In association with the International Commission of Jurists

Author: Jens David Ohlin

10 Apr

[Jens David Ohlin is Associate Professor of Law at Cornell University Law School.] This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below. I agree with almost everything in Darryl Robinson’s plea for a cosmopolitan liberal approach to international criminal justice.  Robinson’s article sketches out the development of ICL scholarship, noting the beginnings of the field, followed by the liberal critique of early ICL development, and then the counter-critique of the liberal critique that emphasized the need for sui generis theories to deal with the unique nature of international atrocities.  The story is convincing and tightly explained.  Although it might be difficult to identify particular scholars with just one of these schools of thought, it is certainly possible to identify particular arguments as fitting into one of these moments in the dialectic of ICL. I do, however, want to point out an important trend in the development of the criminal law that cuts across the dialectical story emphasized by Robinson.  This won’t suggest that Robinson has it wrong – far from it – though I think it does complicate the picture somewhat.
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15 Nov

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below. Professor Darryl Robinson is to be commended for untangling what has to be one of the most tangled webs in international criminal law theory. The settled jurisprudence on command responsibility is anything but settled; it is contradictory, confusing, and full of conclusory statements and pronouncements that don’t hold water. With Professor Robinson, I’ve viewed with suspicion the recent trend toward arguing that command responsibility is a form of omission liability, or even a separate offence. Regardless of whether one goes the full route and declare it a separate offence, this basic idea is the same: that command responsibility represents a conviction for dereliction of duty, for failing to live up to the demands of the law on the part of the commander, such as punishing subordinates. Under this argument, command responsibility is not a form of vicarious liability for the actions of subordinates who commit atrocities. Like Professor Robinson, I have always found this view difficult to square with both the history and contemporary practice of command responsibility. In particular, Re Yamashita certainly reads like a case of vicarious responsibility, in that the military commission charged him with the full force of the atrocities — and executed him for it. If it was just an omission offence, then it is hard to square that with both the rhetoric and result in re Yamashita. At this point in the analysis, though, I might have some small disagreements with Professor Robinson.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda?  Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization?  Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.

Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research.  Here is my thinking:  At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification.  The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries.  On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC.  It not falling into either sub-category, it cannot be an armed conflict at all.

I find this argument suspicious, though my thinking on the issue is still evolving.  I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict.  That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC).  That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC.  I found this argument persuasive.

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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into...

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29 May

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Andrew Woods has done an admirable job tackling a truly foundational issue: the normative basis for punishment in international criminal law. This issue has engaged my thinking as well, and Woods is to be congratulated for moving the ball forward and asking the right questions. Woods starts from the assumption that international criminal punishment is essentially retributivist. He then proceeds to harness the lessons learned from the domestic punishment literature and then applies them to the international context. In particular, Woods invokes the well-known work by criminal law scholars Paul Robinson and John Darley. In a series of well-known articles and books, Robinson and Darley have argued that there is a utility to moral desert. In other words, (1) individuals have retributive sentiments regarding misbehavior; and (2) designing a system of punishment that tracks those sentiments will, as a whole, produce better consequences. This is one particular way of integrating retributivism and utility into a single coherent theory. For Robinson and Darley, the empirical fact of the matter is that people have retributive sentiments (step 1). At a normative level, however, what makes the system morally justifiable is that these sentiments have beneficial consequences (step 2) – hence the utility of desert. So the theory starts with a description of moral desert at the individual and wraps it in a normative argument at the institutional level that sounds in consequentialism. Woods then proceeds to apply these lessons to international criminal law. In short, he concludes that there is no similar utility of desert for international criminal law. While I think there is much to admire in Woods’ analysis, I take some issue with the first step of the argument: his assumption that international criminal law is fundamentally retributive. If he means this statement as a descriptive claim about the state of the field, I think he is wrong. I myself have argued that international tribunals ought to be far more retributive, so why am I complaining? Because I think that ICL ought to be more retributive, precisely because I think that ICL isn’t sufficiently retributive at the moment.
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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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15 Mar

[Jens Ohlin is Associate Professor of Law at Cornell Law School] Cross-posted at LieberCode. So the ICC has released its first verdict and it only took 10 years.  Most media reports are concentrating on the substantive crime – the use of child soldiers – because that issue has suddenly gained popular currency with the Kony2012 viral video. But the Lubanga decision is also...

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16 Feb

Cross-posted at LieberCode. I have written before about the Government’s new position in the Hamdan case.  As you will recall, Hamdan was convicted by a military commission for providing material support, sentenced to five and a half years, and released for time served.  He is now appealing his conviction. The latest government brief before the D.C. Circuit represents a significant...

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14 Feb

Cross-posted at LieberCode. David Rieff has an interesting – and somewhat polemical – article in the latest Foreign Policy.  Rieff, you will recall, was an early supporter of intervention, a policy position no doubt influenced by his time spent in Bosnia which culminated in Slaughterhouse: Bosnia and the Failure of the West. Although initially hawkish on intervention, and willing to support liberal...

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11 Feb

Cross-posted at LieberCode. It is becoming increasingly likely that Russia and China are going to block just about any resolution on Syria coming out of the Security Council, regardless of whether it is meaningful or not.  They aren’t going to support a resolution that seriously denounces the regime, nor are they going to support an ICC...

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08 Feb

Cross-posted at LieberCode. I read with interest the debate between Kevin Heller and Bob Chesney on allegations that recent drone attacks have caused civilian casualties under disturbing circumstances. My views are too extensive for the comments section, so I am taking the liberty of outlining them here -- guest-blogger’s prerogative.  Essentially, I think the issue boils down to intent -- which the...

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06 Feb

Cross-posted at LieberCode. On Friday, the Supreme Court Chamber of the ECCC increased the sentence of Kaing Guek Eav (Duch) to life in prison.  The Trial Chamber had sentenced Duch to 35 years in prison for crimes against humanity and grave breaches of the Geneva Conventions, but then reduced the sentence by five years in recognition of Duch’s illegal detention by...

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