Guest Post: Why the “Contextual Element” in All ICC Crimes?

The following post was written by my friend Mark Osiel (Iowa).  He hopes that readers will provide him feedback on the post, so don’t be shy!  Also make sure to check out Mark’s new book, “The End of Reciprocity: Terror, Torture, and the Law of War.”  It’s superb.

A curious feature of all the major international crimes is that, unlike domestic offenses, they’re defined to include a so-called “contextual” element.  It’s not entirely clear, though, what purpose the ICC drafters, in particular, intended this requirement to serve. Nor is it clear whether or not this purpose is essentially the same across the four offenses.

For war crimes, the defendant’s conduct must have some “nexus” to an armed conflict.  In crimes against humanity, his behavior must be part of “widespread or systematic” attack against a civilian population and reflect a “state or organizational policy.”  Until recent years, a nexus to armed conflict was also necessary. If accused of waging aggressive war, the defendant and his acts must be linked to a state’s policy and official acts of aggression. For genocide, the contextual element would be the defendant’s knowledge of, and/or contribution to similar acts of genocide in the relevant political environment.  (The ICTY’s suggestion to the contrary in Jelisić is poorly reasoned and widely rejected.)

There’s a common intuition that, for all these crimes, no defendant’s acts or intentions could be properly understood and hence legally assessed in isolation from those of other people acting in some relevant relation to him — often kindred spirits, engaged in similarly reprehensible conduct. (There’s an exception here for war crimes that can be conducted by a single person, after all, irrespective of others’ like actions or support. Still, there can be no war crimes without a war, i.e., a context in which much violence surrounding the crime becomes lawful.)

This explanation for the law’s requirement of context is not entirely convincing, however, because the same intuition about shared responsibility already finds ample expression in the doctrinal requirements for modes of participation, e.g., joint criminal enterprise, command responsibility, etc… These rules too seek to capture the ways in which responsibility for certain, large-scale harm is shared with others, and that the defendant’s conduct is otherwise not adequately intelligible. Why, then, require that the fact of shared responsibility be show both in the definition of offenses and in the rules by which the acts of some are then attributed to others? So I’m inclined to think that something else is at work here.

The rationale most frequently adduced for including a contextual element in the definition of international offenses is jurisdictional: international courts should prosecute a defendant only when his individual wrongs are part and parcel of a much larger harm — “the Rwandan genocide of 1994,” for instance — of unequivocal concern to the international community at large. Only the magnitude of such a comprehensive catastrophe could justify the major resource commitments of an international proceeding, on this view. This does not mean that the particular defendant’s contributions to this broader conflagration need necessarily have been terribly great. But if his offenses are entirely detached from it, they simply better belong in national courts and courts martial, on this view.

A difficulty with this account is that the ICC Statute already requires, in Art. 53(1)(b), that any “situation” the Prosecutor chooses to investigate be of sufficient “gravity” to warrant the Tribunal’s jurisdiction[1]. It would therefore be redundant to read the requirement of a contextual element as aimed at establishing the situational gravity of the relevant wrongdoing.

In any event, some commentators (like William Schabas and Kevin Jon Heller, here on Opinio Juris) interpret the contextual element to demand a prosecutorial showing that the defendant was conscious of the broader context to which his conduct was allegedly integral. It is true that the accused will generally have drawn aid and comfort from such knowledge, i.e., have been emboldened by it. The law’s requirement of context would then be substantive, not purely jurisdictional. But support for this view in the drafting history of the Rome Statute or in other pertinent sources, in not strong.

Let me offer another explanation, not inconsistent with these others.

The contextual requirement in core international crimes serves quite different purposes in trials of high-ranking versus lower-echelon defendants.  For “big fish” like Milosevic or Charles Taylor, the pertinent context consists in facts establishing the defendant’s abuse of the powers attendant upon sovereignty.   The rest of the world seeks to hold these people accountable for abuses of the very authority that public international law itself grants to all who exercise sovereign powers. Through their attendant control of the state (and its appendages, e.g., paramilitaries, death squads), these people effectively create or make the very legal and political context that makes possible the sort of wide-ranging harm of greatest concern to the international community.

For smaller fry, the relevant features of sociopolitical context are quite distinct, but no less inculpatory. These defendants do not make the larger context, but rather take it, that is, accept it too readily and unquestioningly. They resign themselves to their immediate normative environment without sufficiently critical reflection; context is what they as take for granted as the relevant background and moral baseline for evaluating their own conduct. Theirs are “crimes of conformity,” i.e., to prevailing norms and societal expectations. Their evil is banal, not radical, for these people do not seek to engineer any transvaluation of national values, employing high public office to disseminate an oppressive ideology and implement it as a political program. More to the point, they do not seek to abuse the particular rights and concomitant power that public international law itself accords to sovereign states and their leaders.

If such lower and middle echelons should be prosecuted in international courts at all, this can only be because the world wishes to communicate — powerfully and unequivocally — that we are all not merely citizens of nation-states. We also citizens of the world who may therefore rightly be held accountable to more universal standards, as enshrined in international criminal law. Conformity with momentary national or subnational/ethnoreligious expectations of the moment, however widespread, is no excuse to a crime “against humanity.”

Here, the pertinent context consists in the very pervasiveness of like conduct by others, as well as of authorization (not necessarily orders) from superiors. Only in this way can the contextual fact that others did much the same serve to inculpate the defendant, rather than attenuating his wrongs. That such people are predictably drab and ordinary is then by no means reason to absolve them from the attention of international criminal courts. Here the aim of international law, in its peculiar concern with and attention to social and political context, is precisely to remind and exhort that our relevant normative environment is never exclusively that of our particular nation-state and its law.

There’s admittedly no more direct support in the ICC drafting history for this interpretation of the contextual requirement than for the others. Mine is simply an effort to read that perplexing requirement in its “best light.” I wonder what problems others might see in this account and whether it’s consistent with what one would find from a close look at the empirical record of litigated cases.

[1] The Tribunal has admittedly shown little interest to date in independently assessing the OTP’s proprio motu decisions in this regard.