A/HRC/41/CRP.1
Arabia has not yet charged. No country has offered explanations as to how they selected the
targeted individuals and why they excluded others.206
237. The inquiry undertaken by the Special Rapporteur is not that of a court of law. As
such it has neither the mandate nor the resources to make final judgement as to the criminal
liability of specific individuals. What it can do and has done is to assess the facts, as
developed to date, to determine, on that basis, whether there are reasonable grounds
suggesting criminal liability warranting further investigations.
238. This objective raises the question of the legal framework against which individual
responsibilities for the execution of Mr. Khashoggi are to be analysed. The Special
Rapporteur is referencing below the standards of individual liability that may be found in the
International Convention on the Protection of All Persons Against Enforced Disappearance
and the Convention Against Torture, as well as international criminal law. In setting these
forth, the Special Rapporteur is not advocating for a specific form of responsibility or making
a judgement between various theories of criminal responsibility. The standards she outlines
are intended only to provide context for the facts described and are not intended to suggest
that individuals should be charged with a particular crime. The decision as to the appropriate
legal framework and what charges, if any, should be brought against which individual is left
to whatever forum or tribunal might be constituted to further investigate this matter.
Individual Liability Standards
239. Under the International Convention against Enforced Disappearances, “any person
who commits, orders, solicits or induces the commission of, attempts to commit, is an
accomplice to or participates in an enforced disappearance” should be held criminally
responsible 207 . Under international criminal law, any person who “planned, instigated,
ordered, committed or otherwise aided and abetted in the planning, preparation or execution”
of a crime is “individually responsible for the crime.”208 This includes those who physically
perpetrated the crime as well as those who jointly committed the crime or did so through
another person.209
240. Both the International Criminal Court (“ICC”) and ad hoc tribunals have articulated
theories of co-perpetration or joint action. The ICC has imposed criminal responsibility on
individuals under Article 25(3)(a) for performing “an essential task in the joint commission
of the crime”210. This concept of co-perpetration requires (a) the “existence of an agreement
or common plan between two or more persons”, which “include[s] an element of
206
207
208
209
210
48
Please refer to Table D, Part I of this Annex.
International Convention for the Protection of All Persons from Enforced Disappearances, Article 6(1
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Law Committed in the Territory of the former Yugoslavia since 1991, 32
ILM 1159, (1993), as amended by Security Council Resolution 1660 of 28 February 2006 (“ICTY
Statute”), Art. 7(1); Statute for the International Tribunal for Rwanda, (1994) 33 ILM 1602, as
amended by Security Council Resolution of 26 March 2004 (“ICTR Statute”), Art. 6(1); see The
Prosecutor v. Delalic et al (“Celebici”), Case No. IT-96-21, Judgement, 16 Nov. 1998, para. 319-21
(finding that this constituted international customary law).
Unlike the statutes constituting the ad hoc tribunals of the former Yugoslavia and Rwanda, the Rome
Statute of the International Criminal Court provides a hierarchy of responsibility under Article
25(3)(a)-(d). See Rome Statute of the International Criminal Court, entered into force 1 July 2002,
UN Doc. A/CONF. 183/9(1998) (“Rome Statute), Art. 25. The Special Rapporteur does not address
this hierarchy and any differences with the jurisprudence of the ICTY and ICTR, particularly as to
whether various levels of involvement represent different degrees of criminal responsibility. Article
25(3)(a) of the Rome Statute covers “the notions of direct perpetration (commission of a crime in
person), co-perpetration (commission of a crime jointly with another person) and indirect perpetration
(commission of a crime through another person, regardless of whether the other person is criminally
responsible).” The Prosecutor v. Lubanga (ICC-01/04-01/06-803-tEN), Decision on the
Confirmation of Charges, Pre-trial Chamber 1, 29 January 2007, para. 318.
Lachezar D. Yanev, Theories of Co-perpetration in International Criminal Law (Leiden, Brill I Nijhoff, Leiden,
2018), 32.
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