Searching for the Hinterman: In Praise of Subjective Theories of Imputation

Abstract

How should international courts distinguish between principals and accessories? The ICC answered this question with Roxin’s Control Theory of Perpetration; defendants should be convicted as principals if they control the crime individually, jointly with a co-perpetrator, indirectly via an organized apparatus of power, or as indirect co-perpetrators (via a combination of the previous doctrines). As the ICC adopted the control requirement, however, some of its decisions have allowed lower mental states such as recklessness or dolus eventualis to meet the standard for principal perpetration under the Control Theory. Other decisions have asserted that intent or knowledge is required though their definitions of knowledge include a risk of future events — a definition uncomfortably similar to recklessness. The following essay argues that the ICC should reverse its approach: instead of combining the ‘essential contribution' element with a weak mental requirement (its current doctrine), the ICC should deemphasize control by lowering the essential contribution requirement and reinvigorating the required mental state. In short, the ICC should take a second look at subjective theories of perpetration that define principals as those with the intention to carry out the crime (or joint intention in the case of co-perpetrators) and who contribute to the effort. The ICC’s Control Theory represents an over-correction to the perceived excesses of the subjective approach — excesses that could be fixed without resorting to the ICC’s current ersatz-Control Theory.