M.1. A crime was committed by a person or persons other than the perpetrator

M.1.1. A principal crime was committed or attempted

M.1.2. A principal crime was committed by a person or persons other than the perpetrator.

M.1. A crime was committed by a person or persons other than the perpetrator

M.1.1. A principal crime was committed or attempted

M.1.2. A principal crime was committed by a person or persons other than the perpetrator.

In the Katanga and Chui Confirmation Decision the Pre- Trial Chamber found:

"The principal (the ‘perpetrator-by-means) uses the executor (the direct perpetrator) as a tool or an instrument for the commission of the crime. Typically, the executor who is being used as a mere instrument will not be fully criminally responsible for his actions. As such, his innocence will depend upon the availability of acceptable justifications and/or excuses for his actions. Acceptable justifications and excuses include the person’s: i) having acted under a mistaken belief; ii) acted under duress; and/or iii) not having the capacity for blameworthiness."[1]

According to the Katanga and Chui Confirmation Decision:

"A definition of a principal that is predicated on the requirement of exercising control over the crime means that, for the purpose of distinguishing the three forms of principal liability provided for in article 23(3)(a) of the Statute, a principal is one who:

a. physically carries out all elements of the offence (commission of the crime as an individual);

b. has, together with others, control over the offence bz reason of the essential tasks assigned to him (commission of the crime jointly with others); or

"c. has control over the will of those who carry out the objective elements of the offence (commission of the crime through another person)." "[2]

"[...] the drafters of the Rome Statute sought to establish a mode of commission in article 25(3)(a) of the Statute which encompasses the commission of a crime through a non-innocent individual (i.e.responsible) acting as an instrument. Accordingly, [...] assigning the highest degree of responsibility for commission of a crime – that is, considering him a principal – to a person who uses another, individually responsible person to commit a crime, is not merely a theoretical possibility in scarce legal literature, but has been codified in article 25(3)(a) of the Statute."[3]

"The underlying rationale of this model of criminal responsibility is that the perpetrator behind the perpetrator is responsible because he controls the will of the direct perpetrator. As such, in some scenarios it is possible for both perpetrators to be criminally liable as principals: the direct perpetrator for his fulfilment of the subjective and objective elements of the crime, and the perpetrator behind the perpetrator for his control over the crime via his control over the will of the direct perpetrator."[4]

"Several groups of cases have been presented as examples for the perpetrator behind the perpetrator’s being assigned principal responsibility despite the existence of a responsible, direct perpetator (i.e. one whose actions are not exculpated by mistake, duress, or the lack of capacity for blameworthiness). This notwithstanding, the cases most relevant to international criminal law are those in which the perpetrator behind the perpetrator commits the crime throught another by means of "control over an organization" (Organisationsherrschaft)." "[5]

The Nahimana, Barayagwiza and Ngeze Trial Chamber held that:

"The Appellant argues in this respect that he cannot be held liable of having instigated the commission of genocide through ‘indirect participation’, because the Statute does not provide for such a mode of liability ..."[6]

According to the Gacumbitsi Appeals Chamber:

"It is a means to bridge any potential physical distance from the crime scene of persons who must be regarded as main perpetrators because of their overall involvement and control over the crimes committed."[7]

The Bagosora et al. Trial Chamber held:

"The actus reus consists of any act, omission, or combination thereof which contributes directly or indirectly to the killing of a large number of individuals."[8]