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Lanza, G. (2021). Indirect Perpetration and ›Organisationsherrschaftslehre‹. An Analysis of Article 25(3) of the Rome Statute in Light of the German Differentiated and Italian Unitarian Models of Participation in a Crime. Duncker & Humblot. https://doi.org/10.3790/978-3-428-58359-1
Lanza, Giulia. Indirect Perpetration and ›Organisationsherrschaftslehre‹: An Analysis of Article 25(3) of the Rome Statute in Light of the German Differentiated and Italian Unitarian Models of Participation in a Crime. Duncker & Humblot, 2021. Book. https://doi.org/10.3790/978-3-428-58359-1
Lanza, G (2021): Indirect Perpetration and ›Organisationsherrschaftslehre‹: An Analysis of Article 25(3) of the Rome Statute in Light of the German Differentiated and Italian Unitarian Models of Participation in a Crime, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-58359-1
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Indirect Perpetration and ›Organisationsherrschaftslehre‹
An Analysis of Article 25(3) of the Rome Statute in Light of the German Differentiated and Italian Unitarian Models of Participation in a Crime
(2021)
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About The Author
Giulia Lanza studied law at the University of Verona (Italy). In 2010 and 2011 she worked at the ICTY and at the ICC as a legal assistant. In 2014 she was admitted to the Italian Bar Association. She spent several research periods abroad, in particular in Göttingen, at the Institute of Criminal Law, Criminal Procedure and International Criminal Law, Department for Foreign and International Criminal Law and in London, at the Department of Law of the University of Middlesex. In 2018, she earned a European PhD (“Doctor Europaeus”) in European and International Legal Studies according to a cotutelle agreement between the University of Verona and the Georg-August Universität Göttingen. She has been a research associate in Criminal Law at the Department of Law of the University of Verona. Her main fields of research are criminal law, international criminal law, humanitarian law, cybercrime and cyberwarfare.Abstract
The book analyses indirect perpetration within the meaning and interpretation of article 25(3)(a), third alternative, of the Rome Statute from a comparative perspective. Through a critical analysis, Giulia Lanza examines the control over the organization theory, adopted by the majority to interpret the provision. The objective of the author is to verify whether the dominant approach - resulting from the transposition of Roxin’ s Organisationsherrschaftslehre at the ICC - constitutes a feasible solution in the interpretation and application of article 25 (3)(a), third alternative, of the Rome Statute, or whether it is preferable to rely on different approaches inspired by other legal systems, such as the Italian system. The author concludes that the reliance on the Organisationsherrschaftslehre constitutes an important step in the path towards the development of autonomous ICL doctrine regarding indirect perpetration.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Acknowledgements | 7 | ||
| Table of Contents | 9 | ||
| List of Abbreviations | 13 | ||
| A. Introduction | 17 | ||
| I. The Problem | 17 | ||
| II. Objective of the investigation | 20 | ||
| III. Methodology | 21 | ||
| IV. Terminology | 23 | ||
| B. The Organisationsherrschaftslehre | 27 | ||
| I. Context and origin | 27 | ||
| II. The Organisationsherrschaftslehre as an autonomous form of indirect perpetration | 32 | ||
| 1. Theoretical foundations | 32 | ||
| 2. The constitutive elements of the Organisationsherrschaftslehre | 35 | ||
| a) The existence of a hierarchical power apparatus and the command authority of the indirect perpetrator | 35 | ||
| aa) The existence of a hierarchical power apparatus | 35 | ||
| bb) The command authority of the indirect perpetrator | 37 | ||
| b) The detachment of the apparatus of power from the law | 41 | ||
| c) The fungibility of the direct perpetrators | 43 | ||
| d) The direct perpetrator’s disposition to commit the act | 46 | ||
| 3. The definition of the Organisationsherrschaftslehre according to Roxin | 49 | ||
| III. Alternative solutions to the Organisationsherrschaftslehre | 50 | ||
| 1. Co-perpetration | 50 | ||
| 2. Instigation | 52 | ||
| C. Towards the application of the control over the organisation theory at the ICC | 55 | ||
| I. The premises of the adoption of the Organisationsherrschaftslehre at the ICC | 55 | ||
| 1. The codification of indirect perpetration in art. 25(3)(a), third alternative, ICCSt | 55 | ||
| 2. Does art. 25(3) ICCSt provide for a differentiated participation model? | 59 | ||
| a) General remarks on the normative context of indirect perpetration within the meaning of art. 25(3)(a) ICCSt | 59 | ||
| b) The dominant approach | 65 | ||
| c) The minority approach | 69 | ||
| d) Concluding observations | 72 | ||
| 3. The adoption of the control over the crime theory as a criterion to distinguish principals from accessories to a crime | 76 | ||
| a) A peculiar demand of the differentiated participation models | 76 | ||
| b) The dominant approach | 81 | ||
| aa) The Lubanga case | 81 | ||
| bb) The Katanga and Ngudjolo cases | 84 | ||
| c) The minority approach | 86 | ||
| aa) The Lubanga case | 86 | ||
| bb) The Katanga and Ngudjolo cases | 87 | ||
| d) Conflicting approaches: the dominant approach v. the minority approach | 88 | ||
| e) The normative approach v. the naturalistic approach | 89 | ||
| f) Concluding observations | 92 | ||
| II. The interpretation and application of art. 25(3)(a), third alternative, ICCSt | 94 | ||
| 1. The appearance of the Organisationsherrschaftslehre in ICL: a feeble and uncertain attempt (the ad hoc Tribunals) | 95 | ||
| a) ICTY: the Stakić case and the Milutinović et al. case | 95 | ||
| b) ICTR: Judge Schomburg’s separate opinion appended to the Gacumbitsi appeals judgment | 98 | ||
| c) Concluding observations | 100 | ||
| 2. The introduction of the Organisationsherrschaftslehre in the case law of the ICC | 101 | ||
| a) The Lubanga case | 103 | ||
| b) The Bemba case | 104 | ||
| c) The Al Bashir case | 105 | ||
| d) The Katanga and Ngudjolo cases | 108 | ||
| aa) Factual background and procedural history | 108 | ||
| bb) The Katanga and Ngudjolo confirmation of charges decision | 110 | ||
| cc) The Ngudjolo trial judgment | 114 | ||
| dd) The Katanga trial judgment | 115 | ||
| e) The Gaddafi case | 118 | ||
| f) The Muthaura, Kenyatta and Ali case and the Ruto, Kosgey and Sang case (the Kenya cases) | 121 | ||
| g) The Ntaganda case | 127 | ||
| h) The Al Hassan case | 131 | ||
| 3. Article 25(3) ICCSt in light of the Organisationsherrschaftslehre | 132 | ||
| a) The application of the control over the organisation theory: indirect co-perpetration and joint indirect perpetration | 132 | ||
| b) The elements of the control over the organisation theory: in search of a definition | 136 | ||
| aa) The existence of an organised and hierarchical apparatus of power | 138 | ||
| bb) The commission of the crimes must be secured by almost automatic compliance with the indirect perpetrator’s orders | 139 | ||
| cc) The indirect perpetrator’s control over the organisation | 141 | ||
| dd) The indirect perpetrator’s fulfilment of the subjective elements of the crimes, including any required additional intent | 143 | ||
| ee) The indirect perpetrator’s awareness of the factual circumstances enabling him or her to exercise control over the crime through the organisation | 143 | ||
| c) A definition of the control over the organisation theory on the basis of the case law | 144 | ||
| 4. Critical observations and open questions | 144 | ||
| III. The theoretical foundations of the control over the organisation theory | 149 | ||
| 1. The theoretical foundations of the control over the organisation theory according to the case law of the ICC | 150 | ||
| 2. Art. 21 ICCSt and the sources of law regime provided by the Rome Statute | 157 | ||
| 3. The Vienna Convention on the Law of Treaties (VCLT) | 161 | ||
| 4. The principle of legality | 164 | ||
| a) The principles of strict construction and in dubio pro reo | 165 | ||
| b) Is the prevailing interpretation of art. 25(3) ICCSt in conflict with the principle of legality? | 167 | ||
| 5. Conclusion | 168 | ||
| D. The application of the Organisationsherrschaftslehre in domestic jurisdictions | 172 | ||
| I. General remarks | 172 | ||
| 1. Argentina | 173 | ||
| 2. Germany | 177 | ||
| 3. Chile | 179 | ||
| 4. Peru | 180 | ||
| a) The Abimael Guzmán Reynoso et al. case | 180 | ||
| b) The Fujimori case | 184 | ||
| 5. Colombia | 190 | ||
| II. Concluding observations on the application of the Organisationsherrschaftslehre | 192 | ||
| 1. General observations | 192 | ||
| 2. Evidentiary issues | 194 | ||
| III. Conclusion | 196 | ||
| E. An Italian approach to art. 25(3)(a), third alternative, ICCSt | 201 | ||
| I. The prosecution and punishment of leaders in collective contexts in the Italian legal system | 201 | ||
| 1. The Italian unitarian model of participation in a crime: origin and normative context | 202 | ||
| 2. Indirect perpetration in the Italian legal system | 207 | ||
| 3. Moral participation | 210 | ||
| a) The causal contribution to the crime | 211 | ||
| b) The mental element | 212 | ||
| c) Evidentiary issues | 214 | ||
| 4. The Italian case law and its development | 215 | ||
| a) The judgment of the Joint Chambers of the Court of Cassation in the Kofler case: a milestone decision | 216 | ||
| b) The period of the terrorist emergency | 216 | ||
| aa) The Alunni and Formazioni Comuniste Combattenti case | 217 | ||
| bb) The trials against the Red Brigades | 219 | ||
| cc) Subsequent case law: in particular, the Marino et al. case | 221 | ||
| c) The mafia trials | 222 | ||
| aa) The Abbate et al. case | 222 | ||
| bb) The Madonia et al. case | 225 | ||
| cc) Subsequent case law | 226 | ||
| d) The crimes committed in macro-criminal contexts | 228 | ||
| aa) The Astiz et al. case | 228 | ||
| bb) The Arce Gomez et al. case (the Condor case) | 230 | ||
| e) Concluding observations | 237 | ||
| II. The Katanga and Ngudjolo case and the Italian legal system | 241 | ||
| F. Conclusion | 245 | ||
| Bibliography | 250 | ||
| Table of cases | 274 | ||
| Index | 281 |