International Criminal Law

LJIL Symposium: James Stewart Responds to Jens Ohlin

[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.