Dr Iryna Marchuk is an Associate Professor in the Faculty of Law at the University of Copenhagen. She has authored the monograph Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis (Springer 2014, reviewed in the Journal of Int Crim Justice 15(2), 2017).
In his article, which is a basis for this mini-symposium on criminal participation, James G. Stewart advances the unitary theory of participation that has been utilized in a number of national jurisdictions, including Denmark. He opines that the Danish approach to criminal participation – being representative of the unitary form of participation – can be successfully transposed to international criminal law that has been struggling to find adequate forms of attribution that characterize responsibility for international crimes. Much criticism has been directed towards the interpretation of forms of liability in the ICC that has fallen for Claus Roxin’s theory of participation that distinguishes between principals and accessories to a crime based upon the ‘control over the crime’ theory. Needless to say, the introduction of Roxin’s theory into international criminal law has been subject to passionate debates among academics and practitioners alike who have pondered over its suitability for the needs of international criminal law. The critics of the theory, among them James G. Stewart, have come forward with alternative suggestions as to how criminal responsibility can be assigned to those responsible for international crimes. In this mini-symposium, I was asked to comment on the applicability of the unitary form of participation from the Danish perspective. More specifically, I will focus on the historical evolution of the concept of unitary form of participation in Denmark, its understanding in the theory of criminal law, its applicability in practice, and reflect on the suitability of the unitary form of participation in international criminal law.
The unitary form of participation that does not distinguish between principals and accessories to a crime was introduced into Danish criminal law by Carl Torp who shared the views of the Norwegian scholar Bernard Getz as to the interpretation of participation in a crime. Getz’s theory, introduced in ‘On The So-Called Complicity in Crime’, is rooted in his understanding of causality. In his opinion, every act that is a condition for the violation of law should be equally punishable by criminal law. This, in his view, makes a formal distinction between principals and accomplices to a crime completely unnecessary. The mantle was picked up by Torp, who was inspired by Getz’s theory and advocated for abolishing the distinction between parties to a crime in Danish criminal law, as he considered the perpetrator’s and the accessory’s conduct as being equally unlawful.
More specifically, Torp argued that in reality it is impossible to draw a clear distinction between a principal (gerningsmænd) and an accomplice (meddelagtige) to a crime either on the objective or on the subjective grounds. He criticized the objective theory that distinguished between a principal and accomplice to a crime based on causality. According to the theory, a principal is a person whose action is causal to a crime, whereas an accomplice is a person whose action is merely a condition leading to the commission of a crime. Torp opines that in the chain of causal acts, all of them are equally necessary for the crime to take place and therefore the distinction advanced by the proponents of the objective theory is irrelevant.
Following this, Torp takes on the subjective theory of participation that distinguishes between a principal and an accomplice to a crime based on the person’s subjective state of mind. If a person entertains the intent for committing the crime and embraces the crime as his/her own, he/she is a principal. If the person takes part in realizing other person’s intent and advances the other person’s interests, he/she is an accomplice. Torp opines that the subjective theory does not provide any clear and practically useful distinctions between parties to a crime. In fact, he argues that judges would find it practically unsolvable to draw a clear demarcating line between parties to a crime since the distinction based upon the subjective state of mind simply does not exist.
Torp’s understanding of participation in a crime has been influential in Denmark. This is largely due to the fact that the unitary form of participation was incorporated into the 1930 Danish Criminal Code that introduced § 23, which does not formally distinguish between parties to a crime. This marked the departure from the 1866 Criminal Code that clearly distinguished between principals and accomplices to a crime. In the explanatory notes to the to the 1930 Danish Criminal Code Draft, Torp posed an important question as to “whether all parties to a crime should be punished equally, and whether some should be punished milder than others or should be altogether relieved from criminal responsibility”. He considered the equal treatment of a person who committed a crime and an accomplice fully justified since both of them had triggered conditions for the crime to take place. He opined that the theoretical construction of the participation in a crime belongs to an academic discussion, whereas the law should have a rather neutral expression.
As a result of Torp’s involvement in the legislative preparatory work, the 1930 Danish Criminal Code provides a rather succinct provision on criminal participation that “applies to anybody who by means of instigating, counseling or aiding has contributed to a crime”. At first glance, it seems that the provision distinguishes between parties to a crime; however, the legislative intent was in fact the opposite – to erode any distinction between principals and accomplices. In other words, any contribution to a crime, regardless of whether it is physically committing the crime or providing assistance, is equally blameworthy. The introduction of the unitary form of participation has not been uncontroversial in Danish law. Ross criticized the doctrine for failing to distinguish between parties to a crime, specifically in relation to so-called ‘result’ offences (forårsagelsesdelikter). He submits that there is clearly a difference between a person who fires a gun at close range and a person who supplied the gun or provided the address of a victim. He continues that it is impossible to imagine that an accomplice could have entertained the direct or probability intent as required for the crime of murder. In Ross’ opinion, these considerations render the Getz-Torp theory meaningless.
Although there is no formal distinction between parties to a crime in the Danish Criminal Code, the law gives broad discretionary powers to the judiciary at the sentencing stage that can impose a milder sentence based on the participant’s degree of contribution to a crime or his/her subjective state of mind. According to § 23, a sentence may be reduced in a number of situations: (1) a person who intended to provide a less substantial contribution to a crime; (2) a person who intended to strengthen an already formed criminal intent; (3) a crime was not completed; and (4) intended participation failed. The judges have at their discretion to choose not to impose a sentence for participation in a crime that carries a sentence of imprisonment up to maximum of 4 months and where such participation was due to negligence.
The scope of § 23 of the Danish Criminal Code is rather wide and far-reaching. As noted by Vestergaard, the Danish Criminal Code – representative of an “extreme variation of Einheitstäterbegriff” – has no counterparts in Europe when it comes to the “brevity and wideness of criminal law provisions on participation in a crime”. One of the key features of participation in a crime under Danish criminal law is that there is no requirement that the principal offence be committed in order to impose criminal liability upon a party to a crime. Also, there is no requirement in Danish law that the person’s action has to be causal to the commission of the crime. It is clear from the wording of § 23 that participation in a crime may take place in the form of (1) instigating, (2) counseling or (3) aiding. The provision should be read as covering all parties to a crime, including a person who commits the crime and those who in any other way contribute to the crime. Instigating is understood as covering any verbal or physical conduct that prompt another to commit a crime or encouraging another person to provide assistance, which is necessary for the commission of the crime. Counseling consists of providing guidance and giving hints. As an example, the supply of information about the building’s layout, the address of a victim, or tax related information fall within counseling as understood by Danish criminal law. Aiding means undertaking any preparatory or executive steps towards the commission of a crime (e.g. assistance with the transport, physical use of force). Passive participation is also punishable under Danish criminal law, in particular in situations when a person has an obligation to act and could have prevented the crime from taking place. Participation in a crime may take place at any time at the preparation or execution stages of the principal offence and in some circumstances after the crime has been committed. As for the mens rea required for participation in a crime, both intent and negligence will be sufficient and the required mens rea standard varies according to the mens rea, which is required for a specific crime. However, each participant is judged based on his subjective state of mind, which means that there are situations when participants in a crime are charged with different offences based on mens rea they have entertained (e.g. one participant is charged with theft, whereas another one is charged with burglary).
Despite the absence of a formal distinction between parties to a crime, normal meaning is being accorded to the words ‘perpetrator’ (gerningsmand) and ‘accomplice’ (medvirkende) in academic literature and judgments of Danish courts. However, there is no consistency in the way the terminology is used since Danish courts are not bound to employ uniform terminology to distinguish between parties to a crime. As an example, if the act of participation is not covered by the offence description in the special part of the Criminal Code, the Danish courts in their judgments are not obliged to refer to § 23 as a ground for imposing criminal responsibility.
This contribution to the symposium is by no means an all-exhaustive account of participation in a crime in Danish criminal law. Rather it is an attempt to outline the legal contours of the unitary form of participation as it has historically developed in Danish criminal law and has been applied in practice. The ultimate question of this symposium is whether a unitary form of perpetration – similar to the Danish example – could prove to be a useful in assigning criminal responsibility to the culprits of international crimes and be transposed to international criminal law.
First of all, I believe that the idea of the symposium itself that draws on expert opinions of scholars from different national jurisdictions is brilliant. This open conversation and exchange of opinions allow us to infer general principles underlying the attribution of individual criminal responsibility across many jurisdictions that could be distilled and applied in the context of international criminal law. Clearly, the ICC’s transposition of Roxin’s theory is problematic, as it seems unfair that the German doctrine was recognized to be well suited to cater to the needs of international criminal law without any attempt on the part of the ICC judges to conduct a thorough comparative legal analysis of the notion of criminal participation in other national jurisdictions. Hence, this invitation to contribute to the understanding and applicability of the theory of criminal participation in different national jurisdictions is particularly valuable, and hopefully will have a catalyzing effect on the interpretation of the concept of participation of crime in international criminal law.
Is there anything useful that we can learn from the Danish example? Could the unitary form of participation work in international criminal law? The fact that the unitary form of participation has been in place in Denmark since 1930 and still remains unchanged is a strong indicator that it is a workable tool. However, should the unitary form of participation find its way in international criminal law, a number of challenges associated with the implementation of the doctrine may arise:
1) Far-reaching scope of the doctrine that would allow penalizing any kind of conduct, which is part of the offence. The doctrine is extremely wide in its scope as technically any contribution to a crime, regardless of how insignificant it is, should be criminally liable. On the one hand, it seems that there would be no harm in embracing rather wide provisions on criminal participation in international criminal law that criminalize any conduct that leads to the commission of core international crimes. On the other hand, it seems very unlikely that the cases of attempted perpetration of international crimes or attempted participation more broadly would actually make it to the international courts and tribunals. The ICC is already experiencing a heavy workload investigating the crimes within the jurisdiction of the Court and preliminarily examining alleged crimes in various parts of the world. It is unlikely that the ICC would be interested in expanding its workload by looking at conduct that does not live up to the required gravity threshold in light of the insignificant contribution to a crime as it is interested in going after ‘big fish’.
2) Dangers of going back to the ‘just convict everybody’ approach in the ad hoc tribunals. One can easily see that the implementation of the unitary form of participation would benefit the work of the prosecutorial divisions of international courts and tribunals. In this case, while assigning criminal liability to the person, the Prosecutor would not have to be preoccupied with evaluating the level of contribution and marrying it with a specific mode of liability. However, the adoption of of the unitary form of participation with its broad and far-reaching scope may lead us to going back to the infamous practices of the ad hoc tribunals that have been criticized for endorsing an extremely broad form of the JCE doctrine that was equated with the ‘just convict everybody’ approach. In practice, of course, the Prosecutor of any international court or tribunal has the ability to filter cases that would be submitted for further consideration by the judges and it is unlikely that they would initiate cases where the suspect’s contribution was rather insignificant or there is a missing causal link between the person’s action and the outcome. That said, one should be aware of possible implications that could accompany the transposition of the unitary form of participation into the terrain of international criminal law.
3) Uncertainty as to the sentencing practice. The dichotomy between principals and accomplices to a crime in the German theory is clearly reflected in domestic sentencing practices. In other words, a principal whose contribution to a crime was essential deserves a higher punishment than an accomplice whose contribution to a crime was less significant. The unitary form of participation as known in Danish law recognizes all parties to a crime as equally criminally liable. Technically, all parties to a crime deserve the same punishment. However, in practice judges may chose to reduce punishment for some parties to a crime in light of specific circumstances. The transposition of the unitary form of participation to international criminal law may create difficulties at the sentencing stage. Should the judges of international courts impose the same punishment upon a rebel commander who supplied one box of Kalashnikov guns as the Head of State who masterminded and directed the implementation of the genocide campaign? If international courts opt for the unitary form of participation, the judges may choose to exercise their judicial discretion and impose punishment depending upon the role and contribution of each party to a crime.
4) No formal distinction between principals and accomplices to a crime but it is still implied. The key feature of the unitary form of participation is the absence of any formal distinction between principals and accomplices to a crime. But is such a distinction truly ignored in practice? As shown by the Danish example, although the law is formulated in neutral terms equally imposing criminal responsibility upon all parties to a crime, in practice judges do in fact distinguish among parties to a crime by imposing different sentences based upon the person’s actual involvement in the crime. In the judgments of Danish courts, words such as ‘perpetrator’ and ‘accomplice’ are attributed their normal meaning and often feature in the text of the judgments. If the form of unitary participation made its way to the ICC, the problems that the Prosecutor and judges are saddled with when matching the suspect’s conduct to the specific mode of liability would disappear. There would be no need to determine whether the suspect was a direct perpetrator or an indirect co-perpetrator based on a rather complex German ‘control over the crime’ theory. However, this does not mean that the judges wouldn’t have to be preoccupied with evaluating the level of contribution to a crime, especially at the sentencing stage.
5) Is the wording of article 25 of the Rome Statute compatible with the unitary form of participation? When the ICC judges introduced Roxin’s ‘control over the crime’ theory to distinguish between principals and accomplices to a crime, some scholars and even the ICC judges themselves were skeptical of the adopted approach. Article 25 of the Rome Statute does not mention the control over the crime approach and only lists available modes of liability. The question that has troubled academics and practitioners is whether modes of liability as listed in article 25 of the Statute are arranged in a particular hierarchical order where clear predominance is given to principal modes of liability. If the unitary form of participation is adopted in the ICC, then it does seem that the wording of article 25 is not ideal. It seems redundant to distinguish between various modes of liability to a crime if the unitary form of participation requires no such distinction. In that case, Article 25 would benefit from a more simplified formulation akin to the provision on criminal liability in the Danish Criminal Code.
6) Is universal application of the unitary form of participation truly possible? In his article, James G. Stewart posits that the unitary form of participation could serve as an effective tool to establish participation in the international crime regardless of the forum where it is charged, be it a national or an international one. Although the theory has the potential of becoming a rival to Roxin’s ‘control over the crime’ theory in the ICC, its universal applicability in the countries that ratified the Rome Statute is rather questionable. If core international crimes were to be prosecuted at the national level, the judges would still employ tools of attribution available in the national jurisdiction and do not really need to invoke the unitary form of participation to arrive at a reasonable outcome.
7) Interpretation problems. One should not discard that Denmark is a small jurisdiction where judges are trained in the same legal tradition. Whereas Danish judges are used to dealing with the unitary form of participation in practice, international judges who are trained in different national jurisdictions will undoubtedly encounter problems in applying the theory in practice. In particular, the judges who come from national jurisdictions where there is a clear divide between principals and accomplices to a crime will have a harder time grasping the applicability of the theory in practice and disagreements are likely to take place.
The implementation of the unitary form participation in international criminal law may prove to be a workable tool. It would undoubtedly make the job easier for the Prosecutor and the judges who would not have to be concerned about making correct determination at the initial stages of trial as to the role played by the suspect/accused in the commission of international crimes and choosing the correct mode of liability. However, it does not mean that the unitary form of participation could be a panacea from all the criminal participation related problems encountered by the ICC. As discussed above, a number of challenges may arise and disagreements may take place, especially at the sentencing stage. The major danger of the transposition of the concept is that it does not repeat the fate of the JCE doctrine (representative of the subjective theory) given its broad and far-reaching scope. My analysis of the unitary form of participation is based on my knowledge of the Danish model, which is an extreme form of Einheitstäterbegriff. I do not discard that there may be some other variations of the unitary form of participation in other national jurisdictions that may better cater to the needs of international criminal law.
 Stewart, James G., The Strangely Familiar History of the Unitary Theory of Perpetration (January, 2016). Forthco
ming in Bruce Ackerman et. al. (eds.), Visions of Justice, Essays in Honor of Professor Mirjan Damaška (Duncker & Humblot, Berlin, 2016). See also: Stewart, James G. “The End of ‘Modes of Liability’ for International Crimes.” Leiden Journal of International Law 25.01 (2012): 165-219.
 Ibid., pp. 13-18.
 Pre-Trial Chamber I, Prosecutor v. Thomas Lubanga Dyilo, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, paras 326-341; Trial Chamber, Prosecutor v. Thomas Lubanga Dyilo, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2843, para. 994; Prosecutor v. Germain Katanga, “Judgment pursuant to Article 74 of the Statute”, 07 March 2014, ICC-01/04-01/07-3436, para. 3194. See: C. Roxin, Täterschaft und Tatherrschaft (Verlag de Gruyter, Hamburg, 8th ed., 2006), pp. 277-282.
 Jessberger, Florian, and Julia Geneuss. “On the Application of a Theory of Indirect Perpetration in Al Bashir German Doctrine at The Hague?.” Journal of International Criminal Justice 6.5 (2008): 853-869 (arguing in favor of the concept of indirect perpetration as a key mode of liability in ICL); Ohlin, Jens David. “Joint intentions to commit international crimes.” Chicago Journal of International Law 11.2 (2011): 693-753 (suggests a theory of joint intentions as an alternative to the JCE doctrine in the ad hoc tribunals and the control over the crime theory in the ICC); Manacorda, Stefano, and Chantal Meloni. “Indirect Perpetration versus Joint Criminal Enterprise Concurring Approaches in the Practice of International Criminal Law?.” Journal of International Criminal Justice 9.1 (2011): 159-178 (views positively the introduction of the control over the crime theory in the ICC, while at the same time highlighting some possible challenges with respect to the implementation of the doctrine in practice); Werle, Gerhard, and Boris Burghardt. “Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute.”Pluralism in International Criminal Law, Oxford University Press (2014), Forthcoming (2013) (advocates for a systematic understanding of a four level hierarchy of individual criminal responsibility in Article 25 of the Rome State as a starting point of discussion); Ohlin, Jens David, Elies Van Sliedregt, and Thomas Weigend. “Assessing the control-theory.” Leiden Journal of International Law 26.03 (2013): 725-746 (calling on the ICC Appeals Chamber to reconsider or improve the control over the crime theory in the ICC); Granik, Maria. “Indirect Perpetration Theory: A Defence.” Leiden Journal of International Law 28.04 (2015): 977-992 (critically reflects on the suggested Ohlin’s theory of joint intentions and – as a title suggests – defends the applicability of the control over the crime theory in the ICC). See also: Trial Chamber, Prosecutor v. Thomas Lubanga Dyilo, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2843, Separate Opinion of Judge Adrian Fulford; Trial Chamber II, Prosecutor v. Germain Katanga, “Judgment pursuant to Article 74 of the Statute”, 07 March 2014, ICC-01/04-01/07-3436, Minority Opinion of Judge Van den Wyngaert, paras 280-281.
 Getz, Bernard, Om den såkaldte delagtighed i forbrydelser (Christiania, 1875), pp. 1-3 (indledende bemærkninger).
 Torp, Carl, Den Danske Strafferets almindelige del (G.E.C.Gads Forlag, København, 1905), p. 559.
 Ibid., p. 559.
 Ibid., p. 560.
 Ibid., p. 560.
 Ibid., p. 571.
 Danish Criminal Code (Straffeloven), available at https://www.retsinformation.dk/Forms/R0710.aspx?id=164192
 Betænkning angående de af den under 11. august 1905 nedsatte Straffelovskommission udarbejdede Forslag indeholdende Udkast til Love vedrørende den borgerlige Straffelovgivning med Motiver efter Justitsministeriets Anmodning udarbejdet af Carl Torp (København, Trykt hos J. H. Schultz A/S, 1917).
 Ibid. See Torp’s full citation in Danish: ”Tanken er formodentlig, at den medvirkende ubetinget maa stilles lige med den, der har foretaget en Iværksættelseshandling. Denne Ligestilling er sikkert berettiget, hvor Spørgsmaalet er om Betingelserne for at opnaa Straffrihed ved Tilbagetræden, fordi den medvirkende ligesom den, der har foretaget en Iværksættelseshandling, har sat Kræfter i Bevægelse, som han ikke mere — i alt Fald ikke fuldt ud — er Herre over.
 Ibid. See Torp’s full citation in Danish: ”I Virkeligheden er det Spørgsmaal, som Straffeloven bør tage Stilling til, kun det, om alle Medvirkende bør straffes lige, eller om nogle, og da hvilke, bør straffes mildere end andre eller være straffri. Den teoretiske Konstruktion bør overlades Videnskaben; og Loven bør derfor saa vidt muligt vælge ganske neutrale Udtryk.” In later academic works, there is also an overwhelming support for the simplification of the rules on the participation in a crime and preference for a practically oriented law in that regard. See: Hurwitz, Stephan, Den Danske Kriminalret almindelig del, 3. Oplag (G.E.C.Gads Forlag, København, 1964), p. 499.
 See: § 23 (1). In Danish: ”Den for en lovovertrædelse givne straffebestemmelse omfatter alle, der ved tilskyndelse, råd eller dåd har medvirket til gerningen.”
 Ross, Alf, Forbrydelse og Straf: Analytiske og reformatoriske bidrag til kriminalrettens almindelige del (Nyt Nordisk Forlag Arnold Busck, København, 1974), p. 120.
 Ibid., p. 121.
 See: § 23 (2). In Danish: Straffen kan nedsættes for den, der kun har villet yde en mindre væsentlig bistand eller styrke et allerede fattet forsæt, samt når forbrydelsen ikke er fuldbyrdet eller en tilsigtet medvirken er mislykkedes.
 See: § 23 (3). In Danish: ”For så vidt ikke andet er bestemt, kan straf for medvirken ved lovovertrædelser, der ikke straffes med højere straf end fængsel i 4 måneder, bortfalde, når den medvirkende kun har villet yde en mindre væsentlig bistand eller styrke et allerede fattet forsæt, samt når hans medvirken skyldes uagtsomhed.”
 Vestergaard, Jørn, Criminal Participation in Danish Law – Uniformity Unlimited? in Raimo Lahti and Kimmo Nuotio, Criminal Law Theory in Transition: Finnish and Comparative Perspectives (Finnish Lawyers’ Publishing Company, Helsinki, 1992), p. 2.
 Ibid. Langsted, Lars Bo, Waaben Strafferettens almindelige del, 6. reviderede udgave (Karnov Group, København, 2015), pp. 245-246.
 Langsted supra note 23, p. 242.
 Ibid., pp. 246-250. See also: Vestergaard supra note 22, p. 9.
 Langsted supra note 23, pp. 250-251. See also: Hurwitz supra note 15, pp. 506-508; Vestergaard supra note 22, p. 10;
 Vestergaard supra note 22, p. 4.