Searching for the Hinterman: In Praise of Subjective Theories of Imputation

Journal of International Criminal Justice, Forthcoming

Cornell Legal Studies Research Paper No. 14-11

29 Pages Posted: 26 Feb 2014 Last revised: 21 Mar 2014

See all articles by Jens David Ohlin

Jens David Ohlin

Cornell University - School of Law

Date Written: February 25, 2014

Abstract

How should international courts distinguish between principals and accessories? The ICC answered this question with Roxin’s Control Theory of Perpetration; defendants should be convicted as principals if they control the crime individually, jointly with a co-perpetrator, indirectly via an organized apparatus of power, or as indirect co-perpetrators (via a combination of the previous doctrines). As the ICC adopted the control requirement, however, some of its decisions have allowed lower mental states such as recklessness or dolus eventualis to meet the standard for principal perpetration under the Control Theory. Other decisions have asserted that intent or knowledge is required, though their definitions of knowledge include a risk of future events -- a definition uncomfortably similar to recklessness. The following Essay argues that the ICC should reverse its approach: instead of combining the ‘essential contribution’ element with a weak mental requirement (its current doctrine), the ICC should deemphasize control by lowering the essential contribution requirement and reinvigorating the required mental state. In short, the ICC should take a second look at subjective theories of perpetration that define principals as those with the intention to carry out the crime (or joint intention in the case of co-perpetrators) and who contribute to the effort. The ICC’s Control Theory represents an over-correction to the perceived excesses of the subjective approach -- excesses that could be fixed without resorting to the ICC’s current ersatz-Control Theory.

Keywords: Control Theory, Roxin, Perpetration, ICC, dolus eventualis, recklessness, Joint Intentions, Shared Intentions

Suggested Citation

Ohlin, Jens David, Searching for the Hinterman: In Praise of Subjective Theories of Imputation (February 25, 2014). Journal of International Criminal Justice, Forthcoming; Cornell Legal Studies Research Paper No. 14-11. Available at SSRN: https://ssrn.com/abstract=2401264

Jens David Ohlin (Contact Author)

Cornell University - School of Law ( email )

218 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
(607) 255-0479 (Phone)
(607) 255-7193 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
70
Abstract Views
871
rank
325,210
PlumX Metrics