SYNOPSIS

INTERNATIONAL CRIMINAL COURT: PROSECUTION OF A CORPORATE ENTITY

AS AN INDIRECT CO-PERPETRATOR OF CRIMES
PALAK KAUSHAL, 2016BALLB11

1. INTRODUCTION OF TOPIC
The doctrine of indirect co-perpetration is a mode of principal liability which has been applied
recently by the International Criminal Court, famously in the Katanga and Chui decision, the
Bemba decision, the Al Bashir decision and most recently in the Kenyatta and Muthaura decision.
This mode of liability appears to be an amalgamation of joint commission and commission
through another person. The Defense in the above cases argued that the doctrine neither exists in
terms of a strict textual interpretation of Article 25(3)(a). Justice Christine Van Wyngaert
described the doctrine as a “radical expansion” of Article 25(3)(a).

The Pre-Trial Chamber in Lubanga held that the concept of perpetration under the Statute of the
International Criminal Court is based on the “control over crime” approach propagated by
German scholar, Claus Roxin. In terms of this approach, an individual has “control over the
crime” if he or she is the physical perpetrator of the crime, exercises joint control of the crime
with others or has control over an organization through which he commits the crime through a
subordinate.

However, this approach has received extensive academic backlash. Through this research paper,
the author relies upon extensively international criminal jurisprudence and attempts to formulate
an argument for establishing an organization or a corporate entity as an indirect co-perpetrator.

2. STATEMENT OF PROBLEM

Whether an organization can be held as an indirect co-perpetrator under the Rome Statute for the
purposes of international criminal proceedings.
3. HYPOTHESIS

A co-perpetrator could be held liable for the crimes committed by the culpable subordinates of his co-
perpetrator on the basis of mutual attribution by combining the doctrines of perpetration through
organization (Organisaionsherschaft) and co-perpetration.

4. RESEARCH QUESTIONS TO EXAMINE THE HYPOTHESIS

i. Whether the Doctrine of Co-perpetration and Organisaionsherschaft can be combined
ii. What are the subjective and objective elements which are to be satisfied for an organization
to be convicted as a co-perpetrator

5. RESEARCH METHODOLOGY

A descriptive research methodology involving extensive content analysis has been used.