LJIL Symposium: James Stewart Responds to Thomas Weigend

[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.

The last of these points warrants some elaboration. My article is entitled “The End of ‘Modes of Liability’ for International Crimes” because I believe that both international and domestic courts should have unified standards of blame attribution for international crimes. I advance various arguments to support this idea, but one is particularly salient. In the Dutch case of Van Anraat, a Dutch national court went to great lengths to ascertain whether it was bound to apply the Dutch notion of complicity (which would lead to conviction), or the ICC standard (that would not). Given the absence of any established metric to decide between these two positions, I believe that the ambiguity violates the principle of legality. Without unified standards of blame attribution, guilt or innocence turns on unrestrained judicial fiat.

This insight leads to a series of second order questions. If we are to have universalized standards of blame attribution for international crimes in all international and domestic courts, what should they be? True, we could borrow the compromised terms negotiated by states at Rome that are not true to any national exemplar, we could attempt to divine customary international law from equivocal state practice, or we could jockey for influence between various competing national models, but would it not be better to adopt a theoretically defensible standard that precludes confusion between the many available variances of the differentiated model? Personally, I suspect that the “mess” Professor Weigend points to in other aspects of international criminal law is an unfortunate by-product of the sudden amalgamation of criminal law traditions. Albeit imperfectly, a unitary theory allows us to get beyond this.

This brings us to the sentencing criticism. Whatever the strengths or weakness of my argument, I cannot agree with Weigend that this “path out… leads only from the conviction to the sentencing stage.” I acknowledge, of course, that these complex issues must be addressed in sentencing, but sentencing guidelines or some other mechanism could dispel the fear that this will leave us with “no guidance from the lawgiver.” Even accepting the complaint that sentencing is left in a state of open-ended judicial discretion (which I agree would not be desirable), reducing the unitary theory’s merit to little more than an exercise in brushing troublesome complexity out of view misses much of its potential value. As I say, to the extent that Weigend could be read as reducing the issue to sentencing alone, I worry that this sells the unitary theory short.

Let me illustrate. The criticism that the unitary theory only delays these problems to a sentencing phase would be true if: international and domestic courts were consistently observing culpability as a guideline in trials involving international crimes; modes of liability like “indirect co-perpetration” meant anything to anyone affected by an international crime, such that the legal concept communicated something of value rather than mere Western technocratic legalese; practitioners had a firm handle on requisite elements of international responsibility in ways that enabled justice; or if differentiated modes of liability shared common meanings across jurisdictions, such that determinations of guilt were insulated from random judicial choice between systems of law. None of these things, however, is true.

I do not mean to give the impression that the unitary theory is watertight, or that I have come close to adequately accounting for it. Clearly, there is still a great deal to be explored to fully understand the import of the unitary theory of perpetration; still a huge amount that could be said for and against it. Professor Weigend’s kind self-restraint should not camouflage the theoretical and empirical work that is still required to test the merit of the unitary theory as a viable option for international crimes, let alone the appetite of states for adopting it. This, I accept, is not a short-term project. Still, even if we continue to live with the many theoretical anomalies in the differentiated model as applied in international law, I hope this article will at least engender greater consciousness of the standards we are applying, thereby moving international criminal justice closer to a theoretically defensible self-concept.

My kind thanks again to Thomas Weigend, to whom I am most indebted.