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!