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Control over the Theory: Reforming the icc’s Approach to Establishing Commission Liability?

Published version
Peer-reviewed

Repository DOI


Type

Article

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Authors

Minkova, Liana Georgieva 

Abstract

jats:titleAbstract</jats:title> jats:pThe jats:scicc</jats:sc> has employed the ‘control-over-the-crime’ theory, which treats those who ‘control’ the commission of a crime as principal perpetrators. Legal academics and jats:scicc</jats:sc> judges have criticised the Court’s reliance on that theory for producing unsound legal reasoning. This article engages with the question from a novel perspective, that focuses on the institutional factors affecting the adoption and reform of legal theory. Transplanting Barnett and Finnemore’s concept of the ‘pathologies’ of international organisations to the field of international law, the article argues that reforming the rules for assessing criminal responsibility is a challenging endeavour, even when those rules have exhibited significant deficiencies. Reform is possible, but it is more likely to be incremental rather than revolutionary. The findings also bear implications for international criminal justice more generally, as they suggest that the answer to delivering sound judgments is not improving criminal law theory but appreciating the peculiarities of each case.</jats:p>

Description

Keywords

48 Law and Legal Studies, 4803 International and Comparative Law, 4804 Law In Context, 4805 Legal Systems, 16 Peace, Justice and Strong Institutions

Journal Title

International Criminal Law Review

Conference Name

Journal ISSN

1567-536X
1571-8123

Volume Title

22

Publisher

Brill
Sponsorship
AHRC (1970758)