Justice in Extreme Cases Symposium: A Response to Darryl Robinson

[Elies van Sliedregt is professor of international and comparative criminal law at Leeds University and Director of its Centre for Criminal Justice Studies (CCJS) and she is senior editor of the Leiden Journal of International Law and a member of the Royal Holland Society of Sciences and Humanities.]

This is an awesome book. The sort of book I wish I had written. When I researched individual criminal responsibility in ICL some 20 years ago, I used a comparative and domestic criminal law lens through which to understand international concepts and theories on criminal liability. This ‘domestic analogy’ laid the ground for an easy critique, namely that the principle of personal culpability, in many instances, was violated in ICL. Couched in domestic terms such as aiding & abetting, common purpose, instigation and co-perpetration, ICL seemed to comport with the principle of personal culpability anchored in cause-based liability. In practice, however, it proved challenging to base liability on individual chains of causation. In the epilogue of the book (PhD edition), I argued in favour of alternative theories of criminal responsibility, such as Downie’s work on role responsibility and – in my later work – Kutz’ non-causal complicity theory. Both offer ways out of the causation conundrum.

Darryl Robinson in his book Justice in Extreme Cases, provides the theoretical framework and justification for restating or revamping theories of liability like causation. His coherentist theory, based on Jules Coleman’s work, proposes to “develop models that best reconcile all available clues, without first solving all the ultimate questions about underpinnings” (p. 14). He proposes we take as starting point fundamental principles (personal culpability, the principle of legality) and continue to test and refine them. We can use all critical reasoning tools to test past understandings for bias and inapt assumptions and adjust them rather than seeking grounding in an all-encompassing philosophical idea or legal theory.

Robison assures us that while abandoning the search for one foundational theory of criminal responsibility may go against our scholarly instinct, coherentism helps us to make headway on culpability and legality issues in ICL.

This does not mean that anything goes. This is where Robinson’s proposal for deontic reasoning (duty as ethical concept) comes in. In a criminal justice context, it means we respect the constraints arising from respect for personhood and moral agency of accused persons. Deontic reasoning requires considering the limits of personal fault and punishability. He presents it as a ‘third way’, alongside the mainstream source-based (what do texts or precedent allow) and teleological reasoning.

Robinson applies his coherentist theory to the concept of command responsibility. This multi-layered and complex theory of liability has been subject to much scholarly debate and has caused controversy as to its nature (mode of liability or separate offence) and scope (accomplice liability for an ex post-facto failure to punish subordinates?). Adopting a coherentist approach, Robinson accepts risk aggravation as a plausible restatement of causation; a means to contribute to crimes committed by subordinates. This enables him to – despite the ex post facto conduct – regard command responsibility as a mode of liability, which accords with the terms in which international statutes have framed it.

Robinson’s work is refreshing; it frees us from the shackles of source-based reasoning and expansive-prone teleological reasoning.  Robinson admits that his theory might not be ground-breaking; he makes explicit what we already do.  Scholars spend much time discussing and restating fallible theories of attribution.  What about international courts? ICL commentators will readily admit that international courts have adopted innovative ways to attribute liability. The question arises then:  to what extent does a coherentist approach change the current situation?

When it comes to novel attribution theories and ‘jurisprudential turns’ we can think of the inter-linked theory of JCE in the Brdanin case, which effectively restated the ‘classic’ cause-based JCE concept of Tadic. Or the control-theory at the ICC, where the concept of control replaces the (physical) conduct and contribution requirement for criminal responsibility. The problem with these rulings is that they masked what the judges actually did. At the ICTY, inter-linked JCE was presented as still premised on the basic tenets of cause-based JCE. At the ICC, the control theory was presented as widely accepted in domestic law and hence constitutive of customary international law. Both of these ‘jurisprudential turns’, based on source-based and teleological reasoning, have been subject to critique; for changing, or even “over-correcting” existing theories of liability and for having no basis in international law.

A coherentist approach would have been a better way of justifying and explaining these judicial decisions. The control theory, in particular, would have been more persuasive under coherentism. The theory is inspired by scholarly literature, mainly German Dogmatik. Explaining and justifying the search for alternatives to tackle the problems of causal liability, is more transparent than referring to theories such as indirect co-perpetration as constituting “widely accepted” theories of liability that are constitutive of customary international law.  

There is a problem with coherentism in ICL. It is the problem of legitimacy. Robinson puts a lot of responsibility on the adjudicator and decision-maker. It seems to me, a coherentist theory and deontic reasoning can be seen as ‘free-wheeling’ than source-based and teleological reasoning. At least the latter – when done properly – are anchored in texts, precedents or travaux preparatoires, which comes with a degree of democratic legitimacy. The issue of (lack of) legitimacy is compounded by the nature of international criminal justice. ICJ is not a mature system of justice; its normative framework is characterized by fluidity and comes with a constitutional deficit.

My reflections on legitimacy are in no way a disqualification of the theory. I welcome the transparency coherentism brings. It does, however, require further thinking on its practical implications. For now, I want to congratulate Darryl Robinson with this wonderful piece of work. Like all his work, this is a thoughtful and inspiring  contribution to international criminal law scholarship.