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Part IV The ICC and its Applicable Law, 21 Co-Perpetration: German Dogmatik or German Invasion?

Jens David Ohlin

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 31 March 2023

International crimes — Customary international law

The current doctrines of co-perpetration, most notably the control theory of perpetration, are heavily influenced by German criminal law theory. To some critics, the ICC’s importation of Claus Roxin’s control theory is evidence that one legal culture is having an outsized influence on the direction of the Court’s jurisprudence. This chapter situates the current doctrines within historical context. It lays out the foundations of the ICC doctrine of co-perpetration and evaluates the most notable objections to it, including alternate versions of co-perpetration. The chapter argues that the criticism about the ICC becoming too weighted towards the criminal law approach of one particular system is unfair, since the Court engages in first-order questions of criminal law theory. Nevertheless, the criticism remains that the Court has done insufficient work to justify its methodology and properly ground its importation of domestic criminal law theory within a general theory of sources of international law.

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