts in German literature. See in particular Wohlleben (1996), pp. 26 et sqq., 63 et sqq., 92 et sqq. on the foundations, practical implications and critical aspects of Roxin’s approach. 887 Roxin (2006b), p. 1072 (my translation). See also Wohlleben (1996), p. 27.

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interaction; the ensuing amount of diligence required would be excessive up to the point that it would restrain business activity to a minimum, marginalizing all individual and societal advantages business interactions entail888. Trust could otherwise no longer function to reduce the (over-)complexity of reality to a degree human beings can tolerate and therefore manage889. It is thus considered necessary for criminal law to protect the trust that partners in socially desirable interactions will refrain from (intentionally) committing a criminal offense so that these interactions can continue to function on a trust basis890. In this vein, Kudlich has specifically argued for applying the principle of trust to the provision and procurement of goods in a market economy891: Demanding due diligence from every market participant concerning the possibility of criminal conduct of the recipient of goods provided would have a paralyzing effect on the market and thus detrimental consequences for society as a whole892. This detrimental effect on society can be described in more precise terms: As Rackow has argued, the concrete interference with social interaction resulting from the risk of incurring criminal responsibility consists not of a suspension of social interactions but of tendency to slow down them down, as in light of this risk and when in doubt, individuals would apply extreme caution893. This risk of criminalization then above all concerns the «shopkeeper» who sells essential goods and services available ubiqui-

888 Roxin (2006b), p. 1072. See also Frisch (1988), pp. 269 et sq. and Kudlich (2004), p. 376 who warn of a «society of mistrust» («Misstrauensgesellschaft», my translation) which is ultimately incompatible with the idea of man as responsible and willing and able to adapt to norms. 889 Cf. on this function of trust Luhmann (1989), pp. 3, 56. 890 The principle of trust was originally devised for crimes committed in road traffic and during situations arising from the division of labor, see Roxin (2006b), p. 1072; Roxin (2003c), pp. 214 et sq. Roxin considers the principle of trust a principle universally applicable in German criminal law; he stresses that nearly all objects can ultimately be put to use for a criminal objective and that «normal life would become impossible if one had to prepare for this beforehand», Roxin (1993), p. 365 (at 380) (my translation). For the principle’s (broad) application «whenever the conduct of several individuals converges in social life», see Duttge (2001), pp. 468 et sqq. (my translation). On the «confidence principle» with a view to acts of business exchange in international criminal law cf. also Reggio (2005), p. 623 (at 689). 891 Kudlich (2004), p. 378. 892 Kudlich (2004), p. 378. 893 Rackow (2007), pp. 541 et sqq.

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tously and immediately and less those business transactions that are little dependent upon expediency894. In essence, normative protection of trust therefore is the implementation of a particular balance of interests: It accords a particular (higher) weight to the social interest in a functioning market economy (based on expediency) and the derived individual interest of business owners, and another (lesser) to the social and individual interest in preventing crimes. The same is true for the substantiality-based or purpose intent approaches suggested both in Anglo-American and German debates on the scope of criminal responsibility vis-à-vis business activity. These and similar efforts to limit criminal responsibility by recourse to interpreting restrictively or expansively material or mental elements are ultimately at least implicit implementations of a particular balance of interest. But how is this balance justified? 2.5.4.1.2. The normative value of interests: Constitutionalization and social desirability Interest-based accounts of balancing raise a number of questions895. Are the interests at stake commensurable, i.e. can we compare the different individual interests involved (e.g. selling a particular commodity vs. remaining physically unharmed)? Can balancing pit the social interest in a functioning market economy against said individual interest in remaining physically unharmed? Which individual interests are more important, more valuable, more worthy of protection and are social interests (generally) more important than individual ones (e.g. a functioning market economy vs. an individual’s life896)? Can we aggregate individual interests for the purpose of balancing or designate individual interests as representatives897 of more general («social») interests (e.g. the sale of a particular commodity as representative of market economy)?

894 895 896 897

Rackow (2007), pp. 541 et sqq. referring to the sale of rolls in a bakery. See Rackow (2007), pp. 528, 222 et sq. Rackow (2007), p. 528. Rackow (2007), p. 220.

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2.5.4.1.2.1. Balancing as a method As these questions and the rich scholarly debate on balancing interests demonstrate898, balancing interests is methodologically burdened with a number of difficulties. The process of identifying, of comparing and of ranking interests is dependent upon choices and decisions for which the «septic» and «seemingly enlightened»899, «surprisingly rudimentary»900, «empty»901 balancing method itself arguably provides no guiding criteria. I want to highlight two issues that have been raised in constitutional and criminal law, which I consider most relevant to balancing as a method in general: Aleinikoff points out that it is impossible to take into account all (relevant) interests involved – in a «universe of interests», he argues that «[t]aking balancing seriously would seem to demand the kind of investigation of the world that courts are unable or unwilling to undertake»902; similar arguments have been advanced with regard to balancing conducted by legislative bodies903. What is more, the «balancing machinery»904 is in need of a unit of measurement in order to operate; it cannot provide such a unit by itself: If an «external scale» is not applied, balancing is merely an

898 See e.g. Pound (1943), p. 1; Aleinikoff (1987), p. 943 (at 973 et sqq.); Feinberg (1987), pp. 215 et sqq.; Griffin (1988), pp. 75 et sqq. and more recently Alexy/ Rivers (2002), pp. 86 et sqq.; Zucca (2008), p. 19 (at 28 et sqq.); Cohen-Eliya/ Porat (2010), p. 263 (at 269 et sqq.). 899 Rackow (2007), p. 217 (my translation). 900 Aleinikoff (1987), p. 943 (at 983). 901 Aleinikoff (1987), p. 943 (at 983). 902 Aleinikoff (1987), p. 943 (at 977). In a similar vein, Feinberg (1987), p. 203: «It is impossible to prepare a detailed manual with the exact ‹weights› of all human interests, the degree to which they are advanced or thwarted by all possible actions and activities, duly discounted by objective improbabilities mathematically designated. Drafting legislation can never be made as rote as cooking a casserole by the provision of some analogue of a cookbook of recipes. In the end, it is the legislator himself, using his own fallible judgment rather than spurious formulas and ‹measurements›, who must compare conflicting interests and judge which are the more important». But see the remarkable effort by Pound (1943), p. 1. 903 See Alexy/Rivers (2002), pp. 401 et sqq., 424 arguing that «the legislature’s capacity to act» depends inter alia on empirical and normative knowledge-related discretion in balancing. 904 Rackow (2007), p. 217 (my translation).

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act of subjective (not intersubjective) judgment905. Related to the latter issue is the allegation of incommensurability of interests. It is argued that a «common» measurement that applies to all interests which might become relevant in balancing simply cannot exist906. As Rackow posits, the (global) social interests and individual interests at stake are perspectives on the social conflict underlying the scope of criminal responsibility which are too different to be brought into balance; they are part of «radically different systems of orientation»907. Both issues arguably deprive balancing of its rationality, turn it into an irrational and illegitimate device of interpretive decisionism908. Yet, taking into account the normative sub-dimension of balancing interests can refute these allegations of the fragmentary and highly subjective character (lack of an «external scale of values»909 and incommensurability) of balancing as a method. As Alexy points out, it is important to distinguish between the objects of evaluation and the criteria of evaluation910. In the case of complicity in the course of business activity, in scholarship a number of interests are put «on the weighing scale»911 in order to determine which trumps which (and thus may require a restriction of the scope of complicity). Interests thus do not serve as objects of an evaluation but as evaluative criteria – even though the fundamental question is to determine their weight from the perspective of (international) criminal law. This is where both the criticisms of lack of an external scale and of incommensurability of interests come into play. Indeed, if we are concerned with determining which interest has (more) weight from a normative perspective, we are prima facie faced with a deontological question: Which of the interests at stake is (more) valuable?

905 See Aleinikoff (1987), p. 943 (at 975): «The balancer’s scale cannot simply represent the personal preferences of the balancer […] [It] must demand the development of a scale of values external to the Justices’ personal preferences». 906 Related to criminal law, see Meißner (1990), p. 70; Rackow (2007), pp. 218 et sq., 534 and, on constitutional law, Aleinikoff (1987), p. 943 (at 973) (suggesting that a «common currency» is needed but failing to provide one) and, on law generally, Pound (1943), p. 1 (at 330 et sq.) (arguing that interests can only be compared if they are translated to the social pane). 907 Rackow (2007), pp. 533, 534 with fn. 2432. 908 See Rackow (2007), pp. 218 et sq. 909 Aleinikoff (1987), p. 943 (at 975). 910 Alexy/Rivers (2002), p. 90. 911 Rackow (2007), p. 218 (my translation).

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The task is to designate deontological evaluative criteria in order to provide an answer to the deontological question at hand912. The issues of scaling and incommensurability are then transposed from the anthropological level of interests to the deontological level of values913. In other words: Interests are commensurable and scalable for the purposes of normative evaluation insofar as the values which serve as evaluative criteria are commensurable and scalable. In the (likely) event of conflicting values, the normative evaluation of the interests at stake is thus a matter of resolving a conflict of values – a task for which we must ultimately resort to balancing914. This is the normative sub-dimension of balancing interests; in other words: It is in the process of balancing values that we may return to the

912 See Feinberg (1987), pp. 215 et sqq. and his famous attempt at establishing such criteria for balancing in criminal law: «Since an invasion of the interest in liberty is a harm, it follows that all legal prohibitions, insofar as they narrow options, cause some harm which must be taken into account in the calculations of the legislator. The legislative invasion of citizens' interests in liberty can be justified by the harm principle only if necessary to prevent the greater harm still that would be caused to victims of the proscribed conduct […] In most cases, the interests that are seriously invaded by coercive legislation are interests other than the generalized interest in liberty. […] When opposed interests of different kinds are related in such a way that if the law is silent then the one will be set back to a certain degree, whereas if the law protects that one then the other will be thwarted to the same degree, the legislature should protect that interest which is the more important. Relative importance is a function of three different respects in which opposed interests can be compared: a. how ‹vital› they are in the interest networks of their possessors; b. the degree to which they are reinforced by other interests, private and public; c. their inherent moral quality.» (emphasis added). For a review, see Jarvis Thompson (1986), p. 381. 913 On the issue of (in-) commensurability of values, see Griffin (1988), pp. 75 et sqq.; Alexy/Rivers (2002), p. 86; Zucca (2008), p. 19 (at 28); Cohen-Eliya/Porat (2010), p. 263 (at 269). 914 Alexy/Rivers (2002), pp. 100 et sqq. See also Alexy/Rivers (2002), pp. 87 at fn. 162: «Somebody really wanting something is neither a necessary nor a sufficient condition for taking account of an interest in balancing […] In order for it to be taken account of, it has to be an interest which is […] valuable from the perspective of the law. Thus when anthropological expressions [such as ‹interest›] are used to identify the objects of legal balancing, they stand for concepts betraying deontological or axiological expressions. In this context, they are always replaceable with deontological or axiological expressions» (emphases added). Alexy goes on to argue: «The same applies for the identification of something as a ‹legal good›, which stands for a concept composed of deontological and/or axiological and/or anthropological elements». See also below in 2.5.4.2.1.2.1.

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anthropological or, more broadly stated, empirical realm in which many (policy) interests such as the importance of trust in business partners915 are located. 2.5.4.1.2.2. Criminal law and constitutional law It pertains to common knowledge that criminal law both protects and infringes upon fundamental individual liberties916. It comes as no surprise, therefore, that both in German and in Anglo-American scholarship the topic of excluding certain business activity from the scope of criminal responsibility is often discussed from a fundamental liberties perspective917. In this perspective, the task of balancing «the social interest in inhibiting crime by cutting off its materials and the social and personal interest in not unduly inhibiting the conduct of business by the imposition of criminal sanctions»918 is guided by the normative value that is granted to those interests by fundamental liberties or constitutional rights. To balance (social) interests then implies to balance the rights or liberties that afford normative weight to said social interests. Accordingly, the (domestic) debate on the criminalization of socially valuable business activity can be framed in terms of devising risk permissions as the right balance between liberty and security. The constitutionalization of criminal law919 allows establishing risk permissions that take into account the essential normative sub-dimen-

915 See again above in 2.5.4.1.1. 916 See again Feinberg (1987), p. 215 and also Hirsch (1996), p. 259 (at 276): «When we debate the permissible scope of the criminal law, the relevant doctrines must rest, ultimately, at least in part, on notions about citizens’ freedoms and obligations». 917 See in particular Frisch (1988), pp. 73 et sqq., 240, and particularly 268 et sqq. (grasping the question of breadth of complicity provisions as one which tests the principles of autonomy and of avoidance of undue, even unbearable limitations on liberty of action); Kudlich (2004), pp. 433 et sqq. (complicity liability for business activity as a non-satisfaction on professional liberty); Ashworth (2006), p. 424 (likening the MPC’s purpose standard to a «sturdy individualist approach» and the rejected knowledge-based option to a «a more social and less individualistic notion of [criminal] responsibility»); Sliedregt (2012a), p. 128 (likening the MPC’s approach to the «paradigm of individual autonomy»). 918 The Law Commission (1993), p. 118. 919 See Meyer (2012), pp. 774 et sqq. on the constitutionalization of criminal law generally.

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sion of balancing interests and establish, in that sense, the social value, desirability or acceptability of risk-creating conduct. Such risk permissions as results of balancing can materialize both as objective (e.g. a substantiality prerequisite) and/or as subjective restrictions (e.g. a purpose prerequisite)920. 2.5.4.2. Risk permissions and Article 21 (3) RS: The human rights perspective In this vein, looking behind the façade of terminological approaches (e.g. excluding the provision of an «ordinary marketable commodity»921 or activities «in the normal course of business»922 or «conducting an ordinarily lawful business in the usual manner»923 from criminal responsibility) as well as of limitations at the level of objective or subjective responsibility requirements (e.g. the requirement of «substantial facilitation» or of purposive assistance) – just to name a few approaches popular in domestic jurisdictions – serves to preempt the use of «normatively empty» constructs that establish limits of criminal responsibility and encourage to rationally develop the normative judgment that justifies their implementation924. To quote Schabas: «Why not» throw the net of criminalization beyond the diamond vendor to «the merchant in Antwerp», to «the bank manager of the

920 See Rackow (2007), pp. 121 et sqq. on intent requirements as «subjective risk permissions» (my translation). 921 Ormerod/Smith/Hogan (2005), p. 183. 922 Ashworth (2006), p. 419. 923 Perkins (1940/1941), p. 581 (at 603). 924 See Fletcher (1978), p. 676 and Rackow (2007), p. 534 on the need to disclose the underlying «value judgments» of limiting criminal responsibility by means of risk permissions (my translation). The balancing approach advanced by Reggio is, unfortunately, lacking in this regard, he ultimately defers to a case-by-case analysis, see Reggio (2005), p. 623 (at 691, 693) (the scope of complicity under international criminal law depends «in particular, on the conflict between, on the one hand, preservation of individual autonomy and personal relationships, freedom of action and determination, individual rights, and on the other hand, common welfare of society and solidarity obligations […]» which is to be resolved by means of balancing; «[t]o identify the just and fair meeting point is indeed one of the main dilemmas of criminal law»; in international criminal law «solidarity obligations and common welfare protection prevail over protection of individual rights and privileges»).

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diamond merchant» and to «the young fiancé buying a low-cost diamond ring, knowing plainly that the revenue will be funneled back to a terrorist army that chops the limbs off little children»925? Indeed, why is it that «substantial» or «significant» assistance provide indication as to how far we may legitimately throw the net as he proposes? Why should it only be «everyday business» that is privileged under the Rome Statute? Why is it that proximity or lack of remoteness is an important prerequisite in making that decision? And why would the restrictions imposed by a purpose intent prerequisite render the Rome Statute underinclusive vis-à-vis the provision of material resources by business actors?926 Assuming – hypothetically for the moment – that we are able to take recourse under the Rome Statute to a domestic analogy in the sense that risk permissions under the Statute may result from higher-order normativity imposed on the scope of individual criminal responsibility similar to that of a constitution, the relationship between international criminal law and human rights – their «role of both neutralizing and triggering the criminal law»927 – becomes a central issue. In this vein, scholars have pointed out that international criminal law, on the one hand, «responds to massive violations of fundamental rights» such as the right to life and physical integrity, to freedom of movement and to human dignity928, to a violation of «physical security human rights»929 and criminalizes attacks on those rights as an «ultima ratio modality of protection»930, and on the other «[l]ike national criminal law […] is subject to human rights limitations»931. The ICC itself has held that the Rome Statute was founded in its entirety founded on a concern for human rights932. Therefore, conceiving

925 926 927 928

929 930 931 932

Schabas (2001), p. 439 (at 451). See above in 2.5.2. Tulkens (2011), p. 577 (at 579). See also Werle/Jeßberger (2014), pp. 50 et sqq. Werle/Jeßberger (2014), pp. 45 et sq. For an overview of which human rights are violated by aggression, genocide, war crimes, and crimes against humanity, see Bassiouni (1985), p. 1453 (at 1458 et sqq.). See also Tomuschat (2002), p. 315 (at 329) («Genocide is certainly the worst of all offenses against both human dignity and international peace and security»). Fisher (2012), p. 20. Bassiouni (1985), p. 1453 (at 1453). See also Fisher (2012), p. 21. Werle/Jeßberger (2014), p. 53 (references omitted). Croquet (2011), p. 91 (at 109) referring to ICC - Appeals Chamber, Prosecutor v. Lubanga, 14.12.2006 – ICC-01/04-01/06-772 (OA4) (§ 37): «Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court». Sheppard (2010), p. 43 (at 59 et sq.) arguing that it is the Court’s pur-

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of risk permissions as the forum933 in which to balance liberty on the one hand and security on the other in order to restrict criminal responsibility that which is socio-politically necessary934, the task of devising risk permissions is intricately related to the normative consensus on which the criminal legal order rests. Article 21 (3) RS may, in that sense, grant expression to the normative consensus upon which the Rome Statute and its execution by the ICC is premised. But what is the relationship between human rights as triggers and neutralizers of criminal responsibility? I subsequently propose that balancing holds the answer to that question. 2.5.4.2.1. International law, the public law paradigm, and balancing of human rights under Article 21 (3) RS According to a «constitutionalist reading» of international law, according to the «public law paradigm», the international legal order of today has moved from co-existence via co-operation to constitutionalization 935, from being once «based on some organizing principles» like state sovereignty, consensualism and non-use of force to not only acknowledging but having «creatively appropriated» principles of domestic constitutionalism936. Constitutionalism is both descriptive and normative: It describes or reconstructs, in the above sense, particular features of the status quo of international relations as «constitutional» and seeks to offer arguments to promote their development in a specific direction937; the constitutionalization of international law, in turn, is both process and critical (academic) dis-

933 934 935 936 937

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pose «to uphold basic principles of law and justice»; Safferling (2001), p. 48 positing that the Court’s impact and persuasiveness depends upon adherence to human rights standards. Cf. again Rackow (2007), p. 65. Cf. again Roxin (2004), p. 929 (at 932). Peters (2005), p. 535 (at 536, 548). Peters (2012), p. 118 (at 118). See also Kumm (2013), p. 605 (at 606) and Weiler (2004), p. 547 (at 558) (conceiving of the «deep structure» of international law as still «pre-modern»). Peters (2012), p. 118 (at 119); Kleinlein (2012c), p. 705; Kleinlein (2012b), p. 79 (at 81). See also Paulus (2009), p. 69 (at 71, 91) («what is called for is a constitutional mind-set»).

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course938. While neither complete nor systematic, this process is now widely recognized939. A core tenet of constitutionalism is to shift the justificatory or legitimizing basis of international law from state sovereignty to humanity940, to a «common interest of mankind that transcends the sum of individual state interests» and in which human rights play a central role941. For constitutionalists, the claim to legitimate authority is normatively anchored in the individual942. The «constitutionalist model of international law» abandons the horizontal structure of international relations in favor of verticality, recognizing «a source of legitimacy that is higher than the individual states, a hierarchy of norms in which ordinary legal rules have to be reviewed against constitutional principles, and it employs constitutional methods of interpretation»943. It aims to bind states and international organizations «to substantive constitutional principles, especially the rule of law and human rights»944. Descriptively, the constitutionalization thesis refers to two circumstances. First, to «the autonomization of public international law vis-à-vis the states»: In this regard, the expansion of international regulation into new fields such as human rights, environmental protection, international criminal justice and self-determination has changed international law from an interstate order to a commitment to the individual and the global community; in its institutional dimension, the internal constitutionalization of international organizations entails these organizations’ independence from member states and the participation of non-state actors in law-making

938 Peters (2012), p. 118 (at 120); Kleinlein (2012c), p. 705. See also Johnston (2005), p. 3 (at 18 et sq., 27); Bryde (2005), p. 103 (at 104, 106); Kleinlein (2012b), p. 79 (at 86 et sqq., 99); Kleinlein (2012a), p. 385 (at 416) («international constitutionalism is an ongoing struggle for emancipation»). Global constitutionalism is by no means a coherent school of thinking, see on the different and diverging approaches taken under the label Peters (2006), p. 579 (at 610); Kumm (2009), p. 258 (at 263 et sqq.); Schwöbel (2011), pp. 11 et sqq. 939 Bryde (2005), p. 103 (at 106, 104). 940 Peters (2005), p. 535 (at 541); Peters (2012), p. 118 (at 120 et sq.). See also Kumm (2013), p. 605 (at «6 et sq.»). 941 Bryde (2005), p. 103 (at 107, 109 et sq.). 942 Kleinlein (2012a), p. 385 (at 410) with further references. 943 Bryde (2005), p. 103 (at 106). 944 Bryde (2005), p. 103 (at 106). See also Paulus (2009), p. 69 (at 109).

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whittle away state autonomy in policy shaping945. Second, to «the partial transfers of the functions of domestic constitutions to public international law and their international reinforcement»: Here, as «supplementary constitutions», norms of public international law are seen to epitomize community interests and moral values in human rights, WTO, and environmental law; these values are subsequently adjudicated by international courts and review bodies946. According to Johnston, the trends towards the «constitutional model of international law» that are «clearly visible» are international human rights law as the «ethical core of world constitutionalism», the establishment of the WTO regime and the emergence of international criminal tribunals which «give hope of flushing out war criminals and similar individuals from behind the barriers of state immunity»947. And Fassbender has posited that «whatever the fact of the UN Charter will be in the years to come […] in retrospect the Charter will be acknowledged as the twentieth century’s most important contribution to a constitutional history of the world»948. This paradigm shift from horizontal to vertical is, of course, not without critics; I will not engage with these critics here949. Instead, my aim is more modest: By help of the public law paradigm, it is to show that Article 21 (3) RS for the purposes of international criminal justice before the ICC allows conceiving human rights as principles in a rational account of balanc-

945 Kleinlein (2012c), pp. 704 et sq.; Kleinlein (2012b), p. 79 (at 82 et sqq.) with numerous references. 946 Kleinlein (2012c), pp. 704 et sq.; Kleinlein (2012b), p. 79 (at 85 et sq.) with numerous references. 947 Johnston (2005), p. 3 (at 19 with fn. 22). See also Bryde (2005), p. 103 (at 107) (human rights law as evidence of an accepted «common interest[] of mankind») and Gardbaum (2008), p. 749 (at 762 et sq., 764, 766 et sq.) (human rights law «marks a new, external stage in the historical development of constitutionalism») as well as Paulus (2009), p. 69 (at 94 et sqq.) for an analysis of the transfer of domestic constitutional principles to the international realm (democracy, rule of law, separation of powers, federalism, human rights, equality, and solidarity). 948 Fassbender (2009), p. 172. 949 For overviews and further references, see Johnston (2005), p. 3 (at 19 et sqq.); Bryde (2005), p. 103 (at 104 et sqq.); Schwöbel (2011), pp. 87 et sqq.; Kumm (2013), p. 605 (at «2» et sqq.) and in particular on the alleged «mythic dimension» of constitutionalism, Kleinlein (2012b), p. 79 (at 99 et sqq.) (referring to the myths of a world state, of hierarchization and of the use of constitutional language and aiming subsequently to strip constitutionalism of that dimension). See also Henninger (2013), p. 248.

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ing – an account of balancing which, in turn, will enable the Court to assess the need for risk permissions for acts of business exchange as the result of colliding human rights principles. I will proceed in three steps: To conceive human rights as principles, it is essential to take recourse to the notion of hierarchization of international law advanced by the public law paradigm. In the second step, I will explain how such human rights principles may be balanced when in conflict with each other. The final step will implement this account of human rights under Article 21 (3) RS and sketch the way forward. 2.5.4.2.1.1. Global constitutionalism and international law as a coherent system The negation of any formal hierarchy in the obligations in international law «is the point of the established doctrine of the equality of states»950. Global constitutionalism, in contrast, puts particular emphasis on such hierarchization or verticality of international law951. Constitutionalists attribute a superior status not only to ius cogens norms, whose recognition, in their view, transforms constitutionalization from a «vague idea of idealist scholars» into «an accepted feature of positive international law»952, but also to the UN Charter and to obligations erga omnes and do so in correspondence to a priority of values which has been absorbed by international law953. The special status and universally binding character of ius cogens and obligations erga omnes is, in this vein, explained by fundamental values pertaining to the international community as a whole954. 950 Crawford/Brownlie (2012), p. 15. See also Cassese (2005), pp. 198 et sqq. 951 Bryde (2005), p. 103 (at 109); Kleinlein (2012b), p. 79 (at 97). See also Paulus (2009), p. 69 (at 73, 75) on how sovereignty used to be regarded as «the decisive element for the completeness of international law», as «the background norm», resulting in these particular «systemic qualities of international law […] as an antidote of its hierarchization and constitutionalization». 952 Bryde (2005), p. 103 (at 109) with further references. 953 See Kleinlein (2012b), p. 79 (at 88, 98 et sq.) and also Peters (2005), p. 535 (at 538); Wet (2006), p. 611 (at 614); Kadelbach/Kleinlein (2007), p. 303 (at 317); Schutter (2010), pp. 60 et sqq.; Vidmar (2012), p. 13 (at 15 et sqq., 28); Bernstorff/Venzke (2012), p. 713; Henninger (2013), pp. 66, 257 et sq. 954 See Kleinlein (2012b), p. 79 (at 89 et sq.); Vidmar (2012), p. 13 (at 14, 28) and also Kadelbach (2006), p. 21 (at 28 et sqq.); Kadelbach/Kleinlein (2007), p. 303 (at 317); Besson (2009), p. 381 (at 391).

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Such hierarchization not only expresses international law’s transformation from a horizontal interstate order that emanates from state interests and is legitimized by state consent to a vertical constitutional order underpinned by a system of values common to mankind955 but essentially serves constitutionalism to establish international law as a «coherent, systemic legal order»956, as a formal and material «unity of international law»957. From a descriptive point of view within the public law paradigm, however, such hierarchization has also been the subject of criticism, regarding in particular how hierarchical superiority manifests itself, e.g. as «trumps»958. 2.5.4.2.1.2. Human rights as principles: A rational account of balancing The notion of a coherent and hierarchical system of law clears the path towards the second step: Methodologically, by availing constitutional interpretation techniques to international law, and substantively, by subjecting lawmaking in international law to constitutional principles such as human rights959 – «at the heart of global law»960, human rights represent a «last

955 See Kleinlein (2012a), p. 385 (at 394 et sq., 399); Wet (2006), p. 611 (at 612, 614, 616 et sq.); Wet/Vidmar (2012), p. 1 (at 3 et sq.). 956 See Kleinlein (2012b), p. 79 (at 99). 957 Kadelbach/Kleinlein (2007), p. 303 (at 346). See also Benvenisti (2007), p. 393 (at 402); Paulus (2009), p. 69 (at 72 et sqq.) and in particular Henninger (2013), pp. 249, 259 et sqq. on fragmentation and unity of international law, also with a view to the UN Charter. 958 See Shelton (2006), p. 291 (at 292) («while the concept [of ius cogens] is widely supported in the literature, sometimes to an abusive extent, state practice and judicial opinions have been slow to recognize or give legal effect to assertions of such norms») and Kadelbach/Kleinlein (2007), p. 303 (at 336 et sq.) (in «an ideally constitutionalized world, the hierarchy of values would be reflected in a strictly hierarchical order of rules and values») and also Kleinlein (2012b), p. 79 (at 107 et sqq., 121 et sqq., 128) for a critical perspective on hierarchization in particular with a view to ius cogens, suggesting to take a constructivist perspective to establish the constitutional character of ius cogens norms. See also Kritsiotis (2002), p. 961 (at 990 et sq.) («Our ‹international community is ‹deep› enough to have conceived of the idea of ius cogens but not deep enough to know what to do with it») and for a response to these criticisms Vidmar (2012), p. 13 (at 28 et sqq.); Henninger (2013), pp. 257 et sq. 959 Bryde (2005), p. 103 (at 109). 960 Domingo (2010), p. 142.

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line of defense» even vis-à-vis domestic constitutions961. Within the public law paradigm, it has been proposed to conceive human rights structured as principles in the sense of optimization requirements, whose adjudication thus calls for an act of balancing962. 2.5.4.2.1.2.1. Principles as optimization requirements: The constitutional domestic perspective The notion of principles as optimization requirements has been advanced prominently by Alexy with particular emphasis on constitutional rights963. He distinguishes between norms as rules and as principles, proposing that principles are never absolute in their normative pretension but are «optimization requirements» 964. They «are norms which require that something be realized to the greatest extent given the legal and factual possibilities», and «the scope of the legally possible is determined by opposing principles»965. While the world of principles is the world of the «ideal Ought»966 (and not of the ideal Good), principles and values possess «basically the same conceptual structure»967. Rules, on the other hand, «contain fixed points in the field of the factually and legally possible», they are norms which are either «fulfilled or not»968. «Conflicts of rules are played out at

961 Kleinlein (2012b), p. 79 (at 85). See also Henninger (2013), p. 297 and Gardbaum (2008), p. 749 (at 764 et sqq.) with further references. 962 Kadelbach/Kleinlein (2006), p. 235 (at 263 et sqq.); Kadelbach/Kleinlein (2007), p. 303 (at 337, 345) and in particular Henninger (2013), pp. 247 et sqq., 293 et sqq. In a similar vein Stone Sweet/Mathews (2008), p. 72 (at 160) have highlighted the ubiquity of proportionality review as «a foundational element of global constitutionalism». See also Crawford, Proportionality (2011), available at http:// opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1 459 (last visited: 30.06.2015). 963 Alexy/Rivers (2002). See in particular the concise review by Kumm (2004), p. 574 and also the overviews by Kadelbach/Kleinlein (2007), p. 303 (at 343 et sqq.); Stone Sweet/Mathews (2008), p. 72 (at 93 et sqq.) and Henninger (2013), pp. 222 et sq. 964 Alexy/Rivers (2002), pp. 100 et sqq. See also Alexy (2005), p. 572 (at 573). 965 Alexy/Rivers (2002), pp. 47 et sq., 52, 62. 966 Alexy/Rivers (2002), p. 82. 967 Alexy/Rivers (2002), p. 93. 968 Alexy/Rivers (2002), pp. 47 et sq.

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the level of validity» while «competitions between principles are played out in the dimension of weight» in a specific context969. According to Alexy, principles are «optimized» with a view to their realization to the greatest extent given the legal possibilities by balancing them depending on their respective degrees of intensity of non-satisfaction and importance of satisfaction: «The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other» (substantive Law of Balancing)970. In this vein, importance of satisfaction of one principle regards the intensity of interference with this principle if interference with the other principle were omitted971. Balancing thus results in conditional relations of precedence, i.e. the precedence of one principle over another under certain conditions972. It assigns relative or concrete weight to the principles in question973. This I concrete weight can also be expressed in the «Weight Formula» WI,j=  Iij  . WI,j  represents the concrete weight of the principle PI  relative to the principle P j , I I  represents the intensity of interfering with PI , and I j  the importance of satisfying P j 974. While this notion of principles thus expresses the impossibility or implausibility of an intersubjectively binding «hard» ordinal ranking of values975, it does not preclude the possibility of different abstract weights of principles. If abstract weights of principles differ, they have to be taken into account during balancing. Alexy proposes to this end that abstract weights have the same impact upon a principle’s concrete

969 970 971 972

Alexy/Rivers (2002), p. 50. Alexy/Rivers (2002), pp. 102, 401. Alexy (2003), p. 433 (at 441). Alexy/Rivers (2002), pp. 47 et sq., 62. See Alexy/Rivers (2002), p. 52: «The relation of precedence is conditional because in the context of the case conditions are laid down under which one of the principles takes precedence. Given other conditions, the issue of precedence might be reversed». 973 Alexy/Rivers (2002), p. 102. 974 Alexy (2003), p. 433 (at 443 et sqq.); Alexy (2005), p. 572 (at 575 et sqq.). 975 Alexy/Rivers (2002), pp. 97 et sq. alluding both at the danger of a «tyranny of values» (if the most trivial form of protection of higher ranked principles could justify the most serious breaches of lower ranked principles in every case) and to the structure of principles, whereby each principle «includes a reference to the requirements of competing principles». «Soft orderings» can arise through prima facie preferences (e.g. for personal liberty) and networks of preference decisions (e.g. by a constitutional court) – the establishment of such «soft orderings» depends, in turn, on balancing as described above.

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weight as do intensity of interference respectively importance of satisfaction976. The above «Weight Formula» is subsequently expanded to I .W WI,j=  I ij . Wij   wherein WI  represents the abstract weight of PI 977.

As regards the factually possible, Alexy refers to the notions of the suitability of a measure and necessity of equally suitable measures; unsuitable as well as unnecessary measures are prohibited by principles as optimization requirements: A measure unsuitable to the promotion of one principle but nevertheless obstructing a competing principle is prohibited by both principles taken together, as is a measure more obstructive to one principle but equally suitable to another978. One position can thus be improved without hurting the other; in other words: both principles taken together may be realized to a factually greater extent if the unsuitable or unnecessary measure is abandoned979. Such balancing of principles is able to avoid – unlike what has been alleged with a view to balancing interests 980 – interpretative decisionism and allows making rational judgments981. As Alexy posits, «a balancing of principles is rational if the preferential statement to which it leads can be rationally justified»982. To this end, understandable reasons for the assumptions underlying judgments about intensity and importance must be

976 977 978 979

Alexy (2003), p. 433 (at 446). Alexy (2003), p. 433 (at 446). Alexy/Rivers (2002), pp. 397 et sqq. Alexy/Rivers (2002), pp. 397 et sqq. Such assessments of suitability and necessity are subject to epistemic uncertainty. Outside of democratically legitimated decision-making processes, where epistemic uncertainty cannot either preclude legislative powers or justify extremely intensive interferences leading Alexy to conclude that certainty of underlying premises must increase as the intensity of interference increases (so-called «epistemic Law of Balancing»), «epistemic optimization» demands that balancing proceed either on the basis of truth or, lacking ascertainable truth, «on the basis of the premises most favorable to the right in question», i.e. premises which cannot justify interference; epistemic discretion would otherwise allow for rights not to «be realized to the greatest extent relative to what is factually possible», Alexy/Rivers (2002), pp. 416 with fn. 87, 417 et sqq. 980 See above in 2.5.4.1.1. 981 Alexy (2005), p. 572 (at 574, 577). In Alexy’s view, rational judgments are correct, objective, and justified. 982 Alexy/Rivers (2002), p. 101. See also Alexy/Rivers (2002), p. 106 pointing out that irrationality does not begin where «one enters the arena of non-authoritatively binding predetermined evaluations».

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provided983. Such justification is, in turn, possible by recourse to the standard canon of interpretation, to considerations of doctrine, or general practical and empirical arguments984. In Alexy’s account of balancing, the presence of a particular intensity of non-satisfaction or importance of satisfaction to be accounted for in balancing depends, inter alia, on references to facts, empirically tested relations or normative assessments985. These arguments, which are used to justify statements of intensity and importance, however, «have nothing to do with balancing» as a method986. It is therefore not their commensurability which is important but that of the competing principles. In contrast to the concept of interests, their structure as «optimization requirements», inclusive of references to competing principles, ensures commensurability on that scale987. In sum, balancing is «not a matter of all or nothing but a requirement to optimize», and «the balancing model as a whole provides us with a [decision] criterion because it ties the Law of Balancing to the general theory of rational legal argumentation»; «it tells us what it is that has to be rationally justified»988. Nevertheless, balancing does not offer the one correct answer; instead, it provides a rational structure in which to conduct a critical analysis989.

983 Alexy/Rivers (2002), p. 405. See also Alexy (2003), p. 433 (at 436): «According to Habermas, there are no rational standards for balancing or weighing […] Habermas […] would be right if there were no structure making it possible for one to construct balancing as a rational form of argumentation. In order to show that such a structure does indeed exist, I shall turn to reasoning in constitutional law. It is here that the technique of balancing has been developed with the greatest degree of sophistication» (my italics) and, more extensively on the issue, Alexy (2005), p. 572 (at 573 et sqq.). 984 Alexy/Rivers (2002), p. 101. 985 Alexy/Rivers (2002), pp. 105 et sq., 108. 986 Alexy/Rivers (2002), pp. 105, 404. See also Alexy (2003), p. 433 (at 439). 987 Even with regard to principles, however, a ranking by «metrication» is as impossible. On the relationship between the structure of values and commensurability, see Alexy/Rivers (2002), pp. 91, 99: «[T]he problem is with establishing the figures». See also Alexy (2003), p. 433 (at 442) with a view to Aleinikoff (1987), p. 943 (at 972 et sqq.) and Griffin (1988), p. 78. 988 Alexy/Rivers (2002), p. 107. 989 Borowski (1998), pp. 82 et sqq., 123.

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2.5.4.2.1.2.2. Principles as optimization requirements in the public law paradigm: The international constitutional perspective Principles appear as optimization requirements in a wide range of scholarly contributions on international law as well as in institutional practices of balancing and proportionality review990. Within the public law paradigm, the notion of principles as optimization requirements both calls for a certain degree of constitutionalization of international law and aids its advancement as a process: In the former sense, as described above, constitutionalism presumes the formal and material unity of international law, considers international law a system coherent as a matter of an order of values991. And in the latter sense, principles as «statements of value»992 possess a dynamic relationship with each other that allows conceiving a value order as the basis for a coherent system and unity of international law, without the inflexibility of an approach that postulates the absolute (and empirically improbable) character of certain values993. They transport the notion of the implausibility of a hard ordering of values from the domestic to the international realm994. Hierarchization within the public law paradigm, therefore, is ever only the result of a soft ordering, and the ius cogens character of norms, on this reading, is (but) a matter of weight995. Principles thus enable «a description and a systematization of the totality of individual norms» and their application fosters «the unity of international law» both in a methodological (with a view to adjudication as balancing) and a substantive manner (with a view to principles as statements

990 See e.g. United Nations Secretary-General (2000), p. 48 («We confront a real dilemma. Few would disagree that both the defence of humanity and the defence of sovereignty are principles that must be supported. Alas, that does not tell us which principle should prevail when they are in conflict»). For overviews on principles, see Kadelbach/Kleinlein (2007), p. 303 (at 338 et sqq.); Henninger (2013), pp. 231 et sqq. and on proportionality in international law Stone Sweet/ Mathews (2008), p. 72 (at 138 et sqq.); Henninger (2013), pp. 231 et sqq. 991 See above in 2.5.4.2.1.1. 992 Kadelbach/Kleinlein (2007), p. 303 (at 337). See again Alexy/Rivers (2002), p. 93. 993 See above in 2.5.4.2.1.2.1 and again Kadelbach/Kleinlein (2007), p. 303 (at 337 et sq.). 994 See above in 2.5.4.2.1.2.1 on the notion of hard orderings. 995 Henninger (2013), p. 304. See also Kadelbach/Kleinlein (2007), p. 303 (at 346).

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of value)996. Their implementation in international law is thus duly motivated997. 2.5.4.2.1.2.3. Human rights as principles in international law To conceive of human rights as principles in the above sense would serve both to rationalize legal argumentation (human rights as optimization requirements whose adjudication requires recourse to balancing) and to provide unity to international law within the public law paradigm (human rights as statements of fundamental values)998. To this end, two prerequisites must be met: According to Alexy, principles can be constituted only by norms with binding character in the respective legal order999; these norms must moreover allow to «be satisfied to varying degrees»1000. With a view to the former prerequisite, the recognition of human rights as ius cogens, obligations erga omnes, customary law, and/or general principles of law has persisted as a controversial issue1001, even within descriptive and normative constitutionalist thinking1002. Their controversial character,

996 Kadelbach/Kleinlein (2007), p. 303 (at 345 et sq.). In this vein also Henninger (2013), p. 250. 997 See in particular Henninger (2013), p. 221. 998 See above in 2.5.4.2.1.2.1 and again Kadelbach/Kleinlein (2007), p. 303 (at 345, 347) and also Henninger (2013), pp. 268 et sq., 297. 999 Alexy/Rivers (2002), pp. 62, 80 et sqq. on the derivation of principles from provisions contained in the legal order: The scope of principles which can be the object of balancing is determined in accordance with validity; validity is derivative of the legal order in which balancing operates, in other words: the principles must be located within the legal system. See also Henninger (2013), pp. 251 et sqq., 292. 1000 See again Alexy/Rivers (2002), pp. 47 et sq. and also Henninger (2013), p. 293. 1001 For an overview of the normativity of human rights in international law generally, see Meron (1991), pp. 93 et sqq., 97 et sq., 99; Hannum (1995), p. 287 (at 340 et sqq.); Bassiouni (1996), p. 63 (at 67 et sqq.) and more recently Cassese (2005), pp. 206 et sq., 393 et sqq.; Tomuschat (2006), p. 425 (at 426); Meron (2006), pp. 191 et sq.; Shaw (2006), pp. 256 et sq.; Rehman (2010) pp. 18 et sqq.; Crawford/Brownlie (2012), pp. 667 et sqq.; Henninger (2013), pp. 192 et sqq. and in particular Seiderman (2001), pp. 64 et sqq.; Schutter (2010), pp. 48 et sqq., 65 et sqq. with further references. 1002 From the constitutionalist perspective, see Fischer-Lescano (2005), pp. 223, 228 et sqq.; Bryde (2005), p. 103 (at 112 et sq.); Peters (2006), p. 579 (at 601); Kadelbach (2006), p. 21 (at 27 et sqq.); Gardbaum (2008), p. 749 (at 763);

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however, does not mitigate the character of human rights norms as legally binding in international law; the limited normative force of human rights is merely a matter of their application1003. With a view to their allowing to be «satisfied to varying degrees»1004, it is important to note that the materialization of human rights is regularly limited both legally and factually in human rights norms by limitation clauses; the existence of human rights norms lacking express limitation clauses does not infringe upon the principle character given that their formulation can be regarded as constituting rules which express the result of balancing particularly important principles1005. 2.5.4.2.1.3. Results: Constitutionalization of international law, Article 21 (3) RS and risk permissions Article 21 (3) RS is said to place «internationally recognized human rights» at the top of the normative pyramid to be applied by the ICC1006, to constitute an «international super-legality»1007, a «quasi-constitutional provision»1008, with «tremendous potential as a tool of evolution and innovation»1009. All of the applicable law, Schabas posits, is subject to «internationally recognized human rights» by means of Article 21 (3) RS1010. In Saland’s more modest words, Article 21 (3) RS constitutes a rule of con-

1003 1004 1005

1006 1007 1008 1009 1010

Paulus (2009), p. 69 (at 88 et sqq., 104 et sq.); Peters (2012), p. 118 (at 121); Henninger (2013), p. 145. Henninger (2013), p. 293. See again Alexy/Rivers (2002), pp. 47 et sq. and also Henninger (2013), p. 293. Both the UDHR and ICCPR contain general limiting clauses in Articles 29 UDHR and 4 ICCPR; moreover, many human rights norms contain specific limiting clauses, e.g. Article 12 (3) ICCPR, Henninger (2013), p. 295 with fn. 96. Human rights norms exempt from general limiting clauses or without specific limiting clauses such as Article 2 (2) of the U.N. Convention against Torture, may be regarded as rules in the above sense, Henninger (2013), p. 304 with fn. 136. Deprez (2012), p. 721 (at 729) (noting also that the hierarchical approach taken by Article 21 RS is unusual in light of the absence of such hierarchies in international law). Pellet (2002), p. 1051 (at 1079). Sheppard (2010), p. 43 (at 46). Young (2011), p. 189 (at 189). Schabas (2010), p. 385.

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sistency1011. Based on the above, we may now re-appreciate Article 21 (3) RS from within the public law paradigm as an affirmation of the constitutionalization of international law: Constitutionalism aims to subject both state actors and international organizations such as the ICC to human rights1012, and Article 21 (3) RS is a formidable acknowledgement as regards both the internal constitutionalization of the ICC as an international institution and the ICC as an international institution subject to a global constitutional order: «[I]nternationally recognized human rights» are, in this vein, binding upon the ICC1013. From this perspective, and parallel to the domestic case, the fundamental imperative of neminem laede cannot claim exclusive normative authority before the ICC but is contingent upon the fundamental consensus of the global constitutional order. As a subject of international law in terms of a normative order striving to optimize human rights as principles, the ICC must engage with their triggering and neutralizing role in a rational account of balancing to produce limits on criminal responsibility to the socio-politically necessary in a global sense1014. Such limitations may aptly be established in the forum provided by risk permissions1015. 2.5.4.2.2. The scope of internationally recognized human rights in Article 21 (3) RS From within the public law paradigm, it is subsequently important to more closely examine the scope of Article 21 (3) RS: Which human rights are internationally recognized in the provision’s sense and to what effect? After all, while the phrase at first sight makes reference to terminology commonly used, «internationally recognized» has only rarely been used in other international treaties and by other international bodies; moreover, this

1011 Saland (1999), p. 189 (at 214). 1012 See above in 2.5.4.2.1.1 and again Bryde (2005), p. 103 (at 106). 1013 Which human rights are «internationally recognized» in the provision’s sense will be the subject of the next section, see below in 2.5.4.2.2. 1014 See above in 2.5.4.2.1.2.3 and cf. again for the domestic case Schürer-Mohr (1998), p. 165. 1015 See above in 2.5.3.5 and cf. again for the domestic case Roxin (2004), p. 929 (at 932).

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use has remained ambiguous1016. Sheppard and Young have made a considerable effort to provide guidance on the issue. 2.5.4.2.2.1. Honest unevenness in a «contextual» approach to «internationally recognized»? Sheppard has observed in the Court’s practice that a coherent theory of how to select applicable human rights has yet to be developed; the Court appears to adopt human rights guarantees on the account that it finds them compelling and without engaging the difficult issues that arise from this unsystematic «locating of quasi-constitutional norms»1017. Indeed, there is little guidance for the Court to rely on: From an ordinary meaning and contextual perspective under Article 31 VCLT, Young has suggested that the meaning of «internationally recognized human rights» in Articles 21 (3) and 69 (7) RS refers not to a formal body of law such as «the law of international human rights» in Article 36 (3) RS but, in contrast, alludes to a «degree of international acceptance of the right in question»1018. According to Sheppard, «internationally recognized» implies a threshold below universality1019. As regards Article 32 VCLT, both Young and Sheppard

1016 On other treaties, see Young (2011), p. 189 (at 194) with reference to Art. 2 (b) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Conventions Against Transnational Organized Crime of 2003, to Art. 8 (2), 9 (1) of the Convention (No. 169) concerning indigenous and tribal peoples in independent countries of 1991 and to the Dayton Peace Accords, Annex 6: Agreement on Human Rights of 1995. See also Young (2011), p. 189 (at 195) with reference to inter alia ICTY - Appeals Chamber, Prosecutor v. Tadic, 02.10.1995 – IT-94-1 (§ 45), whereby the ICTY Statute’s interpretation must occur «in full conformity with internationally recognized human rights instruments». 1017 Sheppard (2010), p. 43 (at 49 et sqq., 54) with reference to ICC jurisprudence; he has identified in the Court’s practice (1) recourse to universality, (2) a «shotgun approach» (where the Court identified as many written sources as possible for the conclusion of international recognition), (3) or recourse only to singular instruments, human rights monitoring bodies and regional human rights courts, in particular to the ECHR and interpretative jurisprudence by the ECtHR. See also Young (2011), p. 189 (at 199 et sqq.) for an extensive review of the Court’s practice. On recourse to ECtHR jurisprudence by the ICC, see also Croquet (2011), p. 91. 1018 Young (2011), p. 189 (at 193). 1019 Sheppard (2010), p. 43 (at 53). See also Young (2011), p. 189 (at 203).

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have remarked that while Article 21 (3) was indeed debated during the Statute’s drafting, the phrase «internationally recognized human rights» was not1020; Saland has even stated that the law applied by the Court «should be consistent with certain internationally recognized human rights values»1021. The ICC is, then, on «safe grounds» so long as it considers universal human rights endorsed by instruments such as the UDHR or the ICCPR under Article 21 (3) RS1022. To clarify what counts as international recognition beyond universality, Sheppard has suggested two possible approaches: On the one hand, a minimalist approach whereby «some international recognition without a further threshold test» of a norm as a human right suffices, and on the other, a contextual approach whereby the applicability of a human rights instrument depends upon its applicability had the individual case been prosecuted before a national authority that would «normally exercise jurisdiction»1023. Both approaches, he has argued, conform to a textual interpretation of Article 21 (3) RS, and both avoid stripping individuals of human rights protection they would otherwise have been afforded in their domestic jurisdictions; a major difference arises, however, with regard to regional human rights instruments: While the former «minimalist» approach ensures a maximal level of human rights protection and, at the same time, equal treatment of all individuals accused before the ICC, it generates a conflict with the regional structure of international human rights instruments, which the latter «contextual» approach avoids1024. Unlike the minimalist approach, the «contextual approach» would not «raise[] the risk of incorporating conflicting norms», a conflict (too) difficult to resolve in particular when «specific rights in question are the product of a balancing of competing higher-order norms»1025. This application of Article 21 (3) RS would also respect «the contingent relationship between applicable law and the governing law of the state that would normally exercise jurisdic-

1020 Sheppard (2010), p. 43 (at 68); Young (2011), p. 189 (at 198). 1021 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (23.06.1998), Summary records of the meetings of the Committee of the Whole: UN Doc. A/CONF.183/C.1/SR.12, pp. 221 et sq. (my emphasis). 1022 Sheppard (2010), p. 43 (at 52, 63). 1023 Sheppard (2010), p. 43 (at 63, 65). 1024 Sheppard (2010), p. 43 (at 64, 66). 1025 Sheppard (2010), p. 43 (at 64 et sq.).

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tion» expressed in Article 21 (3) (c) RS1026 and safeguard the regional structure of international human rights instruments in favor of State interests «to choose not to follow suit»1027 concerning regional protection instruments – a consequence, Sheppard has admitted, which generates «a sense of injustice» but which he nevertheless views defensible as «honest, albeit uneven», given that «the reality is that had […] two fictional persons [of different regions] been prosecuted before national authorities, each would have benefited from a different basket of rights in any event»1028. 2.5.4.2.2.2. Implications: Uneven human rights protection of business actors before the ICC? This honest unevenness is particularly illustrative with a view to business actors. The ECHR in Article 1 of Protocol No. 1 extends its protection of human rights in particular to freedom from interference in business activity: The ECtHR – a court often cited by the ICC in its interpretation of Article 21 (3) RS1029 – has opted in this vein for an extensive interpretation of the right to enjoyment of one’s possessions contained in Article 1 of Protocol No. 1 to the ECHR, considering in a number of cases «the economic interests connected with running a business»1030 as possessions and protecting them as a human right against interference1031.

1026 Sheppard (2010), p. 43 (at 65). 1027 Sheppard (2010), p. 43 (at 57). See the four general principles on which Sheppard has based his arguments: (1) an interpretation of Article 21 (3) pursuant to Article 31 VCLT, (2) the complementary function of the ICC which should not serve to circumvent human rights protection afforded by national jurisdictions, (3) the structure of human rights law and its regional division, and (4) the ICC’s character as an independent legal personality, whose «freestanding duties» must not be impeded, see Sheppard (2010), p. 43 (at 54 et sqq.). 1028 Sheppard (2010), p. 43 (at 67). 1029 See again Sheppard (2010), p. 43 (at 49 et sqq.). 1030 European Court of Human Rights, Tre Traktörer Aktiebolag v. Sweden, 07.07.1989 – 10873/84 (§ 53): «Like the Commission, however, the Court takes the view that the economic interests connected with the running of Le Cardinal were ‹possessions› for the purposes of Article 1 of the Protocol (P1-1)». 1031 For an overview, see Carss-Frisk (2001), pp. 14 et sq.

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2.5.4.2.2.2.1. Article 1 of Protocol No. 1 to the ECHR: Protecting solidified interests in economic and professional liberty as a human right In this regard, it was held by the ECtHR that – the refusal to register applicants «as certified accountants radically affected the conditions of their professional activities and the scope of those activities was reduced. […] [B]y dint of their own work, the applicants had built up a clientele; this had in many respects the nature of a private right and constituted an asset and, hence, a possession within the meaning of the first sentence of Article 1 (P1-1)». Due to refusal, «[t]heir income fell, as did the value of their clientele and, more generally, their business. Consequently, there was interference with their right to the peaceful enjoyment of their possessions […]»1032; – the revocation of a license to sell alcoholic beverages «had adverse effects on the goodwill and value of the restaurant» since «the maintenance of the licence was one of the principal conditions for the carrying on of the applicant company’s business»; «[s]uch withdrawal thus constitutes, in the circumstances of the case, an interference with [the] right to the ‹peaceful enjoyment of […] possessions›» which thus includes «the economic interests connected with the running» of a business1033; – «goodwill may be an element in the valuation of a professional practice, but that future income itself is only a ‹possession› once it has been earned, or an enforceable claim to it exists» and «that the same must apply in the case of a business engaged in commerce»1034; – and most recently, that «all these economic resources» – i.e. «unchallenged rights over the common lands in the village, such as the pasture, grazing and the forest land» used by the applicants to «earn[] their living from stockbreeding and tree-felling – «and the revenue that the ap-

1032 European Court of Human Rights, Van Marle and others v. The Netherlands, 26.06.1986 – 8543/79, 8674/79, 8675/79, 8685/79 (§§ 41 et sq.). 1033 European Court of Human Rights, Tre Traktörer Aktiebolag v. Sweden, 07.07.1989 – 10873/84 (§ 53). 1034 European Court of Human Rights, Andrews v. United Kingdom, 26.09.2000 – 37657/97 (§ 6).

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plicants derived from them may qualify as ‹possessions› for the purposes of Article 1»1035. In light of this jurisprudence, commentators have argued that the ECtHR seeks «to achieve a complete and effective protection of fundamental rights through the interpretation of the very restrictive catalogue of the economic fundamental rights guaranteed by the ECHR»1036. The ECtHR’s insistence on limiting Article 1 of the Protocol to what has been acquired (in contrast to mere expectations, prospects of acquisitions or future income without enforceable claims to it1037), has been interpreted in the sense that the Court’s «analogous» reading of Article 1 of the Protocol protects «solidified» interests in economic and professional liberty as acquisitions1038; from another’s perspective, however, the ECtHR’s reliance on goodwill (i.e. «the business relationships which a company or an entrepreneur has formed in the past and which have an influence on the value of business exceeding the mere intrinsic value»1039) as such a «solidified interest» is of doubtful merit for a lack of clear distinction between or even distinctness of (protected) goodwill and (unprotected) future income1040. In spite of these conceptual pitfalls, it can be argued that ECtHR jurisprudence not only protects the so-called goodwill of an individual’s or company’s business as possessions, but generally «solidified» economic interests in business ventures, i.e. «the economic interests connected with the running» of a business1041. According to Article 1 of Protocol No. 1 to the ECHR, such protection must even extend beyond individual business owners to the business venture as a legal person.

1035 European Court of Human Rights, Dogan and others v. Turkey, 29.06.2004 – 8803-8811/02, 8813/02, 8815-8819/02 (§ 139). 1036 Wegener (2007), p. 130 (at 134). 1037 See Kriebaum (2008), p. 155. 1038 Cremer (2013), mn. 48 («materiell geronnene Berufsfreiheit als etwas Erworbenes», my translation). 1039 Wegener (2007), p. 130 (at 133). 1040 Kriebaum (2008), p. 156 refers inter alia to the definition of goodwill given by the European Commission European Commission of Human Rights, Pinnacle Meat Processors Company and others v. The United Kingdom, 21.10.1998 – 33298/96: «The applicants’ businesses in March 1996 comprised their stock at that time, the assets of the businesses, and the goodwill, or the ‹present value of the future income stream which the company can be expected to derive›» (my italics). 1041 European Court of Human Rights, Tre Traktörer Aktiebolag v. Sweden, 07.07.1989 – 10873/84 (§ 53).

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2.5.4.2.2.2.2. Interference by criminalization of acts of business exchange Governmental or legislative restrictions which have resulted in a «loss of business» have been treated by the ECtHR not as deprivations but as controls of use of possessions1042. Governmental or legislative action has been treated as a controls of use both in cases of direct interferences (e.g. a measure which banned the sale of certain weapons1043) and of indirect interferences with protected possessions (e.g. a measure which prohibited registration as an accountant1044 or the use of bovine material in meat processing1045)1046. The ECtHR applies a balancing test in order to determine the scope of permissible interference with the protected use of possessions under Article 1 of the Protocol in each specific case: Interferences, including controls of use, «must achieve a ‹fair balance› between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights» so as to avoid a «disproportionate burden» to the rights holders1047. In assessing such (dis-)proportionality, the ECtHR accords a «wide margin of appreciation of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of en-

1042 See European Court of Human Rights, Andrews v. United Kingdom, 26.09.2000 – 37657/97 (§ 7) and Cremer (2013), mn. 96, 102. 1043 European Court of Human Rights, Andrews v. United Kingdom, 26.09.2000 – 37657/97 (§ 7). 1044 European Court of Human Rights, Van Marle and others v. The Netherlands, 26.06.1986 – 8543/79, 8674/79, 8675/79, 8685/79 (at 42). 1045 European Commission of Human Rights, Pinnacle Meat Processors Company and others v. The United Kingdom, 21.10.1998 – 33298/96. 1046 Cremer (2013), mn. 82. 1047 European Court of Human Rights, Chassagnou and others v. France, 29.04.1999 – 25088/94, 28331/95, 28443/95 (§§ 75, 85). As was argued by Christoffersen, the balancing test applied by the ECtHR «can be explained by the principle character of the norms of the ECHR», resulting in an understanding of the ECtHR’s decisions as «conditioned relations of precedence that are interconnected by the underlying legal principles that have been applied to – or inferred from – the circumstances of particular cases. The underlying legal principles make up the law of the ECHR», Christoffersen (2009), p. 225. See also Cremer (2013), mn. 118, 122 et sqq. on proportionality with a view to controls of use and Cariolou (2008), p. 249 (at 265 et sqq.); Schutter/Tulkens (2008), p. 169 and Bomhoff (2008), p. 619 extensively on conflicting rights under the ECHR in general.

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forcement are justified in the general interest for the purpose of achieving the object of the law in question»1048.

This judicial self-restraint, Cremer argues, is exercised out of respect for political decisions resulting from democratic decision-making processes in member states1049. Both the imposition of criminal sanctions for carrying out acts of business exchange and the threat of criminal sanctions inherent in criminal law provision may thus constitute impermissible interferences with or controlling measures of the protected use of possessions by businesses and business owners if these sanctions or threats of sanctions diminish the value of a business venture. Indeed, if the result of professional activity as an aggregate of economic interests is protected as a possession under Article 1 of Protocol 1 to the ECHR, criminal sanctions or threats thereof which de facto sustainably impede the continuance of a business venture through acts of business exchange may constitute impermissible interference with the Article1050. In other words: So long as the de facto outcome of sanctions or threats thereof has «affected the conditions of […] professional activities» and has reduced «the scope of those activities»1051, the enjoyment of possessions has been interfered with. Such interference by criminal sanctions or threat thereof need not be directed at the business or business owner directly; the right to enjoyment of possessions may arguably be interfered with also by sanctions or threats thereof directed at employees whose activities are essential to maintaining the venture’s economic value. The Court thus establishes, in part, human rights protection of «the social and personal interest in not unduly inhibiting the conduct of business by the imposition of criminal sanctions»1052.

1048 European Court of Human Rights, Chassagnou and others v. France, 29.04.1999 – 25088/94, 28331/95, 28443/95 (§ 75). See also Cremer (2013), mn. 122. 1049 Cremer (2013), mn. 127. 1050 Cf. generally Cremer (2013), mn. 83. 1051 Cf. again European Court of Human Rights, Van Marle and others v. The Netherlands, 26.06.1986 – 8543/79, 8674/79, 8675/79, 8685/79 (§ 42). 1052 Cf. The Law Commission (1993), p. 118.

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2.5.4.2.2.2.3. Uneven protection of human rights in a «contextual approach» before the ICC Following the «minimalist» approach – and assuming, moreover, that «internationally recognized» confers on the Court the duty to consider the ECtHR’s interpretation of the ECHR with a view to solidified economic interests1053 – Article 21 (3) RS would mandate consideration of the scope of human rights protection afforded to business activity by the ECHR in its prosecution of all business actors accused before it1054 - and might thus inform the establishment of risk permissions for conduct otherwise criminalized as commission. From the «contextual position», however, this would not be the case; here, only business actors originally under the ECHR’s protection would be able to enjoy these limits to criminal responsibility before the ICC. Business actors outside the ECHR’s scope of application would enjoy protection merely as granted either by regional instruments such as Article 26 ACHR (progressive development), Article 15 (right to work) ACHPR and Articles 34 (right to work) and 38 (adequate standard of living) of the Arab Charter or by the International Bill of Rights in Articles 17 (right to property), 23 (right to work) and 25 (adequate standard of living) UDHR, and Articles 6 (right to work) and 11 (adequate standard of living) ICESCR respectively, whereby only a significantly less demanding and often less precise standard of protection linked to the achievement of adequate living conditions through work could be established1055. Unlike under the ECHR, such protection would moreover not extend beyond individuals to a corporate entity as a legal person. To safeguard states’ interests not to follow suit to what more demanding regional human rights instruments such as the ECHR establish,

1053 Cf. Sheppard (2010), p. 43 (at 70 et sq.) on the duty to consider ECtHR interpretative efforts generally. 1054 A different approach via Article 21 (1) RS would be available if Article 1 of the Protocol were considered customary law. There is, however, no support for this conclusion. On the customary character of fair trial rights in the ECHR, see Zahar/Sluiter (2008), p. 267 and, relatedly, Frouville (2011), p. 633; Schabas (2011b), p. 609 (at 609 and sqq.) on the productive relationship between the ECtHR and the ad hoc tribunals. 1055 On the scope of protection under these provisions, see Rehman (2010) pp. 149 et sqq., 286, 320, 381 et sq.; Coomans (2010), p. 280 (at 292 et sqq., 301); Kälin/Künzli (2013), pp. 506 et sqq. and also Smith (2005), pp. 305 et sq.

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African business activity would thus enjoy a lower level of protection from international prosecutions than European business activity. Indeed, as Sheppard considers, this generates «a sense of injustice»1056. Is his proposal nevertheless «defensible» as he claims1057? In other words: Need we engage in considering the justice of his approach to Article 21 (3) RS? Questions of justice and injustice are difficult terrain for they touch upon the relationship between law and morality. In deciding on the question as to which human rights are «internationally recognized» under Article 21 (3) RS, it appears at first sight irrelevant whether a minimalist approach is or is not more just than the contextual approach Sheppard defends with important arguments. At second sight, however, it is indispensable that we also account for the difference between what have been alluded to as formal and material explanations of or reasons for the legitimacy of international criminal law1058 and turn our attention to the latter. 2.5.4.2.2.3. «Internationally recognized» and the ICC as a just global institution: A material perspective on global justice within the public law paradigm Sheppard’s review of Article 21 (3) RS is a case in point: Is it «defensible» to limit the scope of human rights protection before the ICC by recourse to the scope of human rights protection afforded in a hypothetical domestic prosecution of the matter 1059? Does the reality of regional human rights systems as an «issue to inform the operation of Article 21 (3)» require of the Court their «proper recognition» by preferring the «validity of a regional human rights system» and its state-centered premise that «the wider international community is permitted to choose not to follow suit»1060 over the equal protection of individuals? The underlying claim that answers these questions rests on the allegation of a primacy of state sovereignty over human rights protection – as we have seen, a claim both empirically falsified and critically reviewed in the public law

1056 Sheppard (2010), p. 43 (at 66). 1057 See Sheppard (2010), p. 43 (at 67). 1058 On such explanations, cf. Mylonopoulos (2009), p. 68 (at 87 et sqq.); Ambos (2013a), p. 293 (at 299); Ambos (2013c), p. 57. 1059 See again Sheppard (2010), p. 43 (at 67). 1060 See again Sheppard (2010), p. 43 (at 57).

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paradigm1061. Quite paradoxically, while the «purpose behind the creation of international human rights law was to bind the states of the world together for the protection of individuals worldwide», the «focus on regional human rights systems has undermined this purpose of international human rights law by drawing arbitrary boundaries between people»1062. The public law paradigm, as a «heuristic device»1063, however, does not offer the material perspective to refute such claims1064. It is the task of this section to devise such a perspective suitable to the public law paradigm; this perspective, I propose, should draw on (moral) cosmopolitanism1065. Pursuant to Sheppard’s research, the meaning of «internationally recognized human rights» avails itself neither to an ordinary meaning nor to a contextual or genetical interpretation (nor to a query of other sources of interpretation under the VCLT); in order to investigate the injustice sensed in light of the «uneven» approach taken to Article 21 (3) RS by Sheppard, I subsequently endorse a broader approach that enters into the fundamental – and at the same time shaky – grounds on which to determine the justice and legitimacy of the ICC1066. It is not only the provision’s «open-

1061 1062 1063 1064

See above in 2.5.4.2.1.1. Robbins (2004), p. 275 (at 276). Besson (2009), p. 381 (at 382). See Kleinlein (2012a), p. 385 (at 413 et sqq.) («‹Constitutionalism› as such cannot be an argument») with further references. 1065 But see Kleinlein (2012b), p. 79 (at 91, 103 et sqq.), critically on a «turn to ethics» in international law generally and in constitutionalist thinking particularly, arguing – on the one hand – that «value talk is a slippery slope» and for the incapability of values to transcend politics, and – on the other hand – that a Habermasian communicative paradigm could offer a foundation to the assumption of global values. See also for a critical perspective on a «turn to ethics» in international relations Koskenniemi (2002), p. 159. 1066 For an overview regarding a «supranational ius puniendi», see Ambos (2013a), p. 293 (at 293 et sqq.). Positions in scholarship on this matter are most diverse and range from denial to affirmation as in Ambos’s claim that «a supranational ius puniendi can be inferred from a combination of the incipient supranationality of the world order (understood normatively as an order of values)» with «the concept of a world society composed of world citizens whose law – the ‹world citizen law› (‹Weltbürgerrecht›) – is derived from universal, indivisible and interculturally recognized human rights predicated upon a Kantian concept of human dignity. The incipient world order and the world society are represented by the international community (to be understood as a community of values) which becomes the holder of the ius puniendi».

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ended formulation»1067 and Saland’s allusion to «human rights values»1068 that make such an approach appropriate. In taking this approach, I also acknowledge that any «state-centered enforcement approach [to international criminal law] ignores the potential force of norms with regard to their material […] legitimacy», whose indispensability, as Ambos points out, «has long been recognized in legal theory and in international law» even by moderate positivists such as Kelsen, Hart, or Alexy1069. This is all the more important given that the «amorphous characteristics of the international legal system» have impacted on international criminal justice, preventing it from being «a product of a philosophy or policy concerning the development of norms and processes, which reflect the values sought to be upheld, the goals to be achieved, and the means by which to achieve these outcomes»1070. I will proceed in five steps, which aim to develop the notion of the ICC as a just institution as the basis for an interpretation of Article 21 (3) RS. The first and second steps will introduce the Rawlsian notion of domestic social justice and his take on justice in international relations. The third step will contrast this latter position with cosmopolitan scholarship proposing to globalize Rawls’ domestic approach. The fourth and fifth steps will conceive the ICC from the perspective of global justice and result in mirroring the «minimalist» vs. «contextual» argument in the interpretation of Article 21 (3) RS in the dispute between Rawls and his cosmopolitan counterparts: Is global justice a matter of the State or of the individual?

1067 Young (2011), p. 189 (at 199). 1068 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (23.06.1998), Summary records of the meetings of the Committee of the Whole: UN Doc. A/CONF.183/C.1/SR.12, pp. 221 et sq. (my emphasis). 1069 Cf. Ambos (2013c), pp. 57 et sq. with fn. 35 with further references on the issue of law operating «with a reservation on its legitimacy, that is, it also requires a plausible claim of material (moral) validity». 1070 Bassiouni (2003), p. 65 (at 76 et sq.).

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2.5.4.2.2.3.1. Rawls on domestic social justice One of the most thorough modern inceptions of the notion of the social contract has been put forward by Rawls1071. In his view, contracting parties in an «original position» under a veil of ignorance will agree upon two principles of justice which allow them to assess the «basic structure» of society and possible alternatives in terms of the distribution of primary goods: «First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others» and «[s]econd: social and economic equalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all»1072. With a view to just domestic societies, basic liberties are listed by Rawls as comprising inter alia «political liberty (the right to vote and to hold public office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person, which includes freedom from psychological oppression and physical assault and dismemberment (integrity of the person); the right to hold personal property and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law»1073.

As a consequence, economic and legal institutions «make the least advantaged among its own members better off than the least advantaged would be if that society were structured according to any other distribution principle»1074: «Imagine, then, a hypothetical initial arrangement in which all the social primary goods are equally distributed: everyone has similar rights and duties, and income and wealth are evenly shared. This state of affairs provides a benchmark for judging improvements. If certain inequalities of wealth and differences in authority would make everyone better off than in this hypothetical starting situation, then they accord with the general conception»1075.

1071 See also Flaherty (2004), p. 1789 (at 1789) («no modern philosopher has more powerfully advanced the idea of political justice, or done so with a greater global impact, than John Rawls», my italics). 1072 Rawls (1999a), p. 266. See also Rawls (1999a), p. 47: «The primary subject of the principles of social justice is the basic structure of society, the arrangement of major social institutions into one scheme of cooperation». 1073 Rawls (1999a), p. 53. 1074 Freeman (2006), p. 29 (at 29). 1075 Rawls (1999a), pp. 54 et sq.

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As Kersting describes, by help of the veil of ignorance1076, Rawls ingeniously achieves to operationalize economic rationality for the purposes of justice, to «force upon economic rationality a moral-transsubjective perspective»1077. The principles of justice are arranged «in a serial order with the first principle prior to the second» so that «infringements of the basic liberties protected by the first principle cannot be justified, or compensated for, by greater social and economic advantages» and «can be limited and compromised only when they conflict with other basic liberties»1078. According to the so-called priority rule, until claims of liberty are satisfied, «no other principle comes into play», and «liberty can be restricted only for the sake of liberty itself»1079. «Having chosen a conception of justice that tries to eliminate the significance of relative economic and social advantages as supports for men’s self-confidence, it is essential that the priority of liberty be firmly maintained» – for «[i]n a well-ordered society then self-respect is secured by the public affirmation of the status of equal citizenship for all»1080. Rawls advances two additional reasons for this rule. On the one hand, the intolerability of the strains of commitment, i.e. parties in the original position «cannot enter into agreements that may have consequences they cannot accept»1081: Political principles which place fundamental interests such as the integrity of the person at risk by failing to accord priority to the liberties that protect them make the strains of commitment intolerable1082. And on the other hand, he asserts that «the persons in the original position are moved by a certain hierarchy of interests», having to secure «first […] their highest-order interest and fundamental aims […], and this fact is reflected in the precedence they give to liberty: the acquisi-

1076 1077 1078 1079 1080

On the veil of ignorance, see in greater detail below in 2.5.4.5.1. Kersting (1996), pp. 273 et sq. (my translation). Rawls (1999a), pp. 53 et sq. Rawls (1999a), p. 214. Rawls (1999a), p. 478. See Taylor (2013), p. 147 (at 149 et sq.) on an elaboration and critique of that argument. 1081 Rawls (1999a), p. 153. 1082 Rawls (1999a), pp. 475, 131. The argument is described in these terms (and critically reviewed) in Taylor (2013), p. 147 (at 151 et sq.), where he points out that contracting parties would avoid «to come out from behind the veil of ignorance to discover that their fundamental interest in bodily integrity had been jeopardized by legislation implementing, for example, compulsory live-donor organ harvesting […] – legislation that they might be hard pressed to obey».

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tion of means that enable them to advance their other desires and ends has a subordinate place»1083. In this vein, the highest-order interest in choosing our ends in freedom prevails over an interest in advancing those ends, an interest secured by the second principle of justice: «Free persons conceive themselves as beings who can revise and alter their final ends and who give first priority to preserving their liberties in these matters», Rawls posits, so that their «highest-order interest» is in «how all their other interests, including even their fundamental ones, are shaped and regulated by social institutions»1084. Psychological and physical integrity, for example, must then be provided to the (minimal) extent that enables autonomous life-planning – which would in turn be rendered difficult in the face of a threat of violent death due to unchecked criminality1085. 2.5.4.2.2.3.2. Rawls on international justice Rawls explicitly limits this conception of social justice to the domestic sphere1086. Beyond that, his focus moves from individuals to «peoples», i.e. «groups within their own states»1087. In designing a «Law of Peoples», Rawls is not (primarily) concerned with the «well-being of individuals» but with «the justice and stability for the right reasons of decent and liberal societies»1088. While his domestic conception is institutional and employs a contractualist thought experiment to develop a criterion of justice that may assess and reform the domestic institutional order, his international approach is interactional, drawing on the contractualist thought experiment to develop not a criterion of justice to reform the global institutional order but instead rules of good conduct for cooperating peoples1089. Accordingly, the agreement achieved in an «original position» by representatives of peoples will yield a much different set of principles:

1083 Rawls (1999a), p. 476. 1084 Rawls (1999a), pp. 131 et sq. See once more Taylor (2013), p. 147 (at 153 et sqq.) on an elaboration of this argument. 1085 Taylor (2013), p. 147 (at 155 et sq.). 1086 Rawls (1999b), pp. 82, 119. 1087 Buchanan (2000), p. 697 (at 698). 1088 Rawls (1999b), pp. 83, 120 and also 17 at fn. 9. See also Freeman (2006), p. 29 (at 30); Pogge (2008), p. 206 (at 212). 1089 Pogge (2004), p. 1739 (at 1739 et sq.).

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«1. Peoples are free and independent, and their freedom and independence are to be respected by other peoples. 2. Peoples are to observe treaties and undertakings. 3. Peoples are equal and are parties to the agreements that bind them. 4. Peoples are to observe a duty of non-intervention. 5. Peoples have the right to self-defense but not right to instigate war for reasons other than self-defense. 6. Peoples are to honor human rights. 7. Peoples are to observe certain specified restrictions in the conduct of war. 8. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political or social regime»1090.

What determines justice in the international case is each people’s interest «to preserve [its] equality and independence»1091 – or: that which «is fair to peoples and not to individual persons»1092. As Freeman explains, «unlike the parties to the domestic original position […] these representatives are not moved only by a purely rational motive to procure a greater share of the primary goods. Rather, their main aim is to obtain terms of cooperation among peoples that best guarantee liberal justice within their own society and among their own people»1093.

They are charged not with «agreeing on a public criterion for the assessment, design and reform of the global institutional order» but «with agreeing on a set of rules of good conduct that cooperating peoples should (expect one another to) obey»1094. His individualistic conception of distributive justice is only to apply within different societies but not among them1095. In the world at large, therefore, and unlike domestically, societies do not have the duty to maximize the position of the least advantaged1096. Rawls regards peoples as politically autonomous, independent, and in control of their development, «in the sense of being able to determine, through their cultural values and the institutions that embody these, how materially wealthy they will become» so that in the international case «distributive principles are out of place, and in-

1090 1091 1092 1093 1094 1095

Rawls (1999b), p. 37. Rawls (1999b), pp. 41, 70. Rawls (1999b), p. 17 with fn. 9. Freeman (2006), p. 29 (at 47). See Rawls (1999b), pp. 33, 40. Pogge (2008), p. 206 (at 207). Mertens (2005), p. 85 (at 93); Freeman (2006), p. 29 (at 29) with reference to Rawls (1999b), pp. 82 et sq. 1096 Freeman (2006), p. 29 (at 29).

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ter-societal transfers are required only in the case of ‹burdened› societies, insofar as such transfers can help these societies to become well-ordered»1097.

This focus on peoples is motivated by Rawls as follows: First, Rawls distinguishes between liberal societies, decent societies, «outlaw states», burdened societies, and «benevolent absolutisms»: Decent societies adhere to some human rights, they are not aggressive, their law embodies «a common good idea of justice», they possess a «decent consultation hierarchy», but may be hierarchical1098; «outlaw states» are internally despotical and externally aggressive towards other societies1099; burdened societies are kept from decency by unfavorable cultural and/or economic conditions1100; and «benevolent absolutisms» also commit to some human rights but do not possess a «decent consultation hierarchy»1101. With a view to pluralism in international relations, he calls for so-called «decent» peoples being tolerated by liberals and welcomed as «members in good standing of the Society of Peoples»1102. Second, normative individualism in international relations would imply the «global despotism» of a world government1103. And third, a global original position must be rejected because the «Law of Peoples proceeds from the international political world as we see

1097 Williams (2011), p. 58; Miller (2008), p. 191 (at 194). In the domestic case, Rawls considers that «individuals’ life chances are largely determined by a basic structure of institutions over which they as individuals have no control» so that here «the basic structure must be regulated by principles of justice that allow citizens to live together on terms that all can accept», Miller (2008), p. 191 (at 194). See Rawls (1999b), pp. 117 et sq. 1098 Rawls (1999b), pp. 4, 63 et sqq. 1099 Rawls (1999b), p. 4. 1100 Rawls (1999b), pp. 4 et sq., 105 et sqq. 1101 Rawls (1999b), p. 4. See also Caney (2006), p. 79. 1102 Rawls (1999b), p. 59. In «the knowledge of their own historical progress to liberal democracy as a people», Reidy argues on behalf of Rawls, liberal peoples «will not agree to condition their moral status as a people entitled to justice from other peoples upon remaining a liberal democracy», the «moral costs of entering in such an agreement» – the sacrifice in self-determination that lies in agreeing to «more robust principles of international justice» – being «simply too great», Reidy (2004), p. 291 (at 304, 307). See also Macedo (2004), p. 1721 (at 1723) on the «moral significance of collective self-governance» in an extension of Rawls’s peoples-centered approach, and for critical presentations of Rawls’ approach Pogge (2004), p. 1739 (at 1756); Flaherty (2004), p. 161 (at 1792 et sq.), and of Macedo’s Flaherty (2004), p. 161 (at 1797 et sqq.). 1103 Rawls (1999b), p. 39. See Pogge (2004), p. 1739 (at 1755 et sq.).

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it», whereby questions of international justice may be examined in a «reasonably realistic way»1104. In this framework, Rawls establishes human rights as «a special class of urgent rights, such as freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide» and «the right to life (to the means of subsistence and security), «liberty (freedom from slavery, serfdom and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought)», «property (personal property)», and «formal equality»1105. Rawls moreover refers to protection from genocide and apartheid1106. From the vantage point of the peoples’ representatives, human rights possess two related functions. In providing one criterion of the decency of peoples, they demarcate the limits of toleration and thus function to «exclude justified and forceful intervention»1107 – for only decent societies, Rawls presumes, do not threaten international stability1108. And relatedly, the function of human rights in Rawls’ perspective may also be conceived of as «minimal reasonable terms necessary to social cooperation»1109. This, Reidy argues on behalf of Rawls, turns on the moral acceptability of non-agreement and the influence of this acceptability on the agreements’ reasoning and content: In the domestic case, the status of individuals as moral agents, as free and equal, is incompatible with non-agreement, each of them knows that some agreement is required «to establish and govern cooperative interaction» whereby they retain their status as moral agents1110. In the international case, non-agreement – while neither optimal nor attractive – is morally acceptable, «a real possibility for each

1104 Rawls (1999b), pp. 82 et sq. See Flaherty (2004), p. 161 (at 1793 et sq.) and also Williams (2011), pp. 20, 42 et sqq. on the underlying political constructivism Rawls employs. 1105 Rawls (1999b), pp. 79, 65. In his view, this list includes Articles 3 to 18 UDHR but excludes Articles 1, 22, 23 UDHR as «stating liberal aspirations» respectively presupposing «specific kinds of institutions»; it moreover does not include many of the economic and social rights protected under the UDHR, Rawls (1999b), pp. 80 at fn. 23. See also Reidy (2008), p. 169 (at 170 et sqq.). 1106 Rawls (1999b), pp. 80 at fn. 23. 1107 Beitz (2001), p. 269 (at 684). 1108 Rawls (1999b), pp. 80 et sq. 1109 Freeman (2006), p. 29 (at 37). 1110 Reidy (2004), p. 291 (at 303, 299).

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party»; peoples’ self-regard not only as free and equal but also as independent and self-sufficient enables them to «refrain from cooperation without suffering the catastrophic loss of their status as moral agents»1111. Moreover, in «the knowledge of their own historical progress to liberal democracy as a people», liberal peoples «will not agree to condition their moral status as a people entitled to justice from other peoples upon remaining a liberal democracy», the «moral costs of entering into such an agreement» – the sacrifice in self-determination that lies in agreeing to «more robust principles of international justice» – being «simply too great»1112. 2.5.4.2.2.3.3. Global cosmopolitan justice The (for some unexpected1113) distinction between domestic and international justice has given rise to considerable conflict in scholarship in which Rawls’ reasoning has received little support1114 and fervent opposition1115. Surprised that Rawls’ had «effectively premised his analysis on the very notions of national sovereignty that international human rights law by definition sought to erode», human rights scholars have greeted his work «mostly with respectful disappointment» and only a few have made the point (and effort) that his conception of domestic liberal justice must extend beyond the confines of domestic society1116. In the view of such Rawlsian cosmopolitans, not states are to be the main agents of interna-

1111 Reidy (2004), p. 291 (at 303). 1112 Reidy (2004), p. 291 (at 304, 307). See also Flaherty (2004), p. 1789 (at 1790); Freeman (2006), p. 29 (at 50). 1113 Pogge (2008), p. 206 (at 207). See also Macedo (2004), p. 1721 (at 1723); Hoogvliet (2010), p. 53 (at 53) and less surprised Williams (2011), p. 20. 1114 Reidy (2004), p. 291 (at 291 et sqq.); Freeman (2006), p. 29 (at 33 et sqq.). See also Macedo (2004), p. 1721. 1115 E.g. Buchanan (2000), p. 697; Beitz (2000), p. 669; Kuper (2000), p. 640; Beitz (2001), p. 269; Flaherty (2004), p. 1789; Pogge (2008), p. 206. But see Beitz (2000), p. 669 (at 694 et sqq.); Kuper (2000), p. 640 (at 658 et sq.) for praise of Rawls’s approach from a cosmopolitan perspective. See Caney (2006), pp. 63 et sqq.; Williams (2011), pp. 9 et sqq. for thorough analyses of these positions. For a brief overview, see Pierik/Werner (2010), p. 1 (at 7 et sqq.). 1116 Flaherty (2004), p. 1789 (at 1790). For such extensions, see Pogge (1989); Pogge (2002) and also Beitz (1979).

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tional justice, but persons are to be the focus of global justice1117. The existing global basic structure – of which the ICC is said to also form part 1118 – cannot simply be ignored in a moral theory of international law by proceeding either as if societies were autonomous economically and distributionally or as if distributional effects of the global structure were equitable and thus not in need of review1119. With a view to human rights, they argue for the «need for principles that track individuals across borders» and «specify the rights that individuals have irrespective of which society they happen to belong to, and which reflect the independence of individuals from any particular society»1120. Human rights are to protect individuals, not prevent international conflict1121. Rawlsian cosmopolitan accounts propose to answer this need either by conceiving of a global original position of individual representation not of peoples but of individuals holding various social positions worldwide analogous to the domestic original position1122 or refer to Rawls’ modified approach of people representation1123. Pogge in particular has advanced the position that Rawls’s domestic criterion of social justice should be applied globally1124. Pogge envisioned that «the parties adopt criteria for national and then for international institutions […] a single, global, original position» so that we may «justify our global institutional order» by showing that «the institutional inequalities it produces tend to optimize (against the backdrop of feasible alternative global regimes) the worst social position»1125. Not the claims of states furnish the justification «peculiar to the global case» but, as domestically, he argues to adhere to «Rawls’s individualistic conviction that in matter of social justice only persons are to be viewed as ultimate units of (equal)

1117 Mertens (2005), p. 85 (at 96). See also Caney (2006), p. 2 on the distinction between «global» and «international» justice and Caney (2006), pp. 4 et sqq. on the term and meanings of moral cosmopolitanism. 1118 See Mertens (2005), p. 85 (at 102) and Fisher (2006), p. 407 (at 407). 1119 Buchanan (2000), p. 697 (at 706). 1120 Buchanan (2000), p. 697 (at 698). 1121 See Beitz (2001), p. 269 (at 277): «In my view, human rights are ultimately justified by considerations about the reasonable interests of individuals, not those of whole societies conceived as corporate entities». 1122 See Pogge (1989), pp. 254, 258, 272; Kuper (2000), p. 640 (at 654). 1123 See Buchanan (2000), p. 697 (at 712). 1124 Pogge is «a founder of modern cosmopolitan justice theory», Flaherty (2004), p. 1789 (at 1806). 1125 Pogge (1989), pp. 247 et sqq.

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moral concern»1126. Pogge points out that a «global institutional scheme is imposed by all of us on each of us», «on us in that we cannot simply drop out and renounce participation», and «by, especially, its more advantaged, more powerful participants»1127. Assuming – unlike Rawls – that societies are neither «distributionally autonomous» nor «economically self-sufficient», that a «global basic structure» does exist, and that peoples’ representatives are aware of the existence of a global basic structure, «concerned about its distributive effects on their societies» and accordingly «choose principles of justice for the global basic structure», Buchanan proposes the following outcome: First, «each party will be concerned to ensure that the global basic structure’s distributional effects do not impede his society’s capacity to achieve its own conception of justice or of the good»; and second, similarly to the parties to the domestic original position who «are represented as ‹free and equal›» and will thus «avoid principles that might turn out to assign them to an inferior status», «the parties to the choice of the Law of Peoples would be concerned to choose principles that would ensure fundamental equality for their societies vis-à-vis other societies», which «means choosing principles for a global basic structure that would at least rule out those inequalities among peoples that are incompatible with preserving the social bases of self-respect for all peoples»1128. It is important to note here that Buchanan does not object to peoples’ representatives as parties to the social contract, thus enabling the view that «global egalitarian justice» is possible based on a «law of people including principles of distributive justice that take peoples (not individuals within states) as the recipients of just shares», a «law of peoples that takes global distributive justice seriously»1129. It is particularly with regard to the notion and scope of human rights that cosmopolitan scholars are in disagreement with Rawls1130. In his account of international justice, and compared to his domestic approach, Rawls presents only a limited list of human rights that would be agreed upon by the contracting parties1131. The justification of these human

1126 1127 1128 1129 1130 1131

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Pogge (1989), p. 247. Pogge (1989), p. 276. Buchanan (2000), p. 697 (at 708 et sq.). Buchanan (2000), p. 697 (at 712). See Buchanan (2004), pp. 195 et sqq. See above in 2.5.4.2.2.3.2.

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rights, Beitz criticizes, is located «not in the significance of human rights for the rights holder but in the beneficial consequences for international order of reducing the number of regimes that do not respect them»1132. Other cosmopolitan scholars have even referred to Rawls’ limited list as inexplicable from the perspective of his very own premises1133. Taken globally, however, Rawls’s basic domestic liberties would, in Pogge’s view, a grosso modo amount to those human rights protected under the UDHR1134. 2.5.4.2.2.3.4. International justice and the ICC Writing implicitly on the subject of international criminal justice, Rawls claims that «[i]n the conduct of war, well-ordered people must carefully distinguish three groups: the outlaw state’s leaders and officials, its soldiers, and its civilian population»1135. In outlaw states – i.e. states that are in Rawls’s sense aggressive and despotical – civilian members of society cannot have organized the war but instead, the leaders, officials, and powerful elites «are responsible; they willed the war; and, for doing that, they are criminals […] but the civilian population, often kept in ignorance and swayed by state propaganda, is not responsible»1136. Discussing Rawls’s claim of leaders’ criminality, Fisher posits that his state-centric approach which «abandons individuals as agents at the international level […] cannot explain current conceptions of international criminal law» that rely on individual agency:

1132 Beitz (2001), p. 269 (at 274 et sqq.). In this vein also Kuper (2000), p. 640 (at 652). 1133 See extensively Buchanan (2008), p. 150 (at 151 et sqq.) who identifies and refutes the «Political Conception Argument» (to avoid parochialism, one must not rely upon comprehensive conceptions of the good), the Associationist Argument (attempts to ground human rights in basic human interests would be intolerant of a society that conceives of individuals primarily as members of groups), the «Cooperation Argument» (society as a form of cooperation versus society as a command system based on force), and the «Functionalist Argument» (relating to the function of human rights norms to prevent cross border intervention), and also Luban (2004), p. 85 (at 132 et sq.). 1134 Pogge (1982), p. 55 (at 141 et sqq.). 1135 Rawls (1999b), pp. 94 et sq. 1136 Rawls (1999b), pp. 94 et sq. (my emphasis).

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«A community of well-ordered states would likely have little need for an international criminal legal system capable of dealing with serious human rights violations, since each state would have internal mechanisms for such purposes»1137.

Beyond war crimes that may be a reasonable outcome of Rawls’s international original position in order to protect individuals and property as state resources, Fisher asserts that both genocide and crimes against humanity only constitute «internal attack[s] on members of a state», and therefore «are unlikely to limit the freedom of members of other states to pursue their interests» to which negotiating parties are committed – a common criticism of Rawls’s claim that respect for particular human rights (including protection from mass murder of groups and genocide) is the very foundation of international stability1138. In spite of its ingenuity, its undoubted advantage in «detail» over existing cosmopolitan theories of global justice1139, Rawls’s state-centered Law of Peoples is thus unsuited to assess the justice of today’s international law that has relinquished its exclusive focus on state agency (not only but very prominently so) in the regimes of international criminal justice1140. As Bassiouni has expressed, in light of globalization’s effect of «greater commonality of shared values and higher expectations of justice», a development which «necessarily includes a greater demand for international criminal justice», the Westphalian conception of sovereignty has been brought to an end: «In the age of globalization, it can no longer be maintained that individual rights and responsibilities should remain the exclusive concern of sovereign states, particularly when the actions of individuals have an

1137 Fisher (2006), p. 407 (at 415, 411) (my emphasis). 1138 Fisher (2006), p. 407 (at 416 et sq., 412). In a similar vein, Luban (2004), p. 85 (at 132 et sq.). See again Rawls (1999b), p. 81: «[O]utlaw states are aggressive and dangerous; all peoples are safer and more secure if such states change, or are forced to change, their ways […] otherwise they deeply affect the international climate of power and violence». Buchanan also criticizes Rawls for the inability of his theory to provide adequate responses to intrastate conflict, Buchanan (2000), p. 697 (at 716 et sqq.). 1139 See Beitz (2000), p. 669 (at 695). 1140 In this vein also Fisher (2006), p. 407 (at 407); Hoogvliet (2010), p. 53 (at 64 et sq.) and Beitz (2005), p. 11 (at 14) («One could not take these developments [i.e. the assortment of economic and social phenomena conventionally known as ‹globalization›] seriously without being forced to reconsider the sharp distinction between the domestic and the international realms implicit in the perception of international relations as primarily a zone of war and peace»).

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impact on world order and other interests of the world community»1141. In the ICTY’s words, in international law, a «State-sovereignty-oriented approach has gradually been supplanted by a human-being-oriented approach» and «[g]radually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well»1142.

In this vein, «[i]f a State fails to provide physical security and subsistence to its subjects, then that State has no right to prevent international legal bodies from justifiably infringing that State’s sovereignty […] to protect those subjects […]»1143, and «[i]n conflicts between state sovereignty and the protection of human rights, international criminal law intervenes on the side of humanity»1144, and if «the most severe crimes against the most fundamental human rights […] are committed, a state cannot hide behind the curtain of a post-Westphalian, Grotian sovereignty concept to fend off accountability and (international) judicialization»1145. 2.5.4.2.2.3.5. Global justice and the ICC as a just global institution Rawls claimed his Law of Peoples would constitute a «realistic utopia»1146, a term Flaherty has paraphrased as offering «a goal that lies within our reach, yet for the moment exceeds our grasp»1147. Rawls intended to proceed «from the international political world as we see it» so that questions of international justice may be examined in «a reasonably realistic way»1148. In this regard however, barely acknowledging the human rights revolution and the erosion of the nation state model, the Law of Peoples is held hostage to «a world that is simply not ready for too robust

1141 Bassiouni (2003), p. 65 (at 71 et sq., 74 et sq., 76, 89). See again Buchanan (2000), p. 697 entitled «Rawls's Law of Peoples: Rules for a Vanished Westphalian World». 1142 ICTY - Appeals Chamber, Prosecutor v. Tadic, 02.10.1995 – IT-94-1-A (§ 97). 1143 May (2005), pp. 68 et sq. 1144 Werle/Jeßberger (2014), p. 52. See also Ambos (2013c), pp. 58 et sq. 1145 Ambos (2013c), p. 59 (footnotes omitted). 1146 Rawls (1999b), p. 6. 1147 Flaherty (2004), p. 1789 (at 1799). 1148 Rawls (1999b), p. 83.

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a view of transnational rights»1149. As Flaherty points out alongside many constitutionalist thinkers, the primacy of sovereignty is eroding both from below (human rights) and from above (social cooperation is extended beyond borders and both formal governance and informal influence are relocated from the national to the transnational and global pane as evinced by the WTO, IMF, and the ICC); the nation state – sovereignty and the analytical uniqueness of borders – should then not or no longer be so privileged as to constitute the foundation of a global theory of justice premised on cooperation1150. As «globalization has shrunk the planet into one multiply interconnected world», Schmidt posits, such collective actors «play a crucial role in paving the ground for rendering the idea of global social justice plausible even in the absence of world state»: «[W]orld culture, whose main carriers are private organizations, increasingly construes states and their governments as organs of a global order bound by rules and principles rather than sovereign authors of public order»1151. Arguments on social justice need therefore indeed refer to an existing «global basic structure»1152. This reference does not necessarily imply a despotic «world government» as Rawls fears1153. Pogge argues that Rawls’s criterion of social justice does not prescribe a particular institutional order; it merely «governs the comparative assessment of alternative feasible such orders»1154. In a global application, this criterion «would instruct us to design a global political order under which the basic liberties of all human beings would be secure and a global economic order that realizes fair equality of opportunity worldwide and permits inequalities among persons only insofar as they raise the socioeconomic floor», an instruction of which may result a number of institutional arrangements1155. In this vein, «[a] system of international criminal justice is nothing more than a global cooperative undertaking that links international and national justice systems to carry out […] the functions to which these systems are

1149 Flaherty (2004), p. 1789 (at 1794) with reference to Macedo (2004), p. 1721 (at 1723). 1150 Flaherty (2004), p. 1789 (at 1800 et sq.). 1151 Schmidt (2013), pp. 80 et sq. 1152 See again Buchanan (2004), pp. 213 et sq.; Luban (2004), p. 85 (at 126) and also Pogge (1982), p. 55 (at 78, 142). 1153 Rawls (1999b), p. 39. 1154 Pogge (2004), p. 1739 (at 1756). 1155 Pogge (2004), p. 1739 (at 1756). See also Buchanan (2004), pp. 55 et sq.; Flaherty (2004), p. 1789 (at 1808 et sq.).

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dedicated»1156. One may thus presume that the ICC embodies a truly global institution which requires a theory of international law adapted to assessing its justice as part of a «global basic structure»1157. As such, it not only presents international law with the unique learning opportunity regarding the path towards a more comprehensive notion of global justice1158. More to the point, the ICC is an integral part of the global institutional structure prerequisite to protecting «physical security human rights»1159. Even in its present form, i.e. constrained as it is by Security Council supervision and the complementarity principle, the ICC is proof of «a nascent global capacity to act»1160. Put another way, as a «collectively-imposed coercive scheme», institutions of international criminal justice such as the ICC should face a similar burden of justification as do coercive institutions at the domestic level – they are, in that sense, formidable subjects of global justice1161. But how to conceive global social justice? Rawls himself limits his domestic conception of social justice to the «basic structure» that is the modern constitutional democracy. However, Pogge duly notes, this limitation by Rawls himself is uncalled for: Rawls’s fundamental «notion of a wellordered society is normative, not descriptive», his criterion of justice need not only be satisfiable under the ideal conditions of a well-ordered society,

1156 Cf. Bassiouni (2003), p. 65 (at 96) and also Bassiouni (2003), p. 65 (at 76) («International criminal justice […] is […] a necessary component of world order and world peace in the era of world civilization and more so in its globalization phase»). 1157 This much even Mertens admits, who is otherwise in support of Rawls’s approach to international (as opposed to global) justice, Mertens (2005), p. 85 (at 102). In a similar vein, Nagel (2005), p. 113 (at 114); Pogge (2002), p. 177. Cf. already Pogge (1982), p. 55 (at 147). 1158 Mertens proposes that the ICC as a global institution «may clear the way» towards bringing about «economic global justice», Mertens (2005), p. 85 (at 102). 1159 See again Fisher (2012), pp. 12 et sqq., 18, 20 and also Heyer (2013), p. 392 and Bassiouni (2003), p. 65 (at 98 et sqq.) («The need to enforce norms [of international criminal law] necessarily requires the creation of institutions, which led to the establishment of […] the ICC»). 1160 Cf. Beitz (2005), p. 11 (at 11) pointing out that – on the one hand – we «face an assortment of urgent practical problems that are not likely to be solved […] without concerted international action» and – on the other hand – there is «at the same time the emergence of a nascent global capacity to act». 1161 Cf. Beitz (2005), p. 11 (at 22, 24) and also Bassiouni (2003), p. 65 (at 77, 103) on the ICC as an institution of the «direct enforcement system» of international criminal law.

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it must also «provide an Archimedean point for appraising existing institutions […] an independent standard for guiding the course of social change»1162. This «Archimedean point» cannot itself be shifted as a response to changing conditions, «for example, our changing distance from a well-ordered social system»1163. «This point is clear on the national level», Pogge explains, for when «a constitutional democracy lapses into totalitarianism or authoritarianism (as Germany did in the 1930s or Chile in the 1970s), we are hardly led to think that now a different criterion of justice should be used to appraise the new regime and to guide our efforts to effect change. Similarly, I would think, we cannot conceive of our criterion of global justice […] as changing in response to varying international conditions. Of course, many institutional mechanisms crucial for anything like a well-ordered world community are presently lacking, but how does this lack undermine the belief that in a just world such mechanisms would exist and that they ought to be established?»1164.

As Rawls himself expresses, in his Law of Peoples, «[t]he final political end of society is to become fully just and stable for the right reasons», whereas «the ultimate concern of the cosmopolitan view is the well-being of individuals»1165. However, this value of toleration is rendered moot if such toleration «allows racial discrimination, the political exclusion of ethnic minorities» or the toleration of «a regime governed by apartheid principles»1166. «[E]very human being», Pogge has pointed out, «has a global stature as the ultimate unit of moral concern»1167. Global justice is more than international stability; as a just global institution in pursuit not only of world peace and security but precisely of the world’s well-being, the ICC must conceive of human rights as «principles that track individuals across borders»1168, justified by «the significance of human rights for the rights holder» and not by States’ interests or «the beneficial conse-

1162 Rawls (1999a), p. 520. 1163 Pogge (1989), pp. 266 et sq. 1164 Pogge (1989), pp. 266 et sq. As Williams points out, unlike Rawls’s own constructivist perspective, a normative cosmopolitan approach «does call into question our current institutions such as sovereignty, paving the way for a more radical approach», Williams (2011), pp. 44 at fn. 6. See also Rawls (2005), p. 11. 1165 Rawls (1999b), p. 119 (my emphasis). See also Beitz (2000), p. 669 (at 695). 1166 See Williams (2011), p. 17 citing Caney (2002), p. 95 (at 102). 1167 Pogge (2002), p. 175. See also Beitz (2005), p. 11 (at 17). 1168 Cf. again Buchanan (2000), p. 697 (at 698).

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quences for international order of reducing the number of regimes that do not respect them»1169. 2.5.4.2.3. Results and outlook: Re-visiting contextual vs. minimalist readings of «internationally recognized» and implications for acts of business exchange On this basis, the meaning of «internationally recognized» in Article 21 (3) RS can be re-conceived. Assuming that a global basic structure exists and that it is ideally governed by a concept of justice that has emerged from a hypothetical global original position, I propose that in order to provide a just account of international criminal justice, the Court’s task as a just global institution is not the protection of States’ interests by preserving and perpetuating the limited regional recognition of human rights, the uneven state of human rights protection to which Sheppard alludes1170, but to promote the idea that «individual human persons, and they alone, are the ultimate units of moral concern»1171. To conceive the terms «internationally recognized» in Article 21 (3) RS based on the premise of the ICC as a just global institution in this sense will then favor (what Sheppard has called but rejected) a «minimalist» approach to «internationally recognized» in Article 21 (3) RS over a «contextual» approach. Accordingly, balancing human rights as principles under Article 21 (3) RS must take into account human rights instruments in spite of a merely regional scope of application as «internationally recognized human rights». I thereby propose that the reference to «internationally recognized human rights» in Article 21 (3) RS allows for a translation of the ideals of

1169 Cf. again Beitz (2001), p. 269 (at 274 et sqq.) for the opposite significance of human rights in Rawls’s work and also Beitz (2005), p. 11 (at 25) («the force of cosmopolitanism is to compel the question whether we have reason to hold international and transnational regimes and institutions responsible to standards of political justice similar to those that apply to the institutions of the state»). 1170 Generally on the fate of state sovereignty from cosmopolitan perspectives, see Kuper (2000), p. 640; Nagel (2005), p. 113 (at 138) and Pogge (2002), pp. 183 et sqq. 1171 Cf. again Pogge (1989), pp. 252, 275 arguing specifically against accepting the «extremely uneven» state of «global distribution of basic civil and political rights and liberties».

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cosmopolitanism into the ICC’s institutional reality1172. This reading of the provision does not aim «aim at replacing the formal system of sources by straight moralizing»1173; it neither creates legal human rights obligations out of thin air nor does it negate the legal normativity of human rights instruments on the basis of philosophical arguments. To account in this vein for «the potential force of norms as regards to their material […] legitimacy» whose indispensability «has long been recognized in legal theory and in international law»1174, unleashes – on the one hand – the critical potential of human rights vis-à-vis current power realities1175. On the other hand, this reading recognizes and answers to the essentiality of a «founding assumption of common fundamental values» in a constitutionalist approach to international law1176. To quote Ambos, «[s]tarting from the assumption that there exists a[n], albeit incipient, supranational world order which, normatively, must be conceived as an order of values, one comes to the conclusion that this order must be defended as such, as well as with regard to the values it represents, by ICL»1177. Again: What is the relationship between human rights as triggers and neutralizers of criminal responsibility? To what extent are human rights of those violating the most urgent human rights protected under Article 21 (3) RS? Keeping in mind both the constitutionalist1178 and cosmopolitan points of departure sketched out above, this fundamental question shall now be approached within the risk standard on the basis of a minimalist approach to human rights: Taking recourse to the notion of principles as optimization requirements, risk permissions as restrictions of criminal law to the socio-politically emerge from balancing human rights. With a view

1172 On the difficulties involved in such translations, cf. Pierik/Werner (2010), p. 1 (at 3, 5 et sq.). 1173 Cf. Kleinlein (2012b), p. 79 (at 103) on constitutionalism. 1174 Cf. Ambos (2013c), p. 58 with further references. 1175 From a cosmopolitan perspective, cf. Pogge (2005), p. 717 (at 717 et sq.) and from a constitutionalist point of view Peters (2005), p. 535 (at 539). 1176 Cf. again Kleinlein (2012b), p. 79 (at 104 et sq.) for a critical perspective on such an undertaking. 1177 Ambos (2013c), p. 46, who, however, does not argue within a Rawlsian cosmopolitan framework but instead refers to Kantian «world citizen law» (Weltbürgerrecht), where the cosmopolitanism of today has its roots. On the relationship between Kant and cosmopolitanism, see Flaherty (2004), p. 1789 (at 1805 et sq.) with further references. 1178 See above in 2.5.4.2.1.

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to business actors, it is therefore in order to determine their scope of criminal responsibility in considering as optimization requirements those human rights principles protective of acts of business exchange. This will be the subject matter of the following section. 2.5.4.3. Risk permissions for acts of business exchange in a principled account of balancing Balancing within the forum of Article 21 (3) RS enables the Court to exempt from criminality risk-creating conduct as a result of an optimization of principles1179. In a minimalist approach, Article 21 (3) RS calls upon the Court to acknowledge a business actor’s right to the enjoyment of possessions as granted under Article 1 of Protocol No. 1 to the ECHR towards establishing a risk permission. This right constitutes a principle in the above sense1180: As Article 21 (3) RS acknowledges, it is binding upon the Court and can be satisfied to «varying degrees»1181. Additionally, business actors may enjoy the protection of human rights such as Articles 17 (right to property), 23 (right to work), and 25 (adequate standard of living) UDHR, and Articles 6 (right to work) and 11 (adequate standard of living) ICESCR regarding the achievement of adequate living conditions through work1182. I will conceive these human rights norms as the foundation of – on the one hand – the principle of possession and – on the other hand – the principle of adequate living conditions through work. But how can these human rights principles be related to the ICC’s mandate to protect the most fundamental human rights in an account of balancing under Article 21 (3) RS?

1179 See again above in 2.5.4 and 2.5.4.2.1.3. 1180 See above in 2.5.4.2.1.2.3 and on the principle character of ECHR norms, Christoffersen (2009), pp. 220 et sqq., 225. 1181 Cf. again Alexy/Rivers (2002), pp. 47 et sq. The limiting clause of Article 1 of Protocol No. 1 to the ECHR accounts not only for a State’s right to interfere with the enjoyment of possessions but generally allows interference «in the public interest and subject to the conditions provided for by law and by the general principles of international law». 1182 On these provisions, see again Rehman (2010) pp. 149 et sqq., 286, 320, 381 et sq.; Coomans (2010), p. 280 (at 292 et sqq., 301); Kälin/Künzli (2013), pp. 506 et sqq. and also Smith (2005), pp. 305 et sq.

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2.5.4.3.1. The protective principle: Individual and collective? As Bassiouni had argued early, «international criminal proscriptions are the ultima ratio modality of enforcing internationally protected human rights»1183. According to May, only «the most egregious of human rights abuses» may be the subject of legitimate international criminal proceedings; he argues that only «serious harm to the international community», i.e. harm «group-based either in terms of the nature of the victim’s harm or the character of the perpetrator of the harm» justifies international prosecutions1184. Pointing to the Rome Statute’s Preamble and Article 5 RS, which speak of «crimes of concern to the international community as a whole», Werle has posited that only an «attack on the fundamental values of the international community lends a crime an international dimension and turns it into a crime under international law»1185. Drawing on May’s work, Fisher has most recently set out to limit the ICC’s mandate by recourse to a severity and associative threshold1186. Regarding severity, she has distinguished «different levels of urgency» of human rights infringements, assigning international crime character only to violations of «physical security human rights» as opposed to «liberty human rights»1187. Rights to bodily integrity and sustenance are, in her view, «necessary to enjoy any rights» and, therefore, are «more pressing and require an extra layer of protection», that of international criminal justice, of «penalty and censure as criminal»1188. The associative threshold refers to the prerequisite involvement of «political organization»1189. In this context also, Ambos has described «the overall function of ICL» to consist of «the protection of fundamental individual and collective Rechtsgüter and the prevention of harm to these Rechtsgüter, that is, ultimately the protection of human dignity»1190. They are, he has posited by reference to paragraph 3 of the Statute’s Preamble, «primarily of a supra-individual, collective or complex nature, that is peace, security and the well-being of the world» 1183 Bassiouni (1982), p. 193 (at 196). See also Bassiouni (1985), p. 1453 (at 1453, 1466 et sqq.) and more recently, Bassiouni (2011), pp. 81 et sqq. 1184 May (2006), p. 349 (at 352); May (2005), pp. 4, 82, 89. 1185 Werle/Jeßberger (2014), p. 34. 1186 Fisher (2012), p. 20. See also Heyer (2013), p. 392. 1187 Fisher (2012), p. 20. 1188 Fisher (2012), pp. 19, 20 et sq. 1189 Fisher (2012), p. 22. 1190 Ambos (2013c), p. 66 (emphases and footnotes omitted).

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and consist (by implication) only secondarily of «individual goods and interests insofar as these relate to the fundamental rights of mankind or fundamental human rights»1191. Yet the derivation of the primacy of these collective legal goods by reference to the Preamble’s affirmation that «such grave crimes threaten the peace, security and well-being of the world» is arguably at odds with the Rome Statute: First, the mention of grave crimes is a reference to the fact that individuals have become «victims of unimaginable atrocities that deeply shock the conscience of humanity»; according to the Preamble, it is the prevention of such crimes – precisely the protection of individuals and individual rights to physical integrity – to which the international community is dedicated. While these are the primary objects of protection1192, the threat to world peace, security and well-being of the world is but a consequence of their non-protection. Second, while the Statute expressly limits its mandate to atrocities of a certain scale, the argumentative leap from statutory limitation of the Court’s legal authority to discerning the Court’s function so as to protect primarily collective legal goods would be far: The argument equates (and thus confuses) the reason for such limitation with the reason for granting legal authority. While the former reason may well be owed to an enforcement gap in Bassiouni’s sense, the latter reason, again, consists of the protection of fundamental human rights or «physical security human rights»1193. What is more, there exists a general concern related to how legal goods or interests – both individual and collective – worthy of protection are to be derived legitimately in the first place1194. With a view to this concern, only fundamental human rights allow for the derivation of legal goods from norms binding upon the ICC1195. The normative character of world peace, security, and well-being as protection mandates beyond an individualistic foundation in human rights, however, is less certain. While they may constitute «fundamental values of the international communi-

1191 Ambos (2013c), p. 66 (my emphasis, original emphases and footnotes omitted). See also Werle/Jeßberger (2014), pp. 33 et sq. 1192 See also Werle/Jeßberger (2014), p. 31. 1193 Cf. again Fisher (2012), pp. 19 et sq. 1194 See Ambos (2013b), p. 1 (at 6) and more extensively Lauterwein (2010), pp. 24 et sqq. 1195 See above in 2.5.4.2.1.2.3.

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ty»1196, «the highest values» of «the community of nations»1197, they are not legal duties imposed upon the Court: The Preamble recognizes merely the empirical relationship of massive violation of fundamental human rights for threats to peace, security and well-being of the word1198. Vice versa, to conceive of the protection of human rights merely as a means to maintaining world peace would be to indulge in reminiscence of an international order that derives the function of human rights not from «the significance of human rights for the rights holder» but from States’ interests or «the beneficial consequences for international order of reducing the number of regimes that do not respect them»1199; as a just global institution, the ICC should not subscribe to this view1200. The ICC’s mandate may then aptly be discerned as the protection from future violations of «physical security human rights» to bodily integrity and sustenance1201 or of legal goods or interests («Rechtsgüter») constituted by «fundamental human rights», such as the rights to dignity, life and physical integrity, and also property1202, violations of which are premised on the involvement of «political organization»1203. According to the Statute’s Preamble, protection is afforded by the preventive effects of (threats of) punishment1204. This mandate is arguably structured as a principle of international law, the here so-called protective principle, which aggregates «fundamental human rights» in this protective dimension1205. Again, threats to the world’s peace, security and well-being are, however, described by the Rome Statute as outcomes of massive human rights vio-

1196 Werle/Jeßberger (2014), p. 33 (my emphasis). 1197 Triffterer (2008), Preamble, mn. 9 (my emphasis). 1198 To maintain peace, in contrast, is a legal duty of the Security Council as mandated by Article 1 UN Charta. The UN Charta, however, does not apply to the ICC. On this legal duty, see Henninger (2013), pp. 356 et sq. 1199 See again Beitz (2001), p. 269 (at 274 et sqq.) for the opposite significance of human rights in Rawls’s work. 1200 See above 2.5.4.2.3 and critically on the validity of the Rawlsian claim to a threat to world peace when human rights are massively violated, Fisher (2006), p. 407 (at 412). 1201 See again Fisher (2012), pp. 19 et sq. 1202 See again Ambos (2013c), p. 66; Ambos (2014), p. 118. In a similar vein Melloh (2010), pp. 57 et sq. 1203 See again Fisher (2012), p. 22 and also above in 2.4.2.3. 1204 See above in 2.4.3.3.2 and below in 4.2.1 on the preventive effect of international criminal law and also Werle/Jeßberger (2014), p. 37. 1205 Cf. Schutter (2010), p. 242 on this dimension or quality of duty.

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lations; their prevention is thus not part of the Court’s mandate but a beneficial (and important) side-effect of its practice. This derivation from human rights does not prevent inclusion under the Rome Statute of protected legal goods or interests related to the existence of a group as long as its protection is motivated by recourse to (aggregated) individual or group human rights1206. As a principle of international law, the protective principle must derive from human rights (norms) both legally binding and satisfiable to varying degrees. Seiderman argues that all «transgressions» prohibited in the Rome Statute as international crimes amount to ius cogens1207, thus implicitly reflecting upon the ius cogens character of the human rights underlying these crimes in their protective dimension; moreover, the human rights protection from genocide, torture, aggression, apartheid, and slavery as well as in basic rules of international humanitarian law applicable in armed conflict have explicitly been recognized as ius cogens 1208. The protective principle thus derives from legally binding human rights obligations. These human rights must also be shown to be satisfiable «to varying degrees» relative to the factually and legally possible1209. Several objections may be raised in this latter regard: First, e.g. in offense definitions, the Rome Statute can be seen to contain rules, not principles. Second, assuming that «physical security human rights» to be protected by the ICC form part of ius cogens they might thus – as Fisher expresses – be consid-

1206 Ambos points out with regard to Article 6 RS that «the right of certain groups to exist» and «the fundamental rights of the individual group members are […] harmed by genocidal acts» and that «acts against the group members are the intermediate stage on the way to the perpetrator’s final objective, which is the destruction of the group», Ambos (2014), pp. 3 et sqq. (footnotes omitted). Indeed, the Genocide Convention may be said to incorporate a group human right (Nickel [2008], p. 263 [at 265]) alongside the individual human rights of life, physical integrity, liberty (Triffterer (2001), p. 1415 (at 1432 et sq.)) and dignity (Werle/Jeßberger (2014), p. 295). On collective vs. corporate conceptions of group (human) rights, see Jones (1999), p. 80 (at 83 et sqq.). 1207 Seiderman (2001), p. 97. See also Bassiouni (1996), p. 63 (at 68 et sq., 74) with a view to genocide, crimes against humanity, war crimes, aggression, piracy, slavery, and torture and the obligation to prosecute them and explicitly on «core crimes» in Article 5 RS as ius cogens crimes, Ambos (2013c), p. 60 with fn. 61. 1208 Seiderman (2001), pp. 84 et sqq., 96 et sqq., in particular on the ius cogens character of Common Article 3 of the Geneva Conventions of 1949. See also Schutter (2010), pp. 64 et sq. 1209 See above in 2.5.4.2.1.2.3 and again Alexy/Rivers (2002), pp. 47 et sq.

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ered «trump cards» which «cannot be suspended or traded when they conflict with other rights»1210. These objections are, however, not persuasive: With a view to the latter, it is important to point out that ius cogens is different from other norms of international law pursuant only to its particular content, i.e. its intricate connection to the most fundamental values of the international legal order, but not pursuant to its structure1211. Speaking in terms of norms as principles, the characterization as «trumps» thus (merely) reflects on their abstract weight and concrete importance in colliding with other principles – the resulting concrete weight, however, does not preclude the need for balancing to take place in the case of a collision1212. With a view to the former objection, we must keep in mind that it is precisely Article 21 (3) RS which acknowledges the principled character of the Statute’s protective mandate: Its (incomplete) satisfaction is the result of boundaries established by «internationally recognized human rights». Additionally, both Security Council review under Article 16 RS and complementarity under Article 17 RS impose legal and factual restrictions upon the mandate’s satisfaction1213. 2.5.4.3.2. Individual relations of precedence According to the conception of principles as optimization requirements under Article 21 (3) RS, the protective principle stipulates that the Court protect «physical security human rights» by the legally possible interpretation and application of the Rome Statute that is factually most effective1214. With a view to business actors’ conduct implementing an intellectual design by providing material resources and thus creating a risk towards violating a protected legal interest or good in the course of a genocidal campaign, an attack, or a (dysfunctional) military campaign, the only measure legally and factually available to the Court is ex post punishment in order to achieve a preventive effect1215. Yet, this principle collides with 1210 Fisher (2012), p. 20. 1211 See above in 2.5.4.2.1.2.2 and Henninger (2013), p. 302. 1212 In general, cf. Henninger (2013), pp. 303 et sq., 363, 369 et sq. and also below in 2.5.4.3.2.1.4 and 2.5.4.5.1. 1213 See also Peskin (2010), p. 195 (at 199 et sqq.). 1214 See above in 2.5.4.2.1.2.1. 1215 See generally Ambos (2013c), pp. 72 et sq. and below in 4.2.1 on the preventive effects of punishment.

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other principles: In particular the principles of possession and adequate living conditions through work demand that the Court abstain from precisely this interference by means of sanctions or threats of sanctions, i.e. abstain from punishing or threatening to punish such risk-creating business activity which sustains the value of a business venture1216 or serves to achieve adequate living conditions through work. Within the public law paradigm and under Article 21 (3) RS, this collision of principles may be resolved by establishing a conditional relation of precedence. Therefore, the low, moderate or high degrees1217 of both non-satisfaction and importance of satisfying the aforementioned principles must be established individually with a view to the instant case1218. To do so, we may rely upon

1216 See above in 2.5.4.2.2.2.2. 1217 The following discussion will again rely on a «crude triadic model» of low, moderate, and high degrees (or equivalent expressions); in Alexy’s opinion, a finer (or infinitely fine) structure does not exist with regard to constitutional rights as principles of domestic law, a point he makes by citing Aristotle: «‹We must…not look for precision in all things alike, but in each class of things such precision as accords with the subject-matter›», Alexy/Rivers (2002), p. 413. Again: «The triadic scale has, compared with its alternatives, the advantage that it fits especially well into the practice of legal argumentation […] Graduation in terms of light, moderate or serious is often difficult enough as it is. In some cases one can just barely distinguish light and serious, and in some cases even that seems impossible. Legal scales can thus only work with relatively crude divisions, and not even that in all cases […] The propositions expressing the classifications, however, must be understandable, for they have to be justified, and justification presupposes understanding. This is the reason for the limits of refinements of scale», Alexy (2003), p. 433 (at 440, 443, 445). I would argue that the same is true for human rights as principles of international law. Within this model, I intend to present rational arguments that support my classification of degrees of importance and non-satisfaction. This approach is transparent in the sense that my classifications are subject to change in a traceable manner in light of competing arguments that may emerge. See also Griffin (1988), p. 75: «Our powers of measurement may be limited. But our demand on measurement may also be limited». 1218 The need for reviewing cases at hand individually in terms of criminality of conduct speaks in favor of classifying risk permissions as a defense, cf. on German criminal law Rackow (2007), pp. 535 et sq. and also above in 2.5.3.1. However, this classification turns on the normative effect of defenses on criminality, see Schürer-Mohr (1998), pp. 162 et sq. In her view, defenses do away with both conduct and result criminality while risk permissions should only affect the former. Regarding the Rome Statute, however, and owing to the lack of an established distinction between criminality and culpability, the nature of defenses has remained ambiguous, see above in fn. 733. What is more, the distinc-

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references to facts, empirically tested relations, or normative assessments1219. 2.5.4.3.2.1. The principle of possession and the ability to trust in business partners Would a non-satisfaction of the principle of possession by imposing or threatening to impose criminal sanctions upon such risk-creating conduct by business actors be justified in light of the importance of satisfying the protective principle? How can each principle be realized to the factually greatest extent? And what is the abstract weight of the principles involved? 2.5.4.3.2.1.1. Intensity of non-satisfaction of the principle of possession Non-satisfaction of the principle of possession can result from threats of criminal sanctions inherent in the Rome Statute’s provisions directed both at business owners in possession of the business venture and at those individuals whose involvement in the business venture is essential to maintaining the venture’s economic value1220. Business actors will choose to avoid or minimize a threat of criminalization by avoiding to partake in acts of business exchange they fear could possibly amount to the commission of crimes under the Rome Statute; consequently, responsibility prerequisites which minimize the cause of this fear serve to mitigate intensity of non-satisfaction of the principle of possession1221. To mitigate intensity

tion between conduct and result criminality has proven fragile, see above in 2.4.3.3.1. I therefore only cautiosly classify risk permissions under Article 21 (3) RS at this stage of the Rome Statute’s development, see above in fn. 871. 1219 See above in 2.5.4.2.1.2.1 and again Alexy/Rivers (2002), pp. 105 et sq., 108. 1220 This reasoning purports to take into account the human rights position of the business venture’s owner even if the accused herself is not that owner. I posit therefore that Article 21 (3) RS is not limited to the human rights of those directly accused before the Court. 1221 Cf. on this insight Kudlich (2004), p. 300. That business actors will choose to minimize the risk of criminal prosecution is a plausible assumption. Yet, it is subject to epistemic uncertainty and must therefore (as it does) conform to «epistemic optimization», see above in fn. 979.

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of non-satisfaction, responsibility prerequisites must work to enable the individual ability to trust in business partners: Virtually any good or service offered in a business exchange relationship can contribute to the commission of an offense. If mere awareness of such possibilities did suffice for criminal responsibility, business activity e.g. in particular regions and with business partners operating businesses in those regions would no longer be feasible on a trust basis but call for an amount of diligence that slows down or even paralyzes certain business activity altogether1222. The need for such diligence, the inability to trust which result from provisions with undemanding subjective responsibility prerequisites thus increase the intensity of non-satisfaction of the principle of possession1223. Consequently, the degree of intensity also depends on the nature of business activity (the more personalized the provision of goods and services, the less opaque the business relationship and the less intense the non-satisfaction; the less characteristic their expediency, the less intense the non-satisfaction) and on the nature of goods and services offered (the more specific their usability, the less opaque the risk of contributing to a crime and the less intense the non-satisfaction); fear of criminal responsibility therefore concerns above all business actors who sell goods and services available ubiquitously and immediately1224. What is more, with a view to larger business ventures, this insight into the essentiality of trust in business relationships requires taking into consideration the notion of division of labor and competences: Permanent reciprocal surveillance in order to avoid criminalization for directives and authorizations issued to employees based on the awareness that such directives and authorizations can possibly always contribute to an offense would effectively extinguish such division of labor and competences and thus render larger business ventures impossible to operate with the economically required efficiency1225. In other words: If punishment is on the horizon for issuing directives in spite of this ubiquitous possibility, dili-

1222 See above in 2.5.4.1.1 and again Kudlich (2004), p. 435 as well as Rackow (2007), pp. 541 et sqq. 1223 Cf. on this insight Kudlich (2004), pp. 435 et sq. 1224 See above in 2.5.4.1.1 and again Rackow (2007), pp. 541 et sqq. as well as Kudlich (2004), pp. 299 et sq. 1225 On this insight, cf. Rudolphi (1987), p. 863 (at 867 et sq.) and following Rudolphi, Heyer (2013), p. 490.

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gence disruptive of economically required division of labor and consequences may ensue. In turn, responsibility prerequisites that mitigate the need for individual diligence serve to mitigate non-satisfaction1226. In order to mitigate the invasiveness of dolus eventualis upon trust in business partners, Roxin has argued to require under German criminal law a «discernible disposedness to offend» of the principal to hold a business actor responsible as an accomplice1227. The diligence which is provoked by the prerequisite of the awareness of a mere possibility (albeit subjectively considered serious1228) that the act of business exchange amounts (to assistance) to the commission of offenses is thus set off and commences only when a threshold of discernibility is reached. Trust in business partners is protected to this extent and the non-satisfaction of the principle of possession is mitigated1229. Detrimental effects on the ability to trust essential to certain business transactions are, however, also mitigated by a practical certainty awareness prerequisite: Demands of diligence lose their exigent and destructive character if directed at an individual with practical certainty of the criminal result1230. The practical certainty prerequisite thus leaves business actors’ ability to trust intact; «trust» in the non-occurrence of a criminal result in knowledge of the course of events leading to it amounts to irrational hope1231. As a consequence, the restrictions imposed upon business interaction by a threat of criminal responsibility are qualitatively and quantitatively marginal if self-restriction is demanded only in cases of practical certainty1232. This limited self-restriction also prevents the per-

1226 For a similar proposal regarding German criminal and constitutional law, cf. Kudlich (2004), pp. 435 et sq. 1227 See above in 2.5.4.1.1 and again Roxin (1993), p. 365 (at 380) («erkennbare Tatgeneigtheit», my translation). 1228 According to Roxin, dolus eventualis requires of the offender to «take into serious consideration» the occurrence of the criminal result and «come to terms» with it («Ernstnehmen», «sich abfinden», my translation), Roxin (2006b), p. 448. See Badar (2013), pp. 139 et sqq. on this and diverging German concepts of dolus eventualis. 1229 Roxin argues not from the individual rights perspective but from a social interest perspective; he moreover limits criminal responsibility in cases of «neutral acts» not only by recourse to the protection of trust, see above in 2.5.4.1.1. 1230 Cf. Kudlich (2004), pp. 382, 449. On the notion of practical certainty, see again above in fn. 754. 1231 Kudlich (2004), p. 382. See also Roxin (2003c), p. 215. 1232 Cf. Kudlich (2004), pp. 300, 382 et sq., 449, 459.

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ilous structural effects of a «society of mistrust» upon the realization of the principle of possession1233. 2.5.4.3.2.1.2. Importance of satisfying the protective principle Importance of satisfaction of the protective principle must be determined in light of business activity protected by the principle of possession; in other words: Importance consists of the intensity with which non-interference with the principle of possession would hypothetically but inevitably interfere with the protective principle1234. Therefore, if threatening punishment and addressing punishment at business actors as interference with the principle of possession were omitted (e.g. in the course of a more demanding interpretation of the Rome Statute), to what degree would interference with the protective principle then amount? Concrete importance of satisfaction will thus depend upon assessing – on the one hand – which deprivation of human rights would have been brought about without the Rome Statute’s protection, assuming that the Rome Statute’s applicability and application (e.g. in the course of a less demanding interpretation) would have prevented said deprivation1235. In the case that an offense under the Statute consists of irreversible deprivations (e.g. the taking of a life), it may be argued that more demanding interpretations of the Statute constitute a high degree of intensity of non-satisfaction of the protective principle. Vice versa, if deprivations are reversible, the intensity is arguably only of a low degree. On the other hand, importance of satisfaction

1233 Approaching the issue from a social interest perspective instead of the here-suggested individual rights perspective, see Stewart (2012b), p. 165 (at 197 with fn. 167) (critical of privileging the «desire for free social intercourse, especially in the realm of business», my emphasis) and Reggio (2005), p. 623 (at 691) (on the risk of having to «guess about future possible unlawful actions by another person») and already Frisch (1988), pp. 269 et sq. («society of mistrust»). The individual rights perspective must also take into account the structural conditions upon which an individual right’s realization depends; the advent of a «society of mistrust» would disable such a realization. 1234 See above in 2.5.4.2.1.2.1 and again Alexy (2003), p. 433 (at 441). 1235 See below in 4.2 on the Statute’s preventive capacity.

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arguably achieves a high degree if a violation within the «core area» of the Statute’s protective means-end-relation could have been prevented1236. 2.5.4.3.2.1.3. Realization to the factually greatest extent Also, principles demand realization not only to the greatest extent given the legal possibilities but also to the factually greatest extent: If a particular measure – or, for our purposes, interpretation of a provision under Article 21 (3) RS – is unsuitable or unnecessary, both competing principles taken together prohibit said measure or interpretation so that both taken together may be realized to a higher degree relative to the factually possible1237. As regards the mental element in criminal responsibility, certainty awareness as demanded by Article 30 RS is not unsuitable from the perspective of both the protective principle and the principle of possession: Suitability of criminalization of acts of business exchange increases relative to the business actor’s degree of certainty; the more certain she is of implementing an intellectual design by her provision of material support, the greater the risk of harm to physical security human rights and the greater therefore the suitability of restricting acts of business exchange by criminalization to realize the protective principle1238. Certainty awareness at the same time improves upon the factual realization of the principle of possession by diminishing the threat of criminalization. As opposed to a possibility awareness prerequisite, this mental element is moreover not unnecessary in the above sense: A possibility awareness prerequisite will lead to broader threats of criminalization of acts of business exchange and is therefore more obstructive to the principle of possession1239. As a consequence, the demands of both principles taken together to be realized to

1236 See above in 2.4.2.3.3 and below in 2.5.4.5.3 for a similar (but different) argument advanced by Heyer. 1237 See above in 2.5.4.2.1.2.1. 1238 Cf. Kudlich (2004), pp. 459, 463. 1239 With a view to avoiding the threat of criminal responsibility, business actors will continue with acts of business exchange either if they are not certain of contributing to an offense (certainty awareness prerequisite) or if they consider such a contribution not possible (possibility awareness prerequisite). While the former subjective judgment is more prone to errors than the latter, far greater oversight of business actors is required to rule out a possibility than a certainty.

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the factually greatest extent are not better satisfied by a possibility awareness prerequisite in the criminalization of acts of business exchange1240. 2.5.4.3.2.1.4. Abstract weight of the protective principle and of the principle of possession The abstract weight of the protective principle is high. It is determined, on the one hand, by the weight of the underlying human rights norms: As ius cogens, the human rights protection from genocide, torture, aggression, apartheid, and slavery as well as in basic rules of international humanitarian law applicable in armed conflict1241 is endowed with high abstract weight in the international legal order1242. Again, crimes in the Rome Statute amount to ius cogens, thus implicitly reflecting upon the ius cogens character of the underlying human rights in their protective dimension1243. On the other hand, history bears witness to the paramount importance of protecting physical security in this sense, an importance that both transcends and impregnates the situational context: Macro criminality has brought about «some of the darkest chapters in human history»1244. «Physical security human rights», Fisher asserts, «are the rights that are preconditions to all others», for without «bodily integrity and sustenance, one cannot enjoy any of the other human rights expressed in the Universal Declaration of Human Rights»1245. They serve in an enabling function towards the «use [of] any other rights that society may be said to be protect-

1240 Cf. also the argument that protection of the legal interest or good put at risk is not diminished by an intent prerequisite which calls for the assistant receiving «concrete indication» that the resources she provided would be used in the offense’s commission, given that it can only be improved upon if precisely the resource provided was to be used in the offense’s commission advanced by Kudlich (2004), p. 461. 1241 Seiderman (2001), pp. 84 et sqq., 96 et sqq., in particular on the ius cogens character of Common Article 3 of the Geneva Conventions of 1949, and also Schutter (2010), pp. 64 et sq. 1242 See above in 2.5.4.2.1.2.2 and 2.5.4.2.1.2.3 and also Bassiouni (1996), p. 63 (at 67). 1243 See above in 2.5.4.3.1. 1244 Werle/Jeßberger (2014), p. 2. 1245 Fisher (2012), p. 19 therefore considers these rights «trump cards», while I propose to afford them a high abstract weight. See already above in 2.5.4.3.1 and also below in 2.5.4.5.1.

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ing without being liable to encounter many of the worst dangers they would encounter if society were not protecting these rights»1246. In contrast, human rights norms underlying the principle of possession are not part of ius cogens. Yet the protection of the enjoyment of possession in the sense of «economic resources» and the revenues derived from them in economic activity is mandated by the ECHR for the sake of making a living1247 and thus of participating in social life without obstructions. The abstract weight of the principle of possession may, therefore, be considered to be high as well. 2.5.4.3.2.1.5. Application to case example To illustrate the above, this section intends to apply these insights to the Corrie case example1248. The importance of satisfying the protective principle achieves a high degree, given that the war crimes in question include irreversible deprivations which could have been avoided by applicability or application of the Rome Statute and that the constitution of material organizational resources is situated within the «core area» of the Statute’s protective means-end-relation. As regards the degree of non-satisfaction of the principle of possession, according to the above, statutory intent prerequisites are pertinent. Such intent prerequisites in Article 30 RS have not been the subject of this study1249; in the following, it is, therefore, assumed preliminarily for the sake of illustration that they amount (in particular1250) to being aware of bringing about the violation of a protected legal good or interest in implementing an intellectual design underlying a genocidal campaign (Article 6 RS), attack (Article 7 RS), or (dysfunctional) military campaign (Article 8 RS) as a consequence element. It is important to note here that such awareness excludes dolus eventualis: As is held by the ICC and in scholarship, more is required of the accused than mere awareness of a (serious) possibility; the formulation «will occur» in Arti1246 Shue (1996), p. 21. 1247 See above in 2.5.4.2.2.2.1 and again European Court of Human Rights, Dogan and others v. Turkey, 29.06.2004 – 8803-8811/02, 8813/02, 8815-8819/02 (§ 139). 1248 See above in 1. 1249 See above in fn. 548. 1250 Additional intent prerequisites may result also from Article 25 (3) (d) RS, see above in 2.4.4.2.2.

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cle 30 (2) (b) and (3) RS as opposed to «may occur» is indicative not of possibility awareness but of (practical) certainty1251. As regards realization relative to what is legally possible, this mental element mitigates the degree of non-satisfaction of the principle of possession that results from the Rome Statute’s threats of criminal responsibility: Article 30 RS leaves intact the division of labor upon which the operation of larger business ventures is premised. The Statute’s knowledge prerequisite largely averts the detrimental effect of permanent reciprocal surveillance, which would be induced by the lesser prerequisite of possibility awareness; superiors are not burdened with self-restriction to avert the (however small but ubiquitous) risk of commission of a criminal offense as a consequence of a directive issued to subordinates. Business actors’ ability to trust in business partners also remains intact, as self-restraint is quantitatively and qualitatively limited. By way of example, a reference to the Corrie case may again be useful: Caterpillar continued to sell its bulldozers to the IDF in spite of allegedly receiving thousands of letters about the use of these bulldozers in the commission of war crimes1252. A company representative claimed that sales were never based on «customers’ intended use of the product»1253. In US civil litigation, the district court referred to «collateral consequences» of holding to account the seller of products used as a participant in international law violations; such accountability for «doing business» was subsequently denied to plaintiffs for otherwise a «lack of caution could have significant, if not disastrous effects on international commerce»1254. It is my contention that such «disastrous effects» – i.e. the underlying social in-

1251 See ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§§ 362 et sqq.) («will occur […] close to certainty») and also ICC - Trial Chamber I,Prosecutor v. Lubanga, 14.03.2012 – ICC-01/04-01/06 (§§ 1011 et sq.); ICC - Pre-Trial Chamber II, Prosecutor v. Mathieu Ngudjolo Chui - Concurring Opinion of Judge Christine van den Wyngaert, 18.12.2012 – ICC-01/04-02/12-4 (§ 37) as well as Ambos (2013c), pp. 277, 278 at fn. 109; Werle/Jeßberger (2014), pp. 181 et sq. with further references, also to opposing views. 1252 Skinner (2006), p. 14. 1253 Skinner (2006), p. 14. 1254 United States District Court Western District of Washington at Tacoma, Corrie v. Caterpillar, 22.11.2005 – 403 F.Supp.2d 1019 (at 1024) with reference to United States District Court Southern District of New York, In Re South African Apartheid Litigation, 29.11.2004 – 346 F. Supp. 2d 538 (at 554).

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terests – are beside the point unless they are framed in a human rights perspective1255; what matters, instead, is that under Article 21 (3) RS and in light of the Rome Statute’s awareness prerequisite – if they were under the ICC’s jurisdiction – Caterpillar management would be burdened with self-restraint in its business activity that would not achieve a high-degree of non-satisfaction of the principle of possession – neither in terms of the advent of a «society of mistrust» in international commerce nor as a result of scrutinizing and – if so desired in light of the risk of criminal prosecution – of revising its business transactions with the IDF, while every other business transaction can move forward uninhibitedly without a need for mutual distrust. This degree of non-satisfaction is supported, moreover, by the nature of the business transaction; the goods and services provided are highly specific and expediency of the transaction is of limited importance. With a view to optimization to the legally greatest extent in balancing, therefore, the detriment to the principle of possession is justified by the high degree of importance of satisfying the protective principle. Precedence of the protective principle remains unaffected by the high abstract weights of both the protective principle and the principle of possession; regarding the war crimes under Article 8 (2) (a) RS in question, this abstract weight is arguably owed both to the ius cogens character of the human rights underlying said war crime as well as to the enabling function of the right to sustenance infringed upon by IDF members in extensively destroying housing properties. In terms of factual optimization, this mental element does not work towards safeguarding the suitability of criminalization of business actors’ conduct as commission. 2.5.4.3.2.2. The principle of adequate living conditions through work The principle of adequate living conditions through work may be derived essentially from the human rights norms contained in Articles 23, 25 UDHR as well as Articles 6 and 11 ICESCR. As is generally acknowledged, the right to work plays «a key role in facilitating the right to an adequate standard of living»1256. It is, then, «best viewed as a freedom to ex-

1255 See again above in 2.5.4.1.2.1 and 2.5.4.2.1.2 on interest-based balancing and also below in 2.5.4.5.1 on the implications of utilitarianism in an interest-based account. 1256 Coomans (2010), p. 280 (at 301).

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ercise a degree of choice in the work undertaken to maintain one’s standard of living»1257. Vice versa, individuals are expected to ensure the satisfaction of that standard primarily through their own efforts and use of their own resources, such as through income from work1258. The notion of an «adequate standard of living» has, of course, remained subject to controversy; as regards «purely material terms», Eide suggests to read it as implying «the maintenance of a level of living which is above the poverty line in the society concerned»1259. «The essential point is», he posits, «that everyone should be able, without shame and without unreasonable obstacles, to be a full participant in ordinary, everyday interaction with people»1260. The principle of adequate living conditions through work is interfered with by a threat of criminal responsibility for provisions of material resources regardless of their relevance to an individual’s possessions. In balancing with the protective principle, the prerequisite amount of diligence in business exchange relationships similarly mitigates the degree of nonsatisfaction. Here too, it is particularly the threat of criminalization that may serve to slow down business exchange relationships to the point that they become dysfunctional and subsequently, as the constitutive part of many instances of work towards adequate living conditions, may fail to provide for an adequate standard of living and therefore amount to a high degree of non-satisfaction. This scenario, however, is preempted by the Rome Statute’s intent prerequisites in Article 30 RS. The high degree of importance of the protective principle therefore justifies the non-satisfaction of the principle of adequate living conditions; the concrete weight of the protective principle is higher than that of the principle of adequate living conditions through work. The abstract weight of the principle of adequate living conditions through work, moreover, is high: Adequate living conditions through work are essential to ordinary participation in social interaction1261.

1257 1258 1259 1260 1261

Smith (2005), p. 308. Eide (2010), p. 233 (at 235). Eide (2010), p. 233 (at 235). Eide (2010), p. 233 (at 235). Again: Eide (2010), p. 233 (at 235).

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2.5.4.4. Results: Implementation of an individual risk permission is generally not required Risk permissions under Article 21 (3) RS are a matter of reviewing the case at hand individually in balancing1262. In this vein, balancing does not require – by way of statutory interpretation pursuant to Article 21 (3) RS – the implementation of a risk permission which accounts the social value of risk-creating conduct of business actors in light of the principles of possession and of adequate living conditions through work. Risk-creating acts of business exchange that amount to commission are sufficiently protected from a human rights perspective by the mental elements prerequisite under Article 30 RS; recourse to Article 30 RS thus produces an answer highly generalizable beyond the instant case. With a view to the principle of possession, this includes both business owners and those accused who are essential to maintaining the business venture’s economic value. 2.5.4.5. Revisiting Heyer’s utilitarian account of risk permissions for business actors In light of the above analysis, there is merit in revisiting Heyer’s utilitarian account of risk permissions for acts of business exchange. I will structure this review of her conclusions in three parts: First, my focus will again be on Rawlsian theorizing on social justice, i.e. on contrasting Heyer’s utilitarian account from which she derives the neutrality criteria of securing one’s livelihood and organizational competence with what I believe is a preferable conception of global justice. Second, I will review two additional criteria established by Heyer that may serve to render risks created normatively permitted, in particular the lack of harm probability and of crime-specificity of risks. Third, it is important to ask whether neutralization shall a priori exclude (principal) perpetration with control over the crime. As we have seen above, Heyer’s utilitarian account considerably advances the debate on the exemption of socially valuable conduct from the scope of criminal responsibility under the Rome Statute. However, in spite of its profound immersion into the normative foundations of the Rome Statute’s scope, it unfortunately both lacks in the translation of

1262 See again above at fn. 1218.

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these foundations into prerequisites of criminal responsibility and, more importantly, falls short of granting adequate expression to the nature of human rights as principles of fundamental importance to international law as a legal order generally and to the Rome Statute specifically. 2.5.4.5.1. Wresting the singularity of life from the calculus of social interests: The criteria of securing one’s livelihood and of organizational competence Heyer proposes to undertake a weighing of «social values» within the risk standard, i.e. to establish a risk permission by means of weighing individual liberty – in particular to secure a livelihood – against the protection of peace mandated by the Rome Statute in the «instrumental-rational interest of all»: Risk creation may be socially acceptable, she argues, if its omission is not only a loss for the individual but for society as a whole1263. The way to resolving of the conflict of values – exercise of individual liberty vs. societal peacekeeping – underlying her account of a risk permission for acts of business exchange lacks full disclosure. Departing from the general premise that the «interests of the legal community as a whole» possess greater normative weight than individual liberty interests, she argues that the collision between the «guarantee of individual liberty» with the guarantee for legal goods protected by international criminal law granted in the social contract must be resolved pursuant to the «regulation interest of optimally enabling instrumentally rational decision-making behavior»: In this vein, «taking sides for one of the two values is justified in light of the regulation interest consented in the social contract» as soon as the decrease of damage intensity towards the protected legal good converges with the increase in damage intensity to liberty1264: She concludes in this vein that to protect both the individual member and its own existence, society may carry an obligation to tolerate individual instrumentally rational

1263 See again Heyer (2013), pp. 485, 478 (my translation). 1264 Heyer (2013), pp. 472, 474, 478 et sq. («In dem Moment, in dem sich die Abnahme der Schadensintensivierung für das Rechtsgut und der Anstieg der Schadensintensivierung für die Freiheit treffen, erscheint eine Parteinahme für einen der beiden Werte im Hinblick auf das gesellschaftsvertraglich konsentierte Regelinteresse gerechtfertigt», my translation).

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conduct even if it perpetuates the «perversion of the social system»1265. To the benefit of society as a whole, the risking of lives may thus be deemed socially acceptable 1266. In other words: Heyer proposes that the ICC’s justice and legitimacy be dependent upon the rules of international criminal justice minimizing overall damage and maximizing overall benefit to the «global village»1267. The following criticism will take up and review this perspective. Such «utilitarian perspective[s]»1268 have also come under heavy criticism by Rawls1269. In his view, «[u]tilitarianism does not take seriously the distinction between persons»1270. Both classic utilitarianism’s conception of a just society as a society whose «major institutions are arranged so as to achieve the greatest net balance of satisfaction summed over all the individuals belonging to it»1271 is premised upon «extending to society as a whole the principle of rational choice for one man, and then, to make this extension work, conflating all persons into one through the imaginative acts of the impartial sympathetic spectator» who is «perfectly rational»1272. «No reason in principle» therefore opposes that «the greater gains of some should not compensate for the lesser losses of others; or more importantly [that] the violation of the liberty of a few might not be made right by the greater good shared by many»1273. In Heyer’s utilitarian perspective, it is (presumably) this «impartial sympathetic spectator» that would have to approve of the ICC as being a just (global) institution1274, «the strength of his approval» corresponding «to the amount of satisfaction in the society surveyed»1275: Presumably, such approval – and thus the understanding of those individually affected – would depend upon the minimizing of overall damage to society as a whole, which may include

1265 1266 1267 1268 1269 1270 1271 1272 1273 1274 1275

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Heyer (2013), p. 479 (my translation). Heyer (2013), p. 479. See Heyer (2013), pp. 472, 474, 555, 479. Heyer (2013), p. 555. See Rawls (1999a), p. xviii describing his goal to «offer an alternative account of justice that is superior […] to the dominant utilitarianism of the tradition». Rawls (1999a), p. 24. Rawls (1999a), p. 20. Rawls (1999a), p. 24. Rawls (1999a), p. 23. See above in 2.5.3.4.1 and again in particular Heyer (2013), p. 472. In general, cf. Rawls (1999a), p. 162.

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perpetuating the perversion of society that macro criminality brings about1276. Rawls strongly opposes this kind of reasoning for it does not «justify an equal liberty for all»1277. First, he argues, «convictions of common sense» militate against distinguishing «as a matter of principle between the claims of liberty and right […] and the desirability of increasing aggregate social welfare», giving «a certain priority, if not absolute weight, to the former»: «Justice denies that the loss of freedom for some is made right by the greater good shared by others» and «in a just society the basic liberties are taken for granted and the rights secured by justice are not subject to political bargaining or to the calculus of social interests»1278. Second, Rawls claims that once «the principles of social choice, and so the principles of justice» are conceived of in a contractarian framework as «themselves the object of an original agreement», there is «no reason to suppose that the principles which should regulate an association of men is simply an extension of the principle of choice for one man»1279. Instead, assuming that «the correct regulative principle for anything depends on the nature of that thing, and that the plurality of distinct persons with separate systems of ends is an essential feature of human societies, we should not expect the principles of social choice to be utilitarian»1280. Conflation, Rawls argues, «subjects the rights secured by justice to the calculus of social interests»1281, and «[w]henever a society sets out to maximize the sum of intrinsic value or the net balance of the satisfaction of interests, it is liable to find that the denial of liberty for some is justified in the name of this single end», making the «liberties of equal citizenship insecure»1282. As Nozick has aptly put it, sacrificing one individual for the greater social good

1276 Cf. above in 2.5.3.4.1 and again Heyer (2013), p. 474 and in particular Heyer (2013), p. 481 where she implicitly alludes to the principle of average utility. This principle consists of directing society «to maximize not the total but the average utility (per capita)» and setting up institutions «so as to maximize the percentage weighted sum of the expectations of representative individuals», see Rawls (1999a), p. 140. 1277 Rawls (1999a), p. 185 on equal liberty in the utilitarian concept of liberty advanced by Mill (1859). 1278 Rawls (1999a), pp. 24 et sq. 1279 Rawls (1999a), p. 25. 1280 Rawls (1999a), p. 25. 1281 Rawls (1999a), p. 26. 1282 Rawls (1999a), p. 185.

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«does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has»1283. In utilitarianism’s perspective, however, personal «integrity as a value» becomes «more or less unintelligible»1284. Conceding that «moral judgments should be impartial», Rawls moreover1285 postulates that such impartiality is best achieved by a judgment rendered «in accordance with the principles which would be chosen in the original position» rather than «from the standpoint of a sympathetic observer»: Impartiality must be defined «from the standpoint of the litigants themselves», and «the fault of the utilitarian doctrine is that it mistakes impersonality for impartiality»1286. In the original position, i.e. under the veil of ignorance, reliance on «the maximin rule as a heuristic device for arranging the arguments that favoring the two principles [of justice]» 1287 is rational, and parties would be unwilling to risk utilitarian principles one day providing for an infringement of their liberties1288. As Rawls explains, while the assumption that «one has an equal chance of turning out to be anybody» would indeed favor adoption of a utility principle, this assumption – under the veil of ignorance – «is not founded upon known features of one’s society»1289. Faced with this uncertainty, the contracting parties would opt to «sidestep the uncertainties of the original position» and «guarantee the protection of their liberties and a reasonably satisfactory standard of life as the conditions of their societies permit» by choosing a

1283 Scheffler (2003), p. 426 (at 427) with reference to Nozick (1974), p. 33 who, in turn, makes reference to Rawls. 1284 Scheffler (2003), p. 426 (at 427) with reference to Williams (1973), p. 77 (at 99). 1285 Scheffler (2003), p. 426 (at 430) pointing out that the preceding arguments against classical utilitarianism are not based on the apparatus of the original position. 1286 Rawls (1999a), pp. 165 et sq. 1287 Rawls (1999a), p. 145. The maximin rule «tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others», Rawls (1999a), pp. 133 et sq. 1288 Rawls (1999a), pp. 138 et sq., 146 et sq. See also Scheffler (2003), p. 426 (at 431 et sqq.) for a summary of Rawls’s much more elaborate rejection of both classical and modern average utility utilitarianism than what I have summed up in the preceding and following text. 1289 Rawls (1999a), pp. 146 et sq.

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conception of justice that is based on Rawlsian principles of justice1290. This choice, Rawls concludes, also manifests «in the basic structure of society men’s desire to treat one another not as means only but as ends in themselves»: While the principle of utility presumably requires «some who are less fortunate to accept even lower life prospects for the sake of others» and hinges «men’s self-respect […] on how they regard one another», Rawlsian principles of justice secure «each man’s rational interest in his self-respect […] by the public commitment of others to arrange inequalities to everyone’s advantage and to guarantee the basic liberties for all»1291. With a view to Heyer’s proposal of balancing values at stake in the case of presumably socially desirable business activity, the rejection of a utilitarian account of a risk permission under the Rome Statute thus serves to wrest from the calculus of social interests the singularity of life: It is not only the business actor (or her representative in the original position) whose reasonable consent is of the essence; it is also the potential victim’s (or her representative’s) agreement on which the principles of justice resulting from a social contract is hinged1292. From this perspective, the infringement upon individual liberties can and would not be accepted for the sake of «minimizing overall damage»1293 to society as a whole: The (modern) utilitarian principle of directing society «to maximize not the total but the average utility (per capita)» and setting up institutions «so as to maximize the percentage weighted sum of the expectations of representative individuals»1294 would not be preferred by contracting parties if they had at their disposal the alternative of globalized Rawlsian principles of justice. Framing the violation of individual (human) rights as a sacrifice to minimizing overall damage to liberty – as Heyer proposes – would be unreasonable from the standpoint of the representative citizen who is called upon in the global original position to choose between systems or schemes of basic liberties that apply to the global basic structure1295.

1290 1291 1292 1293 1294 1295

Rawls (1999a), pp. 146 et sq., 182. Rawls (1999a), pp. 156 et sqq. In a similar vein on risk permissions generally, Schürer-Mohr (1998), p. 113. See again Heyer (2013), p. 478. Rawls (1999a), p. 140. Cf. Rawls (1999a), p. 179 on the domestic case and above in 2.5.4.2.2.3.3 and 2.5.4.2.2.3.5 for arguments that speak in favor of global principles of social justice.

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As a consequence, her evaluation of social acceptability on the premise that «taking sides for one of the two values is justified in light of the regulation interest consented in the social contract» as soon as the decrease of damage intensity towards the protected legal good converges with the increase in damage intensity to liberty1296 and resulting in the normative permissibility of assistance or contributions to offenses carried out in the course of securing one’s livelihood and of the division of labor and competences is misguided. Not only taking to the «regulation interest consented in the social contract» but also to the public law paradigm of international law must instead result in a principled account of balancing from a human rights perspective which intelligibly accounts for the value of personal integrity. In this account, subsequently, similar results are, however, not precluded: As I have argued above, the principle of adequate living conditions through work protects the ability to secure one’s livelihood in the face of criminalization of acts of business exchange while the principle of possession requires attention to the notion of division of labor regarding the degree of its non-satisfaction. Finally, recall Rackow’s position that it is never «reasonable» to accept the risking of the destruction of an individual’s capacity to socially interact for the sake of the continued existence of another’s possibility to do so, resulting in the exemption from privilege of attacks on life, bodily integrity, and liberty1297. While Rawls only provides for a (purposely1298) undefinitive account on the matter of conflicting liberties under the first principle of justice, I posit that his domestic approach would indeed support introducing the protective principle to balancing as a reasonable proposal. This insight requires revisiting the hierarchy argument underlying lexical priority of the first principle of justice1299: Rawls had first proposed that the criterion to establish an adequate scheme be quantitative, i.e. «the basic liberties are to be specified and adjusted so as to achieve the most ex-

1296 Heyer (2013), pp. 472, 474, 478 et sq. («In dem Moment, in dem sich die Abnahme der Schadensintensivierung für das Rechtsgut und der Anstieg der Schadensintensivierung für die Freiheit treffen, erscheint eine Parteinahme für einen der beiden Werte im Hinblick auf das gesellschaftsvertraglich konsentierte Regelinteresse gerechtfertigt», my translation). 1297 See Rackow (2007), p. 538 (my translation) and above in 2.5.3.1. 1298 See Rawls (2005), p. 368 («We must not ask too much of a philosophical view»). See also Maffettone (2010), pp. 61 et sq. 1299 See above in 2.5.4.2.2.3.1.

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tensive scheme of these liberties» 1300, but later added in response to Hart’s criticism of the quantitative criterion being applicable and satisfactory only in the least significant cases 1301 that the «significance of a particular liberty» for a «fully adequate scheme of basic liberties», i.e. a scheme «in accordance with the rational interests of the representative equal citizen» in developing and exercising their moral powers should depend «on whether it is more or less essentially involved in, or is a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers in one (or both) of the two fundamental cases»1302. Rawls thereby makes reference to a «division of labor»: Political liberties, such as the right to vote, facilitate exercise of the moral power of a sense of justice (first fundamental case), while civil liberties, such as freedom of speech, freedom of the person including integrity of the person, facilitate exercise of the moral power of the capacity to critically form a conception of the good which may guide the formulation of a plan of life (second fundamental case)1303. Freedom and integrity of the person are «connected to the two fundamental cases by noting that they are necessary if the preceding basic liberties are to be properly guaranteed»1304. According to Taylor, the possibility of trade-offs between civil liberties depends on asking how directly or indirectly supportive liberties are to the exercise of the highestorder interest of autonomous creation and revision of plans of life: Indirectly supportive liberties are mandated only to «a basic minimum» and, in their regard, parties in the original position must defer to the constitutional, legislative or application stages of articulating principles of justice due to the possibility of compensated trade-offs which can be better assessed at later stages1305. Freedom of the person, including physical integrity, Taylor argues, is merely indirectly supportive in that sense1306. In this vein, and arguably congruent with Rackow’s assumption, not every risk to life, physical integrity, or freedom is unreasonable but only such

1300 1301 1302 1303 1304 1305

Rawls (1999a), pp. 53, 266. Hart (1973), p. 534 (at 542 et sq.). Rawls (2005), pp. 331 et sq., 335. Maffettone (2010), pp. 61 et sq. Rawls (2005), p. 335. Taylor (2011), pp. 166 et sq. with fn. 16. See also Taylor (2013), p. 147 (at 156) and on the four-stage sequence of developing principles of justice, Wenar, John Rawls (2013), available at http://plato.stanford.edu/archives/win2013/entries/ra wls/ (last visited: 30.06.2015). 1306 Taylor (2013), p. 147 (at 156).

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risks which suppress our autonomous creation and revision of plans of life: Freedom of the person requires putting an end to «the continual, looming threat of violent death due to […] unchecked criminality» without room for compensating measures1307. Yet, according to Alexy, this inadequacy of compensating measures is not expression of an absolute limit but rather of the insight that «the more a principle is restricted, the more resistant it gets», i.e. in accordance with the Substantive Law of Balancing the «strength of the countervailing principles has to grow disproportionately»1308. The determination of inadequacy of compensating measures is, in this vein, always a matter of the relation between principles which, in turn, is structured by balancing. Whether indeed risk-creating business activity by providing material resources is sufficiently suppressive is therefore a question of degrees of importance and non-satisfaction, and limits to risk permissions can thus not be instated a priori without recourse to such balancing. An altogether different but intricately related question is that of translating interests of the parties in the original position from the domestic to the global sphere1309. In international law, scholars have already asserted the function of «physical security human rights» as preconditions to the enjoyment of other human rights1310. Analogously to the domestic case, this does not preclude subjecting them to balancing which accounts both for their abstract weight (in the determination of which this enabling function has served as an argument towards a high abstract weight) and concrete importance of satisfaction1311. 2.5.4.5.2. The criterion of risk specificity Heyer exempts from the scope of socially acceptable, i.e. permitted risk creation the creation of «crime-specific» risks. Risk specificity is intro-

1307 Taylor (2013), p. 147 (at 156). 1308 Alexy/Rivers (2002), p. 195. See already above in 2.5.4.2.1.2.1. Alexy proposes a derivation of human rights as regards their content from arguments from autonomy, consensus and democracy to which I do not allude here; I am merely referring to his method of balancing. For these arguments, see Alexy (1996), p. 209 and on their critique Sieckmann (2007), p. 189 (at 194 et sqq.) with a reply by Alexy (2007), p. 333 (at 347 et sqq.). 1309 See above in 2.5.4.2.2.3 and in particular 2.5.4.2.2.3.5. 1310 See above in 2.5.4.3.1. 1311 See above in 2.5.4.3.2.1.2 and 2.5.4.3.2.1.4.

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duced as the flip side to «everyday risks»1312: She explains risk specificity as pertaining to a risk that is not an «everyday risk» but «may be conceived of as designed to further the occurrence of the particular harm»1313. This, in turn, is the case if the (secondary) assistant adapts her behavior to the (principal) perpetrator’s needs, e.g. in cases of customized products or of collusion between assistant and principal1314. Moreover, risk specificity is argued to be a matter of the «probability of the occurrence of harm»: As Heyer posits, a neutral observer must have been able to discern this probability ex ante to rule out a too minor or remote risk and to establish the «qualitative potency» of the assisting act1315. More specifically, this observer must ex ante conclude the probability of the «criminal misuse» of the provided assistance by the principal offender1316. Adaptation in particular is the central pillar of a complex1317 variant of the risk standard advanced by German scholar Frisch, establishing as one class of criminal complicity those acts which distinctly (but not exclusively) derive their meaningfulness from their functional correspondence to enabling or facilitating criminal behavior – a meaningfulness absent in particular in most acts of business exchange1318. For such meaningfulness is inherent only to acts of assistance that occur in a temporally and spatially narrow context of the violation of legal interest, serve to enhance the vigor of the principal’s attack and are in that sense adapted to said attack – as well as to acts that occur outside of said context but lack a plausible reason other than the advancement of another’s offense, or are rendered in reply to a request aimed at the advancement of discernibly criminal behavior and are impossible to obtain from bona fide assistants1319. Critics here

1312 Heyer (2013), pp. 487, 555. 1313 Heyer (2013), p. 556. 1314 Heyer (2013), p. 556. See already above in 2.5.3.3 on the accounts of Ambos and Vest. 1315 Heyer (2013), pp. 555 et sq., 463. 1316 Heyer (2013), p. 488 («deliktische Zweckentfremdung der tatfördernden Handlung», my translation) and Heyer (2013), p. 466 («qualitative Wirkmächtigkeit der tatfördernden Handlung», my translation). 1317 On the approach’s inaccessibility and thus immunity from criticism due to its complexity, see Kudlich (2004), p. 104. 1318 See above in 2.5.4.1.1 and again Frisch (1988), pp. 280, 288 with fn. 198, 289 et sqq.; Frisch (2002), p. 539 (at 546); Frisch (2003a), p. 215 (at 229) («eindeutig deliktischer Sinnbezug») and also Kudlich (2004), pp. 100 et sqq. 1319 Frisch (1988), pp. 289 et sqq.

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too have hinged their rejection of the proposal upon a question of degree: To what degree must the assistance be adapted to the attack, to what extent must it be conceived of as designed to further the principal offense1320? As long as it is this breadth (or narrowness) that determines the scope of criminal responsibility, it is of the essence to divulge the normative reasoning underlying the decision which has shaped said breadth – i.e. to motivate the decision beyond giving examples1321. This criticism is thus relevant not only as regards Frisch’s approach but also with a view to Heyer’s similar proposal. And while Heyer gives elaborate explanations as to why risks created e.g. in the course of securing one’s livelihood are to be exempt from criminal responsibility as socially accepted, I have, unfortunately, not discovered similarly extensive explanations regarding the breadth of adaptation upon which crime specificity is premised1322. Probability criteria are also prominent in the debate on social desirability of acts of business exchange. Yet, they evoke, on the one hand, the normatively wanting quantitative evaluation of principally equivalent causal factors that has led to opposition to criteria such as substantiality or significance1323. On the other hand, they have appeared as components of mental elements, making it a prerequisite of criminal responsibility to have known with more or less certainty to which use the assistance provided will be put by the principal1324. Heyer’s opting for an objective approach

1320 Rackow (2007), p. 141. 1321 Rackow (2007), p. 141. 1322 In fact, Heyer explains that risk specificity is lacking in cases of «permanent and independent» danger, i.e. if the (secondary) assistant has merely «taken advantage of this [the principal’s] continuous behavior in the commission of the crime», given that the risk created is then «intrinsic to the way markets are organized, the way labour is divided, and the way responsibility is dispersed»; this is argued to change once «the person rendering assistance changes his usual behavior in order to adapt it to the needs of the principal perpetrator», e.g. making «arrangements of concealement», Heyer (2013), pp. 487 with fn. 231, 555 et sq. In her own reference to Heyer (2013), p. 470 (where this latter insight is argued to be derived), she explains that only «routine activities» which involve the «dulling, in particular of feelings of guilt» have relevance for the constitution of criminality (my translation). The lack of risk specificity in cases of «permanent and independent danger» thus appears limited to such routine activities. 1323 See above in 2.5.3.2 and again Rackow (2007), pp. 137 et sqq., 131 as well as on the uncomfortable «quantitative vision of causation», Stewart (2012a), p. 1189 (at 1207). 1324 See above in 2.5.4.1.1 on Roxin’s approach and also Heyer (2013), p. 463.

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brings to the table the pertinent question as to which degree of probability, which quality of potency is required and why. Heyer seems aware of the issue when she first designates such probability as merely one criterion of many to be entered into the process of «weighing interests» with the aim of establishing social acceptability1325. Its subsequent unmediated application in her proposal as an element of individual criminal responsibility, however, requires greater precision to operationalize it for subsumption. Unlike in the course of balancing as devised above, the probability criterion as a prerequisite of individual criminal responsibility is in want of a normative foundation as regards its scope. 2.5.4.5.3. Neutralization and perpetration Finally, it is important to address Heyer’s limitation of neutralization to acts of non-perpetration, i.e. acts without control over the crime. Her limitation rests not merely on phenomenological but on principled terms: First, acts of perpetration are «acts directly harmful to the protected legal interest» and are thus «per se» unavailable to neutralization from the law’s perspective; second, such acts «touch upon the core of the guarantee to protect [legal interests from violations]» and are therefore, in her view, never socially acceptable1326. The first argument is borrowed from German scholar Rotsch; replacing the distinction between perpetrators and accomplices by means of the control approach by the distinction between direct and indirect – mediated by the causal conduct of another person – violations of the protected legal interest, Rotsch posits that direct violations are «prohibited per se by the respective norm» and can thus never be neutral1327. Both indirect perpetration and co-perpetration are, in his view, indirect violations and are subsequently open to neutralization1328. Unlike Heyer, therefore, Rotsch does not exclude from neutralization all forms of perpetration. Other scholars oppose such restrictions altogether and argue for establishing the neutrality of acts of all participants by recourse to the

1325 Heyer (2013), p. 466 (my translation). 1326 Heyer (2013), pp. 40, 478 («Einigkeit […], dass eine unmittelbar rechtsgutsschädigende Handlung per se keine ‹neutrale› darstellen kann», «[…] berühren diese doch den Kernbereich der Schutzgarantie», my translation). 1327 Rotsch (2009), pp. 423, 415 (my translation). 1328 Rotsch (2009), pp. 415, 426 et sqq.

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same set of principles 1329. Heyer’s second argument appears to rest also on the assumption that «in a functional view, acts causal to the damage carried out without proper decision-making power only marginally increase the damage to the legal interest protected by international criminal law as compared to acts carried out responsibly by one’s own initiative»1330. However, neutralization by way of a risk permission is addressed at the criminality constituted by one offense in which organized individuals have participated as (normatively speaking) equals in different roles and functions1331. While one might already contest Heyer’s lack of insistence on distinguishing between the attack route (control) and the attack’s result (violation of protected legal interest) in her reference to the «core of the guarantee», said «core of the guarantee», i.e. the «core area» of the Statute’s protective means-end-relation extends to access to and constitution of personal and material organizational resources in devising and implementing an intellectual design1332. This «core area» is not excluded from balancing but (merely) amounts to a higher degree of importance of satisfaction of the protective principle1333. What is more, the «protective norm» – i.e. the conduct norm underlying Articles 6 to 8 RS – is not limited «per se» to direct violations but includes any conduct that consists of implementing an intellectual design with sufficient dimensional expression1334. Neither of Heyer’s arguments on excluding (principal) perpetration from neutralization is, then, convincing in my view. 2.5.5. Results International criminal law is both international and criminal law. The balance struck between liberty and security by human rights as principles of international law sets limits to its scope. Article 21 (3) RS acknowledges this limit, while the risk standard allows incorporating it in terms of an in-

1329 See Rackow (2007), p. 566; Kudlich (2004), pp. 66 et sq., 443, 445. 1330 Heyer (2013), p. 478 («Funktional betrachtet, steigern schadenskausale Handlungen, die ohne eigene Entscheidungsmacht vorgenommen werden, den Schaden für die völkerstrafrechtlich geschützten Güter im Vergleich zu solchen aus initiativer Verantwortlichkeit nur geringfügig», my translation). 1331 See above in 2.4.3.3.1. 1332 See above in 2.4.2.3.3. 1333 See above in 2.5.4.3.2.1.2. 1334 See above in 2.4.3.3.1.

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dividual exemption of socially valuable conduct from criminality under the Rome Statute. In this framework, and as a consequence of intent prerequisites imposed by Article 30 RS, interpretation of Articles 6 to 8 RS need not implement a risk permission for the provision of material resources in implementing an intellectual design in the course of business activity. 2.5.6. Excursus: A customary law perspective on risk permissions? Business activity post-Nuremberg under Article 21 (1) (b) RS Before concluding this chapter, a brief excursus is warranted into the deep waters of customary law. In scholarly debates on the scope of individual criminal responsibility for business activity, references to and reviews of post-Nuremberg case law are frequent1335. Most recently, Heyer has conducted extensive research into the customary law perspective on exemptions from criminal responsibility for socially valuable conduct1336. As her review evinces, courts have travelled diverging avenues towards concluding such exemptions for acts of business exchange: In the Flick case1337, with regard to use of forced labor, lack of control and supervision, and not undertaking active steps to make use of forced labor led to a defense of necessity (even though these considerations arguably belong to the socalled actus reus and the defense of necessity appears to have been used as a «catch-all» device)1338; besides also discussing the necessity defense on the count of use of forced labor, in the I.G. Farben case1339 contributions to the war effort were exempt from responsibility for not exceeding the

1335 In particular, see Jeßberger (2010), p. 783‐802 (at 783 et sqq.) and also Reggio (2005), p. 623 (at 631 et sq.); Burchard (2010), p. 919 (at 929 et sqq.); Heyer (2013), pp. 163 et sqq. 1336 Heyer (2013), pp. 163 et sqq. 1337 The Flick case, in: United States Government Printing Office (ed), Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, 1949a - 1953. 1338 Heyer (2013), pp. 183, 208, 210 et sq., 550. On the Flick case, see again Burchard (2010), p. 919 (at 936 et sq.). 1339 The I.G. Farben case, in: United States Government Printing Office (ed), Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, 1949b – 1953.

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contributions of «normal, substantial German» businessmen1340 (albeit without providing clarification on the pertinent issue of normalcy); and in the Krupp case1341, the court focused both on the lacking substantiality of the material contributions to the war effort and concrete knowledge of the offense contributed to, respectively in the presiding judge’s view shared (purpose) intent1342 (albeit without elaborating on the nature of or rationale behind substantiality). The relevance of these holdings to the Rome Statute’s interpretation and application is, however, severely limited as normative foundations for risk permissions under the Rome Statute. Heyer concludes that while exemptions from criminal responsibility were granted on the basis of differentiated case-by-case analyses to accused who contributed to crimes in the course of business exchange, a coherent and sufficiently abstract argument towards exempting certain acts of business exchange from criminal responsibility was never developed1343. And while she does grant weight in her interpretation of the Rome Statute to the insight gained from her jurisprudential review that «at least within a totalitarian regime, ‹neutral› business activity that merely responds to prevailing circumstances might be exempt from criminal liability by virtue of its passive and disinterested character»1344, it is important to keep in mind the uniqueness of exactly

1340 Heyer (2013), pp. 187 with fn. 198, 210 et sq., 550. On the I.G. Farben case and its overall importance for the development of international criminal justice see also Jeßberger (2010), p. 783‐802 (at 792, 802) («From the angle of today’s international criminal law, the value of the decision above all lies in having undertaken the attempt to highlight the responsibility of industry and business through the instruments of international criminal law»). 1341 The Krupp case, in: United States Government Printing Office (ed), Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, 1949d - 1953. 1342 Heyer (2013), pp. 178 et sq., 210 et sq., 550 with extensive references. In this respect, the Krupp judgment strikingly amounts to a reproduction of the paradigmatic Hand/Parker debate in domestic US criminal law, see above in fn. 708. 1343 Heyer (2013), pp. 198, 209 et sqq., 213. See also Ambos (2002a), pp. 87, 96 and in particular on the irrelevance of the Flick case for interpretations of Article 25 (3) RS, Burchard (2010), p. 919 (at 936 et sq.) (pointing out that «[t]he US Military Tribunal made clear that the ‹basis of liability› effectively was membership in or contributing to a criminal organization or a group enterprise»). 1344 Heyer (2013), p. 550.

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these «prevailing circumstances» post-Nuremberg1345. To my mind little can, then, be gained from a customary law perspective under Article 21 (1) (b) RS on risk permissions for acts of business exchange beyond the courts’ general affirmation that such risk permissions were, at a particular time and under particular circumstances, justified as an outcome of the adjudication of individual cases, and may be justified in the future as well – such circumstances of that justification, however, cannot be accounted for by recourse to customary law under Article 21 (1) (b) RS but must instead be introduced into the process of principled balancing as rational arguments towards establishing degrees of non-satisfaction and importance. 2.6. Conclusion In accordance with the typological approach to commission chosen, business actors indeed commit genocide, crimes against humanity, and war crimes pursuant to Articles 6 to 8 RS upon implementing an intellectual 1345 See Hefendehl (2010), p. 769‐782 (at 777 et sq.) from a criminological perspective: «With regard to the harm possibly caused by transnational white-collar crime two different scenarios are to be distinguished: on the one hand, transnational white-collar crime can cause immediate harm to (non-national) legally protected interests. In this context, a further distinction is warranted. First, as was exemplified in the post-World War II case against IG Farben, economic activity becomes relevant for international criminal law, when there is a collusion between a business corporation and a state, and the unification of economic power and political power results in the joint aspiration of a common, and criminal, interest. Such a constellation, however, that would clearly allow for the application of international criminal law, is (currently) not in sight. Second, also economic activity alone may result in the direct commission of severe (international) crimes. For example, in Nigeria, Shell caused flooding, erosion of coastal areas, water shortage, decrease of coastal resources, oil contamination, health problems within the population and a decrease of agricultural production while maximizing the economic benefits for the company. In doing so, Shell allegedly used paramilitary units to suppress local people in the communities where oil was being produced. Furthermore there was an alleged involvement of the oil company in the execution of the Nigerian environmental activist Ken Saro Wiwa by the Nigerian government. On the other hand, transnational companies are capable of affecting (non-national) legally protected interests by supporting a third party and thereby indirectly causing harm. For example, Swiss and German banks granted credits to the South African state during Apartheid and agreed on the conversion of debt» (my emphasis, footnotes omitted). This problem is recognized as well by Heyer (2013), p. 138.

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design by providing material resources foreseen by it. What is more, the social value of their conduct from a human rights perspective does not call for exempting such implementations from criminal responsibility. These results have been established on two premises akin to the Rome Statute’s mandate of protecting children, women, and men from atrocities which threaten the well-being of the world: Interpretation of the law must take into account the law’s subject matter; and the ICC is subject not to international but to global justice. 2.7. References Aleinikoff TA (1987) Constitutional law in the age of balancing. Yale Law Journal 96(5):943–1005 Alexy R (1996) Discourse Theory and Human Rights. Ratio Iuris 209(9):209–235 Alexy R, Rivers J (2002) A Theory of Constitutional Rights. Oxford University Press, Oxford Alexy R (2003) On Balancing and Subsumption: A Structural Comparison. Ratio Iuris 16(4):433–449 Alexy R (2005) Balancing, constitutional review, and representation. International Journal of Constitutional Law 3(4):572–581. doi: 10.1093/icon/moi040 Alexy R (2007) Thirteen Replies. In: Pavlakos G (ed) Law, rights and discourse: The legal philosophy of Robert Alexy. Hart Publishing, Oxford, pp 333–366 Ambos K (1999) General Principles of Criminal Law in the Rome Statute. CLF 10(1): 1–32. doi: 10.1023/A:1009495423352 Ambos K, Wirth S (2001) Genocide and War Crimes in the Former Yugoslavia Before German Criminal Courts. In: Fischer H (ed) International and national prosecution of crimes under international law: Current developments, 2nd edn. Berliner Wissenschafts-Verlag, Berlin, pp 769–797 Ambos K (2002) Der Allgemeine Teil des Völkerstrafrechts: Ansätze einer Dogmatisierung. Duncker & Humblot, Berlin Ambos K (2006) Remarks on the General Part of International Criminal Law. JICJ 4(4):660–673 Ambos K (2007) Toward a Universal System of Crime: Comments on George Fletcher's Grammar of Criminal Law. Cardozo Law Review 28(6):2647–2673 Ambos K (2008) Article 25. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court. C. H. Beck, München Ambos K (2010a) Criminologically explained reality of genocide, structure of the offence and the 'intent to destroy' requirement. In: Smeulers A (ed) Collective violence and international criminal justice: An interdisciplinary approach. Intersentia, Antwerpen, pp 153–173

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2. The commission of crimes by business actors Schünemann B (1999) Über die objektive Zurechnung. GA:207–229 Schünemann B (2001) Strafrechtsdogmatik als Wissenschaft. In: Schünemann B, Achenbach H, Bottke W, Haffke B, Rudolphi H (eds) Festschrift für Claus Roxin zum 70. Geburtstag am 15. Mai 2001. de Gruyter, Berlin, pp 1–32 Schünemann B (2006) Die Rechtsfigur des "Täters hinter dem Täter" und das Prinzip der Tatherrschaftsstufen. ZIS(7):301–308 Schünemann B (2007a) § 25. In: Laufhütte HW (ed) Leipziger Kommentar: Strafgesetzbuch, 12th edn. de Gruyter Recht, Berlin Schünemann B (2007b) Vor § 26. In: Laufhütte HW (ed) Leipziger Kommentar: Strafgesetzbuch, 12th edn., vol 1. de Gruyter Recht, Berlin Schünemann B (2009) Zur Garantenstellung beim unechten Unterlassensdelikt: Dogmenhistorische, rechtsvergleichende und sachlogische Auswegweiser aus einem Chaos. In: Böse M, Sternberg-Lieben D (eds) Grundlagen des Straf- und Strafverfahrensrechts: Festschrift für Knut Amelung zum 70. Geburtstag. Duncker & Humblot, Berlin, pp 303–323 Schünemann B (2011) Schrumpfende Basis, wuchernder Überbau?: Zum Schicksal der Tatherrschaftsdoktrin nach 50 Jahren. In: Heinrich M, Jäger C (eds) Strafrecht als Scientia Universalis: Festschrift für Claus Roxin zum 80. Geburtstag am 15. Mai 2011, vol 1. de Gruyter, Berlin, pp 799–817 Schürer-Mohr W (1998) Erlaubte Risiken: Grundfragen des "erlaubten Risikos" im Bereich der Fahrlässigkeitsdogmatik. Schriften zum Strafrecht und Strafprozeßrecht, vol 33. Lang, Frankfurt am Main Schutter O de, Tulkens F (2008) Rights in Conflict: The European Court of Human Rights as a Pragmatic Institution. In: Brems E (ed) Conflicts between fundamental rights. Intersentia, Antwerp, pp 169–216 Schutter O de (2010) International human rights law: Cases, materials, commentary. Cambridge University Press, Cambridge Schwöbel CE (2011) Global constitutionalism in international legal perspective. Martinus Nijhoff Publishers, Leiden Seiderman ID (2001) Hierarchy in international law. School of human rights research series, vol 9. Intersentia, Antwerpen Shaw MN (2006) International law, 5th edn. Cambridge University Press, Cambridge Shelton D (2006) Normative Hierarchy in International Law. The American Journal of International Law 100(2):291–323 Sheppard D (2010) The International Criminal Court and "Internationally Recognized Human Rights": Understanding Article 21(3) of the Rome Statute. ICLR 10(1):43– 71. doi: 10.1163/157181209X12584562670811 Shue H (1996) Basic rights: Subsistence, affluence, and U.S. foreign policy, 2nd edn. Princeton University Press, Princeton Sieckmann JR (2007) Human Rights and the Claim to Correctness in the Theory of Robert Alexy. In: Pavlakos G (ed) Law, rights and discourse: The legal philosophy of Robert Alexy. Hart Publishing, Oxford, pp 189–205

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2.7. References Simester AP (2006) The mental element in complicity. Law Quarterly Review 122:578–601 Skinner G (2006) War Crimes Litigation in U.S. Courts: The Caterpillar Case. The Palestine Center Information Paper No. 9 Sliedregt E van (2012a) Individual criminal responsibility in international law, 2nd edn. Oxford monographs in international law. Oxford University Press, Oxford Sliedregt E van (2012b) The Curious Case of International Criminal Liability. JICJ 10(5):1171–1188. doi: 10.1093/jicj/mqs078 Smeulers A, Grünfeld F (2011) International crimes and other gross human rights violations: A multi- and interdisciplinary textbook. International and comparative criminal law series, vol 32. Martinus Nijhoff Publishers, Leiden Smeulers A, Holá B (2010) ICTY and the culpability of different types of perpetrators of international crimes. In: Smeulers A (ed) Collective violence and international criminal justice: An interdisciplinary approach. Intersentia, Antwerpen, pp 175–205 Smith KJ (1991) A modern treatise on the law of criminal complicity. Oxford monographs on criminal law and justice. Clarendon Press, Oxford Smith RK (2005) Textbook on international human rights, 2nd edn. Oxford University Press, Oxford Stewart JG (2012a) Overdetermined Atrocities. JICJ 10(5):1189–1218. doi: 10.1093/ jicj/mqs074 Stewart JG (2012b) The End of 'Modes of Liability' for International Crimes. LJIL 25(1):165–219 Stone Sweet A, Mathews J (2008) Proportionality Balancing and Global Constitutionalism. Columbia Journal of Transnational Law 47:72–164 Stuckenberg C (2007) Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht: Versuch einer Elementarlehre für eine übernationale Vorsatzdogmatik. Univ., Habil.-Schr. Bonn, 2005. de Gruyter Recht, Berlin Sullivan GR (1988) Intent, Purpose and Complicity. Criminal Law Review:641–648 Tallgren I (2002) The sensibility and sense of international criminal law. EJIL 13(3): 561–595 Taylor RS (2011) Reconstructing Rawls: The Kantian foundations of justice as fairness. Pennsylvania State University Press, University Park Taylor RS (2013) The Priority of Liberty. In: Mandle J, Reidy DA (eds) A Companion to Rawls. Wiley, Hoboken, pp 147–163 The American Law Institute (ed) (1953) Tentative Draft No. 1. In: Model Penal Code: Tentative Drafts, vol 1, Philadelphia The American Law Institute (ed) (1960) Tentative Draft No. 10. In: Model Penal Code: Tentative Drafts, vol 3, Philadelphia The American Law Institute (1985) Part I - General Provisions §§ 1.01 to 2.13. In: Model Penal Code and Commentaries: Official Draft and Revised Comments, Philadelphia The Law Commission (1993) Assisting and Encouraging Crime: Consultation Paper No 131

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2. The commission of crimes by business actors The Law Commission (2007) Participating in Crime: LAW COM No 305 Tomuschat C (2002) The Duty to Prosecute International Crimes Committed by Individuals. In: Cremer H (ed) Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger. Springer, Berlin, pp 315–329 Tomuschat C (2006) Concluding Remarks. In: Tomuschat C, Thouvenin J (eds) The fundamental rules of the international legal order: Jus Cogens and Obligations Erga Omnes. Martinus Nijhoff Publishers, Leiden, pp 425–436 Traĭnin AN (1945) Hitlerite responsibility under criminal law. Hutchinson & Co., London Triffterer O (2001) Kriminalpolitische und dogmatische Überlegungen zum Entwurf gleichlautender "Elements of Crimes für alle Tatbestände des Völkermordes. In: Schünemann B, Achenbach H, Bottke W, Haffke B, Rudolphi H (eds) Festschrift für Claus Roxin zum 70. Geburtstag am 15. Mai 2001. de Gruyter, Berlin, pp 1415– 1445 Triffterer O (2004) Command Responsibility, Article 28 Rome Statute: An Extension of Individual Criminal Responsibility for Crimes within the Jurisdiction of the Court - Compatible with Article 22, nullum crimen sine lege? In: Triffterer O (ed) Gedächtnisschrift für Theo Vogler. C. F. Müller, Heidelberg, pp 213–262 Triffterer O (2008) Preamble. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court. C. H. Beck, München Tulkens F (2011) The Paradoxical Relationship between Criminal Law and Human Rights. JICJ 9(3):577–595. doi: 10.1093/jicj/mqr028 United States Government Printing Office (ed) (1949a - 1953) The Flick case. In: Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10: October 1946 - April 1949. The Green Series, vol 6, Washington, D.C. United States Government Printing Office (ed) (1949b - 1953) The I.G. Farben case. In: Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10: October 1946 - April 1949. The Green Series, vol 7, Washington, D.C. United States Government Printing Office (ed) (1949c - 1953) The I.G. Farben case. In: Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10: October 1946 - April 1949. The Green Series, vol 8, Washington, D.C. United States Government Printing Office (ed) (1949d - 1953) The Krupp case. In: Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10: October 1946 - April 1949. The Green Series, vol 9, Washington, D.C. Urban C (2004) Mittelbare Täterschaft kraft Organisationsherrschaft. Osnabrücker Abhandlungen zum gesamten Wirtschaftsstrafrecht, vol 2. V & R unipress, Göttingen Vest H (2001) Humanitätsverbrechen - Herausforderung für das Individualstrafrecht? ZStW 113(3):457–498. doi: 10.1515/zstw.2001.113.3.457

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2.7. References Vest H (2007) A Structure-Based Concept of Genocidal Intent. JICJ 5:781–797 Vest H (2010) Business Leaders and the Modes of Individual Criminal Responsibility under International Law. JICJ 8(3):851–872. doi: 10.1093/jicj/mqq032 Vest H (2011) Völkerrechtsverbrecher verfolgen: Ein abgestuftes Mehrebenenmodell systemischer Tatherrschaft. Stämpfli, Bern Vest H (2014) Problems of Participation — Unitarian, Differentiated Approach, or Something Else? JICJ 12(2):295–309. doi: 10.1093/jicj/mqu021 Vidmar J (2012) Norm Conflicts and Hierarchy in International Law: Towards a Vertical International Legal System? In: Wet E de, Vidmar J (eds) Hierarchy in international law: The place of human rights. Oxford University Press, Oxford, pp 13–41 The International Law Commission (1966) Volume II. In: Yearbook of the International Law Commission: Documents of the second part of the seventeenth session and of the eighteenth session including the reports of the Commission to the General Assembly United Nations Secretary-General (2000) We the Peoples: The Role of the United Nations in the 21st Century Weezel A van (2006) Beteiligung bei Fahrlässigkeit: Ein Beitrag zur Verhaltenszurechnung bei gemeinsamem Handeln. Schriften zum Strafrecht - Band 175. Duncker & Humblot, Berlin Wegener BW (2007) Economic Fundamental Rights. In: Ehlers D (ed) The European Convention for the Protection of Human Rights and Fundamental Freedoms. de Gruyter Recht, Berlin, pp 130–150 Weigend T (1998) Grenzen strafbarer Beihilfe. In: Eser A (ed) Festschrift für Haruo Nishihara zum 70. Geburtstag. Nomos Verlags-Gesellschaft, Baden-Baden, pp 197– 212 Weigend T (2011) Perpetration through an Organization: The Unexpected Career of a German Legal Concept. JICJ 9(1):91–111. doi: 10.1093/jicj/mqq077 Weiler JH (2004) The Geology of International Law: Governance, Democracy and Legitimacy. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 64(3): 547–562 Weisberg R (2000) Reappraising Complicity. Buffalo Criminal Law Review 4:217– 281 Weiss B (2002) What were they thinking?: The Mental States of the Aider and Abettor and the Causer under Federal Law. Fordham Law Review 70:1341–1490 Weißer B (2011) Täterschaft in Europa: Ein Diskussionsvorschlag für ein europäisches Tätermodell auf der Basis einer rechtsvergleichenden Untersuchung der Beteiligungssysteme Deutschlands, Englands, Frankreichs, Italiens und Österreichs. Mohr Siebeck, Tübingen Werle G (2007) Individual Criminal Responsibility in Article 25 ICC Statute. JICJ 5(4):953–975. doi: 10.1093/jicj/mqm059

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2. The commission of crimes by business actors Werle G, Burghardt B (2010) Die mittelbare Täterschaft: Fortentwicklung deutscher Strafrechtsdogmatik im Völkerstrafrecht? In: Bloy R, Böse M, Hillenkamp T, Momsen C, Rackow P (eds) Gerechte Strafe und legitimes Strafrecht.: Festschrift für Manfred Maiwald zum 75. Geburtstag. Duncker & Humblot, Berlin, pp 849– 864 Werle G, Burghardt B, Roxin C (2011) Introductory Note: Crimes as Part of Organized Power Structures. JICJ 9(1):191–205. doi: 10.1093/jicj/mqq083 Werle G, Jeßberger F (2005) 'Unless otherwise provided': Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law. JICJ 3(1):35– 55 Werle G, Jeßberger F (2014) Principles of International Criminal Law, 3rd edn. Oxford University Press, Oxford Westerfield L (1980) The Mens Rea Requirement of Accomplice Liability in American Criminal Law: Knowledge or Intent. Mississippi Law Journal 51:155–190 Wet E de (2006) The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order. LJIL 19(3):611– 632. doi: 10.1017/S0922156506003499 Wet E de, Vidmar J (2012) Introduction. In: Wet E de, Vidmar J (eds) Hierarchy in international law: The place of human rights. Oxford University Press, Oxford, pp 1– 12 Williams B (1973) A Critique of Utilitarianism. In: Smart, J. J. C, Williams B (eds) Utilitarianism: For and against. University Press, Cambridge, pp 77–150 Williams G (1961) Criminal law: The General Part, 2nd edn. Stevens and Sons, London Williams G (1987) Oblique Intention. Cambridge Law Journal 46(3):417–438 Williams G (1990) Complicity, Purpose and the Draft Code: Part 1. Criminal Law Review:4–21 Williams HL (2011) On Rawls, development and global justice: The freedom of peoples. Palgrave Macmillan, New York Wilson W (2002) Central issues in criminal theory. Hart Publishing, Oxford Wilt HG van der (2009a) Joint criminal enterprise and functional perpetration. In: Wilt HG van der, Nollkaemper A (eds) System criminality in international law. Cambridge University Press, Cambridge, pp 158–181 Wilt HG van der (2009b) The Continuous Quest for Proper Modes of Criminal Responsibility. JICJ 7(2):307–314. doi: 10.1093/jicj/mqp033 Wilt HG van der (2012) War Crimes and the Requirement of a Nexus with an Armed Conflict. JICJ 10(5):1113–1128. doi: 10.1093/jicj/mqs060 Wohlleben M (1996) Beihilfe durch äußerlich neutrale Handlungen. Münchener Universitätsschriften Reihe der Juristischen Fakultät, vol 125. C. H. Beck, München Young R (2011) "Internationally recognized human rights" before the international criminal court. ICLQ 60(1):189–208. doi: 10.1017/S0020589310000710 Zahar A, Sluiter G (2008) International criminal law: A critical introduction. Oxford University Press, Oxford

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2.7. References Zorzi Giustiniani F (2009) The Responsibility of Accomplices in the Case-Law of the Ad Hoc Tribunals. CLF 20(4):417–445. doi: 10.1007/s10609-009-9105-1 Zucca L (2008) Conflicts of fundamental rights as constitutional dilemmas. In: Brems E (ed) Conflicts between fundamental rights. Intersentia, Antwerp, pp 19–37

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Superior responsibility pursuant to Article 28 RS may constitute the empirically most important avenue towards establishing individual criminal responsibility of business actors in leadership positions: To the results-oriented prosecutor, superior responsibility arguably offers a «fallback liability» in terms of a way out of the troubles of gaining evidence of leadership directives to subordinate employees1. In the following section, I intend to explore two aspects of superior responsibility with particular practical importance: the notion of civilian effective authority and control and the limits of superior responsibility in light of socially valuable conduct. After a review of positions that have emerged in scholarship and before the ICC on the former aspect (Section 3.1), I intend to draw insight from both the provision’s genesis and the typological approach to commission for the interpretation of civilian superior responsibility (Section 3.2). My inquiry will conclude with the question of a risk permission under Article 21 (3) RS for business actors as civilian superiors (Section 3.3). 3.1. Civilian «effective authority and control» in scholarship and jurisprudence While thus far unattended to in ICC jurisprudence, the notion of civilian «effective authority and control» has been the subject of extensive scholarly attention.

1 Cf. Ambos (2013b), pp. 228 et sq. arguing for «recourse to superior responsibility as a kind of default rule» unless the prerequisites of commission responsibility can be proven. Yet, the choice between commission and superior responsibility should depend not on the desire for prosecutorial efficiency but on the premises established by the law. In this regard, legal doctrine thus far struggles to provide for certainty in distinguishing between commission and omission on the basis of a value judgment, i.e. beyond the defunct naturalistic criterion of an absence of bodily movement, see Ambos (2013b), p. 181. Cf. also Bosch (2002), pp. 127 et sq. against evading evidentiary and argumentative hurdles in establishing commission responsibility by prosecuting for omissions in the domestic context. On superior responsibility as a «safety net», cf. also Weigend (2010), p. 67 (at 72).

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3.1.1. Scholarly views on business actors as civilian superiors With regard to Article 28 (b) RS, a number of scholars have proposed – explicitly or implicitly – to conceive of civilian superior responsibility, in particular of the civilian superior and effective control prerequisites, along the lines of military superior responsibility. According to these views, individual business actors in leadership positions are only rarely considered to be in possession of «effective authority and control». A number of scholars rely on ad hoc jurisprudence to substantiate their opinion. In this vein, Werle has proposed to require for a finding of «effective control» of civilian superiors an «intensity and degree of hierarchical integration and stability» comparable to military superior-subordinate relationships2. In her extensive elaboration of Article 28 (b) RS, Karsten too relies on ICTY and ICTR jurisprudence. She argues that the prerequisite of the civilian superior position is made up of a structural element, excluding from the scope of civilian superiors those who do not occupy superior positions in a «hierarchically structured unit, institution or organization», that structure having to be sufficiently «stable»3. In her view, «effective control» must result from «effective authority», the former relating to «influence with a high degree of probability of success», respectively with a «near certainty» of success, and the latter to «the power conferred within a unit or organization to issue binding and respected directives to subordinates» so that superiors can «claim obedience»4. These prerequisites, based on a «strict relationship between directive and obedience», are argued to impose on civilian superior responsibility a high threshold «comparable» to military superior responsibility and limit the scope of Article 28 (b) RS with regard to business enterprises to those companies with a «command-like» leader-

2 Werle/Jeßberger (2014), pp. 227 et sq. referring to ICTR - Appeals Chamber, Prosecutor v. Nahimana, 28.11.2007 – ICTR-99-52-A (§ 785). See below in 3.1.2.3 for a review of this decision. 3 Karsten (2010), pp. 74 et sqq. where she proposes a «transfer of the ad hoc tribunals’ argumentation» to the Rome Statute (my translation). On the difficulty involved in such transfers cf. already above in 2.1. 4 Karsten (2010), pp. 78 et sq., 428 with reference to, inter alia, ICTY - Trial Chamber, Prosecutor v. Delalic et al., 16.11.1998 – IT-96-21-T (§§ 265 et sq., 354) (my translation).

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ship structure5. And with «a focus on the origin of the doctrine»6 Nybondas opines that civilian superior responsibility should be limited to the «traditional ambit of the command responsibility doctrine», i.e. to the «traditional case to which the command responsibility doctrine has been applied»7. Cases brought against civilian superiors should thus «concern superiors who, except for a position as a military commander, […] have the characteristics of a military commander», i.e. «while not belonging to the armed forces, are subjected to a military-like hierarchy, with similar duties and responsibilities»8. This would arguably exclude business actors in leadership positions in most (modern) business enterprises. Weigend and Vest have reached a similar conclusion, albeit not on a customary law but on a «rational basis»9, emphasizing the relationship between the duty to act imposed upon a superior and the scope of her criminal responsibility10. In Weigend’s view, it is the ratio of superior responsibility that limits its scope with regard to civilian superiors to «military-like situations», this ratio being not the superior’s possession of means to stop subordinates from offenses but her voluntary assumption of control over the «extraordinary risk to the legal interests protected by international law» emanating from or the source of danger constituted by a «a group of armed men» and the public’s trust in her therefore making use of her abilities to prevent the commission of crimes; in his view, said ratio opens superior responsibility to civilian superiors only rarely, for they will seldom control such sources of danger or be trusted upon by the public to control

5 Karsten (2010), p. 428 (my translation). See also Burghardt (2006), pp. 172 et sq. claiming that most business enterprises possess a hierarchical structure which presumes employee obedience but admitting that employees cannot be normatively forced to comply; unfortunately, he has not elaborated on the controversial empirical substrate of his claim, thus failing to interweave normativity and fact and constructing superior responsibility (at least of civilians) on the basis of normativity alone. 6 Nybondas (2010), p. 204. 7 Nybondas (2010), pp. 192, 188. 8 Nybondas (2010), pp. 191 et sq. with reference to Zahar/Sluiter (2008), pp. 265, 271 who argue in a similar vein. 9 Weigend (2010), p. 67 (at 73 et sq.). 10 On this relationship Mettraux (2009), pp. 106 et sqq. and below in 3.2.2.3.1 and 3.2.2.3.2.

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them11. Weigend concludes that on this basis, civilian «effective authority over their subordinates» must «equal» that of military commanders «within the structure of a permanent organization»12. Vest suggests the following criteria to establish sufficient proximity to military «effective control»: «(1) the existence of a formal command relationship, (2) which results in the mutual expectation that directives must be complied with, and (3) an effective mechanism to punish refusals to obey orders»; these criteria also make application to business actors in leadership positions highly unlikely13. In fact, both Vest and Weigend suggest that only superiors in police units or militias, or «illegal fighting forces», can thus be subsumed under Article 28 (b) RS14. Vest fears, however, that civilian «effective control» will in the future be conceived of (over-)broadly as the ability to report the matter to competent authorities15. And most recently, Ambos has sided with Weigend and Vest, concluding that in order to reflect «the structural difference between military and non-military hierarchies and superior-subordinate relationships» whereby «a civilian superior cannot be expected to take the same countermeasures against criminal behavior as a military commander should do», superior responsibility should extend «to nonmilitary superiors only to the extent that they exercise a degree of control over their subordinates similar to that of military commanders»16. In this reading of Article 28 (b) RS, there is little room to prosecute business actors in leadership positions who will in most cases lack the capacity for military-like countermeasures.

11 Weigend (2010), p. 67 (at 73 et sq.) and also Weigend (2004), p. 999 (at 1004 et sq., 1012 et sqq.) (my translation). Concurring Vest (2011), pp. 264 et sqq., 256 et sq. See also Weigend (2013), mn. 32 et sqq. 12 Weigend (2010), p. 67 (at 74). In Weigend (2004), p. 999 (at 1013) he had argued that civilian «effective control» must «correspond» to military «effective control» or be, at least, «proximate» («entsprechen», «angenähert», my translations). 13 Vest (2011), pp. 257, 259 (my translation) with references to ICTR - Trial Chamber, Prosecutor v. Bagilishema, 07.06.2001 – ICTR-95-1A-T (§§ 39 et sqq.); ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§§ 257 et sqq.). As possible sources of danger in business enterprises, Vest names the production of weapons and vehicles used by militias. 14 Weigend (2004), p. 999 (at 1013); Weigend (2010), p. 67 (at 74); Vest (2011), pp. 256 et sq., 266. 15 In this vein, Vest (2011), p. 256. 16 Ambos (2013b), pp. 212 et sq.

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3.1.2. The Bemba case and ad hoc jurisprudence: A critical prognosis To review this parallel construction of military and civilian superior responsibility, it is helpful to take into account the ICC’s holding in Bemba. It provides the Court’s most extensive explanation of its perspective on Article 28 (a) RS. In Bemba, PTC II has held that effective control refers to the material ability not only to prevent or punish but also to submit the matter to the competent authorities, and it has subsequently established indicia which may be turned to in order to show the accused’s possession of effective control17. In relying so extensively on ad hoc jurisprudence in its interpretation of Article 28 (a) RS, the Court has arguably indicated a trend to align with findings of the ad hoc tribunals as well the scope of Article 28 (b) RS and in particular the notion of civilian «effective authority and control». The Court has particularly taken up the ad hoc tribunals’ approach to establishing effective control based on the ability to prevent, repress and report, and has aimed to integrate this approach into the ordinary meaning of Article 28 RS: The provision mentions not only «effective control» but «effective command and control», respectively «effective authority and control». To avoid redundancies of the text, PTC II has opined that authority possesses a «close, but distinct» meaning to that of command: Authority, according to its ordinary meaning, is defined by the Court as the «power or right to give orders and enforce obedience» and refers to the modality, manner or nature in which control is exercised18. In this vein, it has referred to effective control as «a manifestation of a supe-

17 ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§§ 415 et sqq., 422) with references to numerous holdings of ad hoc tribunals: Indicia include «(i) the official position of the suspect; (ii) his power to issue or give orders; (iii) the capacity to ensure compliance with the orders issued (i.e. ensure that they would be executed); (iv) his position within the military structure and the actual tasks that he carried out; (v) the capacity to order forces or units under his command, whether under his immediate command or at a lower level, to engage in hostilities; (vi) the capacity to re-subordinate units or make changes to command structure; (vii) the power to promote, replace, remove or discipline any member of the forces; and (viii) the authority to send forces where hostilities take place and withdraw them at any given moment» (footnotes omitted). 18 ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§ 413) (footnotes omitted).

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rior-subordinate relationship […] in a de jure or de facto hierarchical relationship (chain of command)»19. Given the prominent role of ad hoc jurisprudence in applications of Article 28 RS by the ICC, a closer review of that jurisprudence is in order with a view to civilian superiors: I will subsequently focus on the pertinent issue of the ability to report offenses as effective control as well as on the ICTR’s approaches to business actors in leadership positions in the Musema and Nahimana cases. I intend to evaluate the relevance of conclusions drawn in said jurisprudence for the interpretation of the Rome Statute; both substantively and from a methodological perspective, their merits prove doubtful. 3.1.2.1. Ad hoc jurisprudence on civilian «effective control» as the ability to report The current state of ad hoc jurisprudence on civilian effective control is well documented in the ICTR’s holding in Bagilishema20: The Appeals Chamber has held that civilian effective control need not be «exercised in the same way» or be of the «same nature as that exercised by a military commander» but must only be «similar to the degree of control of military commanders» and has argued that it is similar in degree if the superior has «the ‹material ability to prevent and punish any offences›»21 as a result of

19 ICC - Pre-Trial Chamber II, id. (§§ 413 et sq.) with reference to ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 303) («[t]he ability to exercise effective control [...] will almost invariably not be satisfied unless such a relationship of subordination exists»). 20 For more extensive overviews of ad hoc jurisprudence on the matter, see Williamson (2002), p. 365; Burghardt (2006), pp. 108 et sqq.; Ronen (2010), p. 313; Karsten (2010), pp. 46 et sqq. 21 ICTR - Appeals Chamber, Prosecutor v. Bagilishema, 03.07.2002 – ICTR-95-1AA (§§ 52 et sqq.) with reference to ICTY - Trial Chamber, Prosecutor v. Delalic et al., 16.11.1998 – IT-96-21-T (§ 43) (footnotes omitted). The ICTR Appeals Chamber in Bagilishema also held with regard to civilian superiors that «the exercise of de facto authority must be accompanied by the ‹trappings of the exercise of de jure authority› […], for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action. It is by these trappings that the law distinguishes civilian superiors from mere rubble-rousers or other persons of influence›», ICTR - Appeals Chamber, Prosecutor v. Bagilishema, 03.07.2002 – ICTR-95-1A-A (§ 53) with ref-

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«‹the power of authority actually devolved on the accused›»22. The Appeals Chamber emphasized, moreover, that civilian superiors need not exercise «military-style command», «the concepts of subordination, hierarchy and chains of command» not having to be «established in the sense of formal organizational structures so long as the fundamental requirement of an effective power to control the subordination, in the sense of punishing or preventing criminal conduct, is satisfied»23. Nevertheless, if evidence shows that control is exercised by a civilian superior in a military fashion, this «may strengthen a finding that he or she exercised the requisite degree of effective control»24. Effective control in this sense is to be «assessed on a case-by case basis»25. The standard of a «material ability to prevent and punish the commission of […] offenses» stems from the Celebici case, where the ICTY had first set out the «essential elements» of superior responsibility; one of these elements was the existence of a superior-subordinate relationship, which, in turn, «should be seen ‹in terms of a hierarchy encompassing the

22

23 24 25

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erence to ICTY - Trial Chamber, Prosecutor v. Delalic et al., 16.11.1998 – IT-96-21-T (§ 43) (footnotes omitted). However, both the ICTR and the ICTY have subsequently argued that it is not «required that the superior generally exercises the trappings of de jure authority», respectively that there exists no requirement «that [a de facto civilian superior] exercised authority comparable to that applied in a military context», i.e. that «there is no requirement of a finding that a de facto civilian superior exercised the trappings of de jure authority generally», ICTY - Trial Chamber, Prosecutor v. Oric, 30.06.2006 – IT-03-68-T (§ 312) with reference to ICTR - Appeals Chamber, Prosecutor v. Kajelijeli, 23.05.2005 – ICTR-98-44A-A (§ 87) and ICTR - Appeals Chamber, Prosecutor v. Kajelijeli, 23.05.2005 – ICTR-98-44A-A (§ 87). ICTR - Appeals Chamber, Prosecutor v. Bagilishema, 03.07.2002 – ICTR-95-1AA (§§ 51, 61) with reference to ICTR - Trial Chamber, Prosecutor v. Musema, 27.01.2000 – ICTR-96-13-T (§ 135). In this vein also ICTR - Appeals Chamber, Prosecutor v. Nahimana et al., 28.11.2007 – ICTR-99-52-A (§ 605). ICTR - Appeals Chamber, Prosecutor v. Bagilishema, 03.07.2002 – ICTR-95-1AA (§§ 57 with fn. 93) with reference to ICTR - Appeals Chamber, Prosecutor v. Kayishema and Ruzindana, 01.06.2001 – ICTR-95-1-A (§§ 298 with fn. 520). ICTR - Appeals Chamber, Prosecutor v. Kajelijeli, 23.05.2005 – ICTR-98-44A-A (§ 87). ICTR - Trial Chamber, Prosecutor v. Musema, 27.01.2000 – ICTR-96-13-T (§ 135). In this vein also ICTR - Appeals Chamber, Prosecutor v. Bagilishema, 03.07.2002 – ICTR-95-1A-A (§ 51); ICTY - Trial Chamber, Prosecutor v. Oric, 30.06.2006 – IT-03-68-T (§ 213).

3.1. Civilian «effective authority and control» in scholarship and jurisprudence

concept of control›»26. On the basis of customary law, mere substantial influence was regarded as insufficient to establish a superior-subordinate relationship27. In line with the ratio of superior responsibility, «predicated upon the power of the superior to control the acts of his subordinates»28 and directed at the enforcement of «responsible command»29, effective control was therein linked to «the effective exercise of power […] and not to formal titles»30. Nevertheless, several Chambers have since held that a rebuttable presumption of effective control is established by proof of de jure authority31, endorsing a route offered by the Appeals Chamber in Celebici: «[A] court may presume that possession of [de jure] power prima facie results in effective control unless proof to the contrary is produced»32. While it was already concluded in the Celebici case that «[t]he ability to exercise effective control [...] will almost invariably not be satisfied unless […] a relationship of subordination exists»33, it was only later that the Appeals Chamber clarified that «the material ability to punish and its corresponding duty to punish can only amount to effective control over the perpetrators if they are premised upon a pre-existing superior-subordi-

26 ICTY - Trial Chamber, Prosecutor v. Delalic et al., 16.11.1998 – IT-96-21-T (§§ 346, 378, 354) (footnotes omitted). See also ICTY - Trial Chamber, Prosecutor v. Delalic et al., 16.11.1998 – IT-96-21-T (§ 647) («Actual control of the subordinate is a necessary requirement of the superior-subordinate relationship», my emphasis). 27 ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 266). 28 ICTY - Trial Chamber, Prosecutor v. Delalic et al., 16.11.1998 – IT-96-21-T (§ 377). In this vein also ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 197); ICTR - Trial Chamber, Prosecutor v. Bagilishema, 07.06.2001 – ICTR-95-1A-T (§ 37); ICTY - Trial Chamber, Prosecutor v. Oric, 30.06.2006 – IT-03-68-T (§ 307). 29 ICTY - Appeals Chamber, Prosecutor v. Hadzhihasanovic, Alagic and Kubura, 16.07.2003 – IT-01-47-AR72 (§ 16). 30 ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 197). 31 ICTY - Trial Chamber, Prosecutor v. Krstic, 02.08.2001 – IT-98-33-T (§ 648); ICTY - Trial Chamber, Prosecutor v. Hadzhihasanovic and Kubura, 15.03.2006 – IT-01-47-T (§ 79); ICTY - Trial Chamber, Prosecutor v. Oric, 30.06.2006 – IT-03-68-T (§ 312). 32 ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 197). 33 ICTY - Appeals Chamber, id. (§ 303).

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nate relationship between the accused and the perpetrators»34. As in Bagilishema, this jurisprudence was generally applied to both military commanders and military superiors. But while the same «effective control test applies to all superiors, whether […] military or civilian»35, the ICTY has held in Aleksovski that, in order to avoid undue limitations of the mode of responsibility, a civilian’s ability to punish must be interpreted as the ability to report the matter to competent authorities, as soon as the civilian superior «through [her] position in the hierarchy, is expected to report» offenses committed and, «in the light of this position», a likelihood of investigations, disciplinary, or criminal measures is given36. Since a civilian «cannot be expected […] [to] have disciplinary power over his subordinate equivalent to that of the military authorities in an analogous command position», «[t]o require a civilian authority to have sanctioning powers similar to those of a member of the military would so limit the scope of the doctrine of superior authority that it would hardly be applicable to civilian authorities»37. According the ICTY, the ability to report an offense to competent authorities «provides evidence, albeit only to a very limited degree» of «effective control»38. It is, from this perspective, therefore, not only a way to substantially influence subordinates39. The ability to report was later regarded as sufficient with respect to military superiors as well40.

34 ICTY - Appeals Chamber, Prosecutor v. Halilovic, 16.10.2007 – IT-01-48-A (§§ 210, 59). The jurisprudence later evolved to accepting prevention or punishment as alternative avenues to «effective control», see ICTR - Appeals Chamber, Prosecutor v. Kajelijeli, 23.05.2005 – ICTR-98-44A-A (§ 86); ICTR - Appeals Chamber, Prosecutor v. Nahimana et al., 28.11.2007 – ICTR-99-52-A (§ 484) as well as ICTY - Appeals Chamber, Prosecutor v. Blaskic, 29.07.2004 – IT-95-14-A (§ 499). 35 ICTR - Appeals Chamber, Prosecutor v. Bagilishema, 03.07.2002 – ICTR-95-1AA (§ 50) (emphasis omitted). 36 ICTY - Trial Chamber, Prosecutor v. Aleksovski, 25.6.1999 – IT-95-14/1-T (§ 78); ICTY - Trial Chamber, Prosecutor v. Brdanin, 01.09.2004 – IT-99-36-T (§ 281). 37 ICTY - Trial Chamber, Prosecutor v. Aleksovski, 25.6.1999 – IT-95-14/1-T (§ 78). 38 ICTY - Appeals Chamber, Prosecutor v. Blaskic, 29.07.2004 – IT-95-14-A (§ 499). 39 Again: ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 266) on «substantial influence» not amounting to «effective control». 40 ICTY - Trial Chamber, Prosecutor v. Blaskic, 03.03.2000 – IT-95-14-T (§ 302).

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3.1.2.2. Musema before the ICTR: «Legal and financial control» as business actors’ «effective control»? Well before the Appeals Chamber’s holding in Bagilishema, the ICTR had decided in Musema that civilian effective control is manifest in the accused’s «legal and financial control over [his] employees, particularly through his power to appoint and remove these employees from their positions at the [Gisovu] Tea Factory», if «he was in a position, by virtue of these powers, to take reasonable measures, such as removing, or threatening to remove, an individual from his or her position at the Tea Factory if he or she was identified as a perpetrator of crimes», and also «by virtue of these powers, to take reasonable measures to attempt to prevent or to punish the use of Tea Factory vehicles, uniforms or other Tea Factory property in the commission of such crimes»41. While the Court was criticized in scholarship for overstretching the boundaries of civilian superior responsibility42, the above quotes from the judgment do in fact only tell one half of the story: For Musema was not only a tea factory director but, as the Chamber itself recognized, «was perceived […] as someone who wielded considerable power in the region»43, «a socially and politically prominent person in Gisovu Commune», a fact that turned «psychological pressure» as a form of the superior-subordinate relationship into an issue «particularly relevant in the case at bar»44. According to expert testimony, «his influence as Tea Factory Director extended not only to the people whom he could employ, but to the communal authorities, since by employing the people, and providing them with financial resources with which to pay communal taxes, he made it possible for the commune to pay its employees», his functions thus extending beyond tea factory leadership «to maintain infrastructure and exports, but also to ‹ensure peace›»45. Nevertheless, the Chamber restricted the superior-subordinate relationship to his «official capacity as Director of the Tea Factory», denying his effective control over «other members of the popu-

41 ICTR - Trial Chamber, Prosecutor v. Musema, 27.01.2000 – ICTR-96-13-T (§ 880) (my emphasis). 42 Weigend (2004), p. 999 (at 1012). 43 ICTR - Trial Chamber, Prosecutor v. Musema, 27.01.2000 – ICTR-96-13-T (§ 881). 44 ICTR - Trial Chamber, id. (§ 140). 45 ICTR - Trial Chamber, id. (§§ 873 et sq.).

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lation of Kibuye Préfecture, including thé villageois plantation workers»46. From this, one may not only infer that Musema was not at all the typical business leader but also that the Chamber critically relied on his «de jure power»47 to draw the boundaries of his effective control and thus saw no need to distinguish between the «psychological pressure» that emanated from his social and political prominence and his influence as a company director, i.e. to elaborate on the source of his «de facto control» precisely as a company director48. But how did Musema’s «power to appoint and remove» employees from their positions, i.e. his «legal and financial control» relate to his subsequent position to prevent or punish the commission of crimes, i.e. to his effective control? While the Chamber had initially recognized the empirical substrate of effective control when it referred to «psychological pressure»49, in simply suggesting that from «legal and financial control» results effective control, it subsequently was able to avoid discussing the details of this substrate and, as a consequence, produced a highly (if not purely) normative concept of effective control in civilian superior responsibility50. In doing so, the Chamber has implicitly operationalized a presumption of effective control on the basis of «de jure power»51 without any regard for the (empirical reality) of Musema’s ability to prevent or punish his employees in his specific function and capacity as tea company director. Such a presumption, however, violates a fundamental procedural right of the accused52.

46 47 48 49

ICTR - Trial Chamber, id. (§§ 878, 881). ICTR - Trial Chamber, id. (§ 881). ICTR - Trial Chamber, id. (§ 881). But see Zahar (2001), p. 591 (at 601 et sq.) who argues that the Trial Chamber construed superior responsibility on «a standard far different (and much lower) than that of ‹effective control›», citing as proof the Chamber’s reference to «psychological pressure» in paragraph 140. In my opinion, however, by the Chamber’s assertion in the subsequent paragraph that a civilian superior may be charged with superior responsibility «only where he has effective control» – control which according to the Court «often appears in the form of psychological pressure» – this criticism is rendered moot. 50 See Ronen (2010), p. 313 (at 341) («[T]he ICTR erroneously linked work-related de jure authority to non-work-related effective control») and also Burghardt (2006), p. 178. 51 Again on the (doubtful) admissibility of this prima facie assumption ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 197). 52 See Boas/Reid/Bischoff (2007), p. 189.

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3.1.2.3. Nahimana et al. before the ICTR: Analyzing corporate structures More recently, in Nahimana et al., the ICTR elaborated in greater detail on «effective control» of business actors in corporate structures. The Trial Chamber convicted as civilian superiors Nahimana and Barayagwiza, «‹number one› and ‹number two› in the top management» who «represented the radio at the highest level in meetings with the Ministry of Information [of Rwanda] […], controlled the finances of the company […], were both members of the Steering Committee, which functioned in effect as a board of directors for [the radio station] RTLM» to which «all the RTLM broadcasters down the chain of command were ultimately accountable», either «chaired the Program Committee of this board» or «chaired its Legal Committee» and «failed to exercise the authority vested in them as office-holding members of the governing body of RTLM, to prevent the genocidal harm that was caused by RTLM programming»53. On appeal, the Court upheld the Trial Chamber’s findings on effective control on this factual basis, stressing that concern not with de jure but with de facto positions was the «correct approach»54, that de jure authority may only imply effective control but is never sufficient to establish it55. In spite of a thorough review of the corporate structures of the radio station in question whereby a collegiate body «exercised overall control over RTLM» which «had power to intervene collectively», the Appeals Chamber concluded that this did not «exclude the possibility that the Appellant himself had sufficient de facto authority to exercise effective control over the staff of RTLM»56. As the central pillars of such de facto authority the Court also considered that the accused represented the radio station in meetings with the Minister of Information57 and, regarding only Nahimana, took into account a successful intervention to stop a particular broadcast58.

53 ICTR - Trial Chamber, Prosecutor v. Nahimana et al., 03.12.2003 – ICTR-99-52-T (§§ 970, 972). 54 ICTR - Appeals Chamber, Prosecutor v. Nahimana et al., 28.11.2007 – ICTR-99-52-A (§ 624). 55 ICTR - Appeals Chamber, id. (§ 625). 56 ICTR - Appeals Chamber, id. (§§ 625 et sq.). 57 ICTR - Trial Chamber, id. (§ 558); ICTR - Appeals Chamber, Prosecutor v. Nahimana et al., 28.11.2007 – ICTR-99-52-A (§ 628). 58 ICTR - Trial Chamber, Prosecutor v. Nahimana et al., 03.12.2003 – ICTR-99-52-T (§ 568).

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Two pertinent issues merit highlighting: On the one hand, that in contrast to the decision in Musema, the Court acknowledged in Nahimana et al. that effective control cannot be established without regard to the reality of power structures in a superior-subordinate relationship and, in the instant case, conducted an analysis of corporate structures. But because this is so, one may infer from the holding on the other hand, that the Court’s implicit assumption was either that of Barayagwiza’s ability to also circumvent the corporate structure and, in spite of it, issue directives directly to RTLM staff or, as previously practiced in jurisprudence with regard to effective control of members of collegiate bodies, of a sufficient overall level of power based on «the cumulative effect of the accused’s various functions»59. Regardless of which assumption most approximates the Chambers’ motives, the decision evinces the difficulties that arise, even in smaller enterprises such as RTLM, when the reality of power structures must be established on the basis of external observations60. These difficulties do not relate only to matters of proof but also to the underlying conceptualization of what it is that needs to be proven in the first place. While a successful intervention in spite of corporate structures to prevent offenses may indicate that «effective control» existed (at least in a singular past instance), the assumption of a «cumulative effect» would be but a doubtful tool to conceal the difficulties involved in pinpointing the source of the accused’s «material ability to prevent or punish». 3.1.2.4. Issues raised in ad hoc jurisprudence and by recourse to it This ad hoc jurisprudence on civilian superior responsibility, in particular of business actors in leadership positions, and recourse to it under the Rome Statute raises a host of issues, both substantive and methodological.

59 ICTR - Appeals Chamber, Prosecutor v. Bagilishema, 03.07.2002 – ICTR-95-1AA (§ 51); ICTY - Trial Chamber, Prosecutor v. Brdanin, 01.09.2004 – IT-99-36-T (§ 277) with reference to ICTR - Trial Chamber, Prosecutor v. Musema, 27.01.2000 – ICTR-96-13-T (§ 135). 60 In a similar vein also Burghardt (2006), p. 178.

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3.1.2.4.1. Substantive issues: The nature and scope of civilian «effective control» Regarding the prosecution of business actors as civilian superiors on the basis of ICC and ad hoc tribunal jurisprudence, the ICC – if it indeed remains on the ad hoc tribunals’ trajectory – would need to show in order to establish effective control on a case-by-case basis (Musema) – the accused’s material ability to prevent, punish, or report offenses committed by subordinate employees, however not in the manner of military superiors, (Bagilishema, Aleksovski) – as a manifestation of the reality of formal or informal hierarchical power structures, a reference only to de jure powers not being sufficient (Delalic et al., Nahimana et al.). This jurisprudence has left several questions unanswered which are of importance to the issue of business actors as civilian superiors: First, it remains to be determined whether effective control may indeed be established based on the ability to report the matter to competent authorities. Regarding business actors in leadership positions, it would arguably require establishing the structural origin of the business leader’s ability not only to prevent and repress but also to report offenses61; arguably to this end, the ICTY made reference to the increase in likelihood of investigation in light of the superior’s hierarchical position. This, however, arguably conflicts with the view of the ICC that effective control must be premised upon a superior-subordinate relationship in the sense that authority describes the nature in which control is exercised62: For such effective control arguably draws not upon the superior’s authority in light of his position but upon her credibility in order to bring other, i.e. judicial, au-

61 In his review of ad hoc jurisprudence on superior responsibility Burghardt has argued that in jurisprudential practice, the «effective control» prerequisite is normatively empty: Its discriminatory function (in establishing the superior-subordinate relationship) has been relinquished by allowing both to establish «effective control» by prevention or sanctioning as alternatives and to establish the latter with regard to the ability to report to authorities, granted, in fact, to everyone; based on the ordinary meaning of the terms superior and subordinate, he suggests as a remedy to re-conceptualize the superior-subordinate relationship on the basis of «structural competence», Burghardt (2006), pp. 165 et sq., 171 et sqq. («Nutzung einer strukturellen Befugnis bzw. Möglichkeit», my translation). 62 ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§ 413) (footnotes omitted).

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thority into play. Second, and relating to the structure of civilian superior responsibility, is civilian superior responsibility limited to police and militia forces, as suggested in scholarship, or does it also extend to superiors in (modern) business corporations? And if so, under which circumstances can business actors in leadership positions also be said to have the ability to prevent or repress the commission of offenses? The trials of both Musema and Nahimana et al. have evinced the complexity inherent in both the conceptualization and determination of power structures in business enterprises, particularly to pinpoint the structural source of a business actor’s «effective control»63. 3.1.2.4.2. Methodological issues: Sources of law under Article 21 (1) RS Concerning the relevance of ad hoc jurisprudence for the Rome Statute’s interpretation under Article 21 (1) RS claimed in Bemba, the ICC has not justified its numerous references to ad hoc jurisprudence in Bemba beyond stating that it (the ICC) «concurs with the view adopted by the ad hoc tribunals» on the scope of «effective control» in military superior responsibility64. In other words: The Court has thus far not elaborated on the methodological path to its interpretation of Article 28 (a) RS. While it appears at first sight to be of no harm to «concur[]» with another international tribunal in the interpretation of the Rome Statute, one must keep in mind that reference to ad hoc jurisprudence has undoubtedly served PTC II as the primary source of inspiration. In taking up this inspiration as mere concurrence, PTC II might have treated ad hoc jurisprudence as a source of law and thus cut short not only the process mandated by Article 21 (1) RS but also overemphasized the interpretative value of ad hoc jurisprudence to the Rome Statute65. Albeit a popular approach in scholarship, to continue on the path projected by the Court in Bemba would be particularly troublesome with regard to civilian superiors for a number of reasons. First, the doctrine has been applied in ad hoc jurisprudence to civilians only in a very limited

63 Generally on civilian superior responsibility and the difficulty of determining «effective control», see Karsten (2010), pp. 59 et sq. 64 ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§ 416). 65 On this value, see above in 2.1.

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number of cases; after its modern conception in the Celebici case, few cases have taken up and refined the prerequisites of civilian superior responsibility in a consistent manner66. In fact, Nahimana et al. was the first case of civilian superior responsibility applied to a civilian in an exclusively civilian setting67. Second, the foundations of civilian «effective control» in customary law are weak. While there is almost no dispute of the claim made in ad hoc jurisprudence as to the customary law character of civilian superior responsibility in general68, customary law carries only some of the prerequisites established in ad hoc jurisprudence and is disputed in particular as regards the scope of civilian «effective control» as the «material ability to prevent or punish»69. In the Celebici case, the Appeals Chamber clarified that as a matter of customary law, «substantial influence» was insufficient to establish civilian «effective control»70, setting the prerequisite of a «material ability to prevent […] or to punish» as the standard for ad hoc jurisprudence after it71. However, as argued in scholarship, the jurisprudence cited by the Appeals Chamber in order to establish this standard does not contain clear indication as to the prerequisite degree of influence to be held responsible as a (civilian) superior; in contrast to its reading in ad hoc jurisprudence, the relied upon post-WWII jurisprudence contains conflicting prerequisites (control, authority, influence) and arguably shows instead that often influence below a «material ability to pre-

66 Vest (2011), p. 237. 67 Ronen (2010), p. 313 (at 330). 68 See ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21A (§ 195) and scholarly affirmations of civilian superior responsibility as a customary law rule Henckaerts/Doswald-Beck (2005), p. 558; Burghardt (2006), p. 107; Boas/Reid/Bischoff (2007), pp. 143, 175; Werle/Jeßberger (2014), p. 222. 69 Mettraux (2009), pp. 104 et sqq. See generally Vest (2011), pp. 265 et sq.; Ambos (2013b), p. 207 and also below in 3.2.2.3.1. 70 ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§§ 256, 304; 266). 71 Burghardt (2006), p. 159. ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§§ 258–261) based its ruling on the Muto and Hirota judgments rendered at Tokyo as well as the Mummenthey and Von GemmingenHornberg judgments in the Pohl et al., Roechling et al. cases, respectively. For the Muto, respectively Hirota judgments, see Prichard (1981); Röling (1977). And for the Pohl et al., Roechling et al. cases, respectively, see United States Government Printing Office (ed) (1949a-1953) and United States Government Printing Office (ed) (1949b-1953).

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vent […] or to punish» was sufficient72. In fact, the Appeals Chamber in Celebici itself admitted to the weakness of customary law73. And third, the establishment of prerequisites of civilian superior responsibility in ad hoc jurisprudence is methodologically flawed by references to post-WWII jurisprudence which was not based on the law of superior responsibility74 but frequently on self-references75. 3.1.3. Results and outlook In scholarship, a scope of civilian superior responsibility under the Rome Statute was favored that is restrictive vis-à-vis business leaders. These views are in part premised on ad hoc jurisprudence. Yet, as the above has shown, recourse to ad hoc jurisprudence within the ICC framework might – on the one hand – hold a different answer which includes business leaders with the ability to report offenses within the scope of civilian superior responsibility; on the other hand, this answer is fraught with important substantive and methodological issues. In light of these issues, the following section offers to establish the scope of civilian superior responsibility from a typological perspective.

72 Burghardt (2006), p. 161 with regard to, inter alia, Hirota. In a similar vein, Maison/Ascensio (2002), p. 381 (at 403). 73 ICTY - Appeals Chamber, Prosecutor v. Delalic et al., 20.02.2001 – IT-96-21-A (§ 240) acknowledging that whether civilian superior responsibility «contains identical elements to that of military commanders is not clear in customary law». 74 Burghardt (2006), pp. 104 et sq. argues that in establishing customary law only jurisprudence that refers to criminal responsibility for omission and a superior-subordinate relationship should be taken into account; this shall include the Pohl and Roechling cases but exclude the Hirota case. According to Burghardt, reliance upon the Hirota judgment is therefore flawed both in substance and methodologically. 75 Burghardt (2006), pp. 104 at fn. 330, 47 et sq. In spite of these uncertainties in post-WWII jurisprudential praxis, Burghardt argues that one may derive from customary law that superiors, both military and civilian, must be able to prevent and punish the commission of offenses by subordinates; in his view, as Article 86 AP I and Article 87 AP I e contrario serve as customary law bases for the application of superior responsibility to civilians, by establishing the duties to prevent and punish as independent, customary law requires superiors to be materially able to fulfill both, Burghardt (2006), pp. 101, 163.

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3.2. Omission as a type and business actors as civilian superiors

3.2. Omission as a type and business actors as civilian superiors The modern typological perspective on criminal law has its origins in theorizing on the scope of criminal responsibility for omission76. In this section, it will serve to conceive the scope of superior responsibility under the Rome Statute, drawing parallels to the typological perspective on commission77 wherever appropriate. 3.2.1. Schünemann’s typological perspective on omission Schünemann has proposed with considerable comparative legal support that perpetrator responsibility in domestic criminal law for commission and omission is premised upon exercising «control over the reason for a (criminal) result»78: Based on offense descriptions in domestic criminal law and criminal law’s fundamental means-end-relation, such control, in his view, emerges as the «common basic [reality] structure» with respect to both commission and omission79. From his typological perspective, «control over the reason of a criminal result» can thus be conceived not only as the «base type» of commission but also as the «base type» of omission80. Given that domestic criminal law mandates perpetrator responsibility for omission based on the normative equivalence of omission to commission (so-called commission by omission), Schünemann argues that the position of the commission-by-omission perpetrator in the events leading to the criminal result «must be comparable to and on the same level as» that of the commission perpetrator; taking up his idea that norma-

76 See Schünemann (1995), p. 49 (at 74 et sq.). 77 See above in 2.4.2. 78 Schünemann (1971), pp. 231 et sqq.; Schünemann (1979), p. 88; Schünemann (2011), p. 799 (at 808 et sq.) and most recently, Schünemann (2009b), p. 303 (at 313 et sq. with fn. 41, 319) with references to the international reception of his approach («Inhaberschaft der maßgeblichen Entscheidungsposition = die Herrschaft über den Grund des Erfolges», my translation, emphasis omitted). For a Spanish translation of his 1971 work, see Schünemann (2009a) and for support by Roxin, see Roxin (2003), pp. 717 et sqq. 79 Schünemann (2009b), p. 303 (at 313 et sq.) (my translation). 80 See also above in 2.4.1.2.

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tive and ontological perspectives are interlocked «like gear-wheels»81, «control over the reason for a (criminal) result» as a reality structure is installed as the «tertium comparationis» of both commission and commission by omission, which establishes the prerequisite normative equivalence82. Moreover, it serves as the subject matter-predetermined rationale for commission-by-omission perpetrator attribution83. In cases of commission by omission, such «control over a decisive aspect of the event as a whole»84 is argued to arise in situations where the protected legal good or interest is at the actor’s mercy or where the accused is in control of a source of danger, i.e. of dangerous objects, dangerous individuals, or dangerous processes85. 3.2.2. A typological perspective on omission under the Rome Statute: The genesis of Article 28 RS and the Rome Statute’s omission type The ability to take significant decisions by devising and implementing an intellectual design has emerged from a review of the events described in Articles 6 to 8 and 25 RS as the reality structure of the Statute’s fundamental means-end-relation and has been conceived as the Rome Statute’s type of commission86. Article 28 RS arguably contains a descriptive ap-

81 See again above in 2.4.1.2 and Schünemann (2001), p. 1 (at 30) («greifen wie Zahnräder ineinander», my translation). 82 Schünemann (2009b), p. 303 (at 313 et sq.) (my translation) with reference to § 13 (1) gStGB. The provision has been translated as follows by Bohlander, Translation of the German Criminal Code provided by Prof. Dr. Michael Bohlander, 2012, available at http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html (last visited: 30.06.2015): «(1) Whosoever fails to avert a result which is an element of a criminal provision shall only be liable under this law if he is responsible under law to ensure that the result does not occur, and if the omission is equivalent to the realisation of the statutory elements of the offence through a positive act» (my emphasis). 83 Schünemann (1971), pp. 235 et sq.; Schünemann (2007), mn. 39; Schünemann (2009b), p. 303 (at 313 et sq.). See also above in 2.4.1.2.3. 84 Schünemann (2009b), p. 303 (at 314) (my translation). See already above at fn. 256 (Chapter 2). 85 Schünemann (2009b), p. 303 (at 314) (my translation). In greater detail, see Berster (2010), p. 619 (at 636 et sq.). 86 See above in 2.4.2.2 and also 2.4.4.

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proximation of the Rome Statute’s omission type87: It describes a military and civilian superior’s failure to exercise control properly over her subordinates, her failure to prevent, repress or report their committing offenses in spite of her effective authority and control. The genesis of Article 28 RS indicates the drafter’s intent to rely on military superior-subordinate relationships as a rule of similitude in concretizing the omission type regarding the effective authority and control prerequisite in cases at hand. This insight has important implications for the scope of superior responsibility of business leaders as civilian superiors. 3.2.2.1. The genesis of Article 28 RS Article 28 RS is a product of «extensive negotiations» and «delicate compromises»88 finalized before the 1998 Trial Chamber holding in the Celebici case, which defined ad hoc jurisprudence on superior responsibility in the years to come; its bifurcated approach to military and civilian superiors in sub-sections (a) and (b) contrasts the uniform approach taken by ad hoc tribunals, applying largely the same standard to both military and civilian superiors89. This bifurcation in its present form of Article 28 (b) RS is the result of an intervention by the American delegation90, motivated by doubts resulting from «the very different rules governing criminal punishment in civilian and military organizations», i.e. by «the difference between civilian supervisors and military commanders […] in the nature and scope of their authority», the authority of the latter resting «on the military discipline system, which had a penal dimension, whereas there was no comparable punishment system for civilians in most countries»91. The intervention pointed out that «the provision regarding the ability of

87 See 2.4.4 on Article 25 RS. 88 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (18.06.1998), Report of the Working Group on General Principles of Criminal Law: UN Doc. A/CONF.183/C.1/WGGP/L.4, fn. 57. 89 Boas/Reid/Bischoff (2007), pp. 254, 257. 90 Boas/Reid/Bischoff (2007), pp. 254, 257. See also Ambos (2002), p. 823 (at 848); Meloni (2010), p. 144; Schabas (2010), p. 457. 91 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (16.06.1998), Summary records of the meetings of the Committee of the Whole: UN Doc. A/CONF.183/C.1/SR.1, pp. 67 et sq.

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the supervisor to prevent or repress the crimes took into account the very different nature of civilian accountability mechanisms and the weak disciplinary and administrative structure of civilian authority as opposed to that of the military», it being impossible in «some Governments with well-developed bureaucracies […] to dismiss subordinates, and the enforcement might be difficult even if they were suspended»92. The American delegation thus proposed to make explicit the following prerequisites with regard to civilians: that crimes must have concerned activities within the official responsibility of the superior and that the superior must have had the ability to prevent or repress the crime in question93.

92 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (16.06.1998), Summary records of the meetings of the Committee of the Whole: UN Doc. A/CONF.183/C.1/SR.1, pp. 67 et sq. 93 The proposal read in its entirety: «In addition to other forms of responsibility for crimes under this Statute, (a) A commander is criminally responsible for crimes under this Statute committed by forces under his or her command and effective control as a result of the commander's failure to exercise properly this control where: (i) The commander either knew or, owing to the circumstances at the time, should have known, that the forces were committing or intending to commit such crimes; and (ii) The commander failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission [or punish the perpetrators thereof]; (b) A civilian superior is criminally responsible for crimes under this Statute committed by subordinates under his or her authority where: (i) The superior knew that the subordinates were committing or intending to commit a crime or crimes under this Statute; (ii) The crimes concerned activities that were within the official responsibility of the superior; (iii) The superior had the ability to prevent or repress the crime or crimes; and (iv) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission», United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (16.06.1998), United States of America: Proposal regarding article 25: UN Doc. A/CONF.183/C.1/L.2 (my emphasis). The earlier draft that had emerged from the Preparatory Commission read: «Article 25 […] [In addition to other forms of responsibility for crimes under this Statute, a [commander] [superior] is criminally responsible] [A [commander] [superior] is not relieved of responsibility] for crimes under this Statute committed by [forces] [subordinates] under his or her command [or authority] and effective control as a result of the [commander's] [superior's] failure to exercise properly this control where: (a) The [commander] [superior] either knew, or [owing to the widespread commission of the offences] [owing to the circumstances at the time] should have known, that the [forces] [subordinates] were committing or intending to commit such crimes; and (b) The [commander] [superior] failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission [or punish the perpetrators thereof]», United Nations Diplomatic Con-

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When comparing the draft which had emerged from the Preparatory Committee with the result adopted in Rome on the basis of the American proposal, it is the explicit addition of the latter prerequisite which indicates that civilian «effective authority and control» was regarded as a rarity – or, put differently, that civilian superior responsibility was to be limited to those (exceptional) superiors who, in spite of operating outside of a military structure, could summon up a «scope of authority» that amounted to «the scope of authority» arising from «the military discipline system». Such a scope was indeed conceivable in the drafter’s perspective outside «the military discipline» system, albeit only in rare cases. Only then could a civilian be expected to prevent and repress crimes by her subordinates, to effectively control them in the drafters’ view. The drafters’ skepticism has ultimately been taken up in the chapeau of Article 28 (b) RS (wherein the superior’s ability to prevent or repress was phrased as «under his or her effective authority and control») as well as in sub-section (ii) («activities that were within the effective responsibility and control of the superior»); it is even underlined by the redundant duplicate reference. Having in mind that the American intervention and its underlying principles were «well accepted» among the State Parties94, this review of the provision’s genesis allows for a three-pronged conclusion to inform the provision’s interpretation: First, reference to effective authority and control in Article 28 (b) RS was intended by the drafters as a reference to such authority and control as can be expected within military structures. Second, effective control (as in the ability to prevent and repress) was regarded by the drafters as a product of the superior’s scope of authority95. And third, civilian effective authority and control is not limited to «strong»

ference of Plenipotentiaries on the Establishment of an International Criminal Court (14.04.1998), Report of the Preparatory Committee on the Establishment of an International Criminal Court: UN Doc. A/CONF.183/2. 94 See Schabas (2010), p. 457 with further references. 95 In a similar vein but without recourse to genesis and in conjunction with a claim that authority must be of a hierarchically-structural origin, Karsten (2010), pp. 77, 78 et sq.: She essentially bases her claim on the identical wording of Article 28 (a) and (b) RS («effective authority and control») and on a transfer of ICTY - Trial Chamber, Prosecutor v. Delalic et al., 16.11.1998 – IT-96-21-T (§ 354) to the Rome Statute. Authority, she concludes, refers to the power and right assigned within a hierarchical organization to issue binding orders to subordinates. Her argument is thus subject to the methodological weaknesses pointed out above in 3.1.2.4.2.

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hierarchical structures; while inspired by the military discipline system, it was not to be derivative only of strong structures but, by implication, could arise in spite of their lack. 3.2.2.2. The Statute’s omission type and its concretization with a view to conduct of civilian superiors As was the case regarding Article 25 RS, the descriptive approximation in Article 28 RS must be read in light of the offense descriptions in Articles 6 to 8 RS96. In these offenses, conduct descriptions in sub-sections not only often expressly include omissions97; the phrases «acts [...] committed» respectively «crimes […] committed» in their chapeaux also describe not only acts but also omissions98. In this vein, a decision significant to violating protected legal interests or goods can also be taken by not preventing,

96 See above in 2.4.2.3 and 2.4.4. 97 Ambos (2013b), p. 190; Sliedregt (2012), p. 56. 98 This is the result of a contextual and genetical interpretation of the Statute. In drafting, the concept of omission was deleted from the Statute due to concerns with the character of the underlying duty to act; however, use of the term «conduct» to denote both act and omission was retained systematically throughout the Statute (e.g. Articles 20, 22 (1) RS) and Elements, Duttwiler (2006), p. 1 (at 57 et sq.) with reference to Saland (1999), p. 189 (at 212) and other documents and also Sliedregt (2012), p. 56. Schabas points out that striking the general omission provision was done on the assumption that omissions were included in the crimes’ definitions anyway; in his view, «material elements» can therefore be constituted by both acts and omissions, Schabas (2010), p. 477. Retaining reference to «conduct» could thus be owed either to the drafters’ consensus to include one instance of omission responsibility where the duty to act is – prima facie at least – less disputed: superior responsibility; or it could take up the assumption underlined by Schabas. Moreover, as noted, Articles 6 to 8 RS include express references to omissions such as extermination by the deprivation of access to food and medicine in Article 7 (1) (b) RS; these omissions are included in the chapeau’s reference to «acts […] committed», broadening the scope of that reference to include both acts and omissions. I therefore posit that it is at least in the conjunctive reading with Article 28 RS that offense descriptions in Articles 6 to 8 RS include both acts and omissions. In favor of a broad reading of the terms «commission» and «commits» albeit in Article 25 (3) RS, cf. Berster (2010), p. 619 (at 645) (with reference to English and French legal terminology under Article 128 RS) as well as Werle/ Jeßberger (2014), p. 269, and more tentatively Ambos (2013b), pp. 190, 194 and Sliedregt (2012), pp. 56 et sq. (excluding «definitions of crimes […] that contain verbs implying action, such as ‹destroying the enemy’s property›») and in a simi-

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repressing or reporting the implementation of an intellectual design carried out by a superior’s subordinate. This ability thus emerges as an additional reality structure to the Statute’s means-end-relation to prevent violations of protected legal goods or interests by addressing prohibitory norms at those in a position to violate them99. From the typological perspective, this ability can be conceived as the Statute’s omission type, which is descriptively approximated in Articles 6 to 8 and 28 RS100. I propose that it too possesses a creative and a resource dimension101. Such superiors are then also «key figure[s]» of the criminal events described in Articles 6 to 8 RS102. In terms of type concretization, briefly recall Schünemann’s proposal: To guide the classificatory task of deciding whether or not a statutory prerequisite is satisfied in light of the comparative statements which can be derived from the degree of dimensional expression, he suggested recourse to sufficient overall dimensional expression, i.e. to assessing the dimensional profile of the act as sufficiently similar (or not) to such profiles deemed acts of commission103. In domestic criminal law, sufficient similarity must be established with a view to «control of one’s own behavior», given that such control constitutes the «core area» of domestic criminal law’s means-end-relation104. He considered the plethora of German scholarship and jurisprudence to have established a «net of similitude relations», providing for «rules of similitude» to determine whether a physical act is a manifestation of the «base type» of perpetration sufficiently similar to «control of one’s behavior» so that the prerequisites of direct, indirect or co-perpetration are satisfied105. Under the Rome Statute, the genesis of Article 28 RS points to military authority relationships as the «core area» of the ability to prevent, repress or report design implementation by subordinates as the (additional) reality structure to the Statute’s means-end-relation. In the drafters’ view, the su-

99 100 101 102 103 104 105

lar vein Grimminger (2010), pp. 302, 329 with a detailed analysis of individual offenses under the Statute as to the possibility of general omission responsibility. See above in 2.4.2.2 for the parallel approach to commission. Cf. again Ambos (2013a), p. 1 (at 4 and sqq.) on the concept of legal goods or interests. See above in 2.4.2.3 as well as 2.4.4. See above in 2.4.2.3. See above in 2.4.2.1. See above at fn. 262 (Chapter 2) and again Kuhlen (1992), p. 101 (at 120 et sqq.). See above in 2.4.1.2.2 and again Schünemann (2011), p. 799 (at 808 et sq.). See above in 2.4.1.2.2 and again Schünemann (2007a), mn. 68.

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perior arguably possesses effective authority and control if she is embedded in a stringent chain of command above her subordinates (civilian «administrative structures» have been characterized by the drafters as «weak»106 and by implication e contrario military structures as strong), is able to monitor and punish her subordinates (the drafters alluded to the «military discipline system» as a central characteristic of military authority relationships107) and moves her subordinates into victim proximity (the drafters speak of the use of an «inherently lethal force»108). This «core area» serves to guide concretization of the Statute’s omission type. In this vein, the drafters indeed demand of all superiors a «scope of authority» that amounts to «the scope of authority» arising from «the military discipline system»109. As a result of type concretization, comparative statements regarding dimensional expression of a superior’s conduct then amount to a qualitative assessment of such conduct as satisfying or dissatisfying the omission prerequisite in the chapeaux of Articles 6 to 8 RS. Concretization of the omission type is premised upon sufficient overall dimensional expression of conduct in a case at hand. The drafting history of Article 28 RS contains implicit references to many of the circumstances which I have argued to be represented as resource and creative dimensional expression in a typological perspective on commission of Articles 6 to 8 RS110. By implication of the drafters’ intention it is then with a view to these dimensions that concretization also of the omission type must occur: Military authority relationships have been characterized by the drafters in particular by stringency of chains of command (C1), surveillance (C2), and victim proximity (C3) circumstances of the creative dimension of

106 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (16.06.1998), Summary records of the meetings of the Committee of the Whole: UN Doc. A/CONF.183/C.1/SR.1, pp. 67 et sq. 107 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, id., pp. 67 et sq. 108 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, id., p. 67. This intervention arguably resulted in the heightened mental element in Article 28 (b) RS as opposed to Article 28 (a) RS, being in charge of a lethal force justifying the stricter requirement with regard to military superiors. 109 See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, id., pp. 67 et sq. 110 See above in 2.4.2.3.2.

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commission111; sufficient creative dimensional expression must be established for all superiors exclusively by recourse to C1, C2, and C3. As the research of Kelman and Hamilton on obedience shows, surveillance and sanctioning as well as stringency of chains of command are not uncommon in civilian bureaucratic agencies; moreover, they stress that lack of victim proximity is a particularly potent factor of leadership authority in organizations without a military background112. Contrary to what has been argued in scholarship 113, therefore, a principled need to limit civilian superior responsibility to hierarchical agencies such as police forces does not arise. It is important to keep in mind, however, research questioning the notion of «power over», on the one hand, and showing on the other hand that modern business corporations often lack both in stringent chains of command and in surveillance, as well as sanctioning procedures114. Finally, type concretization can take recourse to ICC jurisprudence in Bemba; in this case, the ICC has provided for a list of indicia or «factors which may indicate the existence of a superior’s position of effective authority and control»115. While the Court has limited itself to only two of the three relevant circumstances of creative dimensional expression of

111 Cf. Kelman/Hamilton (1989), pp. 314 et sq., 308 referring to the stringency of chains of command as a factor which strengthens other «binding forces» present in organizational settings; the drafters have taken up this characteristic of authority relationships in their reference to civilian «administrative structures» as «weak» and by implication e contrario military structures as strong. Also, in the words of Kelman and Hamilton, in «military [and] para-military agencies» the potential of «severe sanctions» as well as strict surveillance by superiors in military agencies operate as potent «binding forces», Kelman/Hamilton (1989), pp. 314 et sq.; this characteristic was implicitly referred to by the drafters’ allusion to «the military discipline system». Finally, Kelman and Hamilton characterize military settings by the presence of a «target of harm» both in the agencies’ goals as well as in the role definitions of actors, such victim proximity constituting a factor that encourages «opposing forces»; the routinization of harming targets as well as the dehumanization of victims are seen to mitigate the influence of victim proximity, Kelman/Hamilton (1989), pp. 314 et sq., 162 et sq. The drafters have conceived of this characteristic by distinguishing military from civilian settings in terms of the use of an «inherently lethal force». 112 See above in 2.4.2.3.2.1. 113 See above in 3.1.1. 114 See above in 2.4.2.3.2.1 and 2.4.2.3.2.2. 115 ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 – ICC-01/05-01/08-424 (§ 417).

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military authority as established with a view to the genesis of Article 28 RS, its (implicit) characterization of the military superior and thus of the «core area» of the reality structure in question nevertheless establishes a first strand in a «net of similitude relations»116. The Court opines that a «capacity to ensure compliance with the orders issued» as well as «the power […] to discipline any member of the forces»117 are indicative of such a position. These references are predicated upon the existence of an effective penal sanctioning system as well as upon the practice of strict surveillance of subordinates (C2). Moreover, the Court considers as such factors «the power to give or issue orders», «the authority to send forces where hostilities take place and to withdraw them at any given moment», and «the power to promote, replace, remove […] any member of the forces»118. It thereby describes as a prerequisite of military authority the existence of an operational and stringent chain of command (C1). As regards the instant case, the Court has established military authority inter alia on the basis that within the Mouvement de Libération du Congo (MLC) orders were issued and complied with and disobedient troops were punished as well as that the accused Bemba held the «official position» as President of the MLC and Commander-in-Chief of the movement’s military organization and was factually able to issue orders which were complied with, and could sanction, appoint, and dismiss subordinates unilaterally119. This holding is consistent with the Court’s focus on surveillance and stringency of chains of command; it arguably establishes a high degree120 of creative dimensional expression of Bemba’s conduct on the basis of C1 and C2. Regarding future assessments of military and civilian authority, the genetical perspective on Article 28 RS suggests additionally taking into account the lack of victim proximity (C3) in establishing creative dimensional expression.

116 See above in 2.4.2.3.3 on this notion. 117 ICC - Pre-Trial Chamber II, Prosecutor v. Bemba, 15.06.2009 ICC-01/05-01/08-424 (§ 417) (footnotes omitted). 118 ICC - Pre-Trial Chamber II, id. (§ 417) (footnotes omitted). 119 ICC - Pre-Trial Chamber II, id. (§§ 449, 453, 459 et sq., 464). 120 See above in fn. 516 (Chapter 2) on the «triadic scale» employed here.

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3.2.2.3. Collective criminality and individual degrees of responsibility at the sentencing stage According to Schünemann, equal treatment of commission and commission by omission perpetrators requires of both a «comparable» position in the events leading to the criminal result; this comparable position is, he argues, constituted by «control over the reason for a (criminal) result» and such control is the rationale for attribution in perpetration generally121. Under the Rome Statute, scholars have emphasized the sui generis character of superior responsibility, taking recourse to domestically inherited concepts such as the commission by omission or the proper offense of omission, arguably not to draw conclusions but to enhance understanding of the Rome Statute’s novel construction122. In this section, I will take a closer look at these suggestions and preliminarily argue to include the conduct of superiors within the collective attribution context in which their subordinates participate, establishing their shared creatorship, to establish collective criminality of their conduct and to determine their individual degree of responsibility at the sentencing stage. 3.2.2.3.1. Attribution and criminality in scholarship The most sophisticated approach to the issue of attribution yet – to my mind – stems from Nerlich. He distinguishes between four different forms of superior responsibility from an attribution perspective: knowledge and lack-of-knowledge superior responsibility both before and after the fact123. His proposal distinguishes between «attribution» of both the subordinate’s conduct and result of that conduct to the superior in knowledge superior responsibility before the fact, and «attribution» of the subordinate’s conduct only in all other instances of superior responsibility; this difference is

121 See above in 3.2.1. 122 See Weigend (2004), p. 999 (at 1007); Nerlich (2007), p. 665 (at 665 et sq.); Weigend (2013), mn. 15; Mettraux (2009), pp. 38, 43; Meloni (2010), pp. 192, 195; Vest (2011), pp. 268 et sq.; Werle/Jeßberger (2014), p. 223. But see Ambos (2013b), pp. 186, 206 («proper offence of omission»). Superior responsibility shall complement criminal responsibility for commission in a subsidiary function, see Schabas (2010), p. 468; Vest (2011), p. 270; Ambos (2013b), p. 206; Werle/Jeßberger (2014), p. 223. 123 Nerlich (2007), p. 665 (at 667 et sq.).

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motivated not by a lack of causality between the superior’s conduct (omission) and the «base crime» – causality must be established in all instances of superior responsibility between the failure to control and the «base crime» and is conceived of by Nerlich as risk increase towards the «base crime» – but by the superior’s lack of knowledge of the occurrence of the «base crime» in these cases124. As desired from a policy perspective, the difference may guide sentencing and warrant lighter punishment except in knowledge superior responsibility before the fact: According to Nerlich, in this case, the superior is «blamed» in essence for the «base crime» committed by the subordinate; in all other cases, the superior is «blamed» for her own conduct – failing to exercise control and to prevent, repress or report the «base crime» – and for the result brought about by the subordinate125. Without being more explicit on the matter than to compare knowledge superior responsibility before the fact with «assistance in a crime» under Article 25 (3) (c) RS pursuant to which «the assistant is blamed for the crime of the principal perpetrator»126, Nerlich arguably proposes to (partly) derive the superior’s criminality from the conduct and/or result criminality of the subordinate’s conduct127. Other scholars have posited in less elaborate terms that «the concept creates […] direct liability for the lack of supervision and […] indirect liability for the criminal acts of others (the subordinates), thereby producing both a kind of vicarious liability […] and a kind of secondary (accomplice) liability»128; that superior responsibility under the Rome Statute «in a sense […] really stands alone as a distinct crime whose gravamen is the failure to supervise or punish»129; or that it «is a mode of liability» which holds the superior «accountable for the same crimes committed by the subordinates», which the superior failed to prevent or punish and requires – at the sentencing stage «at least» – recognition of «the considerable differences between the guilt of the subordinates who committed the crime and the fault of the superior» present unless she intentionally failed to prevent the crimes in question130. 124 Nerlich (2007), p. 665 (at 673 et sq., 676 et sq., 680 et sq.). In a similar vein, Sliedregt (2012), pp. 206 et sq. 125 Nerlich (2007), p. 665 (at 677, 680 et sq.) («parallel liability»). 126 Nerlich (2007), p. 665 (at 674 et sq.). 127 See above in 2.3.4.1.1 on this notion of «attribution» of criminality. 128 Ambos (2013b), p. 206 (emphases and footnotes omitted). In a similar vein on superior responsibility before the ICTY, Sander (2010), p. 105 (at 111 et sq.). 129 Schabas (2010), p. 457. 130 Meloni (2010), pp. 200, 202, 204.

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The criminality of the superior’s own conduct is arguably established by the violation of a duty to act imposed upon her: While Nerlich draws upon Article 87 AP I with a view to military commanders and upon customary international law with a view to civilians to establish the superior’s duty to act131, others dispute the existence of a civilian superior’s duty to act in customary law either entirely132 or to a satisfactorily detailed degree133. Weigend has posited with support from Vest that it is the superior’s voluntary assumption of «an obligation to control the men entrusted to him» which serves as «rational basis» of both military and civilian superiors’ duty to act under the Rome Statute134. 3.2.2.3.2. An analogous proposal The following proposal parallels the proposal made for commission. In terms of criminality, the superior too is a «subject of offense descriptions» in Articles 6 to 8 RS: The Statute addresses at superiors as «key figure[s]» the imperative to prevent, repress or punish the implementation of an intellectual design by subordinates; its violation constitutes (conduct) criminality135. Failing to control in the sense of preventing, repressing or reporting must have increased the risk of the design’s implementation136; as a consequence, a failure to report too must be conceived in terms of its preventive effects on the subordinates’ (future) crimes137. Given that this su-

131 Nerlich (2007), p. 665 (at 671). 132 See Vest (2011), pp. 265 et sq. and also Ambos (2013b), p. 207. 133 Mettraux (2009), pp. 105 et sqq. arguing that analogously applying the principle of responsible command to civilians and arguing that violation of its fundamental requirements entails penal consequences «is probably the most satisfactory from a theoretical point of view, though it does not answer all the questions relevant to this matter». See also above in 3.1.2.4.2. 134 Weigend (2010), p. 67 (at 73 et sq.). In a similar vein, Vest (2011), pp. 265 et sq. See already above in 3.1.1. 135 See above in 2.4.3.3.1 for the parallel construction on commission. 136 See above in 2.4.3.3.1 and also Ambos (2013b), pp. 215 et sqq. on this notion of causation with a view to omissions generally. 137 On this aspect of the failure to report which refers to a «culture of lawlessness» inductive to criminal activity, see Damaska (2001), p. 455 (at 467 et sq.); Sliedregt (2012), p. 198 and also Vest (2011), p. 272. Also, this interpretation of Articles 6 to 8, 28 RS boldly excludes ex post facto superior responsibility from the Statute’s scope. According to Cryer, whether or not such superior responsibil-

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perior’s conduct implements the intellectual design as does the subordinate’s conduct, the superior also participates in the collective attribution context in which the subordinate participates: Attribution establishes shared creatorship138. The criminality upon which superior responsibility is premised is therefore not derivative as Nerlich arguably suggests; instead, it is collective and qualitatively of the same quality as the subordinate’s but may again be graduated quantitatively as regards conduct criminality, given the differences in dimensional expression of conduct139. In this vein, Article 28 RS neither implements a duty to act based on customary law nor is it a statutory instance of general omission responsibility based on customary law and general principle of law; the provision, in combination with Articles 6 to 8 RS, instead descriptively approximates the Rome Statute’s omission type140. The imperative contained in these norms is addressed at individu-

ity is included under the Rome Statute is a matter of the statutorily prescribed causation prerequisite, see Cryer (2005), p. 323 (positing that the phrase «as a result of his or her failure to exercise control properly» in Article 28 RS «might be thought to introduce a new causation requirement» which might «narrow existing law, at least in respect of liability for failure to punish offences committed prior to the commander coming into post»). Scholars prevailingly criticize so-called «superior responsibility after the fact», see Damaska (2001), p. 455 (at 468) (arguing that it «marks the most conspicuous departure […] from the principle that conviction and sentence for a morally disqualifying crime should be related to the actor’s own conduct and culpability»), and have aimed to find acceptable workarounds, see Sliedregt (2012), p. 205 (establishing a «third type of criminal responsibility» not based on Articles 86 and 87 API as in its «‹classic›» form but directly «taken from the clause ‹submitting the matter to the competent authorities› in Article 28 of the ICC Statute») and Ambos (2013b), pp. 230 et sq. (pointing to «problems with respect to the principle of culpability» and qualifying it as «mere accomplice responsibility for the […] failure […] to report crimes») with further references. Mettraux (2009), p. 89 even posits that «the causal relationship that must be established […] is one between the conduct of the superior […] and the impunity of the perpetrators». Nerlich (2007), p. 665 (at 678), on the other hand, upholds that the failure to exercise control properly «must lie before the commission of the base crime» and that «the base crime must be a ‹result› of the superior’s failure to exercise control properly before the crime has been committed»), proposing that the failure to report is a «second omission» which «‹triggers› his criminal responsibility under Article 28 ICCSt.». 138 See above in 2.4.3.3.1 for the parallel approach to commission. 139 See above in 2.4.3.3.1. 140 See again above in 3.2.2.2. The statutory reference to «other grounds of criminal responsibility» in Article 28 RS thus does not refer to prescriptive statutory

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als who cooperate in pursuit of an intellectual design, and this includes military and civilian superiors as «key figure[s]» of the criminal event. Here, too, criminality is the product of one cooperative and collective violation of said «rule[s] of conduct»141. And only such conduct is prohibited that implements an intellectual design: The risk creation by devising and implementing an intellectual design from an ex ante perspective is required to materialize in the occurrence of the (criminal) result, in the violation of protected legal interests or goods, from an ex post perspective142. This is not to say that customary international law does not impose upon civilian and military superiors a duty to control, i.e. prevent, repress or report the commission of crimes by subordinates as well143. Recourse to such custom is, however, not only dispensable but, consequently as a matter of Article 21 (1) RS144, unavailable to the Court145.

141 142 143 144 145

modes of participation in Article 25 (3) RS but makes sense as a reference to the conduct norm imperatives related not to omission but to (positive) acts also contained in Articles 6 to 8 RS. On these imperatives see above in 2.4.3.3.1 and on one diverging view see again Werle/Jeßberger (2014), p. 223. See above in 2.4.3.3.1 for the parallel approach to commission. See above in 2.4.3.3.1. This is a contested presumption with a view to civilians at least, see again in fn. 68, 69 and 133. See again above in 2.1 for the gap prerequisite. A comparable proposal has been advanced by Berster, who has received (partial) support from Ambos (2013b), p. 195. Berster suggests that both in (active) commission and omission responsibility, attribution under the Rome Statute should be governed by a control over the crime approach; such control, he argues, constitutes the rationale for attribution in both commission and omission, Berster (2008), p. 154; Berster (2010), p. 619 (at 636). He bases this claim on three arguments: First, that the Rome Statute as a matter of ordinary meaning, genesis, customary law and as a general principle of law must embrace the principle of normative equivalence of commission and omission for the purposes of establishing individual criminal responsibility; second, that a control approach underlies attribution of commission responsibility; and third, that to honor normative equivalence, omission responsibility should be conceptualized along the lines of a control approach to commission responsibility, Berster (2008), pp. 106, 111, 150 et sqq.; Berster (2010), p. 619 (at 633 et sqq.). For this third argument, Berster relies on the methodology and substantive findings of Schünemann, who – again – proposes with that perpetrator responsibility arises pursuant to the notion of «possession of the significant decision-making position = control over the reason of a (criminal) result» regarding both (active) commission and (passive) omission, see above in 3.2.1. Berster suggests applying this proposal to the Rome Statute: As shown both by customary law and the existence of a general principle of law, in-

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Finally, as I have proposed regarding commission, I suggest taking recourse to dimensional expression of conduct at the sentencing stage to es-

ternational criminal law commands that attribution in omission responsibility must be conceived of as an equivalent to attribution in (active) commission responsibility; determining that attribution in commission responsibility under the Rome Statute is governed by a control approach, Berster argues that it is most coherent to transfer Schünemann’s substantive findings and methodology to international criminal law under the Rome Statute, identifying «the concept of control» as «the overarching criterion» for attribution, Berster (2008), pp. 150, 154; Berster (2010), p. 619 (at 636). Control is (moreover) the source of duties to act under the Rome Statute, see Berster (2008), p. 154; Berster (2010), p. 619 (at 636) («Debeo ut domino»). Berster claims support of these conclusions also from the following arguments: Individual criminal responsibility for omission in postWWII jurisprudence required a showing of «structurally consolidated control», in his view an equivalent to «control over the reason of a (criminal) result»; and Article 28 RS, insofar as it relates to the prevention of crimes by subordinates, as the only codified instance of omission responsibility is predicated upon the superior’s power to control her subordinate’s acts, Berster (2008), pp. 154 et sq. with further references. Berster argues that superior responsibility before the fact is «not a sui generis doctrinal rare bird but a rule premised upon general omission responsibility» and amended by Article 28 RS by referring to a superior’s control, Berster (2008), p. 223 (my translation). According to my findings, the «overarching» nature of the «concept of control» must, however, be more closely scrutinized with a view to the reality of offenses under the Rome Statute, see above in 2.4.2.1.3. My own proposal is arguably implied by such closer scrutiny. Ambos (2013b), pp. 194, 197, himself more tentatively assumes that «it is difficult to speak of a ‹principle of international law› within the meaning of Article 21 (1) (b) of the ICC Statute»; «[a]t best, one may find a traditional general principle of law [within the meaning of Article 21 (1) (c)] providing for criminal responsibility, if a legal duty to act exists and the agent has the material ability to act»; this conclusion «is based on a combination of (albeit not unanimous) national and international sources» from which «follows that the term ‹commission› is to be interpreted broadly, encompassing both act and omission» (emphases omitted). In a similar vein, Duttwiler (2006), p. 1 (at 1, 29 et sqq., 54 et sq.): As a general principle of law (but not in customary international law), «action and omission are equivalent for the purposes of criminal law under the condition that a legal duty to act and prevent the harm exists». The debate on general omission responsibility under the Rome Statute also has a strong methodological current which reflects on the capacity of Article 21 (1) (b) and (c) RS to grant judges an unwritten instrument to establish individual criminal responsibility in light of Article 22 RS, see Ambos (2013b), p. 194 and more extensively Berster (2010), p. 619 (at 641 et sqq.).

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tablish the concrete gravity of the crime146. The individual degree of responsibility is considered a «phenomenon of sentencing»147. 3.2.3. Results and outlook: Business leaders as civilian superiors and the question of social desirability This exploration of the scope of superior responsibility of civilians was premised on two questions: Does the ability to report offenses constitute effective control? And of what nature must the authority relationship be in civilian settings, and does this limit superior responsibility to military-like organizations such as police or militia units and exclude business leaders from its scope? From a typological perspective, concretization of the Statute’s omission type provides a path to account for the empirical complexity of authority relationships in answering the latter question either affirmatively or in the negative, depending upon sufficient similitude of the conduct in question to military authority relationships. This concretization also provides an answer to the former question: Conduct which consists of not reporting a subordinate’s offense can only amount to superior responsibility if its creative dimensional expression is sufficiently similar to creative dimensional expression in military authority relationships on the basis of the stringency of chain of command, surveillance, and victim proximity circumstances; it must also be conceived in terms of its preventive effects on the subordinates’ (future) crimes. With a view to the Corrie case as an example148, and assuming that company management personnel did not prevent, repress, or report the commission of a war crime, it is pertinent to first establish that conduct’s dimensional expression; this requires a diligent review of Caterpillar’s corporate structure and internal procedure. Assuming that Caterpillar possesses a corporate structure and internal procedures in line with what can be expected of similar corporations concerning stringency of chain of command and surveillance – i.e. arguably a lack of both149 – it is only the lack of victim proximity which may serve as a circumstance of conduct to produce creative dimensional expression; management employees and

146 147 148 149

See again above in 2.4.3.3.2. Cf. Lesch (1992), p. 284 («Phänomen der Strafzumessung», my translation). See above in 1. See above in 2.4.2.3.2.2.

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their subordinates are at a location removed from the war crime’s victims. Recourse to ICC jurisprudence in Bemba as a first strand in a «net of similitude relations» would determine that such conduct does not constitute a concretization of the Statute’s omission type to the omission prerequisite in the chapeaux of Articles 6 to 8 RS; the ICC has stressed in particular the unilateral capabilities of (military) superiors, which arguably do not exist in modern business corporations such as Caterpillar, Inc. Failing concretization of the omission type in the case at hand, superior responsibility under Articles 8 and 28 RS is precluded. Presuming, nevertheless, the existence of a rational account of justifying a sufficient degree of creative dimensional expression of a business manager’s conduct, it is arguable that such conduct is socially valuable as an integral part of the division of labor indispensable to the functioning of larger business ventures – and could therefore have to be exempt from criminal responsibility by way of a risk permission. This question will be the focus of the next section. 3.3. A risk permission for civilian superiors? Article 28 (b) RS introduces as a prescriptive terminological element150 a mental element less demanding than Article 30 RS151. Given that concerns over the need for individual diligence as demanded by Article 30 RS have proven vital to delimiting commission responsibility in the process of balancing principles under Article 21 (3) RS152, this raises the question of whether a risk permission must also be established for civilian superiors. Here, particularly the detrimental effects upon the division of labor brought about by fear-induced permanent reciprocal surveillance are of interest. By reference to the collision of the protective principle with the principles of possession and of adequate living conditions through work under Article 21 (3) RS, the provision’s interpretation must ensure the principles’ character as optimization requirements and may result in a risk

150 On this notion, see above in 2.4.4.2. 151 Again, intent prerequisites have not been the subject of this study, see above in fn. 1249 and 548 (Chapter 2). These results are therefore only preliminary. For a more in-depth analysis of the references of intent in superior responsibility, see Nerlich (2007), p. 665 (at 671 et sqq.) as well as Ambos (2013b), pp. 220 et sqq. 152 See above in 2.5.4.3.2.1.

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permission153. Pursuant to the methodology proposed154, it is thus of the essence to determine the intensity of non-satisfaction of the principles of possession and of adequate living conditions through work that is brought about by the «consciously disregarded information» prerequisite in Article 28 (b) RS. 3.3.1. Scholarship on conscious disregard In scholarship, this novel standard has been likened to the MPC’s notion of recklessness155 but also to the Roman-Germanic notion of dolus eventualis156. Article 28 (b) RS is interpreted to impose upon civilian superiors criminal responsibility only following the personal availability of «information clearly indicating a significant risk that subordinates were committing or were about to commit offences»157. Mettraux has argued that «the conclusion which the superior should have drawn from the information which he possessed should have been ‹clear› to him»158. Schabas has put forward that the civilian superior must have been put on notice both of the risk of the crime and the need of further investigation159. Unlike the military superior, Ambos has posited, the civilian superior need not take any and every information seriously but react only to information that «clearly» points towards the commission of crimes by her subordinates160. According to Meloni, to consciously disregard such information even «means something more than simply ignoring something; it means deliberately to take no notice of, not to take into consideration despite the evidence from serious and substantial information»161.

153 154 155 156 157 158 159 160 161

See above in 2.5.4.2.1.3 and 2.5.4.3. See above in 2.5.4.2.1.2.1. Roßkopf (2007), p. 175; Badar (2008), p. 473 (at 514); Ambos (2013b), p. 227. Weigend (2004), p. 999 (at 1023); Karsten (2010), p. 107. Triffterer (2008), mn. 128; Ambos (2013b), pp. 227 et sq. Mettraux (2009), p. 195. Schabas (2010), p. 463. Ambos (2013b), p. 227. Meloni (2010), p. 187 (my emphasis). This insertion of a voluntative component into the mental element of Article 28 (b) RS is unvouched for by its likeness to recklessness; it would, however, be supported by its likeness to (certain views on) dolus eventualis.

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3.3.2. Balancing human rights as principles Regarding realization of the aforementioned principles to the legally greatest extent, the comparison between the degree of importance of satisfying the protective principle and the degree of non-satisfaction of the principles of possession and of an adequate standard of living through work is pertinent. As with commission responsibility, the degree of non-satisfaction of the principle of possession depends on the amount of diligence asked of the business actor to avoid a threat of criminal responsibility and the impact of such diligence on the economically essential process of the division of labor and competences162. This, in turn, is largely dependent upon subjective responsibility prerequisites. To avoid the threat of criminal responsibility, a civilian superior’s need for diligence may arguably disable the division of labor essential to the operation of larger business ventures if it evokes the need for permanent reciprocal surveillance – and consequently lead to non-satisfaction of the principles of possession and of an adequate standard of living through work. Pursuant to the scholarly views presented above, Article 28 (b) RS imposes criminal responsibility upon the possession and subsequent conscious disregard of information clearly indicative of a future offense by a subordinate. The prerequisite of clear indication demands restriction of the division of labor by the civilian superior not once she has conceived of the presumably163 ubiquitous general possibility of offending subordinates but instead requires specific notice and a subsequent specific need for further investigation. Consequently, it is arguable that the amount of diligence required would only marginally disrupt the division of labor and competences – and in balancing, non-satisfaction of the principles of possession and of an adequate standard of living through work would merely attain a low degree. In contrast, the importance of satisfying the protective principle achieves a high degree, if deprivations of human rights are irreversible and if the conduct in question lies within the «core area» of the Statute’s means-end-relation164. Both principles, moreover, possess a high abstract

162 See above in 2.5.4.3.2.1.1. 163 Whether or not this possibility is taken to be ubiquitous will depend largely upon the personality of the superior in question, cf. on this insight with a view to the assistant accomplice Kudlich (2004), pp. 459 et sq. 164 See above in 2.5.4.3.2.1.

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weight in the case at hand165, leaving the resulting higher concrete weight of the protective principle unaffected. In terms of realization to the greatest possible factual extent both competing principles also forbid unsuitable and unnecessary interpretations and applications of the Rome Statute166. The threat of criminal responsibility inherent to the mental element in Article 28 (b) RS may obstruct the realization of the principle of possession in instances where criminal responsibility does not and cannot promote the realization of the protective principle. Unlike if superiors were held responsible only if certain of a subordinate’s conduct as commission of an offense under the Statute, the conscious disregard standard imposes upon them surveillance inhibitive – albeit only marginally – of the division of labor also in those cases where subordinates were not about to commit a crime under the Statute. Nevertheless, optimization of all principles taken together with a view to the factual possibilities does not demand that the mental element of Article 28 (b) RS be restricted to awareness of practical certainty of a future instance of commission. As with commission responsibility, the greater certainty awareness required the less detriment to the principles of possession and of adequate living conditions through work. While less obstructive to the principles of possession and of adequate living conditions through work, certainty awareness cannot be said to be of equal suitability to the protective principle: On the one hand, it is plausible that the more certain a business civilian superior is of implementing an intellectual design, the greater the risk of harm to physical security human rights and the greater therefore the suitability of restricting acts of business exchange by criminalization to realize the protective principle167. On the other hand, it is also plausible to assume that human judgment is prone to error in particular with a view to certainty awareness of future conduct of other human beings, i.e. of subordinates. 3.3.3. Result: No risk permission for business leaders as civilian superiors Therefore, a risk permission does not result from either optimization to the factually or to the legally greatest extent: Within the scope of application 165 See above in 2.5.4.3.2.1.4. 166 See above in 2.5.4.3.2.1.3. 167 Cf. Kudlich (2004), pp. 459, 463.

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of the principles of possession and of an adequate standard of living, omissions by civilian superiors in the course of business activity are not to be exempt from criminality by Article 21 (3) RS as socially valuable and desirable. With a view to the Corrie case example 168, and taking up the company representative’s claim that sales (and maintenance services provided) were never based on «customers’ intended use of the product»169 in spite of the letters received informing of bulldozers being used during war crimes, a superior with such conscious disregard would not need to be covered by a risk permission pursuant to Article 21 (3) RS. 3.4. Conclusion Type concretization and human rights balancing arguably offer a way to incorporate the law’s complex subject matter into interpretations of the Rome Statute, respectively to conceive the ICC as just global institution. In this reading of the Statute, however, superior responsibility is but an empty promise to the result-oriented prosecutor of individual business actors. Restrictions imposed in type concretization limit its scope to a considerable extent. 3.5. References Ambos K (2002) Superior Responsibility. In: Cassese A, Gaeta P, Jones JRWD (eds) The Rome Statute of the International Criminal Court: A Commentary. Oxford University Press, Oxford, pp 823–872 Ambos K (2013a) The Overall Function of International Criminal Law: Striking the Right Balance Between the Rechtsgut and the Harm Principles. Criminal Law and Philosophy:1–29. doi: 10.1007/s11572-013-9266-1 Ambos K (2013b) Treatise on International Criminal Law: Foundations and General Part. Volume I. Oxford University Press, Oxford Arnold R, Triffterer O (2008) Article 28. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court. C. H. Beck, München Badar ME (2008) The Mental Element In The Rome Statute Of The International Criminal Court: A Commentary From A Comparative Criminal Law Perspective. CLF 19:473–518. doi: 10.1007/s10609-008-9085-6

168 See again in 1. and also in 3.2.3. 169 Skinner (2006), p. 14.

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In light of commonly perceived difficulties to hold business actors criminally responsible as individuals, a particularly prominent but highly disputed alternative approach in domestic legal orders around the world consists of holding responsible the corporate entity per se in terms of corporate criminal responsibility1. And while it was once famously held in Nuremberg by the IMT that «[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced»2, proposals of corporate (and generally organizational) criminal responsibility have recently been made also by scholars in international criminal law3. In this view, a reform of the Rome Statute should take up the unfinished efforts of the Statute’s drafters on corporate criminal re1 For a comprehensive overview of general principles of and national takes on corporate criminal responsibility, see Pieth/Ivory (2011), p. 3 and on the globally shared perception of a «regulatory gap» and corporate criminal responsibility as a «convenient surrogate», Stewart (2013), p. 261 (at 262, 276, 297 et sqq.) with further references, as well to critical perspectives, and the proposal to resolve these questions on the basis of philosophical pragmatism. Recent research, endorsed by The Law Commission (2010), pp. 137 et sqq., has substantiated that corporate offending may require flexible regulatory answers that differ fundamentally from the ex-post rigidity on offer by substantive and procedural criminal law, see Baldwin (2004), p. 351 (at 364, 371, 378) who conducted a survey among 50 managers working at the UK’s 50 largest business corporations. This survey revealed that risks of criminal responsibility are often either unknown or met not by complying with the law («compliance management») but by so-called «resilience management» which outsources high risk activity or implements PR strategies to maintain one’s reputation even in light of criminal prosecution. To counter these resilience strategies, Baldwin calls for a new kind of «proactive regulation» which focuses on inducing self-regulation. Such regulatory efforts have been devised by Braithwaite (2011), p. 475 (at 482, 487); in taking recourse to escalating measures of both support and sanctioning, corporations are meant to be guided to implement a process of self-reform, at the same time solving the eternal problem of lacking prosecutorial capacities. 2 The International Military Tribunal (1947), p. 223. See also Bassiouni (2011), pp. 45 et sq. 3 See Wells/Elias (2005), p. 141; Kyriakakis (2007), p. 115‐151; Kyriakakis (2009), p. 333; Larik (2010), p. 119; Stewart (2013), p. 261 and most comprehensively on the issue Stoitchkova (2010).

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sponsibility, striking the limitation of jurisdiction to natural persons from Article 25 RS. The aim of the following sections is that of a critical review of the foundational assumptions implicit in such proposals towards corporate criminal responsibility under the Rome Statute – with the intention not to prevent their realization but to enable a meaningful statutory reform. This entails a methodological shift which takes into account the nature of legal policy making: As Lüderssen suggests, law makers must carefully examine the trade-offs or conflicts of goals that result from the means considered necessary to achieve the objective of the law to be made4. In Section 4.2, I not only intend to provide the legal policy debate with two important trade-offs which are in need of further discussion, at least from a scholar’s point of view, but also to shed light on two important influences on political fears which are attached to the issue of corporate criminal responsibility. Before doing so, a short introduction to the history of corporate criminal responsibility under the Rome Statute is in order (Section 4.1). The chapter will conclude with an excursus into the notion of the corporate organization as a black box (Section 4.3). 4.1. The Rome Conference proposal and its discussion in scholarship During the Rome Conference, a proposal with regard to the criminal responsibility of corporate entities was intensely discussed and finally rejected5. The ultimate proposal to amending what is now Article 25 (1) RS, advanced and later withdrawn by the French delegation, amounted to the following: «Without prejudice to any individual criminal responsibility of natural persons under this Statute, the Court may also have jurisdiction over a juridical person for a crime under this Statute. Charges may be filed by the Prosecutor against a juridical person, and the Court may render a judgment over a juridical person for the crime charged, if: (a) The charges filed by the Prosecutor against the natural person and the juridical person allege the matters referred to in subparagraphs (b) and (c); and (b) The natural person charged was in a position of control within the juridical person under the national law of the

4 Lüderssen (2012), p. 79 (at 80). 5 Clapham (2000), p. 139 (at 150). See also Schabas (2010), pp. 426 et sq. on the «saga of unsuccessful attempts to introduce some form of jurisdiction over legal persons in the Rome Statute» with extensive references to drafting documents.

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State where the juridical person was registered at the time the crime was committed; and (c) The crime was committed by the natural person acting on behalf of and with the explicit consent of that juridical person and in the course of its activities; and (d) The natural person has been convicted of the crime charged. For the purposes of this Statute, ‹juridical person› means a corporation whose concrete, real or dominant objective is seeking private profit or benefit, and not a State or other public body in the exercise of State authority, a public international body or an organisation registered, and acting under the national law of a State as a non-profit organisation […]»6.

As is often the case with a genetical review of the Rome Statute, the drafters’ motives in said discussion and for said rejection can only be established on the basis of contributions to scholarly writings by those who attended the relevant meetings: These contributions state in favor of its introduction, first, better access to remedies for victims, and second, a perceived advantage over individual criminal responsibility in terms of prevention7. Essentially, three grounds for rejection are recalled: First, a lack of time to finalize the proposal; second, the so-called «comparative law challenge»8, i.e. a lack of commonly agreed standards of corporate criminal responsibility among those State Parties whose national legal orders embraced corporate criminal responsibility and those whose national legal orders reject it; and third, the so-called «complementarity objection»9, whereby reference is made to the allegation by some State Parties that, in absence of corporate criminal responsibility in their legal orders, they would automatically be deprived of their right to «go first» in investigating and prosecuting corporate defendants, rendering the complementarity concept «unworkable»10.

6 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (03.07.1998), Working Paper on Article 23 Paragraphs 5 and 6: UN Doc. A/Conf.183/C.1/WGGP/L.5/Rev. 2 (footnotes omitted). 7 Extensively on the proposal, Clapham (2000), p. 139 (at 147 et sqq.). See also Stoitchkova (2010), pp. 13 et sqq.; Schabas (2011), pp. 224 et sq. 8 Kyriakakis (2009), p. 333. 9 See Kyriakakis (2007), p. 115‐151 (at 117 et sqq.) and Meyer (2013), p. 56 (at 82 et sqq.) for opposing views on the matter. 10 Ambos (1999), p. 1 (at 7). See also Saland (1999), p. 189 (at 199); Clapham (2000), p. 139 (at 157); Schabas (2010), pp. 425 et sq.; Stoitchkova (2010), pp. 170 et sqq.; Schabas (2011), pp. 224 et sq.; Thurner (2012), pp. 236 et sqq. and Meyer (2013), p. 56 (at 67 et sq.).

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A host of doctrinal arguments can be (and has been) availed to the removal of either of these obstacles11; I will not focus on them here. Because for these arguments to develop their full effect, I posit that the issue of corporate criminal responsibility must also be approached from a policy perspective. Whether or not doctrinal arguments will ultimately be accepted in the drafting process is above all a matter of – on the one hand – the trade-offs involved, and – on the other hand – of political fears surrounding the seemingly mythical issue of corporate criminal responsibility. In what follows, I intend to draw attention to issues which I consider important influences on such fears. 4.2. Corporate criminal responsibility under the constraints of reality How does corporate criminal responsibility really (i.e.: in reality) work to prevent crimes? Most research on the issue of corporate criminal responsibility is concerned with whether and how the law can assign (criminal) responsibility to collective, corporate, organizational non-individual actors. This is without a doubt a very important and challenging perspective12. In my view, however, it holds much less appeal from a legal policy perspective than from a scholar’s perspective. For legislators can – within the constraints imposed by human rights13 – autonomously design end points of

11 See above in fn. 8, 9 and 10. 12 I do not intend to imply that conceptual arguments need not be exchanged, e.g. as to the construction of «corporate fault», in the interest of the law’s rationality. On this perspective, see Weigend (2008), p. 927‐945 (at 932) («[…] the controversial issues are about the very foundations of criminal law: What are the prerequisites that an entity must fulfil to be able to commit a criminal act? What does the attribution of (criminal) blame presuppose? What are the subjective requirements for receiving criminal punishment?») and recently Stewart (2013), p. 261 (at 276 et sqq.); Meyer (2013), p. 56 (at 76 et sqq.). In her extensive discussion of the issue, Stoitchkova proposes a holistic model that relies on «constructive corporate fault», whereby «[c]ulpable conduct on the part of the organisation is identified» based on «reasonable interferences to be drawn from the interplay of institutional characteristics (i.e. structure, culture, policies, channels of communication and levels of control)»; by these interferences, she aims to «conclude that the physical elements of the offence may be validly attributed to the entity», Stoitchkova (2010), pp. 23 et sqq., 95 et sqq., 194. 13 There may be other constraints at play when it comes to expanding criminal responsibility to organized entities. As Chouliaras has pointed out, states are not on-

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attribution and leave the difficult question of how to conceive and distribute responsibility within a collective or between collective and individual actors to jurisprudential efforts altogether14. Many domestic legal orders have done so in the past15, and depending on their expertise and resources, legislators may even be constrained to do so; the ultimately rejected proposal to extend jurisdiction to juridical persons under the Rome Statute may be a case in point16. The important difference between the perspective centered on (criminal) responsibility and the perspective of making sense of criminal law sanctions within the constraints of reality consists of the former’s concern with normativity and the latter’s focus on reality – a reality which is not subject to (but the object of) legal policy. Unlike the notion of responsibility at their disposal, reality is a constraint from which legislators cannot escape (at least supposedly, as we shall see below). This constraint and the myths surrounding it, I posit, is an important source of (political) fears concerning the matter of corporate criminal responsibility. Chapters 1 and 2 of this study already focused on the interplay between reality and normativity in (international) criminal law. The emphasis on the law’s subject matter naturally leads to one of the most crucial issues of corporate criminal responsibility, which is to assign relevance to and duly account for epistemology and ontology. From a layman’s perspective, one could say that indeed the «behavior» of corporate entities cannot be ob-

ly a driving force behind the criminalization of human rights violations but also a potent opposing force when it comes to conceiving criminal responsibility not only in individual but also in collective terms, Chouliaras (2010a), p. 65 (at 93 et sq.). In this vein, Simpson has argued that individualization of responsibility comfortably renders the central issues «narrowly psychological instead of expansively political», Simpson (2009), p. 69 (at 72, 87). 14 See Vogel (2012), p. 205 (at 207); Wohlers (2012), p. 231 (at 249) and SchmittLeonardy (2013), p. 458 who points out that the law cannot prove its own rightness but is dependent on external legitimization such as the democratic process. In this vein also with regard to the Rome Statute, Meyer (2013), p. 56 (at 76). For a recent elaboration on how «collective guilt» might mitigate individual guilt, see Fletcher (2002), p. 1499 (at 1513 et sqq.); Fletcher (2004). 15 See in particular the Swiss legislator’s opinion that it is not criminal law doctrine but the legislative will which judges upon the admissibility of a legal norm intended to solve a problem, Der Schweizerische Bundesrat (1999), p. 1979 (at 2142). For a comparative overview, see Pieth/Ivory (2011), p. 3. 16 Cf. Ambos (2007), p. 2647 (at 2672) warning not to «overstate the theoretical level and depth of the discussions in New York and Rome».

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served like those of human beings – and therefore is not real. As a consequence of this understanding of reality, the meaning of criminal law sanctions addressed at corporate entities with the goal of altering said behavior in reality must remain mysterious. But do criminal law sanctions really fail to make sense in the reality of international criminal law? 4.2.1. Criminal sanctions against corporate actors: A disjunction between burden and responsibility? As argued in scholarship, international criminal law aims at the prevention of international crimes both by deterring future perpetrators and by strengthening adherence to its norms; these are the preeminent meanings and rationales attributed to international criminal sanctions17. In a national context, deterrence is deemed plausible with regard to individuals even though it has only rarely been proven in empirical studies: The fear of «getting caught» and the negative consequences that ensue is counted upon by criminologists to prevent the commission of crimes; in the context of macro criminality however, powerful state or non-state actors often hold a protecting hand over (future) perpetrators and thereby shield them from international prosecution: As long as their power to protect remains unquestioned, criminologists point out, international criminal law cannot have the desired deterrent effect18. Regarding the strengthening of adher-

17 See Werle/Jeßberger (2014), pp. 37 et sq. («More important [than deterrence] is the creation and reinforcement of an international awareness of law: the ability of international criminal law to contribute to stabilizing the norms of international law») and Ambos (2013), pp. 72 et sq. with fn. 162 and 172 («[…] ICL rather serves the purpose of creating a universal legal consciousness, in the sense of positive general and integration prevention calling for reconciliation and reparation, admittedly without completely giving up the hope for a general prevention effect, that is, general deterrence», footnotes omitted) as well as Chouliaras (2010a), p. 65 (at 91) with further references. See also Ambos (2013), pp. 72 at fn. 162 on «expressivism» as a rediscovery of positive general prevention by common law writers on international criminal law such as Sloane (2007), p. 39 or Drumbl (2007), pp. 173 et sqq. and Duff (2010), p. 589. 18 Reuss (2012a), p. 10. In a similar vein, Ambos (2013), pp. 69 with fn. 139, 145 with further references. For a comprehensive (and slightly more optimistic) review of deterrence by the ICC, see Akhvavan (2009), p. 624 (at 635 et sqq., 636, 641), arguing that prevention by (the prospect of) criminal prosecution works in particular before violence escalates or when stigmatization can induce a loss of power

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ence to criminal law norms, it is similarly delicate – but more readily conceivable – to shift the focus from national legal orders to the international realm19. Melloh argues that international criminal law protects human rights values which, as constituents of human rights instruments and as ius cogens norms are part of a global legal consciousness; the communicative affirmation of human rights norms by punishment in international criminal law strengthens that legal consciousness and adherence to international law norms20. As Reuss has posited, however, the prevailing presumption held with regard to national criminal law – that the reinforcement of passive adherence to criminal law norms will prevent the commission of crimes21 – cannot be applied to most scenarios of macro criminality where the state is in league with the perpetrators and the legal order has been perverted or suspended; it must, therefore, be re-formulated: International criminal law should be seen as strengthening «civic courage» as the willingness to oppose the state and pro-actively engage in the enforcement and re-establishment of a human rights order22.

19 20 21 22

and thereby the willingness to negotiate. Overall, he pleads for a so-called «judicial realism» which strikes a balance with «the exigencies of local contexts with the long-term requirements of ushering in a new global ethos that bridges the gap between ideals set forth in the 1948 UN Declaration of Human Rights and the realities of governance» and keeps in mind the victims’ interests, Akhvavan (2009), p. 624 (at 653). Such a balance is recommended as well by Holtermann (2010), p. 289 (at 310) who, in spite of the experiences made in the Darfur situation, argues in favor of a deterrent effect of the ICC as «the more reasonable default position». For a critical perspective on deterrence in international criminal law, see Rodman (2008), p. 529 (at 534, 547 and 538, 556 et sq., 559), who favors military power over criminal prosecution as a tool for deterrence; criminal prosecution during violent conflicts, he opines, is counterproductive as conflicts are more efficiently ended by recourse to military power in order to impose constraints to cooperate, and the ICC should consequently submit to these politics of power. Damaska appears to support the assumption of a deterrent effect but nevertheless cites Richard Goldstone who opines that it would be «hopelessly idealistic» to maintain that international criminal courts can have a deterrent effect, Damaska (2001), p. 455 (at 474 with fn. 37). See also Meyer (2013), p. 56 (at 83). See Melloh (2010), pp. 153 et sq. Melloh (2010), pp. 130 et sq., 153 et sq. See Fletcher (2007), pp. 253 et sqq.; Ambos (2013), pp. 71 et sq. Reuss (2012b), p. 241 (at 244 et sq.) («Zivilcourage», my translation).

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4.2.1.1. Punishing the corporation Deterring a corporation’s involvement in crimes is an even more complex matter. A claim to deterrence is premised upon the ability of criminal law (and law enforcement) to alter the behavior of its addressees. To call upon such deterrence with regard to business corporations is to presume that a corporation’s behavior can be altered by criminal law (and its enforcement). Indeed the deterrent capacity of criminal law vis-à-vis profit-oriented and, therefore, rationally acting business enterprises is often emphasized23. Regarding so-called positive general prevention, the underlying presumption is that adherence to criminal law norms is produced by creating or reinforcing an «international awareness of law»24, respectively a global or «universal legal consciousness» communicatively by addressing punishment at those who break the law25. From a legal policy perspective, the subsequent question arises: How can this – deterrence and reinforcement of awareness – be achieved with regard to corporations? 4.2.1.2. An epistemological review This is where epistemology comes into play. Epistemology is concerned with what we – as scientists, as human beings – can know of the subject matter of our research, of the world that surrounds us; it deals with the question of how to know whether a claim about the world is justified26. From an epistemological perspective, organization theory has long been concerned with the issue of what we can know of the behavior of organizations. This endeavor has, over time, spawned a wide range of answers; the most important contributions are those of (here so-called) objectivists and those of (here so-called) subjectivists or interpretivists. Positivists argue that it is possible to neutrally observe the social world and the behavior of social phenomena such as organizations; subjectivists, in contrast, 23 See Stewart (2013), p. 261 (at 273) with further references and Meyer (2013), p. 56 (at 83) for a critical perspective. 24 Werle/Jeßberger (2014), p. 37. 25 Ambos (2013), p. 73. From the perspective of so-called expressivism, Sloane (2007), p. 39 (at 44) has called upon international criminal justice to encourage the «legal and normative internalization of international human rights and humanitarian law». 26 McAuley/Duberley/Johnson (2007), p. 28.

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take the position that what we perceive is (at least in part) an outcome of us27. As a consequence of these epistemological assumptions, the ontology – relating to the issue of the nature of phenomena and their existence – of objectivists and interpretivists may differ fundamentally: for the former, organizations exist independently of our knowing and perceiving them, «reality is given to the inquirer», while their existence for the latter is often seen as the outcome of our acts of knowing and perceiving, i.e. the result of social construction28. Based on these assumptions, both objectivists and subjectivists have produced accounts that aim at making sense of organizational phenomena29. On the one hand, the individualist position has emerged: It promotes that organizational phenomena must be explained by reducing them to individual behavior; on the other hand, the holist position argues that organizations have characteristics of their own which cannot be explained by recourse to individual behavior30. The individualist position has a strong standing in the objectivist perspective; after all, we can observe human activity within a corporation and, by implication, make sense of corporate activity by reducing it to individual (rational) human decision-making31. The holist position is similarly well-represented in the objectivist perspective, striving e.g. for the perfect fit of organizational structure to the contingencies of environment, size, and strategy32. More recent stances in organization theory, however, have abandoned both the individualist/holist positions as well as the objectivist perspective in favor of a subjectivist take; their focus was and is on power relationships, culture or knowledge production, and justice in organizations, assigning actors’ interpretations and discourses a fundamental explanatory role33. From either perspective or position, positivist/subjectivist or individualist/holist, there may be different answers to our inquiry. To aim at deterring a corporate entity or at strengthening its legal consciousness – in other words: to strive for criminal sanctions that work as addressed – is to

27 McAuley/Duberley/Johnson (2007), pp. 30 et sq. 28 McAuley/Duberley/Johnson (2007), pp. 31, 44; Scherer (2005), p. 310 (at 316 et sqq.). 29 See Reed (2006), p. 19 (at 40). 30 Scherer (2005), p. 310 (at 326); Reed (2006), p. 19 (at 43). 31 See Reed (2006), p. 19 (at 40). 32 See Reed (2006), p. 19 (at 40) and Donaldson (2002), p. 3. 33 See Reed (2006), p. 19 (at 31, 40).

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presume the entity’s susceptibility to the real-world (i.e. given to or constructed by the observer) constraints inherent in a criminal law sanction. Take, for example, Weigend’s position with regard to corporate criminal responsibility; he argues as follows: «In a way, it is the corporation itself that develops a certain corporate culture and establishes structures of supervision and control, but in reality, it is not the ‹corporation› but natural persons operating alone or in groups that actually devise plans, take certain measures or abstain from doing so, albeit in the name of the legal person»34. This is the classical individualist position, based presumably on an objectivist perspective from which it makes no sense to address a corporate entity in order to deter it or strengthen its legal consciousness. From a subjectivist perspective, in particular one that focuses on the salience of organizational cultures («organizations as cultures»35), it might make sense to conceive of criminal law sanctions as exogenous disruptions which create a need for reconstruction of shared beliefs, values and practices36. Such a subjectivist perspective could also draw on prominent approaches to the etiology of so-called corporate crimes to which deviant sub-cultures in business corporations and their reformation are central37. Whether this perspective would amount to deterrence, to positive general prevention or to an entirely different meaning of criminal sanctions is another matter, as is the question of how to realize the law’s expressive capacity vis-à-vis a subjectively constituted corporate entity38. For reasons traditional or otherwise, most jurists of (international) criminal law have, however, retained a strong focus on the individual39. The imposition of criminal law sanctions at corporate entities with the goal to deter (or reinforce a legal consciousness) then only makes sense if these

34 Weigend (2008), p. 927‐945 (at 934 et sq.) (my emphasis). For a similar (implicit) positioning, see Meyer (2013), p. 56 (at 80 et sq.) (e.g: «There is neither collective risk knowledge nor collective foreseeability», my translation and emphasis). 35 See Morrill (2008), p. 15 (at 28). 36 See Morrill (2008), p. 15 (at 28 et sq.). 37 On the domestic realm most prominently, cf. Braithwaite (1985), p. 1 («subculture of resistance») and Coleman (1987), p. 406; Coleman/Ramos (1998), p. 3 («culture of competition») and for a recent appraisal and critical review SchmittLeonardy (2012), p. 111 (at 142 et sq.); Schmitt-Leonardy (2013), pp. 96 et sqq. 38 On this matter, cf. Schmitt-Leonardy (2013), pp. 455 et sq. 39 On this trend for domestic criminal law Harding (2007), pp. 61 et sqq. and for international criminal law, Nollkaemper (2009), p. 1 (at 12 et sqq.); Chouliaras (2010a), p. 65 (at 94).

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sanctions – addressed normatively at the corporate entity – are addressed in reality (i.e. as given) to the organization’s individual members, i.e. to managers and other employees. It is only they who can really be the subject of deterrence and reinforcement efforts in that perspective. The motivation of others, however, constitutes a very questionable purpose or sense behind the imposition of criminal sanctions40: For, in order to take effect, the sanctions must be purposely designed as a burden upon individuals who have not been prosecuted, individuals whose guilt has not been determined, who are, in other words, blamed in spite of their innocence. 4.2.1.3. Incompatible perspectives If corporate criminal responsibility was introduced under the Rome Statute, the individualist position, whose basis is arguably an objectivist perspective, could thus culminate in the disjunction of burden and individual responsibility assigned by the law41. Resulting in burdening those who are not blamed, such a position might, therefore, fail to deliver the epistemological and ontological basis for a just and efficient criminal sanction addressed at a corporate entity. From a subjectivist perspective, sanctions might be able to avoid such undue burdening and also provide for beneficial corporate cultural change – but, at the same time, and from a different perspective, involves an overly «radical deontologization» of a «flowery» reality unknown to and rejected by most of its practitioners42. Indeed, German and Spanish scholarship which has been invested in conceiving criminal law from a subjectivist perspective, based on Luhmann’s systems the-

40 Freier (1998), p. 242; Schmitt-Leonardy (2013), p. 451. 41 On this issue, see also Stoitchkova (2010), pp. 179 et sqq. positing that «the criminal responsibility of corporations can be constructed so that it does not of necessity entail legal consequences for individual members»; in her view, the «distribution of costs has no bearing on personal guilt» and the disjunction between cost and «guilt in the legal sense» might be «the inevitable fallout of corporate criminal responsibility». The fallout might also consist of an overly formalistic approach to the notion of guilt. 42 See Meyer (2013), p. 56 (at 84) accusing (here so-called) subjectivists’ «flowery analogies» of arbitrariness («blumige Analogien», my translation).

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ory43, in order to allow for corporate criminal responsibility44 advocates a radical «break with traditional epistemological schemata» that either radically transforms all criminal actors, individual and organizational, into systems45 or introduces a split between individual and organizational actors. Against these proposals, opponents of subjectivist approaches argue that concepts of responsibility attribution must be generally accepted for positive general prevention to remain operative46. And in her thorough review of subjectivist positions, Schmitt-Leonardy concludes that while such arguments are theoretically plausible, they pose a threat to the coherence of attribution under criminal law as a societal need – a threat which then runs opposite to an equally important societal need for greater prevention of (corporate) crime47. The incompatibility between objectivist and subjectivist perspectives on reality is expressed in legal scholarship by the use of seemingly forceful threats – the disjunction between burden and criminal responsibility, the loss of coherence in responsibility attribution, the lack of general acceptance of responsibility attribution in a «flowery» reality – and thereby creates a tension which risks tearing apart the Rome Statute’s «fair and effi-

43 See Luhmann (2000) and Nassehi (2005), p. 178 for a rare translation and reception of this theory in English. 44 See Heine (1995) and on procedural aspects of this turn to Luhmann’s systems theory in criminal justice, see Theile (2009); Theile (2010), p. 326. 45 See in particular Díez (2007), p. 290 (at 295) («Bruch mit den traditionellen erkenntnistheoretischen Schemata», my translation). 46 See Meyer (2013), p. 56 (at 84) who makes out a threat to the legitimacy of the ICC framework. His argument was first advanced (and questioned) by Wohlers (2012), p. 231 (at 246) with regard to corporate criminal responsibility. On the need for plausibility of responsibility attributions in international criminal law generally, see Damaska (2001), p. 455 (at 471, 476); Weigend (2004), p. 999 (at 1025 and sq.); Weigend (2011), p. 31 (at 32). See also Husak (2014), p. 41 (at 60) on the need for moral plausibility of criminal law from a fair labelling perspective. 47 Schmitt-Leonardy (2013), pp. 456 et sqq. Luhmann’s systems theory is one of the few organization theoretical approaches that have been operationalized in jurisprudence; as Schmitt-Leonardy (2013), pp. 359 et sqq. points out, it might indeed be the only viable interdisciplinary avenue. Yet, the relevance of systems theory thinking to jurisprudence is criticized not only with regard to corporate criminal responsibility but in a much broader sense concerning the inability to make legitimate normative claims on its basis, see Stübinger (2008), p. 265 and also Freier (1998), p. 137.

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cient application» as the relatively young «law in action»48 it is. Most domestic criminal legal systems allow considering the benefits and drawbacks of objectivist and subjectivist approaches in light of their laws’ robust status quo – the ICC's current framework does not. When aiming at the protection of human rights from hazardous corporate involvement in mass atrocity by means of extending criminal responsibility to corporate organizations under the Rome Statute, law makers should be aware that the means of corporate criminal responsibility is burdened by a reality split thus far unresolved. This split, to my mind, is not only the source of both political fears and desires alike; the better each side can conceive of the other’s premises, the more easily consensus can be reached. In its destabilizing capacity it also constitutes an important trade-off to be considered from a policy maker’s perspective. 4.2.2. Non-criminal sanctions against corporate actors under the Rome Statute: The Rome Statute as criminal law? Besides the paramount issue of how to construe «corporate guilt», the arguable punishment of innocent organization members (employees) as a by-product of punishing the organization (corporate entity) is a prominent theme among scholars who oppose corporate criminal responsibility. Again, the doctrinal ramifications of these issues shall not concern us here49. Instead, I want to point to a fallacy very prominently encountered in dealing with the difficult issue of attributing and distributing blame or guilt to the corporate entity, or between it and its employees: by moving from criminal to non-criminal sanctions law makers aim at making deter-

48 Ambos (2013), p. 73 (my emphasis) with references to Jesse (2009), pp. 70 et sq.; Cassese (2012), p. 491, and others. 49 See Wells (2005), pp. 146 et sqq.; Neumann Vu (2004), p. 459; Wohlers (2012), p. 231 (at 237 et sq.); Schmitt-Leonardy (2013), pp. 440 et sqq.; Stewart (2013), p. 261 (at 277, 280) for insightful contributions to these debates; the argument of punishment of innocent employees was most extensively elaborated on in German scholarship by Freier (1998), pp. 230 et sqq.

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minations of criminal guilt dispensable50. During the drafting of the Rome Statute, this option was also on the table as «a middle ground»51. Indeed, this escape route52 seemingly obliterates not only the conceptual difficulties attached to the issue of criminal blame or guilt; it also appears to render moot the concerns presented above regarding the sense and meaning of criminal sanctions and their indirect but still illegitimate burden upon employees. At closer inspection, however, a move from criminal to non-criminal sanctions would not only involve an important trade-off; it also touches upon another fundamental political fear. The implementation of non-criminal sanctions presupposes not only the existence of criminal sanctions but also of such characteristics of these sanctions that allow for a demarcation. And this – at least for some scholars – is more delicate than meets the eye. For while the ICC carries the label «criminal» in its name, a fundamental dispute has arisen regarding the Rome Statute’s characterization as criminal law. This dispute reaches far down to the roots of international criminal law, to the source of its legitimacy and to the nature of its sanctions. And while the dispute is mainly between followers of a Kantian concept of punishment, other scholars have also added to this dispute from their own perspectives. Let me expand briefly: In opposition to German scholars Köhler and Gierhake, who have both proposed conceiving international criminal law as criminal law in a Kantian sense (wherein criminal punishment offsets the negation of law and thereby guarantees liberty)53, Pawlik has argued that international criminal law should be subject to «special doctrine more oriented towards prevention», since the existence of criminal wrong, he argues, requires «a legal order which affords reality

50 In this vein regarding international law Vest (2010), p. 321 (at 338). The German legal order has thus far withstood efforts to reform its non-criminal sanctioning of corporations in § 30 OWiG inter alia by pointing to the delicate issue of corporate guilt; on the German system and the debate surrounding it, see Weigend (2008), p. 927‐945 (at 931 et sq.) and Kyriakakis (2009), p. 333 (at 343 et sqq.). 51 Schabas (2010), p. 426. 52 See Freier (2009), p. 98 on the idea that corporate criminal responsibility assigns collective responsibility because of the prevailing assumption that the law must fail to ascribe individual responsibility in a corporate context. 53 Köhler (2003), p. 435‐467; Gierhake (2005), pp. 354 et sqq.; Ambos (2013), pp. 57 et sqq. For receptions and translations of Gierhake’s position, see Werle/ Jeßberger (2014), p. 34; Ambos (2013), pp. 59 at fn. 46. Again, Ambos also refers to Kantian «world citizen law» (Weltbürgerrecht) to establish the legitimacy of a supranational ius puniendi and subsequently provides a comprehensive overview of scholarly positions on the issue, see Ambos (2013), p. 46.

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to the liberty of its citizens», a prerequisite characteristically absent in the commission of core crimes54. From an expressivist angle – conceiving punishment as the communication of censure – Duff has advanced the argument that the ICC’s legitimacy to punish «depends upon the acceptability of the court’s claim to act in the name of those who have the right to call the defendant to account» and that the ICC can derive this authority from acting in the name of «shared humanity»55. However, on the one hand, as Duff implicitly points out, it is difficult to conceive of «shared humanity» as a global community 56; on the other hand, as Sloane admits also from an expressivist perspective, the appeal to a global community may carry the cost of disregarding the needs of the local communities where the harm occurred57. And while the Rawlsian cosmopolitan accounts referred to above would support Duff in conceiving of humanity as a global

54 Pawlik (2006), p. 274 (at 290 et sq. with fn. 143) («Existenz einer Rechtsordnung, die […] der Freiheit der Rechtsgenossen ein reales Dasein gibt», «stärker präventionsorientierte[] Sonderdogmatik», my translation). Contra Gierhake, see also Reuss (2012a), p. 11 with fn. 45. 55 Duff (2010), p. 589 (at 601 et sqq.): «But some should concern us, are properly our business, in virtue of our shared humanity with their victims (and perpetrators): for such wrongs the perpetrators must answer not just to their local communities, but to humanity. […] We can also see the creation of the ICC as one of the ways in which the moral ideal of a human community might be given more determinate and effective institutional from: the existence of a community is often a matter more of aspiration than of achieved fact, and a recognition of human community could be a recognition of what we should aspire to create». 56 Duff (2010), p. 589 (at 601 et sqq.). See Ambos (2013), p. 59 on concepts of a «world society which focuses on people instead of states and subjects of the international order» (footnotes omitted) and also Luban (2004), p. 85 (at 134) on the flawed perception of humanity as a political community. 57 Sloane (2007), p. 39 (at 54 et sq.): «Giving primacy to transnational penal interests will inevitably cause friction with certain local communities, as it has in the past, but from a moral, institutional, and legal perspective, it more accurately and appropriately captures the values that punishment by international tribunals can realistically serve. Just as national criminal law conceives of crime as an offense against the state as a collective, not against the individual members of that collective immediately harmed by it, so ICL may be conceived analogously as concerned principally with the penal interests and values of the international community as a collective, not local political and social orders. Rather than persist in the futile and impracticable effort to make genuinely international criminal tribunals mimic national courts by dispensing proxy justice, ICL should candidly acknowledge that these tribunals serve distinct goals and constituencies» (my emphasis, footnotes and citations omitted).

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community charged with instating the ICC as an institution to protect human rights globally, they too have thus far remained silent as to the Rome Statute’s character as criminal law proper58. It is not my position that the characteristics of the Rome Statute as genuine criminal law will not ever be firmly established59. My point, rather, consists of the conflict of goals that may arise: Without sufficiently consented firm boundaries, i.e. without a stable concept of the Rome Statute as (international) criminal law, the circumvention of and escape from the issues of guilt and its distribution among individual and corporate criminal actors may serve to destabilize those important functions – crime preventive and otherwise – that arguably merit the efforts to establish the Rome Statute as (international) criminal law proper in the first place60. To analogize Robinson: It may serve to deepen the «identity crisis of international criminal law» between human rights liberalism and criminal law liberalism61. Therefore, law makers should be aware that tension exists between the overall objective for the ICC framework to effectively serve as protection against the most serious violations of human rights as criminal law and the (sub-) objective to include in the ICC’s fight against impunity corporations as defendants – unless the expansion of the Court’s jurisdiction is preceded by its firm establishment as a criminal court proper. 4.3. Excursus: The corporate organization as a black box? The impotence of the state, namely of criminal prosecutors and judges, vis-à-vis the evidentiary burden of establishing guilt of members of complex (business) organizations was and is one of the main arguments put forward in favor of corporate criminal liability62. But matters are not that

58 See above in 2.5.4.2.2.3. 59 See again Ambos (2013), pp. 46 et sqq. on the promising research thus far undertaken in this regard. 60 On these functions, see Kyriakakis (2009), p. 333 (at 361 et sqq.); Stewart (2013), p. 261 (at 281 et sqq.). 61 Robinson (2008), p. 925. See also Sliedregt (2012), p. 1171 (at 1172 et sqq.) on the «liberal justice model» of international criminal law and its tension with the functional perspective on international criminal justice as a «tool to enforce international norms». 62 In this regard on superior responsibility under Article 28 RS, see Stoitchkova (2010), pp. 162, 164.

384

4.3. Excursus: The corporate organization as a black box?

black and white. Proponents argue that prosecutorial efforts to prove crimes committed from within a corporate entity have to overcome particularly high hurdles as individual perpetrators can easily hide behind a socalled «corporate veil»63. This excursus is dedicated to an analysis of said claim. 4.3.1. The «corporate veil» Investigations may be complicated by a plurality of legal forms, by a «juggling with […] legal entities»: the interlocking of companies, subsidiary firms, outsourcing and transnational relations allow for a shifting of responsibilities, e.g. by liquidating juristic persons, at times executed with the specific intention to remove traces64. Cases concerning the commission of core crimes often develop with the involvement of transnational subsidiaries65. And once the causal chain has been established to the business corporation, efforts aimed at investigating an individual responsible actor may fail: Prosecutors often face a great number of suspects and highly complex company structures which need to be understood and broken open; at the same time, the target of investigation has intricate knowledge of said structures and can work to cover up or deflect from their neuralgic points, particularly the coherence of decision-making and the execution of decisions66. The diffusion of individual competences leads to a network of task and responsibility sharing often so intransparent for criminal prosecutors on the outside looking in that it may completely obstruct prosecutorial efforts: The net, it is argued, becomes practically impossible to untangle, i.e. individual duties leading to individual responsibilities can no longer be localized67. Different forms of management and informal systems and practices additionally complicate matters68. Moreover, criminal evidence may often be scarce; decision-making and execution processes are fre-

63 See Meyer (2013), p. 56 (at 56). 64 This and the following insights have been aggregated by Bock (2011), p. 121 (my translation) with reference to Schall (1996), p. 99 (at 101). 65 Bock (2011), p. 121. 66 Bock (2011), p. 121 with reference to Zirpins/Terstegen (1963), p. 161. 67 Bock (2011), p. 122 with reference to Alexander (2004), p. 41. 68 Bock (2011), p. 122 with reference to Schall (1996), p. 99 (at 101).

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quently not documented and employees with knowledge of such facts can be silenced under pressure of dismissal or via monetary incentives69. 4.3.2. …and how to lift it Yet, such arguments do not stand unchallenged. It is argued that complete chains of evidence may well be established and are even likely to be established in prosecutions involving business corporations70. Business corporations have the need to store information, therefore producing a high number of written documents: As such, organization charts and job descriptions provide easy access to first grounds for localizing potentially responsible individuals; additionally, communication is often conducted along the strands of a formalized network of information, via email or via intranet communication; and the process of decision-making and execution is constantly accompanied by the drafting of memos, instructions and protocols71. All of these documents are difficult to suppress, particularly in their entirety and without others knowing of such suppression efforts72. Admittedly, the reliability of such formalized structures is weakened by the existence of informal structures and even by successful attempts at falsification of (formal) documents; in such cases, prosecutorial efforts must be directed at ascertaining whether the involved individuals acted within or outside of the formal structure in a particular case73. Such instances are the exception, however, as a derogation of formal structures would necessarily imply an unwanted loss of overview by (other) top management officials74. In addition, in business corporations, criminal prosecutors have access to a great number of potential witnesses: Policy forming in a business corporation is – in contrast to the shaping of motives of an individual – an external process which can be observed by others; and particularly criminal acts committed for the benefit of the corporation are rarely possible

69 70 71 72 73 74

386

Bock (2011), p. 123. Bock (2011), p. 125. Bock (2011), pp. 125 et sq. with reference to Lewisch/Parker (2001), p. 62. Bock (2011), p. 126. Bock (2011), p. 126 with reference to Schünemann (2002), p. 37 (at 48). Bock (2011), p. 127 with reference to Napp (2006), p. 96.

4.3. Excursus: The corporate organization as a black box?

without the support or at least the knowledge of others75. This is true even in light of a potentially great number of employees privileged from testifying or showing loyalty for their employer due to the many confidants who have already left the company and are therefore less loyal, due to employees faced with the personal inconvenience of a civil suit for damages or due to competitors who are often particularly open for collaboration76. Lastly, the media77, as well as NGOs, can contribute to the uncovering of relevant facts. 4.3.3. Domestic experiences From a domestic perspective, the German Commission on the Reform of the Criminal Sanction System has concluded that only in exceptional cases, insufficient evidence will pose a threat to prosecutorial efforts78. This insight is supported by case history: Neither in the US cases against Enron or Worldcom nor against Siemens in Germany was a failure of establishing hard proof of significant importance79. Instead, scholars argue, the true problem concerning matters of proof lies with an excessively high number of pieces of evidence, and evidence in general, so that the capacity limits of prosecutorial agencies concerning personal and material resources are often exceeded80. This problem is aggravated further by a lack of expertise81. 4.3.4. Result The argument for a lack of sufficient evidence, therefore, rests on questionable grounds. Obstacles to proof of evidence are present in non-corporate investigations as well where they are dealt with in dubio pro reo – as

75 Bock (2011), p. 127 with reference to Schünemann (1979), p. 47 and Hafter (1903), pp. 75, 99. 76 Bock (2011), p. 127 with reference to Napp (2006), p. 95. 77 Bock (2011), p. 127. 78 See Kommission zur Reform des strafrechtlichen Sanktionensystems (2002), p. 354. 79 Engelhart (2010), p. 625. 80 Bock (2011), p. 128; Engelhart (2010), p. 628. 81 Bock (2011), p. 128 with reference to Schlüchter (1987), p. 35.

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of yet, there is no way to look inside a person’s head, e.g. to reconstruct motives82. Indeed, not all areas of criminal law regulation are as complex as economic processes; but such complexity confronts not only the practice of criminal law with difficulties and provides for sources of mistakes83. It appears to be, above all, a matter of resource allocation. 4.4. Conclusion Would corporate criminal responsibility under the Statute imply punishing the innocent? And to avoid such punishment of the innocent, would it be conceivable to have the ICC sanction a corporation without punishing it – in line with those scholars who do not consider the Statute's law criminal law proper? These questions constitute a goal conflict for any law-maker: On the one hand, to gain acceptance, the ICC must concern itself with human rights violations, regardless of their corporate – or, concerning a current matter: regional – origin. On the other hand, however, sensible purposes and effects of sanctions are just as important a factor in this legitimacy. I personally believe that criminal law can operate on the basis of a world view which accommodates business corporations as susceptible to criminal sanctions in terms of a preventive effect. I believe as well, however, that its implementation would critically shake up every criminal legal order and should therefore not be implemented when the legal order’s basis is still not very firm. To adequately address both the trade-offs involved as well as the political fears touched upon by the issue of corporate criminal responsibility, much work remains to be done in the field. The proposal to introduce corporate criminal responsibility within the ICC framework should in particular be accompanied by an investigation into the reality of international criminal justice84. This investigation will not easily escape from the diffi-

82 Bock (2011), p. 128 with reference to Schünemann (1979), p. 46. 83 Bock (2011), pp. 127 et sq. 84 In this vein also Chouliaras (2010a), p. 65 (at 94), calling for «the production of a new regime of truth that would correspond to the complex reality of international criminality». The paramount issue of corporate guilt also depends upon the perspective and position taken with regard to the aforementioned epistemological and ontological issues. Corporate criminal responsibility models that rely on corporate culture to locate corporate guilt often assume a subjectivist perspective; models that emphasize the derivative nature of corporate guilt might maintain an objec-

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cult issue of organizational agency and thereby from the daunting question of prosecuting not only individuals but also States as criminal actors in the reality of international criminal justice85. Research on the matter must more tightly connect the law with neighboring sciences such as social philosophy so that the conflicts of goals can be substantiated to the point where an informed legislative decision on the matter of organizational and corporate criminal responsibility under the Rome Statute is rendered possible. At the time of this writing, a policy decision to extend criminal responsibility beyond natural persons to organizations such as business corporations would be premature, at least from a scholar’s point of view on law-making. Instead, it is the true merit of the advent of a debate on organizational criminal responsibility under the Rome Statute to catalyze the investigation into the nature and legitimacy of the Rome Statute as criminal law proper. 4.5. References Akhvavan P (2009) Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism. Human Rights Quarterly 31(3):624–654. doi: 10.1353/hrq.0.0096 Alexander T (2004) Die strafrechtliche Verantwortlichkeit für die Wahrung der Verkehrssicherungspflichten in Unternehmen. Studien zum Wirtschaftsstrafrecht, vol 25. Centaurus-Verlag, Herbolzheim Ambos K (1999) General Principles of Criminal Law in the Rome Statute. CLF 10(1): 1–32. doi: 10.1023/A:1009495423352 Ambos K (2007) Toward a Universal System of Crime: Comments on George Fletcher's Grammar of Criminal Law. Cardozo Law Review 28(6):2647–2673 Ambos K (2013) Treatise on International Criminal Law: Foundations and General Part. Volume I. Oxford University Press, Oxford

tivist stance. See in particular the work of Braithwaite/Fisse (1988), p. 468 (at 476 et sqq.) emphasizing that «[t]he notion that individuals are real, observable, flesh and blood, while corporations are legal fictions, is false» and, again, SchmittLeonardy (2013), pp. 430 et sqq. from the subjectivist perspective of systems theory. See also Meyer (2013), p. 56 (at 82 et sqq.) and Chouliaras (2010a), p. 65 (at 73 et sq., 93 et sq.) for overviews of the debate from a doctrinal respectively a sociological perspective. 85 On this highly disputed issue, see Simpson (2009), p. 69 (at 87 et sqq.); Chouliaras (2010a), p. 65 (at 76 et sqq.); Chouliaras (2010b), p. 191 and also Fletcher (2002), p. 1499 (at 1526 et sqq.).

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5. Closing remarks

This study has aimed to establish conceptual foundations of crimes of business under the Rome Statute. During the intensive scholarly and jurisprudential debate on the matter, such foundations had only begun to emerge. The results which have been found in the above both expand upon and contrast prevailing views taken in this debate; they substantiate that individual business actors who provide material resources towards the commission of genocide, crimes against humanity, and war crimes can be held responsible both for acts of commission and for omissions as civilian superiors under Articles 6 to 8 RS. The attention devoted to both the reality subject to the Rome Statute and the limits imposed by human rights will hopefully contribute to a robust interpretation and application of the Rome Statute’s law. Given that German criminal doctrine has become a highly successful export good also due to the attention afforded to both reality structures and fundamental rights in the scholarship of Roxin and others, this hope does not seem entirely far-fetched. Beyond the individual criminal responsibility of business actors, more profound investigations into the matter of corporate criminal responsibility are in order so that trade-offs involved may be adequately assessed and political fears and desires reconciled.

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This book examines the conceptual foundations of individual and corporate criminal responsibility under the Rome Statute of the International Criminal Court on the occasion of business activity providing infrastructure, funding, or other means for the commission of crimes. The study proposes conceiving criminal responsibility with a view to the law’s subject matter, i.e. the indispensability of organization. Commission and superior responsibility then arise for collective implementations of intellectual designs. On this basis, existing jurisprudence on commission and civilian superior responsibility is critically reviewed, in particular the so-called control over the crime doctrine. The necessity to exempt socially valuable business activity from criminal responsibility is presented from a human rights perspective. Policy proposals to extend the ICC's jurisdiction to business corporations are rejected as premature given the unresolved conflict between diverging views on the reality of organizations. Thesis 1: Interpretative efforts regarding Articles 25 (3) and 28 (b) RS by the ICC and in scholarship largely preclude the prosecution of business actors but are not persuasive. The prosecution of business actors under the Rome Statute can, in principle, rely on Articles 25 (3) and 28 (b) RS. The prevailing interpretation of Article 25 (3) RS limits commission to (principal) perpetration with socalled control over the crime and civilian superior responsibility in Article 28 (b) RS to military-like superiors. These interpretations largely preclude the prosecution of business actors. Their lack of persuasiveness is above all owed to methodological shortcomings, including a disregard for the subject-matter of the law, which renders the control doctrine dysfunctional.

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Thesis 2: These shortcomings can be remedied by a typological approach to commission and omission. Abstract legal notions which refer to complex reality substrates, such as commission or omission, are impossible to define and can only be descriptively approximated by recourse to the law's subject matter. They are best conceived as types. Types possess several gradual attributes or dimensions. Dimensions are abstractions of factual circumstances of the situation. Whether the conduct in a case at hand constitutes a concretization of the type is determined by the sufficiency of overall dimensional expression of such conduct. Thesis 3: The Statute's commission (omission) type consists of the ability to take decisions significant for the violation of protected legal interests by (not preventing the) devising or implementing of an intellectual design. The Rome Statute aims to protect fundamental human rights from their violation in events of large-scale atrocity by addressing prohibitions at the key figures of the criminal events. The Statute's commission and omission types correspond with the reality structure of this means-end-relation. The reality structure can be extracted from the descriptions in Articles 6 to 8 and 25 (3) and 28 RS: Key figures of the events described are those with the ability to take decisions significant for the violation of protected legal interests. This ability rests with those who together devise or implement an intellectual design which underlies a genocidal campaign, an attack or a (dysfunctional) military campaign, as well as with those who do not prevent, repress or report the implementation of an intellectual design by their subordinates in spite of their position as superiors. Thesis 4: The commission and omission types are two-dimensional. They possess a resource and a creative dimension. Resource dimensional expression is relative to the resourcefulness upon which conduct can, and in the instant case did rely; creative dimensional expression characterizes the individual's position and interaction within the organizational context. Sufficiency of expression can be established with a view to the core area

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of the commission and omission type. For the former, this core area consists of constitution of and access to organizational resources. For the latter, it consists of conduct in possession of military authority. Business actors' conduct is therefore more likely to amount to a concretization of the commission than of the omission type. Thesis 5: The criminality of conduct is collective and qualitatively the same for all actors. Design masterminds, implementers and superiors are the subject of offense descriptions. Criminality is the product of one collective violation of the imperative not to harm protected legal interests by conduct with sufficient dimensional expression. The manner of violating protected legal interests is cooperative. The conduct’s resource and creative dimensional expression establishes an individual quota of conduct criminality. Results of this cooperative violation, i.e. of implementing the intellectual design, are the doing of key figures in the criminal event. Accordingly, mutual attribution of results occurs by recourse to a collective attribution context which is structured in accordance with the intellectual design. At the sentencing stage, in order to determine the gravity of the crime to be taken into account pursuant to Articles 77, 78 RS, an individual measure of the breach of duty is established also by recourse to the quota of conduct criminality. In the interest of the law's expressive capacity, degrees of responsibility as labels make reference to the accused’s role and are combined with the qualifiers of most, moderately or least responsible depending on the individual conduct criminality quota. Thesis 6: The social value of business activity does not call for a risk permission under the Statute. Conduct is exempt from individual criminal responsibility by way of a risk permission in order to account for its social value. Social value is determined by recourse to a constitutionalist-cosmopolitan perspective wherein the ICC is established as a just global institution. Under the Rome Statute, such risk permissions then arise by balancing and optimizing human rights principles in the forum provided by Article 21 (3) RS. Opti-

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mization of the protective and the possession human rights principles does not require an exemption for the conduct of business actors. Thesis 7: A policy decision extending the ICC’s jurisdiction to business corporations would be premature. Conflicted perspectives on the reality of organizations as well as on the nature of the Rome Statute as criminal law proper constitute delegitimizing potentials, which as trade-offs, outweigh the benefits of law reform until the ICC’s framework has become more robust. The former conflict inhibits consensus as to the configuration of the law's addressee, the latter calls into question the quality and sense of the sanctions issued by the Court.

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