The ICC Decisions on Perpetration Through an Organization: A New Form of Active Responsibility of the Superior?

Abstract

The recent decisions of the ICC referring to the theory of control over an organization have been interpreted in the sense of an acceptance of indirect perpetration through organized apparatuses of power and an innovative development of indirect co-perpetration on the same basis of imputation.

However, analysis of the case law rendered so far does not allow for such a conclusion to be drawn. That would imply, more than a mere allusion to or inspiration drawn from that doctrine, an effective proof of its requirements in each case or a justified, critical and demonstrated replacement of those elements by others, and a clear and consequent definition in relation to the remaining forms of participation, which has not happened.

Those same court decisions allow, however, for an alternative reading, which is that what we are seeing here, with an appeal to a weakened version of control over an organization, is the creation of an active mode of liability of the superior, in line with the principle of legality and suited to the application of the Rome Statute.

Keywords: ICC, perpetration through an organization, superior responsibility