By: Jarrod Jolly, January 2015
On 1 December 2014, the Appeals Chamber of the International Criminal Court (ICC) confirmed the verdict and sentence against Thomas Lubanga Dyilo (Lubanga), who was convicted in March 2012 of committing war crimes as a ‘co-perpetrator’. In this post, the first of two, I want to focus on the approach of the Appeals Chamber to the alleged legal errors regarding Lubanga’s individual criminal responsibility under Article 25 of the Rome Statute.
The ICC’s interpretation of Article 25 has been the subject of commentary, criticism and debate both within the ICC and among scholars. At this critical juncture, the Appeals Chamber had an excellent opportunity to provide some much needed clarification. In short, it confirmed the prevailing construction of the provision – including the controversial adoption of the ‘control theory’ – but failed to substantively elaborate on its reasoning.
It is worth providing some (very limited!) context to what is a seemingly intractable debate. The Rome Statute is the treaty adopted on 17 July 1988 by a conference of 160 states. It established the first permanent international criminal court and sets out, among other things, the crimes within its jurisdiction. As one might expect of a treaty, it represents a negotiated agreement involving numerous countries with different legal systems.
Article 25 of the Rome Statute details various modes of liability that may be used to hold a person individually criminally responsible for a crime within the Court’s jurisdiction. In an article on the provision, my co-author and I described it as a sort of a ‘Rorschach blot’, ‘in which scholars tend to see and read into the provision their own experience and understanding of criminal liability, based on their national legal system.’ Sub-paragraph (3)(a) of Article 25 introduces the concept of perpetration by commission of a crime by a person as an individual, jointly with another or through another person, while sub-paragraphs (3)(b)–(d) set out a variety of other forms of liability including ordering, soliciting, inducing, aiding and abetting.
The 2006 arrest warrant decision in the Lubanga case pronounced – without much justification – that sub-paragraph (3)(a) represented ‘principal liability’ while sub-paragraphs (3)(b)–(d) were forms of ‘accessory liability’. This reading was later affirmed by numerous decisions of the ICC, in some cases it was even suggested that the modes of liability were set out in a ‘hierarchy of seriousness’. It was deemed that the responsibility of ‘masterminds’ – those removed from the scene of the crime – should fall within sub-paragraph (3)(a) to appropriately ‘label’ them as ‘principals’. To achieve this, the ICC adopted the so-called ‘control theory’ (what is essentially a German legal theory) in order to distinguish those who are considered to have ‘committed’ the crimes from those who have ‘contributed’ to crimes of others (an essential contribution is needed for the former under this theory).
On appeal, Lubanga argued that the control theory was not supported by the text of the Rome Statute, and that ‘that the responsibility of those removed from the scene of the crime, and who control or mastermind its commission, falls within article 25(3)(b) and article 28, rather than article 25(3)(a).’ Judges Fulford and Van den Wyngaert, in earlier separate opinions, similarly rejected the adoption of the control theory, the principal/accessory distinction and hierarchy of seriousness. They argued a more straightforward and plain text reading was available.
In my opinion, it is unfortunate that the Appeals Chamber did not engage with the technical aspects of the Article 25 debate and essentially supported much of the prevailing construction as a ‘best fit’ approach to interpreting a complex provision. The Appeals Chamber has reinforced that the principal/accessory distinction is the foundational premise that leads to the adoption of the control theory and that it ‘contributes to a proper labeling’ of criminal responsibility. It did not go so far as to say that there is a hierarchy of seriousness implicit in Article 25. I think this is wise, given that sentencing at the ICC is not determined by the mode of liability charged, as it is in the German legal system (from where the control theory hails).
In my view, the principal/accessory distinction and associated adoption of the control theory has now created more trouble and complexity in the Court’s jurisprudence than it is worth. Both concepts are far from being well established in either international criminal law or a significant number of national legal systems. If expressing ‘blameworthiness’ is the goal, then a short description of the conduct of the convicted person and the sentence ordered would be more ‘expressive’ than labeling them as a principal or an accessory. The reporting I have read on the Lubanga Appeal makes no mention of Lubanga as a co-perpetrator or principal. Outside of The Hague, it would seem that these labels failed to stick. Why then is the ICC intent on defending an interpretation of Article 25 that is so unnecessarily complex and actually fragments international criminal law?
In part two of this posting, I will look at the Appeals Chamber’s peculiar response to arguments that the adoption of the ‘control theory’ was an unjustified application of domestic law.