In association with the International Commission of Jurists

Kiobel (III): Universality as a Constitutional Question

27 Mar

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status. Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time. Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime. Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”
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26 Mar

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS....

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26 Mar

[Eugene Kontorovich is Professor of Law at Northwestern School of Law] Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch...

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26 Mar

Lawfare has published a very interesting guest post by Haridimos Thravalos on whether conspiracy is a war crime.  The whole thing is worth a read; here is the intro: In June 2006, the U.S. Supreme Court struck down President George W. Bush’s use of military commissions to try suspected members of al-Qaeda in Hamdan v. Rumsfeld, 548 U.S. 557...

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26 Mar

I returned ten days ago from a week of teaching international humanitarian law in Jericho. It was my first time in the West Bank, and I won't soon forget it. I was particularly struck, not surprisingly, by the limitations on Palestinian life and movement -- the endless checkpoints, the hideous wall, the massive illegal settlements dotting the landscape....

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25 Mar

That’s the title of a new paper in the Stanford Law Review by Columbia Law School’s Matthew Waxman (link is to SSRN).  One highly topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups.  It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy or other Constitutional values – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman’s new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too:  What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring?  (Below the fold, the abstract from SSRN.)
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23 Mar

[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.
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23 Mar

[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.
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22 Mar

I found much to like and dislike in this essay by Nigerian-American writer Teju Cole discussing his widely shared tweets on the Invisible Children Kony 2012 video. Here is one: Teju Cole@tejucole 1- From Sachs to Kristof to Invisible Children to TED, the fastest growth industry in the US is the White Savior Industrial Complex. Cole goes on to observe (rightly in my...

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22 Mar

[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.
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22 Mar

[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.
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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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