Elies van Sliedregt

Assessing the Control-Theory

As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory, is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.

Pluralism in International Criminal Law

Fragmentation of international law is a phenomenon that has been discussed ever since the ILC in 2000 decided to add to its programme of work the topic ‘Risks ensuing from the fragmentation of international law’. The proliferation of international criminal courts and tribunals sparked this debate on fragmentation. The development of a specialist regime of international law was perceived as posing a risk to the coherence and homogeneity of international law. Much of the anxiety over fragmentation stems from the collision between the ICJ and the ICTY over the ‘overall control-test’ in Tadic where the ICTY departed from settled ICJ law on attribution of liability and on qualification of the nature of an armed conflict (employing a standard of ‘effective control’). Twenty years since the establishment of the ICTY, the fragmentation/pluralism debate has entered a new phase. With a well-developed body of ad hoc Tribunal case law, an emerging body of case law at the ICC, hybrid systems like the Cambodia Tribunal, and more and more domestic prosecutions, pluralism has become an issue within the branch of ICL. While there are those who express concern over heterogeneity in ICL, recent scholarship acknowledges ICL’s pluralistic nature and, instead of striving for unity, calls for ways of managing pluralism.

Introduction: Common Civility – International Criminal Law as Cultural Hybrid

On 28 and 29 October 2011, a conference was held in The Hague on International Criminal Law (ICL) as a cultural and legal hybrid. The aim of the conference convenors was to facilitate an exchange of thoughts between legal scholars, practitioners, and social scientists on the nature of ICL and to discuss the role (legal) culture plays in international criminal justice. The recent discussion is dominated by the adversarial (common law)–inquisitorial (civil law) dichotomy and centres on the hybridnature of theprocedure in international criminal law.1 Thedebate focuses on howa fair andefficient trial canbesafeguardedbyobserving the rightsof theaccused and other participants through an operational criminal procedure. Sometimes, this clash of legal systems has become an end in itself, resulting in a debate on which system is superior. At least in theory, however, modern international criminal procedural law seems to have overcome the adversarial–inquisitorial dichotomy, since it combines features of both commonand civil-law systems.2 This unique compromise structure poses a challenge to the practitioners who – although trained in and influenced by their respective national systems – have to apply the procedural norms at the international level and, in doing so, find an appropriate balance between adversarial and inquisitorial features. This is even more challenging since the single elements of the different legal traditions do not fit together seamlessly, leading to myriad, heated disagreements over how to combine them into a single, coherent, workable legal system. The main objective of the conference is to explore the background and consequences of the civil law–common law conflict, to disclose how it affects the daily