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LJIL Vol. 25 No. 1

LJIL Symposium: The Debate Continues at ASIL on March 30, 2012!

by dov jacobs

We hope you enjoyed this first Opinio Juris/LJIL Online Symposium. For those who want to prolong these debates in real life, while waiting for the next online symposium, the Leiden Journal of International Law (LJIL) will celebrate its 25th anniversary on 30 March 2012 during the American Society of International Law’s Annual Meeting. The journal will host a casual roundtable discussion featuring two articles in its latest and forthcoming issues, followed by Q&A and a cocktail reception.

Here’s the programme:

You are therefore warmly invited to join LJIL’s birthday party, which will take place at the Park Hyatt Washington, 1201 24th Street NW – across from the ASIL venue – from 6:15 p.m. till 8 p.m.

LJIL Symposium: James Stewart Responds to Jens Ohlin

by James G. Stewart

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

Jens Ohlin, with George Fletcher and in his own right, has been a pioneer in bringing criminal theory to bear on international criminal justice. His earlier work warned us that our dogmatic insistence on ascertaining international criminal law in pre-existing sources of public international law risked undermining the inherently criminal nature of this adjudicative process and the fundamental notions of criminal law that must apply as a consequence. As is the case with the other critics who have written for this blog, my article is counterfactually dependent on his earlier groundbreaking work.

I think it appropriate to start by placing Ohlin’s comments in context. His admirable defense of the differentiated model of blame attribution presently in place in international criminal justice does not take into account that arguably the most prominent theorists even within his own jurisdiction, from Michael Moore to Sandy Kadish and Larry Alexander, all view complicity as conceptually superfluous. This does not respond in any way to Ohlin’s comments, but I do think it important to table the growing body of authoritative academic argument against the differentiated model international courts have unquestioningly absorbed. In many respects, my article is an attempt to do just that.

On another preliminary note, I fear that Ohlin’s criticisms might miss the real essence of the paper. Most importantly, he does not address the normative substance of “modes of liability” in international criminal justice. Both the title to his response (“Names, Labels, and Roses”), and the content of his remarks under that heading imply that the issue is just one of nomenclature, as if there were no normative significance to convicting someone of genocide for recklessly assisting the crime. But the major argument in my paper is that in its extremities, complicity violates the same standards that commentators have used to criticize the overreach of other “modes of liability” within the discipline, and that consequently, this mode of liability too is sometimes unjustifiably harsh or simply unprincipled. (more…)

LJIL Symposium: Names, Labels, and Roses

by Jens David Ohlin

[Jens David Ohlin is Associate Professor of Law at Cornell Law School; he blogs at LieberCode]

In his excellent essay, James Stewart advocates for a unitary model of perpetration. To the extent that this means the end of modes of liability, so be it says Stewart. We don’t need them. They codify distinctions that we don’t need, promote confusion over coherence, and so we should instead streamline the centrifugal doctrines into a single account of causal contribution. On the elegance scale, Stewart’s proposal should score a 10 from most judges.

Stewart pitches his account as revisionary, an attempt to right the ship after years of confusing scholarly and judicial debate about modes of liability and the difference between principals and accessories (or other categories that occupy similar conceptual space). But I think that it is the wrong light in which to see the argument.

I see Stewart’s proposal as urging return to a substantially similar state of affairs under the original Joint Criminal Enterprise scheme proposed by the Tadic Appeals Chamber during the early days of the ICTY. Cassese was the prime mover behind the JCE doctrine, and it covered all members of the collective endeavor, regardless of their level of contribution. Eventually, the doctrine was modified to require a heightened contribution requirement, and eventually the leadership level defendants were “de-linked” from the foot soldiers and placed in separate JCEs. But the important point is that the original JCE doctrine included everyone from an architect of the crime (mastermind or hintermann) as well as the foot soldiers or what the later ICTY cases often referred to as the Relevant Physical Perpetrators, or RPP.

So under the original JCE doctrine, each member of the group was prosecuted for participating in the JCE. That was, in essence, a unitary model of perpetration. True, as a formal matter, aiding and abetting and accomplice liability survived the creation of JCE, but their relevance and practical import was greatly reduced. Most defendants at the ICTY were prosecuted under a JCE theory and it seemed to me that in most cases JCE could have replaced the other modes of liability given the collective nature of international crimes. (more…)

LJIL Symposium: James Stewart Responds to Thomas Weigend

by James G. Stewart

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

I start my reaction to Thomas Weigend’s comments by insisting on my great gratitude to him. In his earlier comments on a draft of this article, he offered criticisms that were far more extensive that those he gently revealed in this blog (or that I have ever received for an article before). Although my final piece does not adequately respond to all his misgivings, I confess that I may have learned at least as much from his extensive criticisms as I did from the voluminous literature required to write this. In acknowledging his great intellectual generosity, let me nonetheless offer some response to portions of his criticism.

Professor Weigend starts by suggesting that the “way out” offered by a unitary theory of perpetration is intuitively compelling because of its simplicity. What law student, attorney or judge would disagree, he asks, would deny that these differentiated modes of liability are really not easy? Here, I fear that he perhaps inadvertently reduces my argument to a mere distaste for complexity. But my goal is not simplicity for simplicity’s sake—I am also minded to ensure that international modes of liability consistently respect culpability, to halt the fractured development of modes of liability internationally from one fad to another and to suggest a means of unifying standards of blame attribution across the many jurisdictions that can prosecute these crimes. (more…)

LJIL Symposium: Thomas Weigend comments on James Stewart’s “The End of ‘Modes of Liability’ for International Crimes”

by Thomas Weigend

[Thomas Weigend is Professor of International and Criminal Law at the University of Cologne]

In his elegantly written and profound article, James Stewart argues in favor of abandoning, in international criminal law, the traditional distinction between perpetratorship and complicity. He favors a unitary solution: every person who substantially contributes to the commission of an international offense should simply be convicted of that crime, with individual differences as to the degree of responsibility to be taken into consideration only at the sentencing stage.

Stewart’s proposal will immediately appeal to any lawyer who has ever ploughed through the intricacies of the distinction among several modes of liability, be it under domestic or international criminal law. The lives of judges, advocates and law students alike would be easier if they did not have to worry about the fine lines between aiding and committing, or between instigating another person to commit a crime and using that person as an (“innocent”?) agent.

With regard to the law of complicity, it is not difficult to find examples of contradictions and inconsistencies in the jurisprudence of international criminal tribunals, and Stewart points them out with wit and precision. I fully concur with this part of the author’s analysis. For example, the fact that some legal systems require a “substantive contribution” for aiding and abetting clearly is a red herring invented for the purpose of allowing judges some leeway in assessing the criminal liability of persons who are marginally involved in the “core” crime. Depending on the way one interprets this concept, “substantive contribution” can mean a little less or a little more than providing a sine qua non contribution to the actus reus. Likewise, the contested issue of whether an accomplice can act with a lesser degree of mens rea than the perpetrator leads to intractable quandaries: Isn’t it unfair to hold A liable for complicity in a special intent crime when he lacks that special intent? But why, on the other hand, should B who knowingly helps a perpetrator of genocide go unpunished just because B does not act with genocidal intent? Much of this has to do with the mess that international criminal law has made of mens rea, but it remains true that the distinctions of various levels of liability (and the cracks between them) lead to particularly unconvincing results in the area of complicity. (more…)

LJIL Symposium: James Stewart responds to Darryl Robinson

by James G. Stewart

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

I mean no false praise to Darryl Robinson when I describe his article The Identity Crisis in International Criminal Justice as one of the very best in the discipline. Many years ago, when working as a practitioner of international criminal law, I read Mirjan Damaška’s article The Shadow Side of Superior Responsibility. I had to take the afternoon off work to recover. While I was probably too old and ugly to have a similar experience with Identity Crisis, it registered at a similar level. Both are iconic in the discipline, both deeply shaped the way I think about these issues, and both troubled me. I will be more than glad if this piece has half that effect for others.

Darryl and I agree on a great many things. We agree that international modes of liability have veered from the path of culpability, that many ‘modes of liability’ zealously adopted in international criminal justice are illiberal in their peripheries, and that the growth of these modes seems capricious next to defensible theoretical standards. We seem to part ways in the mostly inconsequential realm of speculating how all this came about. In his kind response, Darryl claims I have overstated the position in his and other authors’ criticisms of international modes of liability, who only argue that the international influence is an influence not the only influence. But this cuts two ways. I too only argue that when it comes to “modes of liability”, departures from principle “stem less from international influence and more from the natural infiltration of indefensible domestic doctrine into the international arena.” (p. 218-219)

To some extent then we have no real differences on this score, but I do think it necessary to reiterate my suspicion that someone brave enough to wade through the literature of international “modes of liability” will unearth a number of references to the criminal law’s restraining character, acknowledgments that domestic criminal law violates culpability too but tendencies to downplay that reality as compared with international practices, and most importantly, a lingering perception that there is something atypical in international criminal justice’s departures from defensible theoretical standards. Whether intentional or not, this excellent literature has given rise to the perception that international criminal justice is exceptional in its illiberalism. (more…)

LJIL Symposium: Darryl Robinson comments on James Stewart’s “End of Modes of Liability”

by Darryl Robinson

[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). (more…)

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

by James G. Stewart

[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. (more…)

LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard

by Lori F. Damrosch

[Lori F. Damrosch is Henry L. Moses Professor of Law and International Organization and Hamilton Fish Professor of International Law and Diplomacy at Columbia Law School]

My article, ‘The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?’ originated as a contribution to a symposium convened on the 25th anniversary of the delivery of the merits judgment in the case. I took as my starting point one of the statements issued by the US government while the case was pending, which had predicted that the International Court of Justice would harm itself unless it refrained from becoming politicized. My article then inquired into whether the predicted negative trends had materialized, with attention to patterns of acceptance of the Court’s jurisdiction, its docket, and compliance with its rulings. I concluded that most of the dire predictions were overstated and that the most serious negative impact has been the on the willingness of the United States to participate fully in international dispute settlement at the ICJ and elsewhere.

One aspect of the 25-year trends I surveyed was the remarkable growth in the Court’s docket after the Nicaragua case and the shift in the geographic distribution of cases to include a much higher proportion from the developing world. In his comments on my article addressed to that point, Professor John Dugard refers to the Court’s 1966 judgment in the South-West Africa cases, which I had not discussed simply because my remarks at the June 2011 conference focused on developments subsequent to the Nicaragua case. I therefore did not think it necessary to elaborate the reasons why the Court, prior to Nicaragua, had gone through a period of very few cases on its docket, although I did briefly allude to that fact in my contribution (p. 140). Alain Pellet, whose contribution will appear in the next issue of the Leiden Journal of International Law, also surveyed the relevant history. As the literature on the Court explains, between the late 1960s and the early 1980s preceding Nicaragua, the Court had suffered a collapse in confidence resulting in part from its handling of the cases brought by Ethiopia and Liberia against South Africa to contest the maintenance of apartheid in the territory of South-West Africa, which South Africa administered under a League of Nations mandate. Because that story has been fully told elsewhere, I began my treatment with the Nicaragua judgment and the statement of the United States government in response thereto.

To the extent that African countries in particular had avoided the Court after the 1966 dismissal of Ethiopia’s and Liberia’s contentious cases, the rehabilitation had already begun by the time of Nicaragua. Tunisia and Libya, as well as Burkina Faso and Mali, went to the Court shortly before the Nicaragua case or during its pendency, for delimitation of their maritime or land boundaries. After the mid-1980s, African states submitted still more cases by consent or brought them under other headings of the Court’s contentious jurisdiction, so that there is now a large number of such cases and an impressive record of resolution by the Court of intra-African disputes. The fact that the Court had an African President, Judge T.O. Elias, during the Nicaragua period may have contributed to the renewal of African interest in considering the Court as a potential forum for dispute settlement. African states may also have found in the Nicaragua case some signals that the Court was prepared to handle their cases in a manner responsive to the valid criticisms that had been made in the wake of dismissal of Ethiopia’s and Liberia’s cases against South Africa two decades earlier. Presumably, such a restoration of confidence would have to be sustained over time, as has apparently happened in view of the significant proportion of the Court’s docket attributable to intra-African disputes. (more…)

LJIL Symposium: From Nicaragua to R2P: Continuity and Change

by André Nollkaemper

[André Nollkaemper is is Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam.]

Cross posted on the SHARES blog

The ICJ´s decision in Nicaragua surely is one of its most cited judgments. It remains the leading authority on attribution of conduct of non-state actors and on (collective) self-defense. It also is a popular point of reference in analyses of the formation of customary law and on the jurisdiction of the Court. In his excellent The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, Marcelo Kohen points out that the Judgment also is a relevant source for understanding the concept of responsibility to protect (R2P), even though that concept only came into existence some twenty years after the judgment.

Kohen rightly argues that R2P, by placing emphasis on collective security and discounting unilateral action, has been placed firmly in the footsteps of – and is fully consistent with – Nicaragua´s holdings on non-intervention, and that there is nothing in the concept of R2P ‘allowing for a reversal of the principle of non-intervention or otherwise allowing states to intervene without SC authorization.’ (at 163).

It is hard to expect otherwise. The application of the concept of R2P continues to give rise to controversies between states and other relevant actors. The small step forward that appeared to be brought by SC Res 1973(2011) proved to be two substantial steps backward, following the overly broad interpretation that led NATO to overthrow Gadaffi. The absence of consensus on meaning, scope and implementation at the political level obviously means the lack of a basis for a change in the relevant principles of international law, notably those on protection of human rights, non-intervention and the use of force.

Nonetheless, as Julia Hoffmann and I argued in our recent book, rereading Nicaragua in the light of the wide variety of controversial issues surrounding R2P makes sense. On the one hand, the US had based its support for the contras in part on the fact that Nicaragua had committed violations of human rights (eg par. 267), the same rationale that underlies the aspirations of many who relied on R2P in the context of Libya or Syria. On the other hand, the main ambition of the US was not so much to protect human rights as to (support the) overthrow of the regime. This may not be a generally accepted aim of R2P doctrine, but it certainly can be part of the agenda of R2P supporters. The middle way that the Court had to find between the laudable ambitions to protect human rights on the one hand, and the no-go area of allowing a state to support the overthrow of a foreign regime, is potentially relevant to the R2P debate. (more…)

LJIL Symposium: The Nicaragua Case: Its Impact

by John Dugard

[John Dugard is Professor of Law at the Universities of Leiden and Pretoria and was a Member of International Law Commission from 1997 to 2011]

My comments on the impact of the Nicaragua Case are directed mainly at the article by Lori Damrosch on the implications of the decision for the International Court of Justice and international adjudication. As Andre Nollkaemper will examine Marcelo Kohen’s piece on the subject of intervention and R2P I shall comment only briefly on this article.

Humanitarian intervention has a dubious status in customary international law. Most international lawyers probably take the view that it is prohibited by Article 2(4) of the UN Charter. However, some international lawyers (including the present writer) take the view that it has sufficient support in state practice and treaty law (Article 4(h) of the African Union Constitutive Act) to at least keep it alive as a residual justification for intervention when the Security Council is prevented from acting because of the veto of a permanent member – a very real possibility as evidenced by the manner in which the United States, China and Russia have used their vetoes or threatened their veto in order to protect one of their friends or surrogates accused of systematic human rights violations. Marcelo Kohen is therefore unwise to reject humanitarian intervention completely and to argue that it has been ‘replaced’ by R2P. At best humanitarian intervention without Security Council support is an important residual right; at worst it constitutes recognition of the fact that certain interventions in order to protect human rights should be seen as ‘legitimate’ albeit ‘illegal’ (see Report of Independent International Commission on Kosovo (2005) 186; T Franck Recourse to Force: State Action against Threats and Armed Attacks (2002) 180, 184). Humanitarian intervention, according to the latter view, is to be seen as euthanasia is seen in domestic law: as an intervention that is illegal but as one that may be condoned or forgiven.

In essence Lori Damrosch argues that the International Court of Justice has succeeded in becoming a ‘World Court’ since the Nicaragua Case in that it has been more widely used, particularly by developing nations, but that this ‘popularity’ has been at the expense of the United States which has become more critical of the Court. I agree with this assessment but in my view Lori has understated her case. (more…)

LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

by dov jacobs

[Dov Jacobs is an Assistant Professor of International Law at Leiden University]

This first part of the symposium will provide an opportunity to discuss some aspects of what is considered to be one of the key judgments of the ICJ, some 25 years after it was issued.

The two comments you will read today, from John Dugard and André Nollkaemper are in response to the following articles that are published in the Leiden Journal of International Law. These articles are part of a two issue symposium celebrating the 25 years since the Judgment. In Volume 25(1), the Journal published contributions by Lori Damrosch, Marcelo Kohen, but also Paul Reichler. In upcoming Volume 25(2), you will be able to read contributions by Judge Yusuf, James Crawford and Alain Pellet.

The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?, by Lori Damrosch

At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court’s jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court’s decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court’s most active litigant) to participate fully in international dispute settlement.

The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen

This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.