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The Control Theory as
Multidimensional Concept
Reflections on the Ntaganda Appeal Judgment

Marjolein Cupido*

Abstract
The judgment in Ntaganda constitutes a landmark decision in which the Appeals
Chamber of the International Criminal Court (ICC) for the first time accepted an
accused’s criminal liability based on indirect co-perpetration. And yet, the concept of
indirect co-perpetration continues to remain heavily contested. In this article, I use
the Ntaganda Trial and Appeals Chamber judgments as a starting point for disen-
tangling the control theory. I argue that the concept of control is a multidimensional
theory. It is based on both empirical and normative considerations and constitutes a
mixture of individual and collective liability. The meaning of control is not uniform:
it varies along several dimensions that are applied depending on the facts of the case.
The ICC’s flexible application of the notion of control does not fit well with the
uniform framework it has drawn up in establishing the liability of indirect co-
perpetrators. There is a gap between the law in the books and the law in action,
which triggers questions about the possibilities and limitations of judicial creativity
at the ICC. To enable better public accountability, transparency and legal certainty, I
propose a model of factor-based reasoning at the ICC that can streamline and better
justify what currently is a very fluid liability theory generating problematic case law.

1. Introduction
On 30 March 2021, the Appeals Chamber of the International Criminal Court
(ICC) issued its long-awaited judgment in the case against Bosco Ntaganda.1
The Appeals Chamber confirmed the Trial Chamber’s earlier conviction of

* Programme manager at The Academy for Legislators and Government Lawyers, The
Netherlands. I thank the reviewers and the editors of this symposium for their useful feedback
and comments. [m.cupido@acwet.nl]
1 Judgment, Ntaganda (ICC-01/04-02/06), Appeals Chamber, 30 March 2021.
........................................................................
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Ntaganda2 — a former Deputy Chief of the General Staff of the Patriotic Forces
for the Liberation of Congo (FPLC) — on 18 counts of war crimes and crimes
against humanity. He was sentenced to 30 years’ imprisonment.
Ntaganda’s conviction is based on his liability as indirect co-perpetrator.
Indirect co-perpetration is a type of liability that is used by the ICC to establish
criminal responsibility of senior leaders for their remote contributions to inter-
national crimes: ‘through a combination of individual responsibility for com-
mitting crimes through other persons together with the mutual attribution
among the co-perpetrators at the senior level, a mode of liability arises which
allows the Court to assess the blameworthiness of ‘‘senior leaders’’
adequately’.3
The judgment in Ntaganda constitutes a landmark decision in which the
Appeals Chamber for the first time accepted an accused’s criminal liability
based on indirect co-perpetration. And yet, the concept of indirect co-
perpetration remains heavily contested. This is well evidenced by the fact
that two Appeals Chamber judges wrote separately to explain their critical
views on the meaning, scope and usefulness of indirect co-perpetration.4
According to these judges, ‘[i]ndirect [c]o-perpetration is an unnecessary im-
portation into the Court’s legal framework that has no basis in the Statute’.5
Underlying the judicial bifurcation on indirect co-perpetration is a funda-
mental disagreement about the control theory as a mechanism to distinguish
between perpetrators and accessories. The ICC’s control theory is based on the
seminal work of German scholar Claus Roxin.6 Pursuant to this theory, crim-
inal liability as a perpetrator depends on whether a person had control over the
crimes to the level that the crimes would not have been committed without his
contribution.7
ICC case law makes clear that the meaning of ‘control’ differs depending on
the type of principal liability for which it is used. Whilst co-perpetrators have

2 Judgment, Ntaganda (ICC-01/04-02/06), Trial Chamber, 8 July 2019.

3 Decision on the confirmation of charges, Katanga & Chui (ICC-01/04-01/07-717), Pre-Trial
Chamber, 14 October 2008, § 492.
4 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, Judgment, Ntaganda
(ICC-01/04-02/06 A A2), Appeals Chamber, 30 March 2021; Partly concurring opinion of
Judge Chile Eboe-Osuji, Judgment, Ntaganda (ICC-01/04-02/06 A A2), Appeals Chamber, 30
March 2021. In addition, Judge Ibáñez wrote separately, but she sided with the majority where
it concerns the interpretation and application of indirect co-perpetration. See, Separate opinion
of Judge Luz Del Carmen Ibáñez Carranza on Mr Ntaganda’s appeal, Judgment, Ntaganda (ICC-
01/04-02/06 A A2), Appeals Chamber, 30 March 2021.
5 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, Judgment, supra note 4,
§ 3.
6 C. Roxin, Täterschaft und Tatherrschaft (De Gruyter & Co., 1963); C. Roxin, ‘Straftaten im
Rahmen organisatorischer Machtapparate’, Goltdammer’s Archiv für Strafrecht (1963) 193–
207.
7 E. van Sliedregt and L. Yanev, ‘Co-Perpetration Based on Joint Control over the Crimes’, in J. de
Hemptinne, R. Roth and E. van Sliedregt (eds), Mode of Liability in International Criminal Law
(Cambridge University Press, 2019) 85–120, at 86; A. Kiss, ‘Indirect Commission’, in J. de
Hemptinne, R. Roth and E. van Sliedregt (eds), Mode of Liability in International Criminal Law
(Cambridge University Press, 2019) 30–57, at 31.
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joint control over the crime by providing an essential contribution without
which the crime would not have been committed,8 indirect perpetrators exer-
cise control through the use of intermediate agents who are steered by the
indirect perpetrator to physically commit crimes.9 Moreover, in early jurispru-
dence, the Court has accepted the notion of Organisationsherrschaft,10 whereby
indirect perpetration is expanded to scenarios in which the accused controlled
an organization to which the direct perpetrators belonged, instead of control-
ling each and every one of the intermediate agents individually.
In scholarship, much has been written about the advantages and complica-
tions of the control theory, and how it shapes principal criminal liability.11 In
this article, I will not engage with debates about the validity of the control
theory as such. Rather, I will take a more practical approach by disentangling
how the notion of control has been applied in case law, in particular where it
concerns indirect (co-)perpetration. In this respect, I will focus on how the
control theory was used by the ICC in the Ntaganda case to establish the
accused’s liability as indirect (co-)perpetrator.
The analyses will show that control is a multidimensional notion: it func-
tions as an umbrella term that captures several complementary considerations,
including empirical causality and normative role responsibility. Depending on
the facts of the case, control is explained and established in terms of different
considerations. This flexible application of the notion of control in ICC practice
has the effect that the legal basis for attributing crimes to an accused as
indirect (co-)perpetrator varies per case.
I will argue that the Court’s flexible application is at odds with the uniform
legal framework for indirect (co-)perpetration. This is particularly so considering
that the facts supporting the Court’s findings on the criminal liability of indirect
(co-)perpetrators in practice do not always fit with how indirect (co-)perpetration
is interpreted in theory. Accordingly, there is a gap between law in action and
the law in the books. Against this background, critical questions rise about the
possibilities and limitations for judicial creativity by the ICC: how far may judges
go in flexibly applying modes of liability? And how can the ICC ensure open
substantive justification for its decisions, thus enabling public control? In re-
sponse to these questions, I will propose an argumentation model of factor-
based reasoning, which will help the Court to promote legal equality without
creating a straightjacket.
The article is structured as follows. In Section 2, I briefly sketch how the
Trial Chamber and Appeals Chamber in Ntaganda have applied indirect co-
perpetration, thereby focusing on their use of control to justify Ntaganda’s
liability as principal perpetrator of the crimes charged. In addition, I discuss
the objections of Judges Morrison and Eboe-Osuji vis-á-vis the majority’s under-
standing of control. In Section 3, I identify different dimensions of control,

8 Decision on the confirmation of charges, Lubanga (ICC-01/04-01/06-803-tEN), Pre-Trial

Chamber, 29 January 2007, § 342.
9 Kiss, supra note 7, at 30.
10 Decision on the confirmation of charges, Katanga & Chui, supra note 3, §§ 500–518.
11 For an extensive overview, see Kiss, supra note 7; Van Sliedregt and Yanev, supra note 7.
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namely a normative/empirical dimension, a crimes/common plan dimension
and an organizational dimension. Depending on the facts of the case, the
meaning of control moves along these dimensions. In Section 4, I evaluate
the implications of this flexible understanding of control. Based on a so-called
argumentation model, I plead for a casuistic system of factor-based reasoning
to curtail judicial freedom without imposing a straightjacket. Section 5 outlines
my concluding remarks about the future of the control theory in the ICC’s case
law.

2. Indirect Co-Perpetration and the Control Theory

A. Introduction
Since its introduction in Lubanga, the control theory constitutes the core of the
ICC’s liability framework. The theory is based on the idea that ‘principals to a
crime . . . include those who, in spite of being removed from the scene of the
crime, control or mastermind its commission’.12 Control in this context means
that the accused had the power to decide whether and how the offence would
be committed.13 In other words, the accused must have been able to frustrate
the commission of crimes by withholding his contribution. In this way, the
control theory expands principal liability to leadership figures who control the
commission of crimes from behind the scenes. Thus, the control theory has an
important symbolic/expressive function and ascertains fair labelling.14 The
control theory underlies all types of principal criminal liability regulated in
Article 25(3)(a) of the Rome Statute, including indirect co-perpetration.

B. Indirect Co-Perpetration in Ntaganda

Indirect co-perpetration is not expressly regulated in Article 25(3)(a), but was
read into the Rome Statute by the Pre-Trial Chamber in the case against
Germain Katanga and Ngudjolo Chui.15 There has been debate as to whether
indirect co-perpetration constitutes a compounded form of criminal participa-
tion that combines indirect perpetration and co-perpetration, or whether it
presents a distinct fourth type of criminal responsibility.16 In Ntaganda, the
Trial Chamber on this point held that
the concept of indirect co-perpetration entails a form of co-perpetration where the common
plan is executed through other persons, who function as a tool of all of the co-perpetrators.
In this sense, ‘indirect co-perpetration’ in this case should not be seen as a stand-alone mode

12 Decision on the confirmation of charges, Lubanga (ICC-01/04-01/06-803-tEN), Pre-Trial

Chamber, 7 February 2007, § 330 (emphasis added).
13 Decision on the confirmation of charges, Katanga & Chui, supra note 3, § 518.
14 Kiss, supra note 7, at 31; T. Weigend, ‘Indirect Perpetration’, in C. Stahn (ed.), The Law and
Practice of the International Criminal Court (Oxford University Press, 2015) 538–556, at 552.
15 Decision on the confirmation of charges, Katanga & Chui, supra note 3, § 491.
16 Van Sliedregt and Yanev, supra note 7, at 114–115.
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of liability, but as a particular form of co-perpetration, which is compatible with the wording
of the Statute.17

Pursuant to this interpretation, indirect co-perpetration is a type of co-

perpetration that rests on the reciprocal imputation of the coordinated acts
of each co-perpetrator, whereby ‘the objective elements of the crime are exe-
cuted by other persons who are utilized by the co-perpetrators for the com-
mission of the crime’.18
The core element of indirect co-perpetration is the exercise of control over
the crime, which constitutes an objective requirement of indirect co-
perpetration. The Ntaganda Trial Chamber on this point explained that it
must be established that
members of the common plan [had control] over a person or persons who execute the
material elements of the crimes by subjugating the will of the direct perpetrators. The accused,
though not required to carry out the criminal conduct directly and personally, must have a
control over the crime, by virtue of his or her essential contribution to it and the resulting
power to frustrate its commission.19

Thus, control in relation to indirect co-perpetration entails two components: (i)

subjugation of the will of the physical perpetrators and (ii) an essential con-
tribution. The Trial Chamber did not explain further whether and how these
types of control are connected, and neither did the Appeals Chamber.
In applying the notion of control in the Ntaganda case and in evaluating
whether Ntaganda indeed had control over the crimes, the Trial Chamber
took as a starting point that the majority of crimes was physically committed
by members of the Union des Patriotes Congolais/Forces Patriotique pour la
Libération du Congo (UPC/FPLC). According to the Trial Chamber, the UPC/
FPLC was a well-organized armed group with a formal military structure.20
The organization consisted of a high number of trained soldiers and possessed
a significant arsenal of weapons, thus resembling a conventional army.
Moreover, ‘the conditions of living, training and service imposed on the
UPC/FPLC soldiers were . . . of such a nature that the soldiers reliably acted
in complete obedience in the execution of orders emanating from the UPC/
FPLC commanders’,21 including Ntaganda.22 By focusing on the structure
and characteristics of the UPC/FPLC, the Trial Chamber seems to submit
that Ntaganda exercised control over the crimes through his commanding
position within the UPC/FPLC and his related authority over the soldiers.
Thus, he had organizational control, or Organisationsherrschaft. This finding
was not challenged on appeal.

17 Judgment, Ntaganda, supra note 2, § 772 (emphasis added).

18 Decision on the confirmation of charges against Dominic Ongwen, Ongwen (ICC-02/04-01/15-
422), Pre-Trial Chamber, 23 March 2016, §§ 38–39.
19 Judgment, Ntaganda, supra note 2, § 774 (emphasis added).
20 Ibid., § 814.
21 Ibid., § 819.
22 Ibid., § 814.
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In three charged instances, crimes of pillage and murder were committed by
Hema civilians, who were not part of the UPC/LPFC. When assessing
Ntaganda’s control over the Hema civilians, the Trial Chamber considered that
the Hema civilians engaged in the relevant acts in the context of the general coercive circum-
stances resulting from the presence of armed UPC/FPLC soldiers, who were themselves
committing crimes in Mongbwalu at the same time. In addition, the conduct of these
civilians followed orders of the UPC/FPLC leadership.23

Based on these factual findings, the Trial Chamber establishes that ‘the Hema
civilians functioned as a tool in the hands of the co-perpetrators, controlled
through soldiers of the UPC/FPLC, an organisation which was itself a tool in
the hands of the co-perpetrators, as established above’.24 On appeal, the
Appeals Chamber confirmed that the ‘consistent evidence of orders issued to
the civilians by either Mr Ntaganda or his subordinates supports the Trial
Chamber’s conclusion that those civilians ‘‘functioned as a tool in the hands
of the co-perpetrators’’ and that their ‘‘will had become irrelevant’’’.25

C. Separate Opinions
Two Appeals Chamber judges — Judge Morrison and Judge Eboe-Osuji —
voiced strong objections against the majority’s findings on Ntaganda’s liability
as indirect co-perpetrator. Judge Eboe-Osuji’s reservations even led him to con-
clude that Ntaganda’s conviction should be set aside insofar as it was based on
the theory of indirect co-perpetration.
The arguments of the dissenting judges largely follow earlier critiques
expressed by Judges Fulford and Van den Wyngaert, insofar as they contend
that the interpretation of Article 25(3) on the basis of the control theory goes
beyond the wording of the Statute26 and does not fit within the system of the
Rome Statute.27 In addition to these methodological points of critique on the
interpretation of the Rome Statute, the dissenting judges criticize the complex-
ity of the majority’s interpretation of indirect co-perpetration. According to
Judge Eboe-Osuji:
it is truly easy to lose control of [indirect co-perpetration’s, MC] analytical structure, given
its multiple moving parts and union joints, each with its own discrete elements that invite
further analysis. By the time one is done trying to coral all those elements to harness their
disparate attributes in the overall analysis, one is either hopelessly lost — or doggedly
determined to make it work without acknowledging the many analytical difficulties that
must be resolved.28

23 Ibid., § 822 (emphasis added).

24 Ibid., § 824 (emphasis added).
25 Judgment, Ntaganda (ICC-01/04-02/06 A A2), Appeals Chamber, 30 March 2021, § 954.
26 Partly concurring opinion of Judge Chile Eboe-Osuji, Judgment, Ntaganda, supra note 4, § 13.
See Weigend, supra note 14, at 551; Kiss, supra note 7, at 45.
27 Ibid., § 63.
28 Ibid., § 77.
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Because of the theory’s complexity, indirect co-perpetration is difficult to grasp
in all its nuances for legal professionals, let alone for the accused and victims
concerned. Moreover, as Judge Morrison points out, ‘the increasingly lengthy
and sometimes divergent explanations of what [the legal requirements] mean
. . . [lend] the theory a certain elasticity’.29 According to the dissenting judges,
the control theory consequently captures a wide range of persons involved in
criminal conduct and enables the ICC to qualify them all as principals of
international crimes. This creates ‘discordance between the ostensibly strict
requirements for Indirect Co-perpetration . . . and the facts that are relied
upon to establish them’.30
Here, Judges Morrison and Eboe-Osuji raise an important substantive point
of critique that pertains to fundamental principles of justice, such as legality,
legal certainty and fair labelling. In particular, the separate opinions suggest
that indirect co-perpetration entails a high level of judicial creativity — not
only in terms of how the Court has read indirect co-perpetration into the
Rome Statute, but also in terms of how this notion is applied in practice. In
this respect, the dissenting opinions seem to bring forward at least two
interlinked issues. First, insofar as the ICC employs indirect (co-)perpetration
in a flexible way, this would be at odds with the uniform legal framework for
indirect (co-)perpetration. Secondly, through creative reasoning, the ICC in
practice arguably substantiates the criminal liability of indirect (co-)perpetra-
tors with factual findings that do not fit with how the notion of indirect
(co-)perpetration is interpreted in theory. Thus, a gap arises between law in
action and the law in the books. In the next part of this contribution, I will
further examine these critical points by unravelling different dimensions of
the notion of ‘control’.

3. Control: A Multidimensional Concept

A. Normative–Empirical Dimension
As said, the ICC has interpreted ‘control’ as the ability to decide whether and
how a crime will be committed, i.e. without the accused’s contribution, the
crime would not have been committed.31 This interpretation reflects the notion
of conditio sine qua non, or ‘but for’ causation.32 ‘But for’ causation is a type of
empirical causation that focuses on the counterfactual relation between the

29 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, supra note 4, § 17.
Implicitly, Partly concurring opinion of Judge Chile Eboe-Osuji, Judgment, Ntaganda, supra note
4, §§ 77–94.
30 Ibid. Comparably, Partly concurring opinion of Judge Chile Eboe-Osuji, Judgment, Ntaganda,
supra note 4, § 94.
31 Decision on the confirmation of charges, Katanga & Chui, supra note 3, § 518.
32 J. Keiler, Actus Reus and Participation in European Criminal Law (Intersentia, 2013), at 116–117;
H. Bavli, ‘Counterfactual Causation’, Research Papers No. 409 (SMU Dedman School of Law
Legal Studies) available online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3244109
(visited 23 May 2022), at 881.
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crime and the accused’s conduct: ‘but for’ event A, event B would not have
occurred.
Yet, in practice, the ICC’s understanding of control as the ‘power to frus-
trate’ does not constitute a theory of plain empirical causation, i.e. it is not
limited to an assessment of control in factual terms. Illustratively, nowhere in
its judgment did the Ntaganda Trial Chamber engage in an empirical assess-
ment of cause and effect, and nowhere did it make a counterfactual analysis of
what would have happened if Ntaganda had withdrawn from his position in
the UPC/FLPC, or had refused to engage in criminal activities.
Instead, the Court’s assessment of control includes normative considerations
concerning the accused’s role responsibility and functional obligations.33 In
particular, the Trial Chamber analysed Ntaganda’s control in light of his pos-
ition and duties within the UPC/FPLC. The Chamber emphasized that, as
Deputy Chief of Operations and Organization, Ntaganda was among the key
leaders of the movement. Because of his position, he was in charge of the
troops’ deployment and operations, whereby his orders were obeyed.34
Naturally, the Court’s reasoning can be criticized for not explicating and
openly engaging with the normative dimension of control, and for thus obscur-
ing the gap between the interpretation of control in theory and its application
in practice. Having said that, there is a valid reason for moving beyond a pure
empirical ‘but for’-test and for adopting a normative understanding of control.
International crimes are crimes that are ‘the product of manifold and notori-
ously convoluted contributions spread over time and place’.35 Moreover, the
accused standing trial are usually structurally and geographically removed
from the scene of the crimes, and contribute to these crimes in ways that
are often not criminal in itself (e.g. designing military strategies, leading mili-
tary operations). Under these circumstances, the implementation of an empir-
ical ‘but for’-test generates complex (evidentiary) analyses. As Judge Morrison
explained in his separate opinion, ‘there are simply too many moving parts to
allow anything more than a broad and speculative assessment of what would
have happened without the contribution of an individual actor’.36 Accordingly,
counterfactual analyses become irrational and subject to judicial bias. This has
previously led scholars to conclude that
the line between (joint) perpetrators and accessories cannot be drawn on empirical grounds
but requires a normative (value) judgment — a judgment that in the last resort is based on
a notion of fair attribution and is therefore soft at the edges.37

33 This is particularly so where it concerns the organizational variant of indirect co-perpetration:

Organisationsherrschaft. On this point, see section 3.C.
34 Judgment, Ntaganda, supra note 2, §§ 852–857.
35 Van Sliedregt and Yanev, supra note 7, at 107.
36 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, supra note 4, § 29.
Similarly, Van Sliedregt and Yanev, supra note 7, at 107.
37 J.D. Ohlin, E. van Sliedregt and T. Weigend, ‘Assessing the Control Theory’, 26 Leiden Journal of
International Law (LJIL) (2013) 725–746, at 732.
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Pursuant to a normative interpretation of control, the focus shifts towards the
question of whether the crimes charged can be fairly attributed to the accused
based on normatively relevant factors. The standard of ‘fair attribution’ pro-
vides an open criterion that needs to be further defined and operationalized in
practice. In this respect, it is essential that the Court explicates which facts
justify the normative attribution of crimes: under which factual circumstances
is attribution ‘fair’? One factor that can be particularly relevant is the accused’s
position and his related role responsibility. After all, international crimes are
usually committed by people whose conduct is defined by their role in a (mili-
tary, political or corporate) organization. Some of these roles (e.g. commanders
of military groups) come with special responsibilities, obligations and influence,
which justify that the liability of persons performing such roles is greater than
that of ordinary citizens.38 In this light, it seems fair that the judicial analysis
of whether an accused exercised control takes into account the accused’s role
responsibility and functional obligations,39 and includes an assessment of how
persons in a certain capacity should operate within the social or economic
sphere.40
This is not to say that liability may be established merely on the basis of an
accused’s position. As Judge Morrison argues in his separate opinion, liability
may not be established in such a broad way that ‘anyone operating effectively
within the command structure of an organisation committing crimes may be
held responsible as a principal perpetrator because of the nature of their
role’.41 Instead, the notions of role responsibility and functional obligations
entail that the accused’s contribution is coloured by his position and that
the accused’s position influences how his contribution should be weighted.

B. Crimes–Common Plan Dimension

ICC case law establishes that the accused must have had ‘control over the
crime, by virtue of his or her essential contribution to it and the resulting power
to frustrate its commission’. This phrasing has caused confusion about
‘whether [the accused’s] ‘‘essential contribution’’ must be to the common

38 A. Von Hirsch, ‘Extending the Harm Principle: ‘‘Remote’’ Harms and Fair Imputation’, in A.
Simester and A. Smith (eds), Harm and Culpability (Oxford University Press, 1996) 259–276, at
270, 272.
39 Similarly, C. Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge University Press,
2010), at 158–159.
40 J. ten Voorde, ‘Prohibiting Remote Harms: On Endangerment, Citizenship and Control’, 10
Utrecht Law Review (2014) 163–179, at 172; A. Simester and A. von Hirsch, Crimes, Harms
and Wrongs: On the Principles of Criminalization (Hart Publishing, 2011), at 64, 68; M. Cupido,
‘Common Purpose Liability Versus Joint Perpetration: A Practical View on the ICC’s Hierarchy
of Liability Theories’, 29 LJIL (2016) 897–915, at 909–910; A. Gil Gil and E. Maculan,
‘Current Trends in the Definition of ‘‘Perpetrator’’ by the International Criminal Court: From
the Decision on the Confirmation of Charges in the Lubanga Case to the Katanga Judgment’, 28
LJIL (2015) 349–371, at 357.
41 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, Judgment, Ntaganda,
supra note 4, § 30.
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plan pursuant to which the crime is committed, or to the crime itself’.42 In
Ntaganda, the Appeals Chamber engaged with this issue as follows:
consistent with the principle of causation . . . an accused’s essential contribution must be to
the crime for which he or she is responsible. However, the contribution of a co-perpetrator
which, on its face, is not directly to a specific crime, but to the implementation of the
common plan more generally may still suffice.

By reasoning in this way, the Appeals Chamber creates room to manoeuvre

and opens the door for case-by-case analysis. Whilst, depending on the facts of
the case, the common plan may be used as a point of reference for evaluating
the accused’s contribution, the ultimate test is whether the accused in this
way made an essential contribution to the crime. Thus, the Appeals Chamber
potentially addresses two opposing demands.
On the one hand, by assessing the accused’s contribution in light of his role
within the implementation of a common plan, the Chamber reflects the col-
lective nature of international crimes and the organizational dimensions under-
lying such crimes.43 In particular, it allows for creating, ‘a mixed system of
individual-collective responsibility in which the criminal enterprise or organ-
ization as a whole serves as the entity upon which attribution of criminal
responsibility is based.’44
On the other hand, by requiring that the ultimate test is whether the
accused controlled the commission of crimes by means of his contribution,
the Appeal Chamber ascertains a clear connection to the crimes charged.
Thus, the Chamber in theory meets the concern of Judge Van den
Wyngaert in one of her early dissenting opinions, that when,
it suffices for an accused to make a contribution to the realization of the common plan, even
if this contribution has no direct impact on the coming into being of the material elements
of a crime, . . . the connection to the crime might be almost entirely lost. When this
happens, we come dangerously close to treating the mode of criminal responsibility as a
crime in itself, instead of as a legal instrument to connect the actions and omissions of an
accused to the acts of one or more physical perpetrators.45

The concerns of Judge Van den Wyngaert are particularly pertinent consider-
ing that, under ICC law, the group efforts that are used as a point of reference
for imputing criminal liability are not necessarily unlawful, i.e. the accused

42 Corrigendum to the ‘Public Redacted Version of ‘‘Defence Appeal Brief – Part II’’, 31 January
2020, ICC-01/04-02/06-2465’, 27 March 2020, ICC-01/04-02/06-2465-Red, Ntaganda (ICC-
01/04-02/06), Defence team of Mr. Bosco Ntaganda, 30 June 2020, § 369.
43 Compare A. Smeulers, ‘A Criminological Approach to the ICC’s Control Theory’, in J. Heller
et al. (eds), The Oxford Handbook of International Criminal Law (Oxford University Press, 2020)
379–398; A. Heyer, ‘Corporate Complicity under International Criminal Law: A Case for
Applying the Rome Statute to Business Behavior’, 6 Human Rights & International Legal
Discourse (2012) 14–55, at 48; P. Robinson, ‘Imputed Criminal Liability’, 93 Yale Law
Journal (1984) 609–678, at 630, 633–634, 642–643.
44 K. Ambos, ‘Article 25’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International
Criminal Court (Beck/Hart, 2016) 979–1029, at 1000.
45 Concurring opinion Judge Christine van den Wyngaert, Judgment, Ngudjolo Chui (ICC-01/04-
02/12), Trial Chamber, 18 December 2012, §§ 34–35.
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need not contribute to an inherently criminal common plan. Rather, it suffices
that the relevant common plan contains ‘an element of criminality’,46 which
means that the plan resulted in the commission of crimes in the ordinary
course of events.
Against this background, I have previously argued that a sufficient basis for
establishing criminal responsibility can only be ascertained when the accused’s
control is assessed in relation to the criminal element of a common plan, e.g.
the campaign of ethnic cleansing, or the discriminatory attacks at civilians.47
Thus, we need to ensure that the accused was indispensable for creating/
implementing a criminal context, rather than a violent endeavour more
generally.
In theory, this approach aptly fits with the open-ended test of the Ntaganda
Appeals Chamber. In particular, the Appeals Chamber’s reasoning leaves room
for the idea that where the common plan is non-criminal, a causal relation
must be established between the accused’s contribution and the occurrence of
specific crimes/criminal incidents, rather than the common plan more gener-
ally. By contrast, when the common plan itself is criminal,48 the question of
whether the contribution should be to the common plan in general or to the
crime in particular is less pertinent. In such a case, the accused’s contribution
to a criminal common plan can provide a sufficient basis for establishing
liability.
Unfortunately, this is not how the ICC in Ntaganda applied the contribution
requirement in practice. Indeed, in relation to the so-called First Operation, the
Trial Chamber could link Ntaganda to the commission of crimes specifically,
since he personally ordered killings and directly engaged in violent conduct.
But the Trial Chamber’s reasoning — which was accepted by the Appeals
Chamber — with regard to Ntaganda’s contribution to (the crimes committed
during) the so-called Second Operation is less precise. In particular, the Trial
Chamber referred to the fact that Ntaganda (i) was determinative in setting up
an efficient military group through his involvement in recruitment activities49
and (ii) devised the military tactic which allowed for the successful operations
of the UPC/FPLC.50
Notably, the Chamber’s reasoning mainly points to Ntaganda’s generic con-
tributions to military activities of the UPC/FPLC.51 It focuses on the accused’s
senior role within a military organization, and his involvement in the organ-
ization’s military campaign, but does not clarify specifically how Ntaganda

46 Judgment, Katanga (ICC-01/04-01/07), Trial Chamber, 7 March 2014, § 1627; Decision on the
confirmation of charges, Lubanga (ICC-01/04-01/06), Pre-Trial Chamber, 7 February 2007, §
344; Judgment, Lubanga (ICC-01/04-01/06), Appeals Chamber, 1 December 2014, § 445;
Judgment, Bemba et al. (ICC-01/05-01/13), Trial Chamber, 19 October 2016, § 66.
47 Compare Robinson, supra note 43, at 663.
48 Judgment, Bemba et al. (ICC-01/05-01/13), Appeals Chamber, 8 March 2018, § 825.
49 Judgment, Ntaganda, supra note 2, § 833.
50 Ibid., §§ 834–846.
51 Similarly, Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, supra note 4,
§§ 25–26.
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contributed to the crimes committed in the context of these military campaigns,
and how he exercised control over these crimes. Thus, the concerns voiced by
Judge Van den Wyngaert come back to mind and trigger the question of
whether the contribution element of the control theory ascertains a sufficient
connection between the accused’s conduct and the crimes committed, thus
justifying his principal criminal responsibility. Moreover, the Court’s flexible
application of the contribution requirement in practice seems to be at odds
with the stricter interpretation of the requirement, thus creating a tension
between the law in the books and the law in practice.

C. Organizational Dimension
As said, international crimes are normally committed by groups of people who
work together within a political or military organization.52 On this account,
the Court has held that the most relevant type of control in cases of indirect
(co-)perpetration is so-called Organisationsherrschaft, or control through organ-
ized power structures.
Organisationsherrschaft expands indirect perpetration from situations of inter-
personal control between the indirect and the physical perpetrator, to situa-
tions of organizational control in which the accused used an ‘apparatus of
power . . . to steer it intentionally towards the commission of the crime, with-
out leaving one of the subordinates at liberty to decide whether the crime is to
be executed’.53 Thus, Organisationsherrschaft constitutes the organizational
variant of indirect (co-)perpetration that establishes liability upon persons
who, ‘by controlling an organized apparatus, are criminally responsible as
perpetrators themselves for crimes committed by the apparatus’.54
Just as the control theory, more generally, the ICC’s understanding of
Organisationsherrschaft is based on Claus Roxin’s work.55 Roxin designed
Organsationsherrschaft against the background of the Eichmann case before
the District Court of Jerusalem, and with a view to qualifying German leader-
ship figures — such as Eichmann — as principals of crimes committed during
World War II.56 Thus, Roxin’s ideas are premised on crimes committed within
the context of a bureaucratic state-machine.
Having said that, Roxin accepted that Organisationsherrschaft could also be
applied to non-state organizations, such as underground movements, secret
organizations and gangs, provided that they are (i) based on hierarchical
relationships; (ii) unconstrained by changes in individual membership; and
(iii) their goals run counter to those of a domestic legal order.57 According

52 See the various contributions in A. Nollkaemper and H. van der Wilt (eds), System Criminality
in International Law (Cambridge University Press, 2009).
53 Judgment, Ntaganda, supra note 2, § 778; Katanga & Chui, supra note 3, § 499.
54 Van Sliedregt and Yanev, supra note 7, at 111.
55 Roxin, supra note 6.
56 Kiss, supra note 7, at 31; J. Stewart, ‘The End of Modes of Liability’, 25 LJIL (2012) 165, at
167.
57 C. Roxin, ‘Crimes as Part of Organized Power Structures’, 9 JICJ (2011) 191–205, at 204.
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to Roxin, under these circumstances, almost automatic compliance with orders
to commit crimes — as opposed to mere general willingness to comply with
orders by superiors — could still be ascertained.58
In early case law, the ICC has encountered difficulties with applying Roxin’s
original notion of Organisationsherrschaft to the realities of modern conflicts and
to the less organized and less structured militia movements, riot groups and
criminal networks that are subject of the ICC’s investigations and prosecu-
tions.59 In response to these difficulties, the ICC has applied
Organisationsherrschaft in a flexible way and has creatively tailored Roxin’s
ideas to the specific features of international crimes cases. In particular, the
Court has accepted that organizational control does not necessarily depend on
strict hierarchical command systems, but may also be realized through so-
called weak factors,60 such as strict and violent training regimes, the use of
drugs and/or minors or the leader’s personal authority.61
The concept of Organisationsherrschaft remains controversial, in particular
because of its loose application in ICC case law. Weigend, for example, submits
that Organisationsherrschaft goes beyond the wording of the Rome Statute,
since ‘[t]he fact that the Statute targets mass criminality does not determine
exactly in which way its authors expected the judges to address the prob-
lem’.62 He therefore pleads for a textual interpretation of the Rome Statute
that focuses on the accused’s personal dominance over the physical perpetra-
tors. Though Weigend accepts that ‘it is not clear whether all judges of the ICC
are ready to abandon their infatuation with the concept of ‘‘domination by
organization’’’, in his view, ‘they might make life easier for themselves if they
did and they might be able to concentrate on the key requirement of indirect
perpetration: control over another person’.63
The judgment of the Appeals Chamber in Ntaganda confirms that, indeed,
the majority of ICC judges are not willing to set aside Organisationsherrschaft. In
fact, the Court accepted Ntaganda’s liability as indirect co-perpetrator for the
crimes committed by UPC/FPLC soldiers based on his Organisationsherrschaft,
which was established through the above-mentioned ‘weak factors’. On this
point, the Trial Chamber particularly held that ‘the conditions of living, train-
ing and service imposed on the UPC/FPLC soldiers were, beyond reasonable
doubt, of such a nature that the soldiers reliably acted in complete obedience
in the execution of orders emanating from the UPC/FPLC commanders.’64
As explained above, Ntaganda was not only held liable as indirect co-
perpetrator for crimes committed by UPC/FPLC soldiers, but also for crimes

58 Roxin, supra note 57, at 203–204.

59 Similarly, E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford
University Press, 2012), at 170; Ambos, supra note 44, at 996–997.
60 Kiss, supra note 7, at 47–48.
61 Ibid., at 39, 47, 53.
62 T. Weigend, ‘Perpetration through an Organization: The Unexpected Career of a German Legal
Concept’, 9 JICJ (2011) 91–111, at 100.
63 Weigend, supra note 14, at 556.
64 Judgment, Ntaganda, supra note 2, § 819.
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committed by Hema civilians. In this respect Organisationsherrschaft does not
seem to provide the appropriate legal framework, since the physical and indir-
ect perpetrators are not tied together by their common membership of a single
(hierarchical) organization that ascertains automatic compliance with orders.
Consequently, the question of whether the crimes committed by the Hema
civilians could be attributed to Ntaganda cannot be assessed in light of how
the Hema civilians were organized, whether they operated within some kind of
command structure, or what type of authority the UPC/FPLC leadership —
and in particular Ntaganda — held within this command structure.65
Nevertheless, the Trial Chamber did pay attention to the organizational dimen-
sion of the crimes committed by Hema civilians. In particular, the Trial
Chamber referred to the general coercive circumstances resulting from the
presence of UPC/FPLC soldiers, and the fact that the conduct of civilians
followed UPC/FPLC orders.66 Based on these factual circumstances, the Trial
Chamber concluded that
the Hema civilians functioned as a tool in the hands of the co-perpetrators, controlled
through soldiers of the UPC/FPLC, an organisation which was itself a tool in the hands
of the co-perpetrators, as established above. In this specific instance, the co-perpetrators
were able to realise the material elements of certain crimes, in pursuance of the common
plan, through these Hema civilians, whose will had become irrelevant.67

The findings and conclusion of the Trial Chamber trigger a number of critical
questions. First, it is doubtful whether the circumstances listed — i.e. the
general coercive circumstances and the obedience of orders — indeed justify
the far-reaching conclusion that Ntaganda exercised control over the Hema
civilians. Surely, the civilians may have experienced intense fear as a result of
the military presence and may therefore have been willing to obey the soldiers.
Yet, this is not identical to automatic compliance, which presumes a particu-
larly strong degree of deference. Moreover, insofar as control is based on com-
pliance with orders that overtly or implicitly called for the commission of
crimes, the distinction between indirect (co-)perpetration and ordering may
be unwantedly blurred.
Secondly, it is rather unclear what role the organizational dimension plays
in the Trial Chamber’s reasoning. According to the Trial Chamber, the Hema
civilians were ‘controlled through the soldiers of the UPC/FPLC, an organiza-
tion which was a tool in the hands of the co-perpetrators’.68 By reasoning in
this way, the Trial Chamber seems to endorse a two-step analysis: (i) the Hema
civilians were controlled by UPC/FPLC soldiers and (ii) the UPC/FPLC soldiers
were controlled by the co-perpetrators. Thus, the UPC/FPLC functions as the
missing linkage between Ntaganda and the Hema civilians. Even though the
civilians themselves were not actual members of the UPC/FPLC, the

65 See also, Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, supra note 4, §
19.
66 Judgment, Ntaganda, supra note 2, § 822.
67 Ibid., § 824.
68 Ibid.
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organization functions as the entity that connects the civilians and Ntaganda,
in the absence of Ntaganda’s inter-personal control over the civilians. In this
way, the ICC in practice seems to creatively expand the organizational dimen-
sion of control beyond its original limits, as defined by Roxin, but also the
limits set by the ICC itself: organizational control plays a role, even in relation
to crimes committed by private civilians.

D. Interim Conclusion
The analysis above shows that the ICC’s control theory does not provide a
strict legal framework that can be uniformly applied in all cases of indirect
(co-)perpetration. Rather, the nature and scope of control vary along different
dimensions. In particular, ICC case law suggests that control is flexibly estab-
lished based on a collection of empirical and normative considerations, a
mixture of individual and collective liability, and different organizational fea-
tures. Consequently, the legal basis for holding accused accountable as indir-
ect (co-)perpetrator can differ per case.
The ICC’s flexible application of the notion of control does not fit well with
the uniform legal framework for establishing liability for indirect (co-)perpetra-
tion. This is particularly so considering that in practice the Court has sometimes
substantiated the criminal liability of indirect (co-)perpetrators with factual
findings that do not correspond with how indirect (co-)perpetration is inter-
preted in theory. Accordingly, there is the risk that ‘control’ functions as a
catch-all concept that can be creatively applied and adjusted to the facts of
individual cases at the Court’s will.69
In light of the findings above, the next section will continue to assess the
possibilities and limitations of judicial creativity: how far may judges go in
creating and flexibly applying modes of liability, in particular considering the
ICC’s institutional context? And how can the ICC — given its specific institu-
tional context — still guarantee sufficient substantive justification for its deci-
sions and enable adequate public control of its judgments?

4. Legality, Judicial Law-making and Factor-based

Reasoning
A. Legality
It goes without saying that the decision-making powers of the ICC are not
unrestrained. In particular, the principle of legality — which is regulated in
Article 22 of the Rome Statute — limits the Court’s freedom by prohibiting
that the law is applied retroactively (ex post facto). Thus, a conviction can only
be based on norms that already existed when the accused committed the act
with which he is charged. In addition, Article 22 stipulates that the Rome

69 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, supra note 4, § 31.
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Statute needs to be interpreted strictly (i.e. not be extended by analogy) and
that legal ambiguities should be resolved in favour of the accused. Together,
these legality requirements seek to protect accused from arbitrary use of judi-
cial power, which ultimately strengthens the rule of law and the legitimacy of
international criminal justice.

B. Judicial Law-making
It is sometimes argued that the principle of legality forestalls a textual inter-
pretation of the Rome Statute that prioritizes the statutory wording. According
to Boot, the legality principle in Article 22 gives voice to the views of
Montesquieu, requiring judges to act as les bouches de la loi.70 A similar pref-
erence for textual interpretation can be recognized in the critiques of the
dissenting judges against the control theory, insofar as they contend that
the theory ‘cannot be derived from the words ‘‘[c]ommits such a crime, . . .
jointly with another or through another person’’ in Article 25(3)(a) of the
Rome Statute’.71
It can be questioned whether this black-letter approach — which leaves
little room for judicial creativity — is indeed appropriate and realistic, in par-
ticular considering the institutional structure within which the ICC operates.
In this respect, it is noteworthy that international criminal justice is shaped as
a horizontal system that is governed by sovereign states, rather than a central
legislator. This has the effect that judges attain an important law-making
function. As Van Sliedregt has made clear,
the consensual nature of international law is likely to generate provisions that, being the
result of a political compromise and the outcome of a diplomatic process, are contrived and
unworkable. Under such circumstances, judicial lawmaking is essential and compensates for
a flawed process of lawmaking.72

From this perspective, it is in fact acceptable that judges creatively interpret

the text of the Rome Statute in order to progressively adapt definitions of
modes of liability to the realities of modern warfare, the particular circum-
stances of the situations the ICC is investigating, and the individual circum-
stances of the accused standing trial.
At the same time, the absence of a central legislator also entails that there
is no control on the scope and direction of judicial law-making. Thus, whilst
the ICC necessarily exercises a creative law-making function, there is no
(counter-)partner, who can hold the judiciary to account when they overstep
their authority, or act in ways that are not substantively justifiable. To some
extent, this is simply one of the realities of international criminal justice. It is

70 M. Boot, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen sine Lege and the Subject
Matter Jurisdiction of the International Criminal Court (Intersentia, 2002), at 395.
71 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, supra note 4, § 12.
72 Van Sliedregt, supra note 59, at 14. See also, K. Ambos, ‘Ius Puniendi and Individual Criminal
Liability in International Criminal Law’, in R. Mulgrew and D. Abels (eds), Research Handbook on
the International Penal System (Edward Elgar Publishing, 2016) 57–79, at 71.
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a plain fact that, unlike domestic law, international criminal justice is not
shaped as a trias politica, and does not operate in an institutional structure of
checks and balances.
Yet, we cannot overlook the implications of deficient control on the ICC’s
law-making function too easily. In this respect, it is interesting to observe that
domestic public law discourse on the so-called culture of justification has re-
cently emphasized that — as justificatory beings — humans may only be
subjected to (state) authority if such authority is justifiable to them.73 In the
domestic context, courts accordingly need to control the authority exercised by
other institutions to ensure that every act of state that affects a person is
substantively justifiable, that is supported by sufficiently strong substantive
arguments.74 Because of the focus on substantive, rather than mere procedural
justice, courts exercise a creative function and may go beyond the legal text to
impose standards of rationality and reasonableness on state actors.75 Thus, the
culture of justification forestalls a dialogue model in which the courts and
other state actors — in particular the legislator — act as partners ‘in the
business of law’ in order to develop a system of justice.
Clearly, the discourse on the culture of justification is based on the trad-
itional trias politica system with a division of power and control between in-
dependent state branches. Thus, the discourse cannot simply be transposed to
the unique context of international criminal law. Having said that, the
thoughts underlying the culture of justification can have added value for inter-
national criminal justice. In particular, the importance of substantive justifica-
tion in order to control the exercise of power seems equally applicable to
international criminal law. When the idea of substantive justification is trans-
lated to the international sphere, this can for example entail that the ICC
reinforces its means of public accountability through a judicial argumentation
model that constrains the process of judicial law making. This argumentation
model should meet a certain validity threshold: the Court must explain its
findings on the basis of substantive reasons that are justifiable, verifiable and
that ensure the rationality of judicial decision-making.

C. Factor-based Reasoning
The importance of judicial justification and argumentation is well established
in international criminal law. Article 74(5) of the Rome Statute requires that
judgments contain a full and reasoned statement of evidentiary findings and
conclusions. This entails that the judgments ‘must state the applicable law and
relevant facts . . . and explain how the Chamber arrived at the legal conclu-
sions based on the application of law to facts’.76

73 K. Möller, ‘Justifying the Culture of Justification’, 17 International Journal of Constitutional Law

(2019) 1078–1097, at 1078.
74 Ibid., at 1081.
75 Ibid., at 1084.
76 S. Vasiliev, ‘Article 74: Requirements for the Decision’, in M. Klamberg (ed.), Commentary on the Law
of the International Criminal Court (Torkel Opsahl Academic EPublisher, 2017) 554–570, at 566.
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In practice, these legal standards have generated judgments that are ‘highly
detailed, heavily referenced, and fairly lengthy’.77 Illustratively, the Trial
Chamber judgment in Ntaganda is 529 pages long and contains 3,254 foot-
notes. Yet, when looking behind this article wall, into the actual substantive
reasons underlying ICC judgments, we sometimes witness a gap between the
law in theory — i.e. the Court’s interpretation of the law — and the law in
practice — i.e. the way in which the law is applied in individual cases.78 The
findings of the Ntaganda Trial Chamber on indirect co-perpetration aptly illus-
trate this.
Whereas the requirements for indirect co-perpetration as accepted by the
Trial Chamber in theory display a strict and uniform legal framework, the facts
that are relied upon to establish these requirements in practice display a more
varied and flexible picture:79 the general notion of control in reality captures a
wide range of different types of influence on criminal events, which sometimes
signify a rather weak linkage between the accused and the crimes charged.
This observation brings us back to the critiques of the dissenting judges in the
Ntaganda case, who witnessed ‘discordance between the ostensibly strict
requirements for Indirect Co-perpetration . . . and the facts that are relied
upon to establish them’.80 In other words, there is a gap between the law
in theory and the law in practice. Indeed, the finding that indirect co-
perpetration in real life cannot be captured in the uniform legal framework
that is equally applicable to all cases may not be problematic in itself. Yet, from
the perspective of substantive justification such should then at least be openly
recognized. By concealing the flexible, multidimensional character of indirect
co-perpetration behind an apparently strict and uniform framework of the
control theory, the true reasons underlying the ICC’s finding of criminal liabil-
ity are hidden from public scrutiny and are not substantively justified.81
In scholarship and dissenting opinions, different alternatives and solutions
have been put forward to address this issue. For example, it has been suggested
to resort to types of accessorial liability — in particular, ordering and common
purpose liability — which allegedly better fit remote involvement in group
criminality than indirect (co-)perpetration.82 Whilst this suggestion is certainly
valuable and deserves further study, I wish to present yet another way for-
ward. Instead of bypassing the difficulties with indirect (co-)perpetration by
turning to alternative grounds of accessorial liability, we can also seek to
resolve the current gap between indirect (co-)perpetration in theory and in
practice by openly embracing variation in the underlying control theory. This
entails explicating that control is not a uniform, one-sided notion that can be

77 Ibid.
78 In previous work, I have for example illustrated that legal practice does not fit with the ICC’s
hierarchical interpretation of Art. 25(3). See Cupido, supra note 40.
79 Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal, supra note 4, § 17.
80 Ibid. Comparably, Judgment, Ntaganda, supra note 4, § 94.
81 Similarly, Judgment, Ntaganda, ibid.
82 Inter alia, ibid., §§ 66–67; Separate opinion of Judge Howard Morrison on Mr Ntaganda’s
appeal, supra note 4, §§ 37–40.
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captured in a single framework and be similarly applied in all cases. Rather,
control covers a pallet of factors that can be used, depending on the unique
circumstances of each case. Such flexible understanding of the control would
also fit with how Roxin himself understood the control theory, i.e. ‘as an ‘‘open
concept’’ — more a guiding principle than a fixed rule with precise
inferences’.83
When perceiving the control theory as an open concept, there is no need to
develop a strict legal framework consisting of supposedly uniform require-
ments. Rather, one would take the general notion of control over the crime
as a starting point, and based on this starting point identify factors that are
relevant for establishing the accused’s control over the crime, such as the
accused’s factual/empirical contribution to the crimes, his interpersonal influ-
ence on the physical perpetrators, the accused’s organizational authority and
his related role responsibility. Whether the accused, considering these factors,
indeed controlled the crimes charged will need to be assessed on a case-by-case
basis. This assessment cannot be captured in terms of strict scheme of require-
ments that regulate inter alia the necessary qualities of the organization in
terms of the number of members, or the existence of a strict hierarchy (as is
currently done by the ICC). Rather, it will entail substantive casuistic reason-
ing whereby the Court justifies its decision in light of the case-specific facts, the
identified relevant factors, and how the ICC in previous case law appraised and
applied these factors.
Such casuistic reasoning does not only better align the law in action with
the law in the books. It also requires that the Court explicates the factual basis
of the accused’s liability more specifically, thereby enabling future Chambers to
revert to previous judgments and to connect their findings with earlier judg-
ments. In this way, the law can be developed on a case-by-case basis, whilst
still ascertaining substantive justification and legal equality.

5. Concluding Remarks
In this article, I have used the Ntaganda Trial and Appeals Chamber judgments
as a starting point for disentangling the control theory. I have illustrated that
the concept of control is a multidimensional concept that is established based
on a collection of empirical and normative considerations, a mixture of indi-
vidual and collective liability, and different organizational features. Thus, the
meaning of control is not uniform, but varies along several dimensions that are
applied depending on the facts of the case.
The ICC’s flexible application of the notion of control does not fit well with
the uniform relevant framework for establishing liability for indirect (co-)per-
petration. In particular considering that in practice the Court has sometimes
substantiated the criminal liability of indirect (co-)perpetrators with factual
findings that do not correspond with how indirect (co-)perpetration is

83 Ambos, supra note 72.

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interpreted in theory. Thus, there is a gap between the law in the books and
the law in action, which triggers questions about the possibilities and limita-
tions of judicial creativity.
To enable better public accountability and control on ICC judgments, I have
pleaded for a substantive argumentation model of factor-based reasoning.
Pursuant to this model, I have argued that we should embrace and regulate
the openness of the control theory through casuistic reasoning, rather than
trying to present control as a ‘single-sentence’ theory with uniform and strict
requirements, and instead of circumventing the challenges of the control the-
ory by taking resort to other types of liability (such as, common purpose
liability). Admittedly, even when engaging in casuistic reasoning, judges main-
tain leeway to weigh and balance the relevant factors, depending on the facts
of each case. Thus, judicial creativity remains inevitably part of the ICC’s
judicial decision-making process. Yet, the merit of factor-based reasoning is
that it provides a framework to make such creativity public and hence
controllable.
The control theory is heavily debated in scholarly works and dissenting
opinions. It could not be expected that the Ntaganda Appeal judgment would
put an end to discussions about this theory, and its implications for the nature
and scope of criminal liability for international crimes. By contrast, the strong-
ly divided Appeals Chamber may only have triggered further questions.
Likewise, scholarship on the control theory seems to have arrived at an im-
passe: proponents and critics of the control theory continue to restate their
arguments without finding common ground and without bringing the debate
forward. The unsatisfactory conclusion thus seems to be that we are left with a
heavily divided field where it concerns one of the most fundamental issues in
international criminal law, i.e. that of delineating the scope of criminal liability
and of defining the line between guilt and innocence.