Criminal responsibility for contributing to a group acting with a common purpose is a key – yet controversial – issue in ICL. On the one hand, it is well-known that international crimes are normally committed by groups of people acting pursuant to joint plans or agreements. This calls for liability theories that establish responsibility based on the accused’s participation in a collective criminal effort. On the other hand, the principles of individual criminal responsibility and personal guilt proscribe the attribution of crimes committed by others to the accused merely because of his/her membership in a group or organization.

While it is impossible to summarize the findings of this book, a few observations, points of interest, can be made. First of all, a few words on the customary law status of the modes of liability and inchoate concepts of liability that we discuss.

Commission is a well-established form of liability in ICL. In the Tadić Appeal Judgment, the ICTY confirmed that commission is first and foremost ‘the physical perpetration … by the offender himself’. Additionally, multiple other forms of commission exist, some of which do not necessarily require that a perpetrator commit a physical offence directly.

Historically, aiding and abetting, as such, was not included in the Charter of the Nuremberg Tribunal or the Charter of the Tokyo Tribunal. Rather, Control Council Law No. 10 first provided for the criminal prosecution of persons who were ‘accessor[ies] to the commission of any … crime or ordered or abetted the same’. Oddly, aiding and abetting was also not explicitly included in the 1950 Nuremberg Principles or the 1954 ILC Draft Code of Crimes – in both documents ‘complicity’ is employed – but it reappeared in Article 3(2) of the 1991 ILC Draft Code of Crimes and in Article 2(3)(d) of the 1996 ILC Draft Code of Crimes. Nonetheless, it is now consistently found in the Statutes of all modern international criminal tribunals.

Ordering, a very close relative of instigating, has generally been considered an accessorial mode of liability, particularly at the ICC (despite the contrary view of some commentators). In light of its elements, ordering could even be described as ‘aggravated instigating’. While ordering can be found in the statutes of all modern international criminal tribunals, its requisite elements have not been subject to significant controversy or focused academic scrutiny. These elements can be traced back to the moment the ICTY first turned its attention to modes of liability. It held, on the basis of numerous World War II modes of liability cases, that most modes (including ordering) require intent on the part of the accused and that the accused’s actions contribute to the relevant crime.

Despite recent developments, prosecuting attempts to commit international crimes have typically been rare at the international level. The infrequency of prosecution can be explained by several factors. Some scholars have argued that attempt liability for war crimes, crimes against humanity or genocide might not have met the ‘seriousness requirement’ in order to be brought within the ICTY and the ICTR’s respective jurisdictions or might not ‘have implicated the collective considerations of peace and security that animated the creation of the tribunals in first instance’. Moreover, according to Schabas, prosecuting attempted international crimes was not entirely necessary since international courts and tribunals were generally established ex post facto, that is once such crimes have already been committed.

Historically, aiding and abetting, as such, was not included in the Charter of the Nuremberg Tribunal or the Charter of the Tokyo Tribunal. Rather, Control Council Law No. 10 first provided for the criminal prosecution of persons who were ‘accessor[ies] to the commission of any … crime or ordered or abetted the same’. Oddly, aiding and abetting was also not explicitly included in the 1950 Nuremberg Principles or the 1954 ILC Draft Code of Crimes – in both documents ‘complicity’ is employed – but it reappeared in Article 3(2) of the 1991 ILC Draft Code of Crimes and in Article 2(3)(d) of the 1996 ILC Draft Code of Crimes. Nonetheless, it is now consistently found in the Statutes of all modern international criminal tribunals.

Command responsibility, as a modern doctrine of criminal law, originates in the atrocities committed by members of the Imperial Japanese Army in the Philippines between 9 October 1944 and 2 September 1945. That the atrocities – starvation, execution, rape and burning of homes – violated the laws of war is uncontroversial. More controversial, and of enduring doctrinal interest, was the potential individual responsibility of General Yamashita, Commanding General of the Imperial Army’s Fourteenth Group prior to his surrender to US forces.

This chapter examines the concept of co-perpetration, as defined and developed in the jurisprudence of the ICC. To this end, the research contained herein is divided into two separate, yet interrelated, parts that focus on the two distinct forms of co-perpetration, which the Court has recognized in its case law: ‘direct’ and ‘indirect’ co-perpetration.

INTRODUCTION

The law makes a fundamental distinction between peace and war. During times of war, the extensive peacetime constraints on the exercise of violence are relaxed and give way to the far more permissible rules of international humanitarian law (IHL) as informed and influenced by human rights law. As a result, we would like to think that in our modern world, unlike in times gone by, war is no longer a free-for-all in which victory is put above any law, morality, or humanity – the famous Martens Clause can be cited as evidence of this mentality. Yet, crimes inevitably occur in armed conflict – one would be hard-pressed naming a war that was completely bereft of criminal activity. Indeed, if one were to speak to anyone who has actually lived through and fought in wars – rather than only having read about them – they will attest to the horrors, bloodshed, and anguish that they entail. The effects of war do not end when the firing stops. Even where international humanitarian law is generally respected, mentally, if not psychically, the men and women who experience war firsthand soon realize that they are no longer the same person. War has a way of fundamentally changing all those involved – and not necessarily for the better. It is thus not surprising when, during remembrance services around the world every year, mature men and women who lived through the effects of armed conflicts that ended many decades ago still vividly remember their experiences. So much so that it brings many of them to tears.

This is perhaps why the International Military Tribunal (IMT) at Nuremberg was of the opinion, as far back as 1947, that “[w]ar is essentially an evil thing.”