Control over the Theory: Reforming the icc’s Approach to Establishing Commission Liability?

Liana Georgieva Minkova

doi:10.1163/15718123-bja10129

Abstract

Abstract The icc has employed the ‘control-over-the-crime’ theory, which treats those who ‘control’ the commission of a crime as principal perpetrators. Legal academics and icc judges have criticised the Court’s reliance on that theory for producing unsound legal reasoning. This article engages with the question from a novel perspective, that focuses on the institutional factors affecting the adoption and reform of legal theory. Transplanting Barnett and Finnemore’s concept of the ‘pathologies’ of international organisations to the field of international law, the article argues that reforming the rules for assessing criminal responsibility is a challenging endeavour, even when those rules have exhibited significant deficiencies. Reform is possible, but it is more likely to be incremental rather than revolutionary. The findings also bear implications for international criminal justice more generally, as they suggest that the answer to delivering sound judgments is not improving criminal law theory but appreciating the peculiarities of each case.

Highlights

International criminal law has historically faced the dilemma of determining what it means to ‘commit’ an international crime
The review of icc jurisprudence suggests that the reliance on the ‘control-over-the-crime’ theory has further created a particular image of the dynamics and modes of organisation of international crimes
4.1 Challenges Despite the criticism, which the ‘control-over-the-crime’ theory has endured by both academics and several icc judges, and the shortcomings that theory has displayed in practice, dismissing it altogether is unlikely to be an easy process

Summary

Introduction

International criminal law (icl) has historically faced the dilemma of determining what it means to ‘commit’ an international crime. As is well-known, to address those issues, the judges at the 2007 Lubanga ptc adopted a specific rule—the ‘control-over-the-crime’ theory.[34] That theory recognises as principal perpetrators the persons who ‘in spite of being removed from the scene of the crime, control or mastermind its commission’, by deciding where and how the crime is committed.[35] Ever since, this rule has become routinised in icc practice— in judicial decisions,[36] and in the documents containing the charges submitted by the prosecutor, which often frame the facts of the case in line with the requirements of the ‘controlover-the-crime’ theory.[37]. Several scholars have expressed concern that international criminal justice has produced a particular image of the perpetrator of mass atrocities as non-white, male, barbaric, often a national of a country in the Global South.[78] The review of icc jurisprudence suggests that the reliance on the ‘control-over-the-crime’ theory has further created a particular image of the dynamics and modes of organisation of international crimes. The section discusses whether the icc is likely to continue to rely on the ‘control-over-the-crime’ theory despite these difficulties

The Way Forward

Conclusion