Indirect Perpetration and Organisationsherrschaft An Analysis of Art. 25(3)(a), Third Alternative, ICCSt Taking Into Account the ‘German’ Differentiated Model and the ‘Italian’ Unitarian Model of Participation in a Crime

The present study focuses on a peculiar form of criminal responsibility that appeared for the first time in the history of international criminal law in art. 25(3)(a), third alternative, ICCSt: known as indirect perpetration through a responsible person. This form of criminal responsibility unexpectedly became one of the ICC judges’ most favoured modes of liability in order to hold individuals in leadership-like positions – such as leaders of sovereign nations, heads of criminal organisations and military chiefs – responsible for the crimes committed by their subordinates. In order to interpret this mode of liability, the majority of the ICC judges relied on the Organisationsherrschaftslehre, a theory elaborated by Claus Roxin in 1963 and further developed in the years following its inception. Nevertheless, in light of a deep analysis of the German theory, it is possible to state that the control over the organization theory resulting from its application at the ICC differs significantly from its original version. The adoption of the theory at the ICC is based on the following premises: (i) the wording of art. 25(3)(a), third alternative, ICCSt; (ii) the implicit recognition of a differentiated model of participation in a crime in art. 25(3) ICCSt; (iii) the acceptance of the control over the act theory as a criterion for distinguishing principals from accessories to a crime; and (iv) the prevailing hierarchical reading of the provision. Departing from the main (and controversial) premises over which the implementation of the theory at the ICC is based, this study seeks to determine whether it is still necessary, or at least appropriate, to rely on the control over the organization theory to interpret and apply art. 25(3)(a), third alternative, ICCSt. Because of this, the comparison with the mechanisms adopted by the Italian unitarian model of participation in a crime to solve scenarios potentially reflected by the Organisationsherrschaftslehre plays a relevant role. The Italian legal system adopted several solutions in order to attribute responsibility to leaders of criminal organisations for the crimes committed by their subordinates in the implementation of the organisational strategy. Such an approach is used as a source “of ideas and concepts” which may be able to successfully counter the criticism that has been raised against the dominant approach developed at the ICC. It is reasonable to conclude that, regardless of the model of responsibility adopted by art. 25(3) ICCSt, the interpretation of art. 25(3)(a), third alternative, ICCSt along the lines of the control over the organization theory should and must be accepted. Although the theory needs to be further refined and developed, thus far it constitutes not only a “possible” way of interpreting art. 25(3)(a), third alternative, ICCSt, but also the “favourable” way of engaging in such an interpretation. It also serves as the basis for the development of an autonomous international criminal law doctrine on indirect perpetration, which merges the collective nature of international crimes with the individual criminal responsibility of those who are far removed from the scene of the crime for the criminal offences committed through the organisation they control.