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

What is it about?

International criminal law faces a challenging task: to delineate the contributions of individual persons to mass atrocities, such as genocide, war crimes, and crimes against humanity. To address this task, the International Criminal Court (ICC) has employed the ‘control-over-the-crime’ theory according to which those persons who ‘control’ the commission of a crime bear criminal responsibility for committing that crime. However, the ‘control-over-the-crime’ theory has been disputed by both judges and scholars. This article engages with the question from a novel perspective that focuses on the institutional factors affecting the adoption and reform of legal theory. The article argues that reforming the rules for assessing criminal responsibility is a challenging endeavour, even when those rules have exhibited significant deficiencies. The reason is the crucial importance of the predictability of legal rules in international criminal justice, which serves to protect the right of the defendant to a fair trial. 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.

Featured Image