A/HRC/41/CRP.1 criminality”211 and (b) an essential contribution by each co-perpetrator in the commission of a crime.212 241. The ICC courts recognize “indirect perpetration” as a form of direct criminal responsibility under Article 25(3)(a), under which, because of the “hierarchical relationship” between the perpetrator and his subordinate, the perpetrator commits a crime “through another person”.213 In recent years, that concept has been expanded to include indirect coperpetration. Under this theory, individuals can be held responsible when he “acts jointly with another individual” and that other individual “controls the person used as an instrument”. 214 This form of responsibility contemplates an “organized and hierarchical apparatus of power” where the “execution of the crimes must be secured by almost automatic compliance” with orders.215 242. Both direct and indirect forms of responsibility are designed to capture the likely involvement of superiors, and both are often charged against individual officials in international criminal cases, as it is not always possible to prove a specific order. 243. National criminal law differs on the respective weight attributed to the criminal conduct (actus reus) and the mental state (mens rea), and whether various forms of complicity (e.g., aiding and abetting) lead to the same level of criminal responsibility. However, there is considerable consensus across systems over the types of criminal conducts, including commission and omission liability, and over the different mental states, including purpose, knowledge and dolus eventualis (somewhat similar to recklessness or wanton disregard). Intent in the form of dolus eventualis (or indeed criminal negligence) is sufficient to result in liability for murder. Inciting the commission of a murder, along with aiding and abetting (or complicity) in the commission of a murder may also result in liability for murder or manslaughter across national systems.216 Responsibility of High-Level Officials or Command Responsibility217 244. A critical question is the potential criminal liability of high-level officials – those who are often “most responsible” as the “masterminds or architects” of the crime. Much attention has been focused on whether the Crown Prince himself ordered the murder. However, this focus on “ordering” the crime and on finding the “smoking gun” creates expectations which legal systems, both domestic and international, may not be able to meet. The search for justice and accountability for human rights violations should also and as importantly require identifying those that have abused their influence and power or failed to act with the diligence required of their positions. 245. The International Convention on Enforced Disappearances (Article 6(1)) also demands that States hold Superiors criminally responsible if they (i) knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance; (ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and (iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and 211 212 213 214 215 216 217 Lubanga Decision on the Confirmation of Charges, paras. 343-344. Lubanga Decision on the Confirmation of Charges, para, 345. Ibid., para. 318, 341, n. 420. Prosecutor v. Katanga and Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 493. Prosecutor v. Ntaganda, Decision on the Prosecutor’s Application under Article 58, ICC-01/04-02/06, 13 July 2012, para. 67. See e.g. Kevin Jon Heller and Markus D. Dubber (eds), The Handbook of Comparative Criminal Law, Stanford University Press, 2010; Markus D. Dubber, Criminal Law in Comparative Context, in Journal of Legal Education, Vol. 56, No. 3 (September 2006), pp. 433-443; Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law, Oxford University Press, 2006 For an overview of what command responsibility entails, including under the Convention for the Protection of All Persons Against Enforced Disappearances, please see: https://www.legal-tools.org/doc/7441a2/pdf/ 49