For the International Criminal Court (ICC), the year 2012 ended with a bang: on 18 December, Trial Chamber II acquitted Mathieu Ngudjolo Chui, who had been accused of committing war crimes and crimes against humanity in the Democratic Republic of the Congo in 2003.
While the Court’s first acquittal made the news primarily because of its political implications, the most interesting legal issue was somewhat hidden in the annex: Judge van den Wyngaert’s 34-page concurring opinion is going to fuel the heated debate on the question of individual criminal responsibility under the Rome Statute. In her statement, Judge van den Wyngaert heavily criticises the current approach of the ICC’s Trial Chambers, known as ‘Control Theory’. Considering that Judge Fulford had annexed a similar plea to the Court’s first judgment earlier in 2012, a deep division, if not confusion, among the judges of the Court in this crucial area becomes apparent. In this blog post, I suggest that the reasons for this confusion, which extends beyond the Court to the international legal community, may in fact lie in the preconceptions and cultural imprints that are imposed on all criminal lawyers by their legal education and professional experience.
I. The origins: Modes of Liability before the ad hoc-Tribunals
While the discussion on modes of liability seems to have come to the fore only recently, its roots can be found much earlier, dating back to the law and jurisprudence of the ad hoc-Tribunals in the 1990s.
In 1999, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), guided to a great extent by Presiding Judge Antonio Cassese, developed the doctrine of Joint Criminal Enterprise (JCE), a doctrine which from then on formed a leading principle not only for the ICTY, but also for other international criminal courts and tribunals. In short, JCE distinguishes participants in large-scale atrocities according to whether or not they share the intent of the group (the so-called criminal enterprise) to commit a crime. Those who share this intent are all considered perpetrators (as opposed to mere aiders and abbettors), regardless of the actual importance of their contribution. Over the years, JCE became subject to substantial criticism for its tendency to lump together rather unequal participants into the same category of ‘commission’ – military commanders that plan and order the attacks, foot-soldiers shooting civilians, and even telecommunication officers merely manning the radio facilities of a concentration camp.
II. A domestic import: the ‘Control Theory’ at the ICC
When the ICC took up its work, Pre-Trial Chambers refused to adopt JCE under the new Rome Statute. Instead, they interpreted the Statute’s provisions on individual criminal responsibility (in particular Article 25) along the lines of a concept native to civil law jurisdictions such as Germany and Argentina: the ‘Control Theory’, or Tatherrschaftslehre, as it was named by its ‘inventor’, German scholar Claus Roxin. Unlike JCE with its largely subjective perspective, the Control Theory seeks to categorise the conduct of contributors to a crime according to a material-objective criterion named ‘control’. Persons who possess such control over the commission of a crime are considered perpetrators; in contrast, persons who contribute to the crime without controlling it, are only accessories, and therefore less culpable.
The notion of ‘control’ exists in different configurations, depending on the constellation of the case at hand. The most basic one is that of co-perpetration, in which an accused acts together with one or more other persons in accordance with a common plan. In this constellation, the accused possesses control, if his or her role in the common plan is so essential that non-performance of the allocated tasks would cause the plan to fail. This configuration of ‘control’ was applied by Trial Chamber I in the ICC’s first judgment in Lubanga.
The acquitted of 18 December 2012, Mathieu Ngudjolo Chui (together with co-accused Germaine Katanga who still awaits his judgment) was charged with a different mode of responsibility, namely ‘indirect co-perpetration through an organisation’. This rather unwieldy term was coined by Claus Roxin influenced by the Eichmann-trial in the 1960s. In an attempt to solve the paradox whereby often in mass atrocities, those most remote from the crime scene are the most responsible, Roxin translated the responsibility of political and military masterminds into his Control Theory, thereby inventing the term ‘organisational control’ or Organisationsherrschaft. According to Roxin, organisational control exists in the case of a tightly controlled organisation, in which a commander, figuratively spoken, causes the commission of a crime by a subordinate as simply as if he was pulling the trigger of a deadly machine.
III. Recent Criticisms of the Control Theory
Quite naturally, the fairly revolutionary adoption of the Control Theory did not remain unremarked upon and uncriticised in academic discourse. In early spring 2012 however, the most prominent criticism thus far emerged from a rather unexpected direction – the bench of Trial Chamber I.
In his concurring opinion to the Lubanga-judgment, Presiding Judge Adrian Fulford rejected the Control Theory, which had guided the case since the issuance of the arrest warrant in 2006. Instead, Judge Fulford argued that the distinction between primary and secondary participants, perpetrators and accessories should be abolished altogether in favour of a more or less unitary model of perpetration (notably, Judge Fulford’s concurring opinion coincided with a similar proposal by James Stewart, which was subject to an interesting online symposium on the Opinio Juris blog).
IV. Judge van den Wyngaert’s perspective on the issue
On 18 December 2012, Judge van den Wyngaert joined Judge Fulford in his opposition to the Control Theory. Her concurring opinion, however, is far longer, and she devotes more effort to arguing why the Control Theory should not guide the jurisprudence of the ICC.
In essence, Judge van den Wyngaert argues (1) that the Rome Statute should be interpreted independently, without any influence from particular domestic legal systems; and (2) that the Statute does not establish any hierarchy of blameworthiness that would warrant a strict distinction between different modes of liability. In addition, she offers (3) her own interpretation of Article 25, which she claims is based on the “plain reading of its terms”.
At first sight, her initial thesis, namely that the Rome Statute should be independent from domestic models of blame attribution, seems convincing and well-reasoned. Judge van den Wyngaert supports it with Article 21 (1) (c) of the Statute, which stipulates that general principles derived from national law should merely be subsidiary sources of law. This leads her to the question: what, then, is the correct and ‘independent’ interpretation of the Statute?
Unfortunately, the Judge’s response to this question is less persuasive. In fact, she seems to fall into a trap that she initially identifies herself: Judge van den Wyngaert rightly observes that “terms such as ‘commission’, ‘co-perpetration’ and the like are legal terms of art, which have a specific meaning that may vary from one system to another”. Indeed, a lawyer trained in the common law tradition will have an entirely different understanding of the meaning and relevance of the word ‘complicity’ than, for instance, a lawyer trained in the civil law tradition. Thus, if one considers this specific ‘cultural imprint’ imposed by domestic legal education and practice, it comes as no surprise that a judge from a common law-background reads a Statute as establishing a unitary model of perpetration, while scholars from Germany and Latin America see the very same provisions as clearly stipulating an intricate and abstract model of differentiated blame attribution. In other words: a discussion without a common terminological ground is bound for confusion.
However, this lucid finding by Judge van den Wyngaert stands in direct opposition to several of her subsequent assertions. For instance, she finds that the relevant subparagraphs of Article 25, which list different forms of participation in a crime, do not establish a hierarchical order of seriousness, for the simple reason that they ‘overlap to a substantial degree’. Given the terminological uncertainty diagnosed before, this finding is surprising, to say the least: for if there was no common ground on what is ‘commission’ and what is ‘aiding’, how could one know whether these two terms overlap or not? A similar example can be found in another paragraph of the concurring opinion, in which Judge van den Wyngaert rejects the Control Theory’s notion of ‘essentiality’, only to replace it with the criterion of ‘directness’ a few sentences later, a notion reminiscent of the ‘immediate cause’-criterion in classic common law. Notably, neither of the terms can be found in Article 25, they are simply read into the word ‘commits’. Finally, and contrary to her former rejection of domestic legal concepts as a matter of principle, she even accepts the concept of ‘organisational control’ as a valid element of proof for the existence of a ‘will-domination’ on the part of the ‘indirect perpetrator’ – classic notions of Roxin’s Control Theory.
V. Can there be a purely ‘international’ criminal law?
The example of Judge van den Wyngaert’s concurring opinion demonstrates that it is nearly impossible to avoid being guided by domestic ideas when interpreting the Statute of an international criminal tribunal. But is the adoption of domestic concepts really a bad thing, as Judge van den Wyngaert implies? Ever since the Nuremberg Trials, international criminal law has drawn heavily on principles derived from national systems. In fact, an international criminal legal system without the historical groundwork of domestic criminal law is unthinkable. The current debate on the interpretation of the Rome Statute shows the difficulties inherent in an attempt to create a truly ‘international’ criminal law, independent from national preconceptions. This raises the question if such a radical step is even warranted, or if a cautious adoption of national concepts is not the right way forward for the ICC.