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/
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