26 Jun Ohlin, Van Sliedregt, and Weigend on the Control Theory of Perpetration
I want to call readers’ attention to “Assessing the Control Theory,” an important new essay written by three of the best substantive international criminal lawyers. Here is the abstract of the essay, which is forthcoming in the Leiden Journal of International Law:
As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.
It’s a dense essay — modes of participation are never easy, and the control theory is particularly complicated, especially for common-law scholars. But it’s well worth the mental investment. To crib from Larry Solum, read Ohlin, Van Sliedregt, and Weigend!
Complicated is an understatement – I didn’t think international courts could devise a theory more complex than JCE, but the ICC has done it. Unfortunately, we are in the realms of fantasy when we suppose that a theory with so many legal requirements and weighed down with so much jargon could ever convey anything to the layperson in terms of ‘fair labelling’.
On the other hand, the same principle could be reflected in much simpler terms – one could simply say that a person who causes (‘procures’ in common law terminology) another to do the criminal act, commits the crime. This was also said to be nub of the theory in the Argentina Juntas Trial.
I will quote none less than of one the co-authors himself, namely Thomas Weigend, a year earlier here in OpinioJuris:
“I concede that sometimes too much ink and effort has been invested (especially among German scholars, but perhaps also in international criminal law) in drawing very thin lines.”
😉