International Criminal Law

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.