LJIL Symposium: Introduction to the “End of Modes of Liability” Discussion

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

My article argues for an end to modes of liability in international criminal justice. It uses complicity, also known as aiding and abetting or accomplice liability, to show that all modes of liability violate standards international criminal lawyers have deployed as benchmarks in the deconstruction of other modes of liability like superior responsibility and joint criminal enterprise. Thus, I advocate for a unitary theory of blame attribution, whereby responsibility turns only on having made a causal contribution to the relevant harm and having made the requisite blameworthy moral choice designated within the offense. I argue that this unitary theory could attach to all prosecutions for international crimes, both international and domestic, which would transcend the long-endured fixation on modes of liability within the discipline.

I could say considerably more about the content of the article itself, but a longer abstract and an earlier draft of the entire paper are available on SSRN. I therefore think it more interesting and less repetitive to describe the influences that brought me to this position and the lessons I have learned though this process:

Influence One – Major Decisions about “Modes of Liability” without a Theoretical Framework
Several years ago, I worked as an Appeals Counsel for the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia. In that capacity, I was assigned to an issue of particular conceptual difficulty: within the context of superior responsibility, was a superior’s failure to punish subordinates for international crimes he knew they had perpetrated a means of participating in his subordinates’ international crimes, or a separate lesser inchoate crime comparable to dereliction of duty? On the one hand, international courts had clearly treated failures to punish as a means of participating in the underlying crime for a very long time, perfectly oblivious to the conceptual problem. On the hand, the competing idea raised initially by Mirjan Damaška, was that international criminal justice was draconian in convicting an accused of a crime he in no way caused. The two positions seemed equally compelling—one favored formalistically ascertaining and applying the content of existing international law, the other gave preference to basic concepts of fairness derived from criminal principles. In the unreasonably short period of time we had to take a position on the issue of this theoretical complexity, it struck me that many advocates sought to justify or refute the approach by making analogies to equivalent domestic concepts, and there was a real absence of any significant conceptual framework through which to decide. This article was an attempt to plot that framework.

Influence Two – General Krstić’s Complicity in Genocide
Although I never worked on the case, I sat through portions of a trial involving General Radislav Krstić. Krstić, as many will know, was second in command to Mladić during the Srebrenica massacre that killed at least six thousand men and boys. Watching his trial was influential for a number of reasons, but I was utterly perplexed by an appellate revision that occurred after his conviction for genocide at first instance. On appeal, the Appeals Chamber reasoned that there was not evidence to support a finding that Krstić had the special intent required for genocide, namely the intent to destroy in whole or in part a racial, ethic or religious group. Nonetheless, that court opined that he knew his subordinates did have this intent, and that this knowledge coupled with the assistance he provided was a sufficient basis to convict Krstić of genocide, provided this process passed through the prism of complicity rather than perpetration. This struck me as utterly bizarre conceptually, given that the final result was the same—he was found guilty of genocide. Moreover, the watering down of the elements of genocide created a deep suspicion of the validity of national principles that were cited as authorities for this approach, and gave rise to a burning curiosity about the philosophical relationship between modes of liability and elements of crimes. This paper is very much a response to that sense of bewilderment and curiosity.

Influence Three – Weapons Vendors in the Democratic Republic of Congo
In 2000, I worked for a short time in Rwanda with the ICTR, which was the best and worst professional experience I have had. One of the negative aspects was that the same violence that had us working in massacre sites, overcrowded prisons and women’s groups seemed to have continued unchecked across the border in neighboring Democratic Republic of Congo all the while, replete with an identical western disinterest that let the massive destruction whose aftermath we witnessed in Rwanda run its course. For my sins, I began to follow goings on in the DRC after I left Rwanda, including a UN Security Council Panel of Experts that pointed to massive infiltration of weapons supplies to notoriously brutal leaders, who then used these weapons to perpetrate all range of international crimes. This process sparked my interest in using complicity to hold arms vendors responsible for international crimes they assisted, but I recognized that an intricate understanding of doctrine and a robust theoretical framework were both essential. The only thing was, as I attempted to establish the meaning of complicity as a matter of doctrine, I found that it was exceedingly difficult (in fact, impossible) given tremendous variation among domestic jurisdictions. Moreover, as I honestly pursued a theoretically defensible concept of complicity, I discovered that the more the concept became legitimate, the more it tended to disappear into perpetration. The unitary theory I articulate here responds to both problems.

I have learned much writing this paper. For example, my former colleagues’ appeals to domestic analogies are not an especially dependable form of argument, since domestic systems habitually depart from principle too. Similarly, “modes of liability” as a term is neither true to the doctrine’s real function, nor of clear historical pedigree. But most importantly, so much of the scholarly literature and judicial opinion to date had focused on just one or two modes of liability (superior responsibility and JCE), assuming that a pluralistic concept of modes of participation is conceptually inevitable and that only these modes contain normative shortcomings. Neither assumption proved true. As my research continued, I realized the problems with international “modes of liability” form part of an unconscious bias that international criminal justice has inherited from dominant domestic legal systems, but that this was no guarantor of conceptual coherence.

All of these themes play out in the article and my responses to my critics, which I hope will stimulate new discussion and debate.