In association with the International Commission of Jurists

International Criminal Law

21 Mar

[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.
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21 Mar

[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).
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21 Mar

[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.
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19 Mar

[Mark Kersten is a PhD student in International Relations at the London School of Economics] International lawyers will undoubtedly pour over the landmark verdict handed down this week by the International Criminal Court, in which Thomas Lubanga Dyilo was found guilty of conscripting, enlisting and using child soldiers in the long-standing and brutal conflict in the Democratic Republic of Congo. The...

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19 Mar

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).] A long time in coming, to be sure, and slightly anticlimactic, the Lubanga judgment nonetheless represents a watershed – a first, in any event, for the ICC.  What might the legacies of the Lubanga judgment be? I...

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18 Mar

[James G. Stewart is Assistant Professor of Law at the University of British Columbia] The first judgment of the International Criminal Court is cause for real celebration, but we must not let our justifiable elation overshadow all that work the judgment leaves undone. Let me begin by rejoicing, before I express concerns. This is the first determination of guilt by a...

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18 Mar

[Dov Jacobs is an Assistant Professor of International Law at Leiden University. He also blogs at Spreading the Jam where he has already commented on several aspects of the Lubanga Judgment.] The Lubanga trial was not only being scrutinized for the charges that were included (the use of child soldiers in armed conflict). The charges that were not included always loomed close by,...

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18 Mar

[Cecile Aptel is Associate Professor of International Law at the Fletcher School, Tufts University] Among the many legal and factual issues raised by the landmark Lubanga judgment rendered by the ICC this week, a central one concerns the definition of “the use [of children under 15] to participate actively in hostilities” qualified as war crimes under both article 8(2)(b)(xxvi) and 8(2)(e)(vii)...

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17 Mar

I don't have any particular insights to add on the very interesting and detailed roundtable discussion folks are having on the Lubanga judgment.  But I can't resist pointing out this op-ed by Ian Paisley (the son of a leading figure on the Northern Irish settlement) in the New York Times slamming the ICC as a obstruction to national reconciliation and...

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16 Mar

I'll have much to say about various legal aspects of the Lubanga judgment in the days to come, but I wanted to start by discussing the relatively narrow -- though critically important -- point that Jens addressed in his post: the dispute between the majority and Judge Fulford concerning the correct interpretation of co-perpetration in Article 25(3)(a) of the Rome...

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15 Mar

[Jens Ohlin is Associate Professor of Law at Cornell Law School] Cross-posted at LieberCode. So the ICC has released its first verdict and it only took 10 years.  Most media reports are concentrating on the substantive crime – the use of child soldiers – because that issue has suddenly gained popular currency with the Kony2012 viral video. But the Lubanga decision is also...

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