ARTICLE 25 OF THE ICC, par.3 (b) "orders, solicits or i d!

ces" a (atte"pted) cri"e

12 The forms of participation established in this subparagraph are very different. A person who orders a crime is not a mere accomplice but rather a perpetrator by means, using a subordinate to commit the crime. Indeed, the identical article 2 para. 1 (b) of the 1 ! "raft #ode was intended to provide for the criminal responsibility of mid$level officials who order their subordinates to commit crimes 1 . The International #riminal Tribunal for %wanda (I#T%), in the A&ayesu 'udgement, correctly held that (ordering implies a superior$subordinate relationship( whereby (the person in a position of authority uses it to convince (or coerce) another to commit an offence( 2). These are, inter alia, e*actly the re+uirements of command or superior responsibility as recently confirmed in the (#elebici( case 21. #onse+uently, the first alternative in subparagraph (b) ((,o-rders() complements the command responsibility provision (article 2.)/ in the latter case the superior is liable for an omission, in the case of an order to commit a crime the superior is liable for commission for having (ordered(. In conclusion, the first alternative in subparagraph (b) actually belongs to the forms of perpetration provided for in subparagraph (a), being a form of commission (through another person(. 10 1oliciting a crime means, inter alia, to command, encourage, re+uest or incite another person to engage in specific conduct to commit it22. To induce basically means to influence another person to commit a crime20. Inducing is a &ind of umbrella term covering soliciting which, in turn, has a stronger and more specific meaning than inducing. Inducing is broad enough to cover any conduct which causes or leads another person to commit a crime, including soliciting that person. In fact, the 2rench version of the 1tatute spea&s of (sollicite ou encourage(, thereby using a form of solicitation to e*press the 3nglish term induce. In sum, both forms of complicity are applicable to cases in which a person is influenced by another to commit a crime. 1uch influence is normally of psychological nature but may also ta&e the form of physical pressure within the meaning of vis compulsiva24. 5nli&e in the case of (ordering( a superior$subordinate relationship is not necessary.

(d) "In any other way contributes" to the (attempted) commission ... "by a group ... acting with a common purpose"
The whole subparagraph (d) is an almost literal copy of a recently adopted Antiterrorism convention46 and presents a compromise with earlier "conspiracy" provisions47, which since uremberg have been controversial4!" The #$$# %&' (raft 'ode held punishable an individual who "conspires in" the commission of a crime, thereby converting conspiracy into a form of "participation in a common plan for the commission of a crime against the peace and security of man)ind" 4$" The #$$6 (raft 'ode e*tends to a person who "directly participates in planning or conspiring to commit such a crime which in fact occurs"+," Thus, it restricts liability compared to the traditional conspiracy provisions in that it re-uires a direct participation . already discussed above . and an effective commission of the crime" /ubparagraph (d) ta)es this more restrictive approach even further, eliminating the term conspiracy altogether and re-uiring at least a contribution to a collective attempt of a crime" /ubparagraph (d) establishes, on the one hand, the lowest ob0ective threshold for participation according to article 1+ since it criminali2es "any other way" that contributes to a crime" This seems to imply a )ind of subsidiary liability if subparagraph (c) is not applicable" 3n the other hand, however, subparagraph (d) only refers to "a crime by a group of persons acting with a common purpose", i.e., provides for ob0ective . group crime . and sub0ective . common purpose . limitations of attribution which clearly . at least conceptually . delimitate subparagraph (d) from (c)" %ndeed, in Furundzija, the %'T4 held that these provisions confirm that international (criminal) law recogni2es a distinction between aiding and abetting a crime and participation in a common criminal plan as "two separate categories of liability for criminal participation """ . co5perpetrators who participate in a 0oint criminal enterprise, on the one hand, and aiders and abetters, on the other" +#" The distinction gains particular importance on the sub0ective level" 6hile aiding and abetting generally and within the meaning of subparagraph (c) only re-uires the )nowledge that the assistance contributes to the main crime+1, participation in a group crime within the meaning of subparagraph (d) re-uires, on the one hand, a "common purpose" of the group and, on the other, an "intentional" contribution of the participant, complemented by alternative additional re-uirements to be discussed below (7i8 and 7ii8%)t" is, however, not absolutely clear what is meant by "intentional"" (oes it refer to the traditional use of "intent" +9 . as dolus (Vorsatz)+4 . including )nowledge (Wissen) and intention or purpose (Wollen) or is it limited to the latter, i.e., the first degree dolusdirectus++: This view seems to be supported by the /panish version ("intencional") since /panish doctrine, based on ;erman thin)ing, starts from the general concept of dolus (see article #, of the #$$+ 'odigo <enal= "dolosas") and

19 Report of the ILC (1996), supra note 4, p. 25 (para. 14). 20 Prosecutor v. Jean Pau !"a#esu, Case $o. IC%R&96&4&%, 2 'ept. 199(, para. 4(). 21 Prosecutor v. *e+n, -e a ,c, *.rav"o /uc,c, 0a1,2 -e ,c, 3sa. Lan.1o, Case $o. I%&96& 21&%, 16 $ov. 199(, paras. )44 et se4. ()46). 22 5L!C67' L!8 -IC%I9$!R: 1)92 (6th e.. 1990); /o.e Pena Co.e, supra note 1), < 5.02 (1). 2) 5L!C67' L!8 -IC%I9$!R:, supra note 22, ==4. 24 >n ,"e v,s a?so uta v,s co2pu s,va eaves the person st, a certa,n free.o2 to act an. .ec,.e (cf. 0.& 0. Jeschec"@%. 8e,Aen., supra note 15, 224).

reserves the notion of "intenci>n" or "intencional" for the "delitos de intenci>n" or the first degree dolusdirectus+6" The ?rench version ("intentionelle"), however, does not support this restrictive interpretation since in ?rench thin)ing+7 "l@intention" consists of two elements= the foreseeability (element of )nowledge) and the wish (element of will) of the criminal result" Thus, although the "faute intentionelle" is characterised by the "volontA orientAe vers l@accomplissement d@un acte interdit", i.e., rather by will than )nowledge, the latter is also contained in the concept of "intention"B thus, "intentionelle" in this general conte*t is to be understood broadly in the sense of dolus" Also the (preliminary) official ;erman translation of this subparagraph reads "vorstzlich", i.e., refers to dolus in its general sense +!" ?urther, the %'T4 considers that the mens rea of participation in a 0oint criminal enterprise is "intent to participate", i.e., apparently understands intent in the traditional sense+$" The correct understanding of "intentional" depends in the final analysis on the conte*t in which the notion is used" %f it is used as an e*pression of the general mental element it has to be understood also in a general sense as dolusB if it is used in a specific conte*t to e*press a specific intention, aim or purpose of the perpetrator it has to be understood as first degree dolus directus" Thus, article 6 of the /tatute, referring to genocide, spea)s of "intent to destroy" and means first degree dolus directus since it is absolutely uncontroversial that genocide re-uires a dolus specialis (specific intention)" 'onse-uently, the ?rench version spea)s of "l@intention de dAtruire", the /panish one of "intenci>n de destruir" and the official ;erman translation of "absichtlich"6," 3n the other hand, the general mens rea provision (article 9,) is based on the distinction between "intent" and ")nowledge" defining the former . in relation to a conse-uence . as "means to cause that conse-uence" or as being "aware" that it will occurB thus, it understands intent in the traditional sense including )nowledge" The word "intentional" in the subparagraph under e*amination is used in the same general sense" This also follows from the fact that subparagraphs (i) and (ii) contain additional specific sub0ective re-uirements which put the general notion of "intentional" in more concrete termThs"e foregoing discussion demonstrates that a provision drafted without regard to basic dogmatic categories will create difficult problems of interpretation for the future %''" (i) "with the aim of furthering the criminal activity or criminal purpose of the group ..." A contribution to a (attempted) group crime has . first possibility . to be made "with the aim of furthering the criminal activity or criminal purpose of the group" provided that this "activity or purpose involves the commission of a crime within the 0urisdiction of the 'ourt"" The last part of the phrase does not re-uire further e*amination since it only states the obviousB namely, that contribution to group

crimes may only give rise to individual responsibility if these crimes belong to the sub0ect matter 0urisdiction of the 'ourt (articles +5!)" According to the first part of the phrase the participant must pursue the "aim" to further the criminal "activity" or "purpose" of the group" Thus, he or she must act with a specific dolus, i.e., with the specific intention to promote the practical acts and ideological ob0ectives of the group" (ii) "in the knowledge of the intention of the group" Alternatively ("or"), the participant must )now the intention of the group to commit the crime, i.e., he or she must )now that the group plans and wants to commit the crime" The -uestion is whether positive )nowledge with regard to the specific crime is re-uired or whether it is sufficient that the participant is aware that a crime will probably be committed" The latter re-uirement was considered sufficient with regard to aiding and abetting by the %'T46# but this precedent is only applicable to subparagraph (c) not to (d)(ii)" The subparagraph under e*amination clearly re-uires ")nowledge of the intention """ to commit the crime", i.e., the participant must be aware of the specific crime intended by the group"
?or e*ample= (raft /tatute for the %nternational 'riminal 'ourt, C" " (oc" AD'3 ?"#!9D1DAdd"# (#$$!), reprinted in= E"'h" Fassiouni (ed"), % TGH AT%3 A& 'H%E% A& '3CHT" '3E<%&AT%3 3? C %TG( AT%3 / (3'CEG T/ A ( (HA?T %'' /TATCTG FG?3HG TIG (%<&3EAT%' '3 ?GHG 'G 7 (#$$!), article 19 para" 7 (e) (ii)" 4! /ee, for e*ample, J" <ella, Mmorandum, (#$+,) 1 4"F"%"&"'" 17!5961, 9+7B K" ;raven, Les Crimes contre l'Humanit, HG'CG%& (G/ '3CH/ (G &@A'A(LE%G (G (H3%T % TGH AT%3 A& 49956,+, +,15+,9 (#$+,)B I"5I" Keschec), Die internationale enocidium!"onvention vom #. Dezem$er %#&' und die Lehre vom V(l)erstra*recht, 66 MG%T/'IH%?T ?NH (%G ;G/AETG /THA?HG'IT/6%//G /'IA?T #$951#7, 1#9 (#$+4)B recently= H" Hayfuse, +he Dra*t Code o* Crimes a,ainst the -eace and .ecurit/ o* Man)ind0 1atin, Disorders at the 2nternational La3 Commission , ! 'H%E" &"?" +1 (#$$7)" /ee also the statement of the ;erman delegate 3" Oatholnigg at the (iplomatic 'onference for the Adoption of the #$!! (rug 'onvention (Cnited ations 'onference for the Adoption of a 'onvention against %llicit Traffic in arcotic (rugs and <sychotropic /ubstances, Jienna, #$!!, 3fficial Hecords, Jol" %%, para" +1= "common law concept un)nown in civil law systems") The concept was, however, in principle recogni2ed by the %&' /pecial Happorteur (" Thiam ((#$$,) 1 4"F"%"&"'", <art #, p" #6, para" 66)" 4$ (#$$#) 1 4"F"%"&"'", <art 1, p" $$ (commentary to article 9)" +, Heport of the %&' (#$$6), supra note 4, article 1 para" 9 (e)" +# -rosecutor v" Furundzija, supra note 9#, para" 1#6B see also para" 14$" +1 /ee margin o" #$" +9 6"H" &a?aveDA"6" /cott, /CF/TA T%JG 'H%E% A& &A6 P 9"+", 9,159 (Jol" # #$!6)" +4 C*. ;" ?letcher, supra note 6, ##1"
47