Author: Darryl Robinson

[Darryl Robinson is Associate Professor at Queen’s University Faculty of Law] I am delighted to offer this comment on Leila Sadat’s excellent article on crimes against humanity in the modern age.  Her article makes several important contributions. I agree with her central normative point, which is that ICC jurisprudence has often been too restrictive and too demanding in its interpretation of the policy element. If we trace the history of academic discourse around the policy element, we see that it has had gone through cycles of ascendance and decline.  For decades after Nuremberg, the policy element seemed fairly generally supported (see eg Keenan, Bassiouni).  In the nineties, following this tradition, it was recognized in the Tadic decision and the ICC Statute.  Around that time, however, the tide of academic opinion turned against it.  Most commentary grew quite skeptical. The nadir for the element was the ICTY’s about-face in Kunarac, which repudiated the element en passant in a highly controversial footnote. Recently, the element has enjoyed a scholarly resurgence, led by thoughtful pieces by Bill Schabas (here) and Claus Kress (here), advocating that a policy element is not only legally required but conceptually required, in order for the law of crimes against humanity to make sense.  I am in a very similar camp to these two scholars, in that I think that some form of policy element has doctrinal support and, more importantly, is conceptually essential. My only caveat was that the element was perhaps at times cast a bit too stringently. Leila’s article is a leading and welcome example of the latest movement, which is a mildly corrective counter-movement, arguing for a modest threshold. Leila gives arguments based in customary law precedents for an inclusive concept of the type of ‘organization’ that may be behind a crimes against humanity.  In a similar direction, Gerhard Werle and Boris Burghardt give arguments based in the ordinary meaning of the term ‘organization’ (here), and Charles Jalloh has noted the possible Euro-centricism of a rigid concept of organization that does not regard tribal groups as a sufficient form of organization (here). I have also given arguments based in the theory underlying the element (here).  While I acknowledge that the narrower view, requiring a state-like entity, can also be supported by a principled theory (‘betrayal of the responsibility to protect’), I suggested that the essence of crimes against humanity may be humans acting collectively to harm humans.  The purpose of the policy element is simply to exclude the ‘normal’ crime patterns of individuals acting on their own initiatives.  This purpose is satisfied by a modest threshold, encompassing coordination by many types of organization.  I think Leila’s contrast of a ‘traditional’ and a ‘modern’ view of the dangers posed by organizations is another helpful contribution. In this comment, I wish to expand upon Leila’s thesis, by highlighting the most recent confirmation decision in Gbagbo

[Darryl Robinson is Assistant Professor at Queen’s University Faculty of Law] This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below. I am deeply grateful to Jens David Ohlin and Mark Drumbl for participating in this symposium. Their comments are valuable and insightful, just as one has come to expect from their work. I am privileged to have the benefit of their thoughts. Jens advances an important clarification that domestic legal systems should not be seen as idealized systems and that liberal inquiry must be based on ‘deeper principles’ of criminal law as it ought to be.  I emphatically agree, and this is an important point to highlight.  I argue in my article that the aim of the liberal critique is not the replication of articulations of principles from national systems, but rather upholding the underlying commitment not to treat individuals unjustly.  In Jens’ terms, it’s a search for deeper principles.  Indeed, I would say that our endeavor is not a uni-directional one of applying criminal law theory to ICL.  Rather, it is a bi-directional process in which the special problems of ICL can bring about new realizations about our first principles. The ultimate aim is that ICL doctrines are consistent with some defensible concept of just treatment of individuals. I agree with Jens that domestic systems can depart just as egregiously from important principles. As I have suggested elsewhere, I think the greatest difference between national systems and ICL in terms of departures is the type of reasoning associated with departures (a more openly anti-liberal law-and-order agenda versus more subtle distortions of internationalist liberal heuristics). Further supporting Jens’ point, I would gesture to a new trend in ICL jurisprudence.  While there was a tendency in earlier days toward exuberantly expansive doctrines, much of the most recent jurisprudence seems to have internalized the liberal critique.  Indeed, there is even a danger that ICL could overcorrect, adopting unnecessarily narrow and restrictive doctrines to avoid any risk of breaching principles.  Thus, a clarified concept of justice is doubly useful.  It not only delineates what ICL should not do, it also clarifies the zone of permission, where there is no deontological impediment to the pursuit of sound social policy.

[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law] This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below. I am very grateful for James Stewart’s comments on “How Command Responsibility Got So Complicated”. Professor Stewart and I are engaged in similar projects (criminal law theory and international criminal law (‘ICL’)) and immersed in similar literature, so our discussions are always very helpful to me, even though we at times reach different conclusions. Professor Stewart raises several interesting points, and I cannot quite do justice to all of them. I offer the following thoughts on the main points. As a preliminary point, Professor Stewart rightly notes that people at the Tribunal had done a frenzied review of the relevant literature and so were at least aware of these issues. I take that point very much. Academics are often quick to criticise courts and institutions for their alleged failures to consider this or that issue, when perhaps the relevant actors were in fact deeply aware of it but chose not to elaborate on it given the hundred other priorities they had to attend to. I also sympathise with judges, who are either criticised for failure to elaborate on theoretical underpinnings, or alternatively are criticised for their wordy, theoretical decisions. For precisely these reasons, I ‘emphatically acknowledged’ that the Tribunals were operating in a pioneering phase, dealing with countless questions and constructing doctrinal rules from diverse authorities, and hence could not give detailed consideration to every fine point.[1]

[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law] This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below. I am delighted to participate in this online symposium, this time at the receiving end. The emergence of online symposia is a commendable innovation which I am eager to support. When academic conversation is carried out through journal articles, the rhythm is glacially slow. Years pass between argument, counterargument and response. Online symposia provide a rapid cycle of appraisal, critique, response and clarification, both accelerating and deepening our understanding. In this instance I am doubly delighted, as I literally cannot imagine a more qualified group of reviewers on this topic. Ilias Bantekas is one of the most prominent authorities on command responsibility. I relied considerably on his insightful and thoughtful works on command responsibility as well as his valuable treatise on international criminal law (ICL).  Jens Ohlin and James Stewart are both bringing the rigour of criminal law theory to ICL, and doing so in an ambitious, exciting, open-minded way that does not simply export national concepts.  I will address the comments by Professor Bantekas and Professor Ohlin here, and address James’ comments separately. My argument — that the discourse on command responsibility has slowly tied itself into unnecessary knots — was not necessarily one that was guaranteed a warm reception in the ICL community. I am therefore triply delighted, in that both Professor Bantekas and Professor Ohlin seem largely convinced about my central points: that an early misstep in Tribunal jurisprudence led to an internal contradiction, and that later efforts to deny or, subsequently, to solve the contradiction, have led to increasingly elusive or complex assertions about the nature of command responsibility (eg, it’s a mode of liability, a separate offence, it’s both, it’s neither, etc). In my article, my prescription is that by reversing the first misstep and accepting a causal contribution requirement, we can reconcile the law with the culpability principle. The existing general category of accessory liability accurately conveys the commander’s responsibility, and we don’t need to invent obscure, vague, hybrid or variegated descriptions of the nature of command responsibility. Professor Ohlin and Professor Bantekas both move to the next question, which is a normative assessment from a legislator’s perspective – what we might do with a blank canvass.

[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. Much has been written about command responsibility. In my article, I argue that views on the nature of command responsibility have become unnecessarily obscure and convoluted, and that the problem flows from an early misstep in the jurisprudence. If we revisit the first misstep, a simple and elegant solution is available. Famously, early Tribunal jurisprudence concluded that the ‘failure to punish’ branch of command responsibility is irreconcilable with a contribution requirement. It therefore rejected any requirement that the commander’s dereliction contributed to core crimes. This however generated a contradiction, because Tribunal jurisprudence (1) recognizes the culpability principle, whereby causal contribution is necessary to share in liability for a crime and yet (2) uses command responsibility to convict commanders of core crimes without causal contribution. Subsequent efforts to deny the resulting contradiction, and later efforts to avoid the contradiction, have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as responsibility for-the-acts-but-not-for-the-acts, as a ‘sui generis’ hybrid whose nature has not been explained, as neither-mode-nor-offence, or as sometimes-mode-sometimes-offence. Many such descriptions are elusively vague, and necessarily so, because clarity would reveal the contradiction.

[Darryl Robinson is Assistant Professor at Queen's University Faculty of Law] James Stewart’s article “The End of ‘Modes of Liability’ for International Crimes” is an impressive piece of scholarship.  It is one of the most sophisticated works to date in bringing the rich scholarship on criminal law theory to bear on problems of international criminal law (ICL).  Stewart brings admirable—and frankly enviable—skill in succinctly explaining major controversies in criminal law theory and weaving that literature into an analysis of ICL issues.  While I will raise some critical questions here, I applaud and share his objective of theorizing about ICL from a liberal perspective. Of course, the value of any comment lies in the disagreements.  Surprisingly, I agree with the aspects with which I might be presumed to disagree, and I disagree with some aspects with which I might be presumed to agree.  Namely, I agree with his proposition that many problems of ICL flow from domestic law and not from international influences, even though that proposition is presented as oppositional to the views of myself and others.  Conversely, I ask whether Stewart’s critiques of complicity might be unnecessarily stringent. Domestic v. International Influences Stewart quite rightly points out that domestic legal systems often contain doctrines that arguably contradict fundamental liberal principles, and that some of ICL’s problematic doctrines were drawn from domestic legal systems.  This is a valuable complement to the point made by scholars such as Danner, Martinez, Fletcher, Ohlin, Damaška and me that some problematic doctrines are fostered by reasoning particular to ICL. However, when contrasting his position with that of other scholars, Stewart seems to somewhat overstate their position.  For example, he refers to and refutes the “thesis that broad modes of liability are necessarily hatched internationally” (p. 179), and the “assurance that unprincipled international rules necessarily reveal the triumph of international agenda over the restraining force of the criminal law” (p. 203) (emphasis added).  As far as I know, none of the cited scholars have ever suggested any such necessary linkage.  They have not suggested that all, or even most, of the problematic doctrines of ICL flow from international influences.  Similarly, Stewart demonstrates that some departures are not “nefarious creations of an illiberal international system” (p. 198) or a “nefarious utilitarian agenda derived from [ICL’s] international political status” (p. 182).  I certainly agree, but the refutation is misplaced in that nefariousness has not been suggested.  I also don’t think scholars have suggested that domestic systems are free of problematic doctrines (p. 169).