Practice Relating to Rule 151. Individual Responsibility
Section A. Individual criminal responsibility
Peru’s Human Rights Charter of the Security Forces (1991) provides: “Nobody shall escape the law when a violation of human rights has been committed. There shall be no impunity when a violation of human rights has been committed.”
Peru’s Code of Military Justice (1980), in a part entitled “Violations of the law of nations”, provides for the punishment of a list of offences, specifying that some of them be committed “in times of war”.
In 2004, in the Indalecio Pomatanta Albarran case
, Peru’s Supreme Court of Justice stated that “the commission of horrendous crimes and grave violations of human rights as defined by international human rights law and international criminal law can never be considered an ‘act of duty’”.
In 2006, in the Lucanmarca case
, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated: “The function of the judiciary within its commitment to democracy and the law is to avoid impunity for crimes constituting serious violations of human rights and of international humanitarian law, irrespective of who is responsible for such crimes.”
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether a former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations, including the abduction of two individuals (the so-called SIE Basement case) and the murder and injury of numerous individuals in Barrios Altos and at the so-called La Cantuta university in Lima, all of which were carried out by State officials while the accused was president. The Court found:
[T]he murders and serious injuries [committed in Barrios Altos and at La Cantuta university] … plainly fulfil the requirements of crimes against humanity. The murders and serious injuries that occurred in Barrios Altos and at La Cantuta [university] are also crimes that manifest a State policy of selectively eliminating alleged members of subversive groups.
The Court considered the appropriate mode of criminal liability. The prosecution argued:
[T]he conduct of members of the Colina Detachment (Barrios Altos and La Cantuta case) and of the Army Intelligence Service (SIE Basement case), can be attributed to the ex-President … by recourse to the mode of criminal liability of perpetration-by-means. From the top of the State apparatus, he gave orders for the execution of the very serious acts with which these cases are concerned.
The Court found: “The dogmatic concept regarding the criminal liability [relevant in this case] is that of perpetration-by-means as a form of principal liability.”
The Court further held:
PERPETRATION-BY-MEANS THROUGH THE CONTROL OF ORGANIZED POWER APPARATUSES
719. … Perpetration-by-means characterizes cases in which the crime is perpetrated by an official or a person behind the scenes through a direct intermediary or proxy. …
The dogmatic concept of perpetration-by-means is designed to ensure that the true perpetrator is held criminally liable for an offence that has been committed by a third person. It thus is a special form of perpetration in which the author carries out the punishable act through the intermediary and must therefore be held accountable for the criminal consequences of that unlawful act.
2. The General Premise: The existence of an organization.
726. STRUCTURED ORGANIZATION. CHARACTERISTICS. Perpetration-by-means through control over an organized apparatus of power is premised on “the prior existence of a structured organization”. The structured organization has a clear-cut hierarchy, in which the highest strategic level will be responsible for any criminal decisions and plans that may be adopted internally. These will subsequently be attributed to the direct perpetrator following the vertical structure inherent to the organization’s design.
3. Specific Premises and their Requirements.
727. FUNCTIONAL PREMISES AND REQUIREMENTS. The identification of hierarchical organizations which constitute apparatuses of organized power, and which are a basis for perpetration-by-means … , also requires the presence of what the German Federal Constitutional Court called “framework conditions”. This means that the following functional premises and prerequirements must be present: 1) command authority; 2) the organization’s disengagement from the legal order of the State; 3) the fungibility of the immediate perpetrator; and 4) the immediate perpetrator’s strong inclination to commit the act.
4. Objective Premises and Requirements.
4.1. Command authority.
729. CONCEPT …
Command authority is the capacity of the highest strategic level – the man behind the scenes – to issue orders or assign roles to subordinate parts of the organization. This capacity is obtained, or may be conferred, based on a position of authority, leadership, or rank derived from political, ideological, social, religious, cultural, economic, or other similar factors.
4.2. Deviation from the law. Modalities and Characteristics.
733. DEFINITION Another objective requirement of perpetration-by-means through the control of organized power apparatuses is the “disengagement” of or “deviation” from the law. … [This] means that the organization is structured, operates or acts outside the national and international legal system.
5. Subjective Premises and Requirements.
1. Fungibility. Classes.
737. … Fungibility is the first subjective premise that may attribute perpetration-by-means through the control of organized power. Fungibility is generally understood as a characteristic of the individual carrying out the crime according to which he or she can be exchanged or substituted by the highest strategic level in the operationalization and carrying out of the criminal plan.
2. The predisposition for the realization of an unlawful act.
741. Specifically, this category refers to the direct perpetrator’s psychological predisposition to carry out an order involving the commission of a crime. Here it is not the fungibility of the perpetrator that ensures that the order will be carried out, but rather the latter’s internalized interest and conviction in making it happen. It is a matter, then, of eminently subjective factors, which some authors identified through the justifying motivation, capable of transforming “millions of people into potential and obedient instruments
The Court then considered the difference between perpetration-by-means and superior responsibility in international criminal law. The Court found:
742. … It is important to distinguish between perpetration-by-means through the control of organized power apparatuses and other modalities of imputation which have been developed in international criminal law in order to attribute criminal responsibility to strategic levels of State or State-derived power structures. …
743. … [S]uperior responsibility refers to … commission by omission and generates the responsibility of the individual who commands the direct perpetrator of the crime.
744. … [B]ecause of its characteristics and requirements, [superior responsibility] … differs from perpetration-by-means through the control of organized power apparatuses. … [Perpetration-by-means] is a form of commission which, however, is transferred from an order issued at the highest strategic level to the concrete execution of the ordered act by a proxy.
The  Rome Statute shows and develops this difference well. The Rome Statute regulates both modalities of imputation as two distinct levels of intervention and criminality of strategic organs that are linked to the commission of crimes violating human rights. Essentially, Article 25, paragraph 3, sub-paragraph a) [of the Rome Statute] precisely identifies perpetration-by-means (“Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”). In contrast, Article 28 [of the Rome Statute] defines in detail the omissions which engage the responsibility of the designated superior
(“… as a result of his or her failure to exercise control properly
[footnotes in original omitted; emphasis in original]
In the presence of the defendant, the Public Prosecutor and the plaintiff, and in public:
The acts that [Dusingize] has been accused of:
Considering the evidence given by the prosecution witnesses stating that they saw everything that Alexis Dusingize did; including: [witness VNK], who was one of the witnesses who saw [Dusingize] during the attack that Alexis Dusingize was in command of and who saw that, during this attack, … the witness’ younger brother … was discovered while in hiding and killed.
Considering that Alexis Dusingize accepts that he left Nyamata on motorbike and headed towards Kibenga accompanied by his followers;
Considering that Alexis Dusingize accepts that he requested to see identity cards at the roadblocks; …
Considering that those who are seeking compensation have declared that their property was pillaged or that their property was destroyed during the hostilities and that members of their families were victims of the hostilities, and, therefore, they must be compensated for all of this by Alexis Dusingize along with the Rwandan State as he was an authority responsible for assisting the mayor of the Commune of Kanzenze;
Concluding that Alexis Dusingize knew the objective of the murders as he brought his family by motorbike to a place of refuge via the public highway while claiming that he was a wanted man;
Finds that, upon returning to his home in Kibenga, he went to the roadblock; a fact which he himself accepts.
Considering that Alexis Dusingize committed the act of identifying Tutsis in order to separate them from the others and that he himself admits to having committed these acts;
Considering the attacks that he has been accused of, and which he was the leader of, led to the extermination of a number of people, which he himself accepts;
Considering that the evidence from the Prosecutor is well founded;
On returning from his place of refuge, Alexis Dusingize did not undertake the work which he was responsible for in the Commune of Kanzenze, but instead left for Kigali where he had found work in the Ministry of Public Works where he was arrested;
For all these well-founded reasons, in the presence of the defendant and the Public Prosecutor … ;
Pursuant to Decree No. 08/75 of 12/02/1975 [approving and ratifying various international conventions on human rights, disarmament, and the prevention and repression of acts that may endanger peace between people and nations], Article 2 of the  ICTR [International Criminal Tribunal for Rwanda] [Statute] established with a view to prosecuting the criminals responsible for the genocide in Rwanda, and Organic Law No. 08/96 of 30/08/1996 on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990;
Pursuant to Articles 91 and 312 of Books I and II of the Rwandan Penal Code;
Having regard to Articles 281, 282 and 283 as amended of Book II of the Rwandan Penal Code (RPC);
Having regard to Articles 91 and 168 as amended of Books I and II of the RPC;
Having regard to Articles 27 [stating that the Public Prosecution Department represents, as of right or upon request, the civil interests of minors and others who do not have legal representation] and 30 [on liability for damages for criminal acts committed and on awarding damages to victims not yet identified] as amended of Organic Law No. 08/96 of 30/08/1996 referred to above, with Article 2 [classifying persons accused of offences into categories] of the Organic Law placing him in Category 1 [subparagraph] “b” [of the offenders listed therein];
Confirms that the offences that Alexis Dusingize is accused of having committed are well-founded;
Confirms that the four offences that Alexis Dusingize has been accused of are well-founded, as detailed in the accusations that were made, and were committed in ideal concurrence of offences, which is why he must receive the death penalty as punishment;
Dismisses Alexis Dusingize, sentences him to death and orders that all [of his] property be seized from wherever it may be located.