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Distinguishing Between Principals and Accessories at the ICC - Another Assessment of Control Theory

Rather than ending the discussion, the first judgment of the ICC in the Lubanga case and its endorsement of the ‘control of the crime’ theory seem to have opened a Pandora’s Box of dissonant approaches to modes of liability before the ICC. Both practitioners and scholars have engaged in heated debates on the correct interpretation of Article 25(3) of the Rome Statute. Critics of control theory rightly point out that this theory cannot be simply deduced from the wording of the Statute itself, and is not the only plausible theory. Yet, arguing that the ‘plain text’ of Article 25(3) provides a clear-cut, straightforward insight into the content and scope of each particular mode of liability seems somewhat naive. The wording of Article 25(3) is vague and leaves the door open to different views, as demonstrated in the wealth of recent related literature. Moreover, judicial interpretation is an inherent part of the application of law and cannot solely be reduced to textual interpretation. Bearing that in mind, this paper provides a line of arguments that speak in favour of control theory. It is suggested that, while different interpretations remain possible, further endorsement of control theory would add to the ICC’s internal consistency and the development of an accessible and predictable body of law applicable before that court.

modes of liability; principals; accessories; control theory; hierarchy of blameworthiness; International Criminal Court

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