Dear Readers,

The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. This Special Issue is the second in a series of two Special Issues reporting on the second trial Judgment handed down by Trial Chamber II in the case against Mathieu Ngudjolo Chui (Ngudjolo) on December 18, 2012. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the second Special Issue Legal Eye eLetter, click here.

In its final judgment, Trial Chamber II based the acquittal of Ngudjolo on its factual findings concerning his role and functions within the Lendu militia from Bedu-Ezekere, and declined to enter into any legal analysis of Ngudjolo’s criminal responsibility. The Trial Chamber concluded that the Prosecution had not demonstrated beyond a reasonable doubt that Ngudjolo had committed the alleged crimes pursuant to Article 25(3)(a)[i] with respect to his role within the Bedu-Ezekere militia.[ii] Significantly, it stated, ‘an examination of the evidence does not permit retaining, nor even envisaging, the form of indirect perpetration adopted by the Pre-Trial Chamber, whatever its interpretation of Article 25(3)(a) of the Statute’.[iii] Consequently, the Chamber did not find it necessary to analyse the objective elements of co-perpetration retained by the Pre-Trial Chamber, namely: the ‘common plan’ and Ngudjolo’s ‘essential contribution’ to the objective elements of the crime.[iv] While the Chamber did not enter into this issue in depth, Judge Van den Wyngaert issued a concurring opinion, addressing Pre-Trial Chamber I’s interpretation of Article 25(3)(a) in its decision confirming charges against Ngudjolo based on indirect co-perpetration.[v]

Judge Van den Wyngaert’s concurring opinion addressing the mode of responsibility adopted by Pre-Trial Chamber I in the confirmation decision echoed Judge Fulford’s concurrence to the trial judgment in the Lubanga case, which also called into question the interpretation of Article 25(3)(a) by Pre-Trial Chamber I. In the confirmation of charges decisions in both the Lubanga and Katanga & Ngudjolo cases, Pre-Trial Chamber I applied the ‘control over the crime’ theory in its interpretation of Article 25(3)(a), finding that it was the best means of distinguishing between principals and accessories and in ensuring the liability of principals who might be removed from the scene of the crime.[vi]

The ‘control of the crime’ theory was described by the Pre-Trial Chamber in the Lubanga and Katanga & Ngudjolo confirmation of charges decisions as follows:

Principals to a crime are not limited to those who physically carry out the objective elements of the offence, but also include those who, in spite of being removed from the scene of the crimes, control or mastermind its commission, because they decide whether and how the offence will be committed.[vii]

The Pre-Trial Chamber added that under Article 25(3)(a), a principal ‘is one who (i) physically carries out all elements of the offence (commission of the crime as an individual); (ii) has, together with others, control over the offence by reason of the essential tasks assigned to him (commission of the crime jointly with others); or (iii) has control over the will of those who carry out the objective elements of the offence (commission of the crime through another person)’.[viii]

Pre-Trial Chamber I explained that applying the ‘control over the crime’ theory to co-perpetration involved ‘the division of essential tasks between two or more persons, acting in a concerted manner, for the purposes of committing that crime[…] The fulfilment of the essential task(s) can be carried out by the co-perpetrators physically or they may be executed through another person’.[ix] It thus required the Prosecution to prove two objective elements to establish co-perpetration: the existence of a common plan and a coordinated essential contribution to it.[x] Judge Fulford (Trial Chamber I) and Judge Van den Wyngaert (Trial Chamber II) both departed from the ‘control over the crime’ approach adopted by the Pre-Trial Chamber, as well as from the requirement that the Prosecution demonstrate two objective elements to co-perpetration: the common plan and the accused’s essential contribution.[xi]

Judge Fulford’s Separate Concurring Opinion in the Lubanga Trial Judgment

Favoring a plain-text reading of Article 25(3)(a), in his separate, concurring opinion to the Lubanga trial judgment, Judge Fulford argued that the two reasons put forward by the Pre-Trial Chamber for adopting the ‘control over the crime’ principle were unnecessary and imposed an unfair burden on the Prosecution.[xii] While noting that the Pre-Trial Chamber had found this approach necessary to distinguish between principals and accessories, as well as to extend to individuals ‘notwithstanding their absence from the scene of the crime’,[xiii] Judge Fulford had rejected the concept of a ‘hierarchy of seriousness’ distinguishing between principals and accessories. He underscored that the ‘control over the crime’ approach derived from the German domestic legal system where sentencing depended upon the mode of liability, which was not the case within the Court’s statutory framework.[xiv] He had also opined that the ‘control over the crime’ approach to establish liability over principals was rendered unnecessary based on his reading of the provision in which individuals with indirect involvement, or ‘notwithstanding their absence from the scene’, could be ‘prosecuted as co-perpetrators without relying on this principle’.[xv]

Concerning the objective requirements to co-perpetration, Judge Fulford found that the Statute required only an ‘operative link between the individual’s contribution and the commission of the crime’, not that the accused’s involvement was essential.[xvi]  He further contended that rather than requiring the establishment of a ‘common plan’, co-perpetration could be demonstrated by showing ‘coordination between those who commit the offence, which may take the form of an agreement, common plan or joint understanding, express or implied, to commit a crime or to undertake action that, in the ordinary course of events, will lead to the commission of the crime’.[xvii] However, Judge Fulford acknowledged that to preserve the rights of the accused, the Trial Chamber could not change the test to a lesser one of ‘contribution’, as opposed to ‘essential contribution’, at this stage of the proceedings and without prior notice. Therefore, he concurred with the majority on this issue. For further analysis of Judge Fulford’s separate concurring opinion, see the second Special Issue of Legal Eye on the ICC on the Lubanga judgment, and the Gender Report Card 2012.

Judge Van den Wyngaert’s Concurrence to the Ngudjolo Trial Judgment

Like Judge Fulford’s concurring opinion to the trial judgment in the Lubanga case, Judge Van den Wyngaert distanced herself from the ‘control over the crime’ theory, as derived from German law and used by Pre-Trial Chamber I in the interpretation of Article 25(3)(a). She found it inappropriate to directly import national legal principles into the ICC statutory framework and concurred with Judge Fulford’s preference for a plain meaning approach to interpreting the Statute.[xviii] She further underscored the importance of strictly construing the definition of crimes as required by Article 22(2),[xix] which she argued extended to forms of criminal responsibility as well.[xx] She stated, ‘treaty interpretation cannot be used to fill perceived gaps in the available arsenal of forms of criminal responsibility’.[xxi] Similar to Judge Fulford, Judge Van den Wyngaert disagreed with the underlying premise of the ‘control over the crime’ theory, namely, an implicit hierarchy according to which principals are more blameworthy than accessories. She stated: ‘Like Judge Fulford, I see no proper basis for concluding that acting under Article 25(3)(b) of the Statute is less serious than acting under Article 25(3)(a).’[xxii]

Judge Van den Wyngaert further noted that, as in the Lubanga case, Pre-Trial Chamber I in the Katanga & Ngudjolo case had grounded its interpretation of ‘commission through another person’ based on German law to find that the ‘control over the crime’ approach was ‘predicated on a notion of a principal’s control over the organisation’.[xxiii] In contrast, finding that Article 25(3)(a) spoke only of commission ‘through another person‘, Judge Van den Wyngaert contended that ‘elevating the concept of “control over an organisation” to a constitutive element of criminal responsibility under Article 25(3)(a) [was] misguided’.[xxiv] First, she found that substituting ‘organisation’ for ‘person’ violated strict construction.[xxv] Second, she found that ‘by dehumanising the relationship between the indirect perpetrator and the physical perpetrator, the control over an organisation concept dilute[d] the level of personal influence that the indirect perpetrator must exercise over the person through whom he or she commits a crime’.[xxvi] For Judge Van den Wyngaert, the level of influence of the former over the latter should involve ‘subjugation, the domination of the individual will of the physical perpetrator’.[xxvii]

Like Judge Fulford, Judge Van den Wyngaert took issue with the objective elements of co-perpetration, namely the existence of a common plan and the accused’s essential contribution to it. Observing that a common plan constituted a ‘crucial’ objective element in the Pre-Trial Chamber’s interpretation of ‘joint perpetration’, Judge Van den Wyngaert noted that the term ‘common plan’ appeared nowhere in the Statute, nor in the travaux préparatoires.[xxviii] She found the common plan requirement to be overly rigid as an objective element as it did not cover instances where two or more people ‘spontaneously commit a crime together on an ad hoc basis’.[xxix] She explained that as an objective element, the common plan turned the focus ‘away from how the conduct of the accused [was] related to the commission of a crime to what role he/she played in the execution of the common plan‘.[xxx]

Judge Van den Wyngaert also observed that the ‘essential contribution’ requirement was premised on the idea that the perpetrator should control the commission of the crime, and thus flowed from the ‘control over the crime’ theory. Judge Van den Wyngaert agreed with Judge Fulford that there was no statutory support for the essential contribution requirement.[xxxi] She found that it compelled ‘Chambers to engage in artificial, speculative exercises about whether a crime would still have been committed if one of the accused had not made exactly the same contribution’.[xxxii] However, while Judge Fulford had suggested that the required level of contribution be a ‘causal link between the individual’s contribution and the crime’, Judge Van den Wyngaert found causality to be too ‘elastic’.[xxxiii] Rather, she suggested that for joint perpetration, there must be ‘a direct contribution to the realisation of the material elements of the crime’ to be determined in the specific circumstances of each case.[xxxiv]

As noted above, with the exception of the crimes related to the use of child soldiers, the Pre-Trial Chamber confirmed the charges against Ngudjolo based on ‘indirect co-perpetration’.  Judge Van den Wyngaert observed that in doing so, the Pre-Trial Chamber combined ‘joint perpetration’ with ‘perpetration through another person’ to introduce the concept of ‘indirect co-perpetration’, and that it had found no legal obstacle in doing so.[xxxv] Judge Van den Wyngaert thus identified ‘indirect co-perpetration’ as a fourth alternative to the existing three provided in Article 25(3)(a), namely perpetration, joint perpetration, and perpetration through another person. She found this interpretation of the Statute ‘unconvincing’ as it led to ‘a radical expansion of Article 25(3)’ and ‘a totally new mode of liability’.[xxxvi]

Judge Van den Wyngaert described this mode of liability as the creation of a ‘new diagonal axis’, with ‘joint perpetration’ constituting a horizontal axis and ‘perpetration through another’ constituting a vertical axis.[xxxvii] She thus found that according to Pre-Trial Chamber I’s interpretation, it was possible to confirm charges based on this newly created mode of liability, ‘indirect co-perpetration’, without being able to confirm either joint perpetration, or indirect perpetration, both explicitly included in the Statute. She stated: ‘One needs to look no further than the (now largely discredited) facts confirmed by the Pre-Trial Chamber in the current case for an example of how this could be so.’[xxxviii]

Read the trial judgment acquitting Ngudjolo

Read the separate and concurring opinion by Judge Van Den Wyngaert

Read the first Special Issue of Legal Eye on the ICC on the Ngudjolo judgment

For more background about the case against Ngudjolo see the Gender Report Card 2012, 2011, 2010, 2009 and 2008

See also the series of Special Issues of Legal Eye on the ICC on the Lubanga judgment

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