Monday, November 18, 2013
Jens David Ohlin (Cornell University - School of Law) has posted Co-Perpetration: German Dogmatik or German Invasion? (The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements, Carsten Stahn ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
The ICC's doctrine of co-perpetration is heavily influenced by German criminal law theory. To some judges and observers, the ICC’s importation of Claus Roxin’s famous Control Theory of Perpetration is evidence that the ICC is finally getting serious about criminal law theory. To critics, though, the application of a particularly Germanic interpretation of co-perpetration is evidence that one legal culture is having an outsized influenced on the direction of the court’s jurisprudence.
In order to understand and evaluate this complaint, it is necessary to situate the current doctrines within historical context, since in many respects the ICC’s doctrine of co-perpetration is a reaction against the modes of liability applied at the ICTY and the ICTR. After providing that historical context, this Commentary will analyze the foundations of the ICC doctrine, explain and evaluate the most notable objections to it, and consider alternate versions that could be applied by the ICC in place of Roxin’s Control Theory of Perpetration. The resulting picture suggests a growing influence of criminal law theory in The Hague as judges struggle to interpret Article 25 of the Rome Statute, a provision not known for its doctrinal sophistication.
The result is a set of ICC decisions that might even lay the groundwork for an emerging international Dogmatik, a sui generis discipline that could also be described as "international criminal law theory." Despite these positive efforts, though, the court has done insufficient work to justify its methodology (in particular its substantial reliance on German sources) and to properly ground its importation of domestic criminal law theory within a general theory of sources of international law. The following Commentary will detail this emerging trend and critically evaluate the positive and negative aspects of the ICC doctrine of co-perpetration.