The control theory of perpetration in international criminal law
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Chicago journal of international law, Vol. 12, no. 1, Summer 2011, p. 159-200
International criminal law lacks a coherent theory of perpetration for international crimes. Courts and commentators oscillate between the doctrines of Joint Criminal Enterprise (JCE) on the one hand and co-perpetration and indirect perpetration on the other, as modes of responsibility. While JCE, which has close analogues in common law modes of responsibility, has been subjected to rigorous scrutiny, co-perpetration and indirect perpetration, which are based on established modes of responsibility in German criminal law and doctrine, have proved more elusive. In this Article, I lay the foundations for an informed discussion on theories of responsibility in international criminal law by familiarizing the audience of international and comparative criminal lawyers with doctrines of perpetration in German criminal law and their adoption by international criminal tribunals. I also take the first steps in this debate by analyzing and ultimately rejecting recent criticisms that have been leveled against the adoption of co-perpetration and indirect perpetration at the international level. While I remain committed to the view that an uncritical and wholesale transfer of these domestic modes of responsibility to the international courts would be deeply problematic, I highlight their importance to the project of building conceptually sound and practically useful doctrines of responsibility for international crimes.