Indirect Co-Perpetration and the Control Theory

Abstract

In the case law of the International Criminal Court (ICC), the notion of indirect co-perpetration, based on the control theory, has been applied extensively. The Ntaganda appellate ruling has shown that this concept of attributing liability to persons in a position of leadership remains contested and thus requires further clarification and refinement. To this end, this article provides a comparative view on the related jurisprudence of the ICC from a Japanese perspective, which has not been reflected in the international debate on modes of liability so far. Even though the control theory has only been adopted partially in domestic law in Japan, many Japanese scholars have conveyed generally affirmative assessments of this ICC jurisprudence. In addition, the approaches that Japanese criminal law has to offer on attributing responsibility to remote masterminds behind crimes are also presented in this article. The predominating notion in Japanese case law, ‘collusive co-perpetration’ — for the most part unnoticed (or underexplored) outside of Japan — exemplifies that it is practically viable (and theoretically construable) to incorporate combined vertical and horizontal attribution mechanisms into a normative model of co-perpetration — without necessarily resorting to the notion of control over an organization.