LJIL Symposium: James Stewart responds to Darryl Robinson

[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.

Any yet, my own sense is that all Anglo-American criminal systems struggle with a comparable sort of identity crisis, and that to some extent these difficulties are hallmarks of criminal justice everywhere. In emphasizing this, my criticism is merely intended to undermine the unreasonable faith practitioners of international criminal justice sometimes place in domestic example, to highlight the need for even practitioners to engage with robust theoretical frameworks that place limits on “modes of liability,” and to refute the perception that the quality of the criminal law dispensed internationally is in some way inferior to exemplary standards of which we can be proud nationally. This, I think, gets things backwards—international law often applies national standards for which we should feel some degree of regret.

Let me qualify this position slightly, because I do believe Darryl Robinson’s description of international criminal law as plagued by a very particular crisis of identity is true and helpful. The amalgamation of the “international” and the “criminal” in international criminal law undoubtedly creates an uncomfortable dissonance between two fields designed to pursue oftentimes incongruous ends, and Robinson points out many of the areas where this dissonance produces results that are offensive to criminal principles. In this sense, international criminal justice’s identity crisis is peculiar. In other areas, however, the crisis is merely a mundane reflection of imperfections in criminal law everywhere. “Modes of liability” probably fit into this latter category.

I turn then to Robinson’s substantive criticisms. He argues that because accessories make a much more indirect causal contribution to a crime, they may not need the paradigmatic mens rea for the offence. Like many others, he draws a distinction between “committing” and other forms of accessorial liability, which usually go under the banner of “participating.” Robinson concludes that when faced with departures from mens rea standards in crimes for “participating” (as distinct from “committing”), “[a] plausible case for deontological justification could be advanced.” Here, we most certainly part ways, for I am not sure that his argument is consistent with his own great work, substantiated, or plausible. Let me expand.

To my mind, the argument does not work for a number of reasons, but one of the most important is that an accomplice is held responsible for the same crime as the principal. In this sense, one can only maintain the “committing/participating” divide by doing violence to the very standards used to censure overly-broad modes of liability as a species, namely culpability and fair labeling. In other words, if this distinction between “committing” and “participating” is the key determinant for when it its permissible to allow “modes of liability” to depart from elements of a crime, then it is the philosophical basis for this distinction that is the relevant point of inquiry in discussions about the legitimacy of international “modes of liability” generally, not culpability or anything else. Needless to say, this would mark a sea-change for previous literature, including his own excellent work.

There is also another major problem with the asserted distinction. In all my travels I have never seen any justification, deontological or otherwise, for a division between participation and commission. Many authors make this claim, but it tends to remain entirely unsubstantiated. While I sincerely hope that others will take up the task of producing this theoretical proof (perhaps as part of a criticism of my article), I suspect that their plight is not one that is likely to bear great intellectual fruit. For the reasons I mention above, one cannot distinguish between “committing” and “participating” without giving these concepts consequentialist values, which leads inexorably to the triumph of policy goals over desert and the illiberal doctrine we commonly deplore.

What is clear is that on these issues, Darryl will continue to be a leading voice. I look forward to our discussions over the many years to come.