In this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must explore what that deontic commitment might entail in these new contexts. My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting by-product, the examination of ‘abnormal’ criminal law can raise new questions for general criminal-law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.
1 Such reasoning is discussed in Robinson, D., ‘The Identity Crisis of International Criminal Law’, (2008) 21 LJIL 925.
2 Fletcher, G. P. and Ohlin, J. D., ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’, (2005) 3 JICJ 539; Danner, A. M. and Martinez, J. S., ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’, (2005) 93 California Law Review 75; Ambos, K., ‘Remarks on the General Part of International Criminal Law’, (2006) 4 JICJ 660; Damaska, M., ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law 455.
3 M. Drumbl, Atrocity, Punishment, and International Law (2007), 8, 24, 38, 123–4; Drumbl, M., ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’, (2005) 99 Northwestern University Law Review 539, at 545; Osiel, M., ‘The Banality of Good: Aligning Incentives against Mass Atrocity’, (2005) 105 Columbia Law Review 1751, at 1753; M. Osiel, Making Sense of Mass Atrocity (2009), 8.
4 Drumbl, Atrocity, supra note 3, at 24–32; Osiel, ‘Banality of Good’, supra note 3, at 1752–5; Osiel, Making Sense, supra note 3, at x–xi; Fletcher, L. and Weinstein, H., ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 HRQ 573, at 604–5; Fletcher, L., ‘From Indifference to Engagement: Bystanders and International Criminal Justice’, (2005) 26 Mich. JIL 1013, at 1076; Reisman, W. M., ‘Legal Responses to Genocide and Other Massive Violations of Human Rights’, (1996) 4 Law & Contemporary Problems 75, at 77; Aukerman, M. J., ‘Extraordinary Evil, Extraordinary Crime: A Framework for Understanding Transitional Justice’, (2002) 15 HHRJ 39, at 41 and 59; Sepinwall, A., ‘Citizen Responsibility and the Reactive Attitudes: Blaming Americans for War Crimes in Iraq’, in Isaacs, T. and Vernon, R. (eds.), Accountability for Collective Wrongdoing (2011), 231, at 233.
5 Osiel, Making Sense, supra note 3, at 8 (extending Western doctrines); Aukerman, supra note 4, at 41 (Western); M. Drumbl, ‘Collective Responsibility and Postconflict Justice’, in Isaacs and Vernon, supra note 4, 23, at 29 (central unit of action); Drumbl, ‘Collective Violence’, supra note 3, at 542 (central unit); Drumbl, Atrocity, supra note 3, at 39 (shoehorn collective agency into individual guilt); Sepinwall, supra note 4, at 233 (Western individualist paradigm versus collective nature).
7 Robinson, supra note 1.
8 Ibid., esp. at 929–31. In particular, assumptions about legal reasoning common in the liberal human rights tradition seem to be corrosive to liberal principles when applied by the institution itself exercising coercive power over individuals. These include interpretive assumptions such as dynamic and expansive interpretation; structural and substantive assumptions about legal norms; and ideological assumptions about sovereignty, progress, compromise, and juridification.
9 Ibid., at 932.
10 See, e.g., ibid., at 932.
11 Ibid., at 932; see also ibid., at 962–3.
12 Ibid., at, e.g., 932.
13 Ibid., at 962–3.
14 Ibid., at 932–3 (adherence to liberal commitment need not entail mimicking precise formulations from national law; there is scope to develop specific deontological justifications for particular adaptations), at 962–3 (develop a more refined account of fundamental principles appropriate for ICL; special contexts of ICL may help us unearth new insights).
15 Ibid., at 963.
16 A tendency skilfully explored in Roth, B., ‘Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice’, (2010) 8 Santa Clara Journal of International Law 231, discussing the view of principles as an ‘artifact of legal positivism’ (at 252) or ‘inconvenient obstacles to be circumvented’ (at 287).
17 I use the term ‘doctrinal’ in the sense used in common-law scholarship, i.e. an approach focused on ‘black letter’ law, rather than in its more theoretical and systematic sense in other legal traditions.
18 A more subtle question, as to whether fundamental principles from national systems might be inspected and articulated differently in ICL, is discussed below in section 3.
19 Hart, H. L. A., Punishment and Responsibility, (2008), 80; see also ibid., at 3–12 and 74–82. See also Rawls, J., ‘Two Concepts of Rules’, (1955) 64 Philosophical Review 3.
20 Hart, supra note 19, at 77.
21 Hart, supra note 19, at 22; D. N. Husak, The Philosophy of Criminal Law (1987), 30.
22 Markus Dubber contrasts ‘criminal law’ with the exercise of ‘police’. The latter involves top-down ‘management of the household’ by a paterfamilias figure. Criminal law applies in a political community of free and equal persons, and thus the governor and the governed stand in a relationship of equality. It requires not just a prudential ideal of the punisher (ie. a focus on effectiveness) but also consistency with a moral ideal of the punished; it is a power to do justice rather than just a power to regulate. See M. D. Dubber, ‘A Political Theory of Criminal Law: Autonomy and the Legitimacy of State Punishment’ available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=529522 esp. at 6–7, 13, 19. See also Dubber, M. D., ‘Common Civility: The Culture of Alegality in International Criminal Law’, (2011) 24 LJIL 923.
23 G. P. Fletcher, Basic Concepts of Criminal Law (1998), 43. The idea is reflected in the view that persons should not be used solely as a ‘means’ to a societal ‘end’: I. Kant, Groundwork of the Metaphysics of Morals (trans. Mary Gregor, 1998), at 38 (4:429) and 41 (4:433).
24 The principle also requires an element of personal fault, i.e. a blameworthy state of mind in relation to the act or omission. Obviously, the questions of how much involvement or what mental states satisfy the principle are hotly contested. My concern is simply that we grapple with such questions and strive to develop plausible accounts. See section 5.
25 Prosecutor v. Tadić, Judgement, ICTY A.Ch., IT-94–1-A, 15 July 1999, para. 186; see also ‘Judgment of the International Military Tribunal (Nuremberg)’, reproduced in (1947) 41 AJIL (supplement) 172, at 251: ‘criminal guilt is personal’.
26 Prosecutor v. Delalić et al. (‘Celebici’), Judgement, ICTY T.Ch., IT-96–21-T, 16 November 1998, at paras. 415–418; K. S. Gallant, The Principle of Legality in International and Comparative Criminal Law (2009), 19–30. Again, the parameters of the principle are of course contested; see section 5.
27 Celebici, supra note 26, at para. 402; see also ICC Statute, Art. 22.
28 G. Fletcher, The Grammar of Criminal Law: American, Comparative and International Vol. 1 (2007), at 167.
29 Dissenting opinion of Justice Robertson in Prosecutor v. Norman, Child Recruitment Decision, SCSL A.Ch, SCSL-2004–14-AR72(E), 31 May 2004, at para. 14.
30 See, e.g., L. L. Fuller, The Morality of Law (1969), 162 arguing that a concept of persons as responsible agents is inherent in the enterprise of law, so that every ‘departure from the principles of law's inner morality is an affront to man's dignity as a responsible agent.’ See also R. A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (2007), 45–6; Hart, supra note 19, at 22; Husak, supra note 21, at 30.
31 Drumbl, Atrocity, supra note 3, at 5–9, 23, 38–9; Osiel, Making Sense, supra note 3, at 8; Osiel, ‘Banality of Good’, supra note 3, at 1753, 1768; Drumbl, ‘Collective Violence’, supra note 3, at 545.
33 Reisman, supra note 4, at 77.
34 Drumbl, Atrocity, supra note 3, at 24–35; Fletcher and Weinstein, supra note 4, at 605; D. Luban, ‘State Criminality and the Ambition of International Criminal Law’, in Isaacs and Vernon, supra note 4, 61 at 62–3; Aukerman, supra note 4, at 59.
37 As I have noted in previous works: Robinson, supra note 1, at 932, 933 at n. 27, and 962–3; Robinson, D. ‘The Two Liberalisms of International Criminal Law’, in Stahn, C. and van den Herik, L. (eds.), Future Perspectives on International Criminal Justice (2010), 115, at 118 (n. 9) and 160.
39 Drumbl, supra note 36, at 1309.
40 Drumbl, Atrocity, supra note 3, at 40, noting that availability of other mechanisms may reduce the pressures for an expansive doctrine of joint criminal enterprise.
41 Osiel, Making Sense, supra note 3, at 118–37.
42 Some misreading of ‘Identity Crisis’ is quite understandable, because of its unusual focus. Unlike most articles in the area, it did not purport to evaluate the outcomes of decisions. It examined reasoning, particularly recurring patterns of reasoning culminating in contradictions with principles as articulated by the system itself. I noted that ‘where the article exposes an internal contradiction, it should not be assumed that the author believes that the doctrine is wrong and the articulation of the principle is necessarily correct’ (Robinson, supra note 1, at 932), and that an evaluation would first require a framework for assessing what the principles ought to be (ibid., at 932 and 962–3). Osiel advances a series of arguments against what he perceives to be the evaluative thesis of the article. For example, he argues that some outcomes of tribunal decisions could still be defended by more sophisticated reasoning. I fully agree. ‘Identity Crisis’ was, however, about the reasoning employed. Insofar as Osiel's work strives for more sophisticated analysis of ICL, our projects have a great many commonalities.
43 Osiel, Making Sense, supra note 3, at 129 indicates that ‘criminal law may not step beyond the line of individual culpability’. The passage is subject to important caveats in the following sentences, including that law itself largely identifies that line, although there may be some limited reality to the concept of responsibility. The passage also highlights compliance with the legality principle. See also ibid., at 202 and 245 (noting consistency with personal culpability).
44 Ibid., at xi–xiii and 245 (liberal approach, but liberalism is flexible and can adapt to novel changes). There is some ambiguity here, as Osiel includes utilitarianism within liberalism, which is perfectly sound, but it is quite different from its typical use in criminal-law theory, where a ‘liberal’ approach is contrasted with a utilitarian one, precisely because of the constraints it embraces.
45 Ibid., at 21.
47 Ibid., at 199.
48 Osiel, ‘Banality of Good’, supra note 3, at 1845, also noting the ‘unfortunate equation of liberal morality with its Kantian variant, banishing its consequentialist cousin to undeserved obscurity’.
49 Osiel, Making Sense, supra note 3, at 8. As an example of exploring the possible latitude within personal culpability, see Robinson, D., ‘How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution’, (2012) 13 Melb. JIL 1. The article explores parameters of the causal contribution requirement and discusses, without reaching a conclusion, non-causal theories.
50 Dubber, ‘Common Civility’, supra note 22, at 923.
51 Osiel, Making Sense, supra note 3, at 127–8, 129.
52 Osiel rightly acknowledges, and I agree, that normative positions are to some extent grounded in or assume metaphysical views. Thus, while agreeing generally with his prioritization, I do not reject the possibility that culpability may at some point map onto natural relations (such as causation) and that inquiries into metaphysics might be illuminating. See, e.g., M. S. Moore, Causation and Responsibility: An Essay in Law, Morals and Metaphysics (2009), esp. at 5, 110 and 327.
53 Osiel's point may also be that abstract speculation cannot furnish certainty of answers, in which case I emphatically agree, as I will elaborate further in section 5. Deontological inquiry is simply a framework for questioning. It is a discipline requiring us to evaluate whether our doctrines are consistent with a plausible account of desert.
54 Of course, one could be parochial and illiberal, replicating principles from an illiberal system. I am, however, speaking of a parochial version of a liberal account – one that replicates doctrines or articulations of fundamental principles as known in one or several national systems that are regarded as appropriate models.
55 Appiah, K., Cosmopolitanism: Ethics in a World of Strangers (2006); Archibugi, D., Held, D., and Köhler, M., Re-Imagining Political Community: Studies in Cosmopolitan Democracy (1998); Archibugi, D., ‘Immanuel Kant, Cosmopolitan Law and Peace’ (1995) 1 EJIL 429; S. Benhabib, Another Cosmopolitanism (2006); Beitz, C. R., Political Theory and International Relations (1999); Bohman, J. and Lutz-Bachmann, M. (eds.), Perpetual Peace: Essays on Kant's Cosmopolitan Ideal (1997); Held, D., Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995); van Hooft, S., Cosmopolitanism: A Philosophy for Global Ethics (2009); Pogge, T. W., ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48; Vernon, R., Cosmopolitan Regard: Political Membership and Global Justice (2010).
56 G. Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (2007), 12, 24, 30–6 and 44–6; Drumbl, Atrocity, supra note 3, at 19–20, 185–6; Hirsh, D., Law against Genocide: Cosmopolitan Trials (2003); Hayden, P., ‘Cosmopolitanism and the Need for Transnational Criminal Justice: The Case of the International Criminal Court’ (2004) 104 Theoria 69.
58 Pogge, supra note 55, at 49.
59 See, e.g., Beitz, supra note 55, at 6, 53, 182; Held, supra note 55, at 233–5; J. Habermas, ‘Kant's Idea of Perpetual Peace, with the Benefit of Two Hundred Years’ Hindsight’, in Bohman and Lutz-Bachmann, supra note 55, 113 at 128–9.
60 See generally Cogan, J. K., ‘The Regulatory Turn in International Law’, (2011) 52 Harv. ILJ 322.
61 On ICL and cosmopolitan de-emphasis of the state, see Koller, D., ‘The Faith of the International Criminal Lawyer’, (2008) 40 NYUJILP 1019, at 1052; Simpson, supra note 56, at 46; Luban, supra note 34, at 64.
62 See, e.g., preamble and Art. 5 of ICC Statute referring to ‘crimes of concern to the international community as a whole’. The definitions of most crimes, as well as the Elements of Crimes, were adopted by consensus.
64 Lu, C., ‘Cosmopolitan Liberalism and the Faces of Injustice in International Relations’, (2005) 31 RIS 401; Beitz, C., ‘Social and Cosmopolitan Liberalism’, (1999) 75 IA 515.
65 Lu, supra note 64, at 401–2.
66 J. Stewart, ‘Overdetermined Atrocities’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2152670.
68 Drumbl, supra note 5, at 23 (‘preferred ideal type’, ‘“first-best” practice’); and see Drumbl, Atrocity, supra note 3, at 3, 10, 13, 37, 202; Fletcher and Weinstein, supra note 4, at 582 (‘benchmark’) and 584 (overshadows attention to other options); Osiel, ‘Banality of Good’, supra note 3, at 1753 and 1845; Osiel, Making Sense, supra note 3, at 199; A. F. Lang Jr, ‘Punishing Genocide: A Critical Reading of the International Court of Justice’, in Isaacs and Vernon, supra note 4, 92, at 93; Mègret, F., ‘Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity’, in Stahn, C. and El-Zeidy, M. (eds.), The International Criminal Court and Complementarity: From Theory to Practice (2010), 361.
69 Drumbl, Atrocity, supra note 3, at xii, 18, 147, 194–6 (discussing civil sanctions, truth commissions, reparations, public inquiries, commemoration, restorative initiatives, qualified amnesties, reintegrative shaming, tort law, lustration, and legislative and constitutional reform); Osiel, ‘Banality of Good’, supra note 3, at 1842–59 (collective sanctions on military officers); Fletcher and Weinstein, supra note 4, at 580, 603, 626–35. On state, corporate, and other group responsibility, see generally Isaacs and Vernon, supra note 4, and Nollkaemper, A. and van der Wilt, H. (eds.), System Criminality in International Law (2009).
70 I set aside here the separate legal and normative questions whether there is a duty to prosecute or extradite in response to mass atrocity, and the scope and possible exceptions to such duty. A cosmopolitan liberal account is compatible with different views on that duty; the point is simply that once criminal law is engaged, fundamental principles of criminal law are also engaged.
71 See examples cited in section 3, above, and see also Drumbl, Atrocity, supra note 3, at 21 (drained collective nature to fit comforting frameworks) and 23–35 (conformity and deviance); Drumbl, supra note 5, at 24; Osiel, ‘Banality of Good’, supra note 3, at 1752–5; Osiel, Making Sense, supra note 3, at 2–3 and 187–9; Simpson, supra note 56, at 73–4; Fletcher, G., ‘Liberals and Romantics at War: The Problem of Collective Guilt’, (2002) 111 Yale Law Journal 1499, at 1513 and 1541.
73 Objecting to such a finely individuated approach, see L. May, ‘Collective Punishment and Mass Confinement’, in Isaacs and Vernon, supra note 4, 169, at 170; T. Erskine, ‘Kicking Bodies and Damning Souls: The Danger of Harming Innocent Individuals while Punishing Delinquent States’, in Isaacs and Vernon, supra note 4, 261, at 265.
74 Erskine, supra note 73.
75 Fisher, K. J., Moral Accountability and International Criminal Law: Holding the Agents of Atrocity Accountable to the World (2012), 68–82; and see generally Isaacs, T., ‘Individual Responsibility for Collective Wrongs’, in Harrington, J., Milde, M., and Vernon, R. (eds.), Bringing Power to Justice? The Prospects of the International Criminal Court (2006), 167.
76 Osiel eloquently articulates, without necessarily endorsing, some such positions: ‘Criminal law sees a world of separate persons, whereas mass atrocity entails collective behavior’ (Making Sense, supra note 3, at x). ‘With its focus on discrete deeds and isolated intentions, legal analysis risks missing the collaborative character of genocidal massacre, the vast extent of unintended consequences, and the ways in which ‘the whole’ conflagration is often quite different from the sum of its parts’ (ibid. at 2).
77 See, e.g., Ambos, supra note 2, esp. at 663–4; Stewart, J., ‘The End of “Modes of Liability” for International Crimes’, (2012) 25 LJIL 165; J. D. Ohlin, ‘Second-Order Linking Principles: Combining Vertical and Horizontal Modes of Liability,’ available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2026270.
78 For helpful review of communitarian critiques of liberal, individualistic accounts, see N. Lacey, State Punishment: Political Principles and Community Values (1988), 143–68; P. W. Kahn, Putting Liberalism in Its Place (2005), 38–50; L. Green, The Authority of the State (1988), 188–206.
79 Osiel, ‘Banality of Good’, supra note 3, at 1837, articulating without necessarily endorsing the viewpoint.
80 A. Brudner, Punishment and Freedom (2009), ix.
81 See, e.g., Duff, supra note 30, at 23–30.
82 Drumbl, Atrocity, supra note 3, at 5, 19, 23, 123, 198; Osiel, Making Sense, supra note 3, at 8; Aukerman, supra note 4, at 41; Sepinwall, supra note 4, at 233; R. Mani, Beyond Retribution: Seeking Justice in the Shadows of War (2002), 47–8.
83 Appiah, supra note 55, at 151 and see also 57–71 (not universalism but sufficient overlaps in vocabularies, possible to agree on a practice even if not agreeing on justifications).
84 In the same liberal and inclusive spirit, see K. Ambos, ‘Toward a Universal System of Crime: Comments on George Fletcher's Grammar of Criminal Law’, 28 Cardozo Law Review 2647, at 2653–4.
85 See, e.g., Saland, P., ‘International Criminal Law Principles’, in Lee, R. S. (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 189 at 194–5 (‘never a contentious issue’); Broomhall, B., ‘Article 22’, in Trifterrer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), 713 at 715 (‘widespread agreement’ on need for clarity, precision, and specificity in accordance with principle of legality and that fundamental principles of criminal law should be clearly set out in the Statute); D. Piragoff and D. Robinson, ‘Article 30,’ in ibid., 849 at 850 (general view that no criminal responsibility without mens rea); Lamb, S., ‘Nullum Crimen, Nullum Poena Sine Lege’, in Cassese, A.et al. (eds.), Rome Statute of the International Criminal Court: A Commentary (2002), 733 at 734 (viewed by most delegates as self-evident) and 735 (relatively little controversy).
86 G. MacCormack, Traditional Chinese Penal Law (1990), 1–2.
87 Ibid., at 2–22.
88 Ibid., at 4.
89 Ibid., at 3, 10, 120, 128. Historical documents also show concern with due process (ibid., at 2), with equality before the law (ibid., at 5), and that only those properly found guilty should be punished (ibid., at 8). Of course, as in any system, actual practice often diverged from these aspirations (ibid., at 8), but the point here is that the principles were articulated and valued. The most striking departure from personal culpability concerns the punishment of relatives of persons convicted for certain crimes (see, e.g., ibid., at 9–10, 120–5). Interestingly, jurists of past centuries were concerned with the departure from personal fault; some sought to justify the practice with utilitarian arguments, and others used fault-based arguments (e.g., that the relatives knew of the planning of the crime). Commentators in the Qing dynasty located collective punishment in personal fault and required knowledge of the plotting. Ibid., at 124–5.
90 In a related vein, Kirsten Fisher examines traditional justice mechanisms in some African societies and demonstrates that the supposed dichotomy between ‘Western’ and ‘non-Western’ justice is overstated. Fisher, supra note 75, at 144–64.
91 P. H. Robinson and R. Kurzban, ‘Concordance and Conflict in Intuitions of Justice’, (2006–7) 91 Minnesota Law Review 1829; P. Robinson, ‘Natural Law and Lawlessness: Modern Lessons from Pirates, Lepers, Eskimos, and Survivors’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990498.
92 Robinson and Kurzban, supra note 91, at 1863–4. Studies tracked, for example, assessment of relative seriousness of wrongdoing and deserved punishment. There was also cross-cultural convergence with respect to exculpatory principles. Ibid., at 1864–5.
93 Brown, D. E., Human Universals (1991), an anthropological work on ‘human universals’, finds that humans in general seem to punish and sanction infractions (at 138), to recognize personal responsibility and intentionality (at 135 and 139), and to distinguish actions under control from those that are not (at 135).
94 See, e.g., Koskenniemi, M., ‘Humanity's Law by Ruti G. Teitel’, (2012) 26 Ethics & International Affairs 395 (book review).
95 See, e.g., discussion in Fletcher, supra note 28, at 312–18.
96 See, e.g., discussion of different views on culpability and causal contribution in Robinson, supra note 49, at 42–52.
97 J. Rawls, Justice as Fairness (A Restatement) (2001), 32.
98 See also Husak, supra note 21, at 32 (can make progress on issues of criminal justice without resolving deeper questions); and see Fletcher, supra note 28, at 151–89 and 341–2 (tentatively exploring political theory and implications for criminal law, but not reaching conclusions).
99 Brudner, A., ‘Subjective Fault for Crime: A Reinterpretation’, (2008) 14 Legal Theory 1, at 17; see also Brudner, supra note 80, at ix, 59.
100 See, e.g., Lacey, supra note 78, at 178–9 and 187–90.
103 See discussion in, e.g., M. Moore, Placing Blame: A General Theory of Criminal Law (1997), 719–24; T. Nagel, Mortal Questions (1979), 62–3; S. Kagan, Normative Ethics (1998), 78–94.
104 A moderate deontological account would not be a vague claim about ‘balancing’ utilitarian and deontic considerations. Nor is it the same as arguments that gesture generally toward the scale and severity of crimes and need for deterrence as a basis to just sweep away fundamental principles. It would grapple with the deontic commitment and explain its limitations.
105 Of course, as a matter of positive law, nationality remains a clear ground of jurisdiction. I am speaking here of citizenship as a theoretical tool for analysis of doctrines.
106 Obviously, as a matter of positive law, tribunals exercise legal authority delegated from states. I am speaking here not of the doctrinal basis of jurisdiction but rather what kind of framework we should use for normative evaluation of the law.
107 See, e.g., Duff, supra note 30, at 44–56 (linkage to state, sovereignty, community, polity, citizenship; touching on new question of ICL).
108 Knop, K., ‘Statehood: Territory, People, Government’, in Crawford, J. and Koskenniemi, M. (eds.), The Cambridge Companion to International Law (2012), 95 at 96–7 and 112–14 (discussing abstracting from the state rather than mapping it directly onto international institutions).
109 Fletcher, supra note 28, at 164, (n. 41) and at 222 (thought patterns of international lawyers; whereas ‘criminal lawyers’ reject custom as a source); Fletcher and Ohlin, supra note 2, at 542 (the community of international lawyers has yet to understand the full implications of legality in criminal cases); 558 (totally erroneous deviation from the rule of law) and 559 (customary law is anathema in the criminal courts of every civilized society).
110 See generally Robinson, supra note 1.
111 See, e.g., H. Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’ (1947) 1 International Law Quarterly 153, at 164. The principle is now recognized as legally applicable in ICL: see, e.g., Art. 22 ICC Statute.
112 Kelsen, supra note 111, at 165; A. Cassese, International Criminal Law (2008), 38–41.
113 Such arguments are discussed in Roth, supra note 16.
114 Erdemović, Judgement, IT-96–22-A, ICTY A.Ch., 7 October 1997.
115 Ibid., at para. 19.
116 See, e.g., R. Brooks, ‘Law in the Heart of Darkness: Atrocity and Duress’, (2003) Virginia Journal of International Law 861; Wall, I., ‘Duress, International Criminal Law and Literature’, (2006) 4 JICJ 724; Fichtelberg, A., ‘Liberal Values in International Criminal Law: A Critique of Erdemovic’, (2007) 6 JICJ 3; Epps, V., ‘The Soldier's Obligation to Die when Ordered to Shoot Civilians or Face Death Himself’, (2003) 37 New England Law Review 987.
117 Robinson, supra note 1, at 944–6.
118 Ibid., at 945; see also ibid., at 932–3 and 963.
119 Hobbes, Leviathan (1651, reprinted 1985), 192, 199 and 268–70.
120 Kant, supra note 23, at 28 (6:235–6) argues that a drowning person pushing another from a plank in order to survive would be culpable but not punishable, because the punishment threatened by law could not be greater than the immediate loss of his own life.
121 Kahn, supra note 78, at 10, 12, 25, 63, 164 and 228–40.
122 Fletcher, supra note 28, at 117, 322 (discussing German concept of Zumutbarkeit).
123 Erdemović, Judgement, supra note 114, at para. 19.
124 There are indeed two particular difficulties for the solution, although both difficulties are surmountable. One is that where the order is to fire on civilians who are not from the soldier's ‘community’, then the account cannot rely on standard explanations of communitarian ethos and loyalty; it would have to be a duty to a global community. A second is the problem of voluntary assumption of roles. It is often asserted that roles that are not assumed voluntarily cannot create duties; however, that assertion does not necessarily withstand scrutiny: see, e.g., discussion in Green, supra note 78, at 211 and 238, using inter alia the example of parenthood.
125 Many would argue that there is no such defence, citing, e.g., ICTY Statute, Art. 7(4). Nuremberg jurisprudence, state practice, and the ICC Statute seem to permit the defence for orders that are not manifestly unlawful.
126 There is some reduced agency in a ‘superior orders’ situation, but that is not the basis of the defence; the defence of duress deals with situations of coercion.
127 Thorburn, M., ‘Justifications, Powers, and Authority’, (2008) 117 Yale Law Journal 1070. For a response see Gardner, J., ‘Justifications under Authority’, (2010) 23 Canadian Journal of Law and Jurisprudence 71. The idea of ‘role distance’ from official roles, as noted by Meir Dan-Cohen, may also be of assistance. Dan-Cohen, M., ‘Responsibility and the Boundaries of the Self’, (1992) 105 Harvard Law Review 959, at 999–1001.
128 It may not be as simple as using Thorburn's approach directly, because it may be that superior orders are not a justification per se. For example, justifications tend to relate to a particular valued end; superior orders protect obedience to certain orders of the state, without regard to the aim or purpose of the order.
* [firstname.lastname@example.org] Queen's University (Canada), Faculty of Law. Research for this project was facilitated by funding from the Social Sciences and Humanities Research Council of Canada. I benefited from thoughtful comments from Mark Drumbl, Chris Essert, James Stewart, Malcolm Thorburn, and the participants of workshops at the University of Toronto and Queen's University. Many insightful questions and comments could not be addressed in this space; this article merely introduces a framework, and further elaboration will be provided a forthcoming book-length treatment of the project. I am grateful for the valuable research assistance of Anne Marie Heenan, Avene Derwa, Stephanie Ford, and Ted Brook.
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