Cross-posted at Opinio Juris.
So the ICC has released its first verdict and it only took 10 years. Most media reports are concentrating on the substantive crime – the use of child soldiers – because that issue has suddenly gained popular currency with the Kony2012 viral video.
But the Lubanga decision is also notable for the open disagreement between the judges regarding the mode of liability in the case. Although all three judges agreed that Lubanga was a co-perpetrator, Judges Benito and Blattmann adopted Roxin’s Control Theory of Perpetration, while Judge Fulford rejected the Control Theory, becoming one of the few ICC jurists to express serious concerns about the doctrine.
To recap for those readers who aren’t as obsessed with modes of liability as I am: The Control Theory was developed by the German criminal law scholar Claus Roxin in the 1960s, and was discussed with approval by George Fletcher in Rethinking Criminal Law. It was influential in German criminal law circles but largely ignored in the United States, despite Fletcher’s extensive discussion of it in Rethinking. Roxin himself created an organizational version of the doctrine after the Eichmann trial, thus demonstrating the theory’s application to mass atrocity. The first significant judicial application of the theory came during the German Border Guard Cases after German reunification.
In its earliest days, the ICC Pre-Trial Chamber decided against applying the ICTY doctrine of Joint Criminal Enterprise that was closely identified with Cassese, and instead adopted Roxin’s Control Theory of Perpetration. It is therefore not surprising that the Lubanga Trial Chamber confirmed this approach, though the dispute between the judges on this point demonstrates that the Control Theory still has its detractors.
Specifically, Judge Fulford complained about the hypothetical and counterfactual reasoning required by the control theory – a point that myself, Thomas Weigend, and plenty of others have made before. Because the control theory requires a finding that the defendant performed an essential contribution, one has to decide if the crime would have still occurred in the absence of the defendant’s contribution – hence the notion of “essential.” This is, necessarily, a counterfactual question, and the theory also gives too little guidance about how different the counterfactual crime must be before we declare it to be a different crime altogether, and therefore whether the defendant’s contribution was essential or not. These questions clearly weighed on Judge Fulford, leading him to conclude in his concurring opinion that the Control Theory created insurmountable problems for structuring ICC cases.
However, Judge Fulford also had another objection to the Control Theory – one that I cannot subscribe to. Fulford complained that the control theory was being transplanted from another legal culture – Germany – where the distinction between principals and accomplices is of central concern, in particular because the statutory sentencing ranges for principals and accomplices differ significantly. Consequently, it really matters in Germany if the defendant is convicted as a principal or an accomplice. At the ICC, though, there are no statutory sentencing guidelines, so the distinction between principals and accomplices is of no practical consequence. Or so says Judge Fulford.
I cannot subscribe to this reasoning. If there is a defect here, it is a defect in the ICC scheme on sentencing. The Rome Statute ought to have a more rigorous methodology for dealing with sentencing, but it does not. But even if that never changes, and judges retain full discretion to decide sentencing based on the individual circumstances of the case, the distinction between principals and accomplices still has enormous value. It’s part of the concept of fair labeling – i.e. that the law, and in this case the substantive doctrine of criminal law, should capture a defendant’s true and accurate culpability by applying the correct legal categories to him. A system that eviscerates the distinction between principals and accomplices fails to live up to the principal of fair labeling. I won’t belabor the point here, since it is the subject of a forthcoming exchange between myself and James Stewart in an upcoming OJ symposium sponsored by the Leiden Journal of International Law.
One final point on precedent, a subject that I have started discussing recently at LieberCode. Although Judge Fulford rejected the control theory, he refused to apply his “plain reading” version of co-perpetration in this case. His rationale for this refusal was that to do so would be prejudicial to Lubanga, since Lubanga structured his defense around the Control Theory as it was expounded by the Pre-Trial Chamber. To do otherwise would violate the fair trial rights of the defendant.
This argument strikes me as curious indeed. If Pre-Trial Chambers are going to give detailed exegesis on matters of law, which then apparently become the “law of the case” even if the Trial Chamber disagrees with them, then the law becomes static with more limited opportunities for revision. Of course, Fulford’s argument is presumably asymmetrical, in the sense that he is fine with changing the law if it benefits the defendant, but not if it prejudices him. Still, is Fulford suggesting that the same rationale would bind the Appeals Chamber in this case? Under this rationale, the ICTY Appeals Chamber should never have pronounced the JCE doctrine during the Tadic appeal.