SIPHOSAMI MALUNGA
THE Nuremberg Trials relied on Bernays’s theory of collective criminality to address the issue of multiple perpetrators of international crimes.
Bernays envisaged that Nazi crimes were the result of organisations comprising several individuals coming together to design and execute a criminal plan to exterminate Jews.
Thus the initial step was identifying and categorising these criminal groups. The second was identifying the actors and the different roles they had played. Membership of a criminal organisation raised a prima facie (albeit rebuttable) presumption of participation in the criminal plan of the organisation. In the post-Nuremberg era, the International Criminal Tribunals (ICTs) have embraced collective and system criminality under the concepts of common purpose and complicity.
The International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for Yugoslavia (ICTY) distinguishes participation in international crimes based on the dichotomy between principal and accessories.
The approach has been that there are principals to crimes who are assisted by accessories.
In general terms, the ICTs do not adopt the concept of co-perpetration opting instead for “Joint Criminal Enterprise (JCE)’ (discussed in the following section). But in Stakić, the ICTY attempted to conflate co-perpetration with principal perpetration or liability. This approach was rejected by the Appeals Chamber which held that instead of co-perpetration, the
appropriate approach to attributing criminal liability should have been JCE, which the Appeals Chamber held was ‘firmly established under customary international law.”
Unlike the ICTY, the ICTR has been ambivalent on the issue of co-perpetration. The broadening of the approach to commission by the Appeals Chamber in Gacumbitsi and Seromba discussed above, expanded perpetration beyond direct perpetration and JCE to co-perpetration. Seromba was reaffirmed by the ICTY in Lukic and Lukic.
Notably in Seromba the ICTR Appeals Chamber held that direct perpetration of commission is not the only criteria for determining participation. The Court held that:
… whether a person “acts with his own hands, e.g., when killing people, is not the only relevant criterion” when assessing whether that person committed the crime. Further, for the actus reus of murder, it is sufficient that the ‘perpetrator’s conduct contributed substantially to the death of that person,’ and that [a] person who plays a central role in the commission of the crime of murder and embraces and approves as his own the decision to commit murder is not adequately described as an aider and abettor but qualifies as a direct perpetrator who committed the crime.
The net result in summary, is that co-perpetration is unsupported by customary law and has been rejected by the Appeals Chambers at the ICTY in Stakić and embraced by the ICTR Appeals Chamber in Gacumbitsi and Seromba.
Co-perpetration is an accepted and autonomous form of criminal responsibility at the ICC. Article 25(3)(a) of the Rome Statute provides for perpetration ‘jointly with another.’
The ICC Pre-Trial has outlined the concept of co-perpetration in Lubanga Confirmation Decision. Relying on the ‘control of the crime’ theory, which provides that a perpetrator has control over an offence committed with others by virtue of the ‘essential tasks assigned to them.’
Co-perpetration implies a ‘division of the essential tasks for the purpose of committing a crime between two or more persons in a concerted manner.’
Finally, essentiality of contribution is key and a person can be held accountable as co-perpetrator when he/she ‘could frustrate the commission of the crime by not carrying out his or her task.’
Most significantly, the ICC concluded that a perpetrator’s contribution to a crime could have taken place earlier, including instigating, planning and inciting, and need not be related specifically to execution.
Reaffirming this reasoning, the ICC held in Katanga that contributions including designing an attack, supplying the weapons and ammunitions, exercising power to move troops to the field, coordinating and monitoring the activities of these troops, may all constitute contributions that amount to co-perpetration.
The ICC has held that an essential prerequisite for co-perpetration is a ‘common plan or agreement’ to commit a crime, but need not be directed at the commission of that crime.
In Katanga, however, the ICTR Pre-Trial Chamber held that ‘the common plan must include the commission of a crime’.
With regard to whether the contribution by a co-perpetrator must be related to the commission of a crime, the ICTY Appeals Chamber has held that an accused’s contribution to a JCE need not be criminal in and of itself, and may consist of acts that might be regarded as neutral political or military activity.
As long as the acts significantly contribute to the common criminal objective they can generate criminal liability.
Sliedregt makes a compelling argument that this approach could apply in the context of co-perpetration at the ICC and bring into conformity the Lubanga and Katanga et al rulings that at present seem inconsistent on this point. Affirming the ICTY Appeals Chamber decision in Krajisnik, the ICC Pre-Trial Chamber, has held in Lubanga that a common plan need not be explicit; and that its existence can be inferred from the concerted action of the co-perpetrators. Lubanga outlines the mental or subjective requirements for perpetration as (1) awareness of the offence to be committed and acceptance of it, and (2) awareness of an essential role in the common plan.
The ICC took an expansive approach to ‘awareness’ finding that it is enough for a perpetrator to be merely ‘aware of the risk that the objective elements of the crime might result from their actions or omissions and accepts such an outcome by reconciling them with it or consenting to it.’
Applying a very expansive interpretation to co-perpetration, the ICC Pre-Trial Chamber in Katanga et al found that although unlike in Lubanga, ‘the defendants were thought not to have carried out any of the objective elements of the crimes directly; they used others to do that, through an Organised Structure of Power (OSP) in which they exercised control of the will and acts of the physical perpetrators.’
The expansive approach to co-perpetration taken by the ICC in Lubanga and Katanga, which includes planning and designing an attack, supplying the weapons and ammunitions, exercising power to move troops to the field, coordinating and monitoring the activities of these troops implicates the top political and military leadership in Zanu and Zimbabwe National Army (ZNA). The Ministry of Defence, headed by Sydney Sekeramayi, supplied the weapons and ammunition used by Five Brigade in committing atrocities.
Also, the military leadership in the ZNA, such as the then Lieutenant-Colonel Perrance Shiri who commanded Five Brigade and was deputised by Lieutenant-General Edzai Chimonyo as well as Senior Assistant Police Commissioner Emelio Svaruka and subsequently succeeded by Brigadier-General Emilio Munemo, exercised power to move Five Brigade troops to the field.
The fact that after a meeting between the Catholic Commission for Justice and Peace and the late former president Robert Mugabe, when a dossier of atrocities being committed by Five Brigade was presented, there was a change in Five Brigade tactics which saw a decline in atrocities.
This indicates the degree of control that Mugabe had on the actions of Five Brigade. The prerequisite for co-perpetration is a common plan or agreement to commit a crime.
In this regard it has been shown that the political leadership of Zanu sought to establish a one-party state and, in the process, eliminate Zapu political support, which was the biggest stumbling block to this objective.
This entails individuals such as Mugabe, then prime minister, and senior cabinet ministers such as Sekeramayi and military leadership such Shiri, Chimonyo, Svaruka and Munemo, who allegedly designed and exercised a degree of control of the actions of Five Brigade pursuant to a common plan to eradicate Zapu’s political support and establish a one-party state, are liable for co-perpetration of the crimes committed by Five Brigade.
About the writer: Dr Siphosami Malunga is an international criminal lawyer.
