Joint criminal enterprise and the control theory: High-level leaders as principals of crime

Abstract

This paper explores the nature of principal liability in international criminal law. In prosecuting high-level leaders most responsible for crimes, both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) have used modes of principal liability to convict high-level leaders. In examining the elements of joint criminal enterprise (JCE) and the control over the crime theory (control theory), this paper seeks to identify steps for the ICC to take in its future prosecutions. Whilst the ICC’s control theory is an appropriate mode of liability for the conviction of high-level leaders, the ICC must justify its recourse to the control theory. This paper questions whether the ICC can use the control theory as a source of law, identifies aspects of the ICC’s jurisprudence that should be clarified, and looks at indirect co-perpetration as a future tool of principal liability. If these steps are taken, the ICC can on more justified grounds continue its mission of ending impunity for high-level leaders.