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Element:

M.3. The accused used such direct perpetrator as an instrument or tool to commit the relevant crime.

M.3.1. The perpetrator was in a position o use such person or persons as instruments or tools to commit the relevant crime.

M.3.2. The perpetrator in fact used such person or persons as instruments or tools to commit the relevant crime.

In the Katanga and Chui Confirmation Decision it was held that:

"The principal (the ‘perpetrator-by-means’) uses the executor (the direct perpetrator) as a tool or an instrument for the commission of the crime."[1]

The Katanga and Chui Confirmation Decision states that:

"Two or more principals jointly commit a crime through another person."[2]

"Article 25(3)(a) uses the connective ‘or’, a disjunction (or alternation). Two meanings can be attributed to the word ‘or’ – one known as weak or inclusive and the other strong or exclusive. An inclusive disjunction has the sense of ‘either one or the other, and possibly both’ whereas an exclusive disjunction has the sense of ‘either one or the other, but not both’. Therefore, to interpret the disjunction in article 25(3)(a) of the Statute as either ‘inclusive’ or ‘exclusive’ is possible from a strict textualist interpretation. In the view of the Chamber, basing a person’s criminal responsibility upon the joint commission of a crime through one or more persons is therefore a mode of liability ‘in accordance with the Statute’."[3]

"However, in the view of the Chamber, these crimes may be ascribed to each of them on the basis of mutual attribution, if the additional objective elements for the mode of liability known as joint commission of the crime are satisfied"[4]

"Co-perpetration based on joint control over the crime involves the division of essential tasks between two or more persons, acting in a concerted manner, for the purposes of committing that crime. As explained, the fulfilment of the essential task(s) can be carried out by the co-perpetrators physically or they may be executed through another person." "[5]

"In the view of the Chamber, the first objective requirement of co-perpetration based on joint control over the crime is the existence of an agreement or common plan between the persons who physically carry out the elements of the crime or between those who carry out the elements of the crime through another individual."[6]

"The Chamber considers that the second objective requirement of coperpetration based on joint control over the crime is the coordinated essential contribution made by each co-perpetrator resulting in the realisation of the objective elements of the crime."[7]

The Gacumbitsi Appeals Chamber held:

"Indirect perpetration (perpetration by means) requires that the indirect perpetrator uses the direct and physical perpetrator as a mere ‘instrument’ to achieve his goal, i.e., the commission of the crime. In such cases, the indirect perpetrator is criminally responsible because he exercises control over the act and the will of the direct and physical perpetrator."[8]

In the Seromba Appeals Judgement it was held that:

"Thirdly, it is widely recognized that in various legal systems, however, ‘committing’ is interpreted differently such that co-perpetratorship and indirect perpetratorship are also recognized as forms of ‘committing’. Co-perpetrators pursue a common goal, either through an explicit agreement or silent consent, which they can only achieve by co-ordinated action and shared control over the criminal conduct. Each co-perpetrator must make a contribution essential to the commission of the crime. Indirect perpetration on the other hand requires that the indirect perpetrator uses the direct and physical perpetrator as a mere "instrument" to achieve his goal, i.e., the commission of the crime. In such cases, the indirect perpetrator is criminally responsible because he exercises control over the act and the will of the direct and physical perpetrator. … Evident in this reasoning is the attribution of liability for ‘committing’ to the ‘perpetrator behind the perpetrator’ without the obvious characterization of Athanase Seromba’s conduct as co-perpetratorship or indirect perpetratorship."[9]

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