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The Identity Crisis of International Criminal Law

  • DARRYL ROBINSON
Abstract

The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. Recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. This article scrutinizes the discourse of ICL – the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims. This article argues that ICL, in drawing on national criminal law and international human rights law, absorbed contradictory assumptions and methods of reasoning. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include interpretive approaches, substantive and structural conflation, and ideological assumptions. The identity crisis theory helps to explain how a system that strives to serve as a model for liberal criminal justice systems has come to embrace illiberal doctrines that contradict the system's fundamental principles.

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1 See, e.g., United Nations Press Office, ‘Rome Statute of the International Criminal Court: Some Questions and Answers’, available at www.un.org/law/icc/statute/iccqanda.htm; T. Meron, ‘Revival of Customary Humanitarian Law’, (2005) 99 AJIL 817, at 821–9; I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’, (2002) 13 EJIL 561, at 567.

2 See, e.g., H. L. A. Hart, Punishment and Responsibility (1968), esp. at 3–12 and 74–82.

3 See, e.g., G. Fletcher, Basic Concepts of Criminal Law (1998), at 43.

4 Prosecutor v. Tadić, Judgement, Case No. IT-94–1-A, Appeals Chamber, 15 July 1999, at para. 186; see also ‘Judgment of the International Military Tribunal (Nuremberg)’ (Nuremberg judgement), (1947) 41 AJIL supplement 172, at 251: ‘criminal guilt is personal’.

5 See, e.g., Prosecutor v. Delalić et al. (Čelebići), Judgement, Case No. IT-96-21-T, Trial Chamber II, 16 November 1998, at 424; A. Cassese, International Criminal Law (2003), at 136–7; ICC Statute, Arts. 30–33; Werle, G. and Jessberger, F., ‘“Unless Otherwise Provided”: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law’, (2005) 3 Journal of International Criminal Justice 35.

6 Jescheck, H.-H., ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute’, (2004) 2 Journal of International Criminal Justice 38, at 44. As will be discussed infra (section 4), ICL jurisprudence has also required blameworthy moral choice: see, e.g., U.S. v. Otto Ohlendorf et al. (Einsatzgruppen case), 4 Trials of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No. 10, Case No. 9.

7 ICC Statute, Art. 22; Čelebići, supra note 5, paras. 415–418; B. Broomhall, ‘Article 22, Nullum Crimen Sine Lege’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), at 450–1.

8 Čelebići, supra note 5, at para. 402.

9 See, e.g., Prosecutor v. Kvočka, Judgement, Appeals Chamber, Case No. IT-98–30/1-A, 28 February 2005, para. 92, emphasizing the difference between two forms of participation (commission versus accessory), ‘both to accurately describe the crime and to fix an appropriate sentence’. See also R. v. Finta [1994] 1 SCR 701, at para. 188: ‘there are certain crimes where, because of the special nature of the available penalties or of the stigma attached to a conviction, the principles of fundamental justice require a mental blameworthiness or a mens rea reflecting the particular nature of that crime. It follows that the question which must be answered is not simply whether the accused is morally innocent, but rather, whether the conduct is sufficiently blameworthy to merit the punishment and stigma that will ensue upon conviction for that particular offence.’ See generally A. Ashworth, ‘The Elasticity of Mens Rea’, in C. F. H. Tapper (ed.), Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (1981); Williams, G., ‘Conviction and Fair Labelling’, (1983) 42 Cambridge Law Journal 85.

10 See section 2.2.

11 See, e.g., O'Reilly, A.T., ‘Command Responsibility: A Call to Realign the Doctrine with Principles of Individual Accountability and Retributive Justice’, (2004–5) 40 Gonzaga Law Review 127, at 154.

12 See, e.g., Prosecutor v. Milošević, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, Appeals Chamber, Case No. IT-02-54-AR73.7, 1 November 2004, para. 20.

13 Fletcher, G. and Ohlin, J. D., ‘Reclaiming Fundamental Principles in the Darfur Case’, (2005) 3 Journal of International Criminal Justice 539, at 541, have suggested that ICL's weaknesses in respecting legality and culpability are a product of ‘an under-theorized shift’ from public international law (which focuses on states or groups) to criminal law (which focuses on the individual). However, their arguments somewhat overstate and oversimplify the problem, and the examples that buttressed their argument are problematic. For example, some of the authors' arguments revolve around the ICC definition of genocide. First, the authors argue that the definition fails to reflect that genocide may be perpetrated only by a collective (an ethnic group), which shows disregard for the principle of legality. However, their argument that genocide may only be committed by ethnic groups is legally unsubstantiated and theoretically unsupported (it is based on their ‘intuition’ and ‘common sense’). Thus showing that standard definitions do not contain this novel requirement is not a convincing demonstration of disregard for legality. Second, they argue that the fact that the ICC definition subsumes isolated hate crimes (at 545–8) demonstrates a ‘serious conceptual deficiency’ in ICL. The authors appear to have overlooked that this very problem was specifically identified and addressed in the ICC Elements of Crimes: Elements of Crimes, Introduction to Genocide, Doc. ICC-ASP/1/3. Thus the critique based on ICL's alleged failure to detect this problem seems rather inopportune. The shortcomings of ICL seem to be less stark than Fletcher and Ohlin suggest. Nonetheless, the insight of Fletcher and Ohlin about a transition from international law to criminal law is significant. This article suggests that the shift in focus from systems to individuals is in fact only one example of the different approaches, consequences, and philosophical underpinnings of these areas of law. Moreover, by considering the transition not only from general international law but more specifically from international human rights and humanitarian law, one discerns an additional range of interpretive, structural, and ideological assumptions in play.

14 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, at 81–9, have suggested that a human rights approach to interpretation, favouring large and liberal constructions, is inapposite to ICL. This article agrees with that observation and supplements it by pointing out other modes– including substantive, structural, and ideological assumptions – by which human rights liberalism can undermine criminal law liberalism. Sensitivity to these other modes of distortion leads this article to discern additional contradictions with fundamental principles, for example in the doctrine of command responsibility, which was assessed favourably by Danner and Martinez.

15 Wessel, J., ‘Judicial Policy-Making at the International Criminal Court: An Institutional Guide to Analyzing International Adjudication’, (2006) 44 Columbia Journal of Transnational Law 377, esp. at 449; Damaska, M., ‘The Shadow Side of Command Responsibility’, (2001) 49 American Journal of Comparative Law 455, at 495.

16 Robbennolt, J. K., ‘Outcome Severity and Judgments of “Responsibility”: A Meta-Analytical Review’, (2000) 30 Journal of Applied Social Psychology 2575; Lucas, J., Graif, C., and Lovaglia, M., ‘Misconduct in the Prosecution of Severe Crimes: Theory and Experimental Test’, (2006) 69 Social Psychology Quarterly 97.

17 Estreicher, S. and Stephan, P. B., ‘Foreword: Taking International Law Seriously’, (2003) 44 Virginia Journal of International Law 1, at 1; Osiel, M., ‘The Banality of Good: Aligning Incentives Against Mass Atrocity’, (2005) 105 Columbia Law Review 1751, at 1823; K. Rittich, ‘Enchantments of Reason/Coercions of Law’, 57 University of Miami Law Review 727, at 729; Wessel, supra note 15, at 420–1.

18 See, e.g., Schauer, F., ‘Incentives, Reputation and the Inglorious Determinants of Judicial Behavior’, (1999–2000) 68 University of Cincinnati Law Review 615; Posner, R., ‘What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does)’, (1993) 3 Supreme Court Economic Review 1; D. Kennedy, ‘Strategizing Legal Behaviour in Legal Interpretation’, (1996) Utah Law Review 785; Graham, R., ‘Politics and Prices: Judicial Utility Maximalization and Construction’, (2007) 1 Indian Journal of Constitutional Law 57. Conversely, there is very little incentive within the profession to disagree with expansionist arguments, in the light of what H. Kissinger has described as the ‘intimidating passion of [ICL] advocates’: Kissinger, H., ‘The Pitfalls of Universal Jurisdiction’, (2001) 80 Foreign Affairs 86, at 86.

19 See, e.g., Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res. 60/147 of 16 December 2005; van Dyke, J. M., ‘The Fundamental Human Right to Prosecution and Compensation’, (2001) 29 Denver Journal of International Law and Policy 77.

20 Even in a national system, the rhetoric of justice for victims can increase pressure within the system to overlook fairness to the accused: Roach, K., ‘Four Models of the Criminal Process’, (1999) 89 Journal of Criminal Law and Criminology 671. What is distinct about ICL is that there is not just an increased sensitivity to victims, but that we import an entire set of legal tools and normative assumptions from international human rights and humanitarian law, and apply them in the belief that they are appropriate legal techniques.

21 Schabas, W., ‘Sentencing by International Tribunals: A Human Rights Approach’, (1997) 7 Duke Journal of Comparative and International Law 461, at 515, observes this shift with respect to human rights non-governmental organizations (NGOs). More subtly, human rights NGOs generally retain their affinity for procedural rights, but on substantive principles they tend to favour broad inculpatory principles and to resist exculpatory principles. On NGO hostility to defences, see R. J. Wilson, ‘Defences in Contemporary International Criminal Law’, (2002) 96 AJIL 517, at 518. M. Boot, Genocide, Crimes against Humanity and War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (2002), at 614, reports on NGO proposals ‘to give several definitions of crimes an open-ended character or to broaden existing definitions’ in order to avoid rigid formulations ‘that could lead to acquitting an accused’.

22 See, e.g., Bassiouni, C., ‘The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities’, (1998) 8 Transnational Law and Contemporary Problems 199, at 200 (‘escape accountability’); Vetter, G., ‘Command Responsibility of Non-military Superiors in the International Criminal Court’, (2000) 25 Yale Journal of International Law 89, at 95 (‘escape conviction’); B. Womack, ‘The Development and Recent Application of the Doctrine of Command Responsibility, with Particular Reference to the Mens Rea Requirement’, in S. Yee (ed.), International Criminal Law and Punishment (2003), at 168 (‘escape justice’); Russell-Brown, S. L., ‘The Last Line of Defense: The Doctrine of Command Responsibility and Gender Crimes in Armed Conflict’, (2004) 22 Wisconsin International Law Journal 125, at 158 (‘escape criminal responsibility’); Fox, C. T., ‘Closing a Loophole in Accountability for War Crimes: Successor Commanders' Duty to Punish Known Past Offenses’, (2004) 55 Case Western Reserve Law Review 443, at 444 (‘gap will allow certain atrocities to go unpunished’).

23 The traditional liberal position of protecting the individual from the state is altered in two ways in ICL: the victims are not being protected from the state per se but from other individuals (the accused or potential accused), and the accused needs protection not from the state but from the international justice mechanism. Thus advocates accustomed to championing the rights of the individual against the state now find themselves in the role of the state, a role which requires restraint in a liberal system.

24 Indeed there are some examples of judges taking a stance in favour of liberal principles; see, e.g., Prosecutor v. Vasiljević, Trial Chamber, Case No. IT-98-32-T, 29 November 2002, paras. 193–204 (a rather strict stand on the requirement of precision); Prosecutor v. Simić, Dissenting Opinion of Judge Lindholm, Trial Chamber, Case No. IT-95-9-T, 17 October 2003, paras. 1–5 (dissenting judge dissociating from JCE doctrine).

25 Wessel, supra note 15.

26 The alternative of reconceptualizing ICL as a sui generis human rights enforcement regime which only roughly mimics criminal justice as it incarcerates offenders should probably be discarded on the grounds that it would seem contradictory to its own human rights values.

27 This article emphasizes the need for ICL to examine its inheritance from human rights law if it is to fulfil its aspirations as an exemplary system of liberal criminal justice. Conversely, however, there is also scope to examine the national criminal law assumptions. Adherence to the liberal commitment need not entail mimicking the articulations of principles precisely as found in national laws.

28 See, e.g., Prosecutor v. Tadić, Appeals Chamber Judgement, supra note 4, at para. 662; Prosecutor v. Blaškić, Judgement, Appeals Chamber, Case No. IT-95-14-A, 29 July 2004, para. 114; Čelebići, supra note 5, paras. 415–18.

29 ICC Statute, Art. 22(2).

30 Čelebići, supra note 5, paras. 408–10.

31 A v. Australia, Communication No. 560/1993, Views 3 April 1997, A/52/40 (Vol. II), Annex VI, sect. L (at 125–46) (‘broadly and expansively’). In the inter-American system, see, e.g., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 [1985] IACHR 2, Judge Rodolfo Piza, paras. 6 and 12 (‘necessity of a broad interpretation of the norms that it guarantees and a restrictive interpretation of those that allow them to be limited’); Bámaca Velásquez Case – Series C No. 70 [2000] IACHR 7, separate judgment of Judge Sergio Garcia Marquez, para. 3 (‘progressive interpretation’, ‘guiding momentum of international human rights law, which strives to take the real protection of human rights increasingly further’). Similarly, the European Convention on Human Rights is not to be narrowly interpreted having regard to the sovereignty of states, but rather given a broad interpretation to protect rights effectively: Report of the Commission, 1 June 1973, ECHR Series B, No. 16, at 9; East African Asians v. the United Kingdom, [1973] ECHR 2 (14 December 1973), paras. 192–195.

32 ‘[S]ince the primary beneficiaries of human rights treaties are not States or governments but human beings, the protection of human rights calls for a more liberal approach than that normally applicable in the case of ambiguous provisions of multilateral treaties’: Keith Cox v. Canada, Communication No. 539/1993, Views 31 October 1994, A/50/40, Vol. II, Annex X, sect. M, at 105–29 ((1994) Human Rights Law Journal 410); CCPR/C/57/1, at 117–47; see also the European and inter-American authorities, supra note 31.

33 See, e.g., Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, para. 494, applying an interpretive approach in which ‘the rules on genocide should be construed in such a manner as to give them their maximum legal effects’, which seems precisely opposite to strict construction.

34 In addition to the examples in this section, see also the partially dissenting opinion of Judge Shahabuddeen in Prosecutor v. Hadžihasanović, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Appeals Chamber, Case No. IT-01-47-AR72, 16 July 2003, in which he argued that strict construction is applied only at the final stage, after other methods have been applied (para. 12); that the provision must first be interpreted by reference to object and purpose (paras. 11, 13, 23); and that the purpose is to ensure that crimes do not go unpunished (para. 24). Where his conclusions did not necessarily sit well with the actual texts, he argued that ‘on their true interpretation’ (i.e. in the light of object and purpose) the texts were ‘not at variance with this conclusion’, ‘and if they are they do not prevail’ (para. 18).

35 Čelebići, supra note 5, para. 413. For examples from the common law system see G. Williams, Textbook of Criminal Law (1983), 12; Note, ‘The New Rule of Lenity’, (2006) 119 Harvard Law Review 2420, at 2435–41; A. P. Simester and W. J. Brookbanks, Principles of Criminal Law (2002), at 35–6; United States v. R.L.C., 503 US 291 (1992) at 305–6; R. v. Hasselwander, [1993] 2 SCR 398 (Canada).

36 W. Schabas, ‘Interpreting the Statutes of the Ad Hoc Tribunals’, in L. C. Vohrah et al. (eds.), Man's Inhumanity to Man (2003), at 886, finds that the principle has found ‘virtually no place’ in tribunal jurisprudence.

37 In many legal systems, the term in dubio pro reo is used only in relation to determinations of fact, whereas in some other systems the term is used for questions of both fact and law. It is as yet undecided how ICL uses the term – see e.g. Prosecutor v. Limaj, Judgment, Appeals Chamber, Case No. IT-03-66-A, 17 September 2007, Declarations of Judge Shahabuddeen and Judge Schomburg. In any event, the underlying principle of resolving doubt in favour of the accused (strict construction) clearly applies. I have used the term in dubio pro reo (or contra reo) in order to highlight the extent of the departure from venerated principles.

38 Art. 31 of the Vienna Convention on the Law of Treaties provides that treaties shall be interpreted in good faith in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty. The latter aspect imports a purposive element.

39 See, e.g., Prosecutor v. Aleksovski, Judgement, Appeals Chamber, Case No. IT-95-14/1-A, 24 March 2000 para. 146; Prosecutor v. Tadić, Appeals Chamber Judgement, supra note 4, para. 168.

40 Prosecutor v. Aleksovski, supra note 39, at para. 146.

41 See also Danner, A. M., ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’, (2006) 59 Vanderbilt Law Review 1, at 32: ‘The records of the 1949 Diplomatic Conference, however, reveal that most states did not, in fact, seek to protect civilians “to the maximum extent possible” . . . [T]hose guarantees are relatively weak. . . Geneva Convention IV balances the needs of individual and state security.’

42 Ibid., at 32; L. C. Green, The Contemporary Law of Armed Conflict (2000), at 348.

43 Prosecutor v. Delalić et al. (Čelebići), Judgement, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001, para. 172.

44 O. Uhler and H. Coursier, Commentary on the Geneva Conventions of 12 August 1949, Volume IV (1958), at 26–34.

45 Prosecutor v. Tadić, Appeals Chamber Judgement, supra note 4, at para. 285.

46 Prosecutor v. Tadić, Decision on Defence Motion for Jurisdiction, Appeals Chamber, Case No. IT-94–1-A, 2 October 1995, para. 92; Prosecutor v. Tadić, Appeals Chamber Judgement, supra note 4, paras. 189 and 253.

47 Prosecutor v. Tadić, Appeals Chamber Judgement, supra note 4, para. 253 (emphasis in original). The issue was whether the crimes committed for personal motives cannot constitute crimes against humanity. The Appeals Chamber did in the end agree that motive is irrelevant, basing its conclusion on a review of authorities rather than object and purpose.

48 Ibid. The proposition that the Statute aims ‘to make all crimes against humanity punishable’ sheds no light on the question of whether the concept of a crime against humanity inherently requires a discriminatory animus.

49 In Re Yamashita, 327 US 1 (1946) (US SC), the majority derived the doctrine from the purpose of the laws of war, namely to protect civilians: ‘It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection’ (at 15). While these consequentialist observations make a compelling case for the desirability of a rule, they did not necessarily demonstrate that such a rule was established in ICL. The passionate dissents of Justices Murphy and Rutledge argued that the majority, in its pursuit of its teleological aims, had contravened the principles of legality and culpability: ‘In all this needless and unseemly haste there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. . . . The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge’ (at 28).

50 Vetter, supra note 22. The article examined the bifurcation in the Rome Statute, which applies a stricter constructive knowledge standard for military commanders and a more generous standard for civilian superiors. The article concluded that the more generous standard leaves more room for exoneration of the accused and is therefore undesirable.

51 Ibid., at 92.

52 Ibid., at 93 and 103; similarly, Womack, supra note 22, at 167–8, concluded that a retributive, desert-based provision is ‘undesirable’ because commanders ‘would not need to be as fearful of prosecution’ and hence would monitor subordinates less closely, increasing the likelihood of crimes and thereby ‘removing the utility’ of the doctrine. This may be true, but leaves unanswered whether such a departure complies with fundamental principles.

53 Ibid., at 120.

54 Ibid., at 94.

55 Ibid., at 103.

56 Ibid., at 126.

57 Ibid., at 127.

58 See section 3.2.

59 Clark, R., ‘Medina: An Essay on the Principles of Criminal Liability for Homicide’, (1975) 5 Rutgers-Cambridge Law Journal 59, at 74–8.

60 M. Osiel, Obeying Orders: Atrocity, Military Discipline and the Law of War (2002), at 193.

62 Hart, supra note 2, at 77–8. The latter question cannot be determined by utilitarian concerns alone, as otherwise there would be no principled limitations on liability. As Hart has shown, utilitarian responses to this objection – for example the disutility if it were learned that the innocent were punished – are contingent on outcomes and fail to capture our abhorrence.

63 G. Fletcher, Rethinking Criminal Law (1978), at 419.

64 D. Husak, Philosophy of Criminal Law (1987), at 51; Fletcher, supra note 63, at 511.

65 Hart, supra note 2, at 81.

66 van der Wilt, H., ‘JCE: Possibilities and Limitations’, (2007) 5 Journal of International Criminal Justice 91, at 92; Piacente, N., ‘Importance of the Joint Criminal Enterprise Doctrine for the ICTY Prosecutorial Policy’, (2004) 2 Journal of International Criminal Justice 446; Danner and Martinez, supra note 14, esp. at 107–9.

67 Prosecutor v. Vasiljević, Judgement, Appeals Chamber, Case No. IT-98–32-A, 25 February 2004, at para. 100.

68 Ibid.; Prosecutor v. Kvočka, supra note 9, at para. 99; Prosecutor v. Brðanin, Judgement, Appeals Chamber, Case No. IT-99–36-A, 3 April 2007, at para. 427.

69 Hamdorf, K., ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime’, (2007) 5 Journal of International Criminal Justice 208.

70 Prosecutor v. Tadić, supra note 4, at paras. 202, 204, 220 and 228; Prosecutor v. Vasiljević, supra note 67, at paras. 99–101.

71 See, e.g., Danner and Martinez, supra note 14; Osiel, supra note 17; Haan, V., ‘The Development of the Concept of Joint Criminal Enterprise at the International Criminal Tribunal for the Former Yugoslavia’, (2005) 5 International Criminal Law Review 167; Nersessian, D., ‘Whoops, I Committed Genocide! The Anomaly of Constructive Liability for Serious International Crimes’, (2006) 30 Fletcher Forum of World Affairs 81; Ohlin, J. D., ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’, (2006) 5 Journal of International Criminal Justice 69; Ambos, K., ‘Joint Criminal Enterprise and Command Responsibility’, (2007) 5 Journal of International Criminal Justice 159.

72 Danner and Martinez, supra note 14; Osiel, supra note 17, at 1751.

73 See, e.g., Badar, M. E., ‘Just Convict Everyone! Joint Perpetration from Tadic to Stakic and Back Again’, (2006) 6 International Criminal Law Review 293.

74 Prosecutor v. Brðanin, supra note 68, at para. 427; Prosecutor v. Kvočka, supra note 9, at para. 99.

75 Prosecutor v. Vasiljević, supra note 67, at para. 102; Prosecutor v. Kvočka, supra note 9, at 97 and 187. In Prosecutor v. Brðanin, supra note 68, at para. 430, the Appeals Chamber, in defending the JCE doctrine, suggested that the contribution ‘should’ be significant, relying on Prosecutor v. Kvočka, supra note 9, at 97. However, the quoted passage simply indicates that significance is a factor in determining mens rea. Any possible ambiguity of that passage is decisively clarified in para. 187 (quoted above), where the Appeals Chamber expressly rejected ‘significance’ as a requirement.

76 Danner and Martinez, supra note 14; Osiel, M., ‘Modes of Participation in Mass Atrocities’, (2005) 38 Cornell International Law Journal 793.

77 Prosecutor v. Tadić, supra note 4, at para. 199, n. 243; Prosecutor v. Kvočka, Judgement, Trial Chamber, Case No. IT-98–30/1, 2 November 2001, at para. 307.

78 Prosecutor v. Brðanin, supra note 68, at para. 422.

79 Prosecutor v. Rwamakuba, Decision on Interlocutory Appeal, Appeals Chamber, Case No. ICTR-98–44-AR72.4, 22 October 2004, at para. 25. See also Prosecutor v. Karemera, Decision on Jurisdictional Appeals, Appeals Chamber, Case No. ICTR-98–44-AR72.5, 12 April 2006, at paras. 11–18, holding that JCE may be of ‘vast scope’.

80 Prosecutor v. Kvočka, supra note 77, at para. 307.

81 Prosecutor v. Karemera, supra note 79, at paras. 11–18. Haan, supra note 71, at 195–6, argues that while JCE was ‘originally designed for cases where persons actually – and not only hypothetically – reach a common understanding to pursue a common criminal plan’, it has been ‘silently adjusted’ to fit the cases before the tribunals, and now encompasses far-flung individuals who are not linked through agreements but through hierarchical structures.

82 Prosecutor v. Vasiljević, supra note 67, at para. 111. See also, e.g., Prosecutor v. Stakić, Judgement, Trial Chamber, Case No. IT-97–24, 31 July 2006, at para. 435; Prosecutor v. Milutinović, Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction – Joint Criminal Enterprise, Appeals Chamber, Case No. IT-99–37-AR72, 21 May 2003, para. 20.

83 Prosecutor v. Tadić, supra note 4, at para. 229; Prosecutor v. Brðanin, supra note 68, at 429; Prosecutor v. Vasiljević, supra note 67, at para. 102. ‘Aiding and abetting’ is an accessory form of liability, whereas ‘JCE’ is equated with perpetration of the offence.

84 See, e.g., Prosecutor v. Stakić, Judgement, Appeals Chamber, Case No. IT-97-24-A, 3 February 2007, at para. 97.

85 Prosecutor v. Kvočka, supra note 9, at paras. 105–106.

86 Ibid., at paras. 103, 224, 242–245. The Appeals Chamber found that such factors may have shown a lack of enthusiasm but do not affect knowledge and hence intent. The arguments might be sound in relation to general intent but are alarming in a doctrine where massive liability hinges entirely on intent.

87 Ironically, as a result, JCE, which carries graver culpability than ‘aiding and abetting’, is more inclusive and easier to prove than aiding and abetting. Aiding and abetting requires a substantial contribution whereas JCE includes insignificant contributions. Moreover, under extended JCE, not even knowledge is required. This internal incoherence raises further questions about JCE.

88 Prosecutor v. Krstić, Judgement, Appeals Chamber, Case No. IT-98–33-A, 19 April 2004, para. 131. See also e.g. Genocide Convention, Art. 2; ICTY Statute, Art. 4(2).

89 Prosecutor v. Brðanin, Decision on Interlocutory Appeal, Appeals Chamber, Case No. IT-99-36-A, 19 March 2004, at paras. 5–10. In Proseutor v. Karemera, supra note 79, at paras. 11–18, the ICTR Appeals Chamber held that such liability holds even where crimes are committed by persons ‘structurally or geographically remote from the accused’.

90 Brðanin, supra note 89, at 7. See also Prosecutor v. Milošević, Decision on Motion for Acquittal, Trial Chamber, Case No. IT-54-02-T, 16 June 2004, at para. 291.

91 Prosecutor v. Brðanin, supra note 68.

92 United States v. Reese, 92 US 214 (1875), at 221: ‘It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could rightfully be detained, and who should be set at large.’

93 Husak, supra note 64, at 138. Robinson warns that ‘[t]he criminal law theorist suffers a moral defect when he unnecessarily defers to administrative or judicial discretion to make the criminal law just’: P. Robinson, Criminal Law Defences, Vol. I (1984), ix. In the context of ICL, Kissinger, a critic of the project, is correct to argue that ‘[a]ny universal system should contain principles not only to punish the wicked but to constrain the righteous’: supra note 18, at 88.

94 Prosecutor v. Brðanin, supra note 68, at 432.

95 On such reasoning one could replace all international crimes and forms of liability with one finding of ‘felony’: Ohlin, supra note 71, at 87.

96 Ambos, supra note 71, at 169; Powles, S., ‘Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?’ (2004) 2 Journal of International Criminal Justice 606, at 611.

97 Fletcher and Ohlin, supra note 13, at 548–50; Ambos, supra note 71, esp. at 173.

98 See, e.g., Nersessian, supra note 71; Cassese, A., ‘The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise’, (2007) 5 Journal of International Criminal Justice 109, at 121; W. Schabas, Genocide in International Law: The Crime of Crimes (2000), at 305, 312; Danner and Martinez, supra note 14, at 151; G. Mettraux, International Crimes and the Ad Hoc Tribunals (2005), at 264–5. Conversely, van Sliedregt, E., ‘Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide’, (2007) 5 Journal of International Criminal Justice 184, concludes that JCE-III convictions for genocide are justifiable; however, this conclusion is predicated on the premise that JCE-III is a derivative form of liability. This premise is incorrect, since tribunal jurisprudence insists that JCE-III constitutes ‘commission’ of the offence, and indeed it must so insist because otherwise there is clearly no basis in the Statute (see above) – which would then lead to a breach of the principle of legality.

99 Prosecutor v. Tadić, supra note 4.

100 Ibid., at paras. 189–190 (emphasis in original).

101 The chamber also argued that the JCE doctrine was implicit in the term ‘committed’. However, the glaring incongruity between the plain meaning of the term ‘committed’ and the JCE doctrine is so great that judges themselves occasionally forget this claim and lapse into describing ‘commission’ as requiring physical commission; see, e.g., Prosecutor v. Vasiljević, supra note 24, para. 62: ‘The Accused will only incur individual criminal responsibility for committing a crime under Article 7(1) where it is proved that he personally physically perpetrated the criminal act in question or personally omitted to do something in violation of international humanitarian law.’

102 Prosecutor v. Tadić, supra note 4, paras. 178–184 and 23–34. The charge concerned the death of five men, where it was unknown who actually killed them. However, the accused had been involved in operations that rounded up the men, so the inference could be drawn that someone in that group had killed the men, and that Tadić shared in the common criminal intent.

103 Prosecutor v. Krnojelac, Judgement, Appeals Chamber, Case No. IT-97-25-A, 17 September 2003, para. 97; Prosecutor v. Kvočka, supra note 9, para. 415.

104 Prosecutor v. Kvočka, supra note 9, para. 187.

105 Although the language in Tadić suggested that physical perpetrators must be part of the JCE, it was held that they need not be in Prosecutor v. Brðanin, supra note 68, para. 410.

106 Prosecutor v. Kvočka, supra note 9, paras. 105–106.

107 Prosecutor v. Brðanin, supra note 68, paras. 422–423.

108 Prosecutor v. Brðanin, supra note 89, paras. 5–10.

109 See, e.g., Morss, J. R., ‘Saving Human Rights from Its Friends: A Critique of the Imaginary Justice of Costas Douzinas’, (2003) 27 Melbourne University Law Review 889, at 899 (‘the future-oriented and utopian character of human rights aspirations’); see also e.g. Nickel, J. W., ‘Are Human Rights Utopian?’ (1982) 11 Philosophy and Public Affairs 246; Douzinas, C., ‘Human Rights and Postmodern Utopia’, (2000) 11 Law and Critique 219.

110 See, e.g., UN Security Council Resolution 827 (1993), Preamble, paras. 5 and 6; UN Security Council Resolution 955 (1994), paras. 6 and 7.

111 In a similar vein, Tallgren has argued that, given the enormity of crimes and the improbability of punishment, a purely utilitarian theory would require punishment so severe that the system would face difficulties in making the treatment compatible with its generally enlightened ideas: Tallgren, supra note 1, at 576. Wessel argues that, when confronted with such severe crimes, ‘the “imperious immediacy of interest” in conviction can exclude considerations of more systemic consequences’. Wessel, supra note 15, at 441.

112 Russell-Brown, supra note 22, at 158.

113 Ibid.

115 Prosecutor v. Erdemović, Judgement, Appeals Chamber, Case No. IT-96-22-A, 7 October 1997. Erdemović, a young Croatian, had enlisted in a non-combat unit of the Bosnian army which was not known for committing crimes. One day his unit was sent to a farm, where they were informed on arrival that they were to shoot Muslim civilians. Erdemović vehemently objected to his commander, and was told: ‘If you are sorry for them, stand up, line up with them and we will kill you too’. Faced with the harsh alternative of losing his life for no gain in saved lives, and concerned for his wife and infant son, Erdemović complied. For reasons of conscience, he reported his own crime and pleaded guilty; the case against him was based on his own confession.

116 Ibid., at para. 19. Judges Cassese and Stephens dissented.

117 R. E. Brooks, ‘Law in the Heart of Darkness: Atrocity and Duress’, (2003) Virginia Journal of International Law 861; Wall, I. R., ‘Duress, International Criminal Law and Literature’, (2006) 4 Journal of International Criminal Justice 724; Fichtelberg, A., ‘Liberal Values in International Criminal Law: A Critique of Erdemović’, (2008) 6 Journal of International Criminal Justice 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.

118 See, e.g., Einsatzgruppen case, supra note 6, at 470: ‘there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns’. See also Nuremberg judgment, supra note 4, at 251 (moral choice test).

119 Brooks, supra note 117, at 868.

120 Prosecutor v. Erdemović, Separate Opinion of Judges McDonald and Vohrah, para. 75. The majority held that where there is ambiguity or uncertainty, a policy-directed choice can be made (para. 78), to serve the ‘broader normative purposes’ of ICL, which means ‘the protection of the weak and vulnerable’ (para. 75).

121 Ibid., at 84. Similarly, Judge Li, concurring on this point, held that (i) the aim of humanitarian law is to protect innocent civilians; (ii) admitting duress would encourage subordinates to kill instead of deterring them; (iii) therefore, such an ‘anti-human policy’ cannot be adopted. Prosecutor v. Erdemović, Separate and Partially Dissenting Opinion of Judge Li, para. 8.

122 Prosecutor v. Erdemović, supra note 115, at 88.

123 Fichtelberg, supra note 117, at 4.

124 Tallgren, supra note 1, at 573.

125 See, e.g., Prosecutor v. Tadić, supra note 4, para. 662; Prosecutor v. Blaškić, supra note 28, at para. 114; Čelebići, supra note 5, at paras. 415–418.

126 ‘Bringing Justice to the Former Yugoslavia: The Tribunal's Core Achievements’, www.un.org/icty/glance-e/index.htm.

127 Moreover, as has previously been observed by Danner and Martinez, human rights law uses comparatively gentle methods of enforcement or persuasion, addresses broad social phenomena, and includes aspirational norms; Danner and Martinez, supra note 14, at 86–9.

128 ICC Statute, Art. 1.

129 See, e.g., Davidson, E., ‘Economic Oppression as an International Wrong and a Crime against Humanity’, (2005) 23 Netherlands Quarterly of Human Rights 173, arguing for the use of crimes against humanity to punish those responsible for IMF structural adjustment programmes, UN-mandated economic sanctions, failure to offer humanitarian assistance, and for ‘gross negligence in eradicating extreme poverty’. One may agree as to the need to prevent the imposition of economic suffering, and even that such decisions violate economic and social rights. However, the author fails to demonstrate that criminal law is an appropriate or permissible manner in which to bring about UN or IMF reform or to encourage greater generosity. Similarly M. Møllman, ‘Who Can Be Held Responsible for the Consequences of Aid and Loan Conditionalities: The Global Gag Rule in Peru and Its Criminal Consequences’, Michigan State University's Women and International Development Program, Working Paper #29, 2004, at 12 (available at www.isp.msu.edu/wid), describes the hardships imposed by the US policy of not contributing to organizations that condone abortion and argues for criminalization. Møllman persuasively demonstrates that the US policy is unwise and deplorable, and probably a violation of health and autonomy rights, but it does not follow, however, that one can criminalize the choices of the United States as to to whom it gives its money, nor is it clear how to localize personal guilt. A more modest form is the commonly seen suggestion that ‘there is widespread recognition that every violation of the law of war is a war crime’: see, e.g., J. J. Paust, ‘Content and Contours of Genocide, Crimes against Humanity, and War Crimes’, in S. Yee and W. Tieya, International Law in the Post-Cold War World: Essays in Memory of Li Haopei (2001). However, given that the laws of war contain detailed regulations concerning, for example, waterproofing of identity cards, it is implausible to claim that every violation of the law of war constitutes a war crime.

130 See discussion, ibid.

131 Common Art. 3 to the Geneva Conventions.

132 See, e.g., W. Fenrick, ‘Article 8, War Crimes’, in Triffterer, supra note 7, at 184; Y. Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), at 861–90.

133 See, e.g., AP I, Arts. 89–91 on remedies.

134 ICC Statute, Art. 8(2)(c); ICTR Statute Art. 4; Special Court for Sierra Leone Statute, Art. 3; Prosecutor v. Tadić, supra note 46, at para. 134.

135 Common Art. 3 is recognized as so fundamental that ‘violations of . . . Common Article 3 are by definition serious violations of international humanitarian law within the meaning of the Statute’: see, e.g., Prosecutor v. Blaškić, Judgement, Trial Chamber, Case No. IT-95-14-T, 3 March 2000, para. 176.

136 ICC Statute, Art. 30. The judge's failure to realize that he was depriving a person of a right would provide no excuse, since ‘a mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility’: ICC Statute, Art. 32(2).

137 L. N. Sadat, The ICC and the Transformation of International Law: Justice for the New Millennium (2002), at 140–1.

138 Elements of Crimes, Doc. ICC-ASP/1/3, Art. 7(1)(i).

139 Danner and Martinez, supra note 14, at 151.

140 Osiel, supra note 76, at 793.

141 While the majority of the literature simply reports the doctrinal developments or proposes further expansion, there are some critical articles: Damaska, supra note 15; O'Reilly, supra note 11; Nersessian, supra note 71.

142 Prosecutor v. Kordić and Čerkez, Judgement, Appeals Chamber, Case No. IT-95-14/2-A, 17 December 2004, at para. 839.

143 See, e.g., P. Robinson, ‘Imputed Criminal Liability’, (1984) 93 Yale Law Journal 609.

144 Such an approach was adopted for example in Canada and in Germany: see Crimes against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 5 and 7 (Canada); Code of Crimes under International Law (Gesetz zur Einführung des Völkerstrafgesetzbuch), Federal Law Gazette of the Federal Republic of Germany (Bundesgesetzblatt), I 2002, at 2254 ff. (Germany). Statutes of international tribunals list command responsibility along with the modes of liability, rather than as a separate offence.

145 See, e.g., Damaska, supra note 15, at 456.

146 ‘It is not a point to be disputed but that in criminal cases the principal is not answerable for the act of the deputy, as he is in civil cases; they must each answer for their own acts and stand or fall by their own behaviour.’ R. v. Huggins (1730) 2 Str 883, at 888; 93 ER 915, at 917 (UK); A. P. Simester and G. R. Sullivan, Criminal Law Theory and Doctrine (2003), at 194; Fletcher, G., ‘Complicity’, (1996) 30 Israel Law Review 140, at 144.

147 See, e.g., O'Reilly, supra note 11, at 128 and 147–9.

148 Ching, A., ‘Evolution of the Command Responsibility Doctrine in Light of the Čelebići Decision of the International Criminal Tribunal for the Former Yugoslavia’, (1999–2000) 25 North Carolina Journal of International Law and Commercial Regulation 167, at 204. See also Nersessian, supra note 71, at 94; Damaska, supra note 15, at 464.

149 Prosecutor v. Tadić, supra note 4.

150 Prosecutor v. Kayishema, Judgement and Sentence, Trial Chamber, Case No. ICTR-95-1-T, 21 May 1999, at para. 199. See also Prosecutor v. Orić, Judgement, Trial Chamber II, Case No. IT-03-68-T, 30 June 2006, at para. 280: ‘Rendering a substantial contribution to the commission of a crime is a feature which is common to all forms of participation.’ It suffices that such contribution ‘make performance of the crime possible or at least easier’ or further or at least facilitate the crimes (Prosecutor v. Orić, para. 282) or ‘enable operations to run more smoothly or without disruption’ (Prosecutor v. Kvočka, supra note 9, para. 309).

151 See, e.g., Prosecutor v. Kordić and Čerkez, supra note 142, at para. 26 (planning); para. 27 (instigation); Prosecutor v. Strugar, Judgement, Trial Chamber, Case No. IT-01-42-T, 31 January 2005, at para. 332 (ordering); Prosecutor v. Blaškić, supra note 28, para. 45 (aiding and abetting). Even the problematic JCE requires a contribution; see section 2.2.

152 The ‘central place assumed by the principle of causation in criminal law’ was acknowledged even in Čelebići, supra note 5, at para. 398, but was then neglected without qualms on the grounds that past cases and instruments seemed not to require it.

153 Dressler, J., ‘Re-assessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem’, (1985) 37 Hastings Law Journal 91, at 103. Dressler argues that causation helps to ensure that those who are legally blameworthy get their retributively deserved punishment (at 107).

154 Husak, supra note 64, at 16.

155 Simester and Sullivan, supra note 146, at 194, note that conviction for a crime to which one has not contributed and for which one is not at fault would be problematic, especially in the context of stigmatic crimes. Ashworth, supra note 9, at 415, argues that it is required at least that the accomplice's conduct ‘might have helped’ or ‘might have made a difference’. See also H. L. A. Hart and T. Honore, Causation in the Law (1985), at 125; S. Kadish, Blame and Punishment (1987), at 162.

156 Prosecutor v. Hadžihasanović, supra note 34 (Partial Dissenting Opinion of Judge Shahabuddeen), para. 32.

157 Prosecutor v. Krnojelac, supra note 103, para. 171. See also Prosecutor v. Aleksovski, Trial Chamber, Case No. IT-95-14/1-T, 25 June 1999, para 72: ‘superior responsibility . . . must not be seen as responsibility for the act of another person’.

158 For example Mettraux, supra note 98, at 297; Fox, supra note 22, at 491. The position is doubted, however, in Greenwood, C., ‘Command Responsibility and the Hadžihasanovic Decision’, (2004) 2 Journal of International Criminal Justice 598, at 608.

159 Indeed, the dissonance between these assertions and the actual practice is so great that even the cases and commentators insisting that superiors are not held responsible for the subordinate's crimes cannot help but contradict themselves. See, e.g., Prosecutor v. Aleksovski, supra note 157, para. 67: ‘A superior is held responsible for the acts of his subordinates if he did not prevent the perpetration of the crimes of his subordinates or punish them for the crimes’; or see Mettraux, supra note 98, at 300: the commander is ‘held responsible for the crimes committed by his subordinates’. Put in their best light, the assertions that superiors are not held responsible for the crimes of subordinates might be seeking to refute claims that commanders are held strictly liable for all acts of subordinates (vicarious liability), by affirming that liability is rooted in personal fault (the breach of duty). However, fundamental principles require not only faulty conduct but also culpability for the crime for which the person is convicted (in this case, genocide, crimes against humanity, or war crimes).

160 See, e.g., ICTY Statute, Arts. 2–5; ICTR Statute, Arts. 2–4. Moreover, the Statutes list command responsibility as a mode of liability and not as a crime in its own right (Arts. 7(3) and 6(3) respectively).

161 Prosecutor v. Krnojelac, supra note 103, Part VI, Disposition. In fact, not only do the tribunals convict the commander for the underlying crime, but they consider command responsibility as an aggravating factor, warranting a harsher sentence: see, e.g., Prosecutor v. Blaškić, supra note 135, at para. 790.

162 Prosecutor v. Kayishema, supra note 150, at para. 199. For example, advance knowledge of non-punishment could facilitate crimes, or a failure to punish ongoing crimes could remove the disincentives to subsequent crimes, or could even be seen as a signal of tolerance or encouragement. In such cases, the commander's failure can be causally linked to the crimes, so that he or she may be considered as sharing in liability for them. A causation requirement is also advocated in Cassese, supra note 5, at 206–7; and O. Triffterer, ‘Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 of the Rome Statute?’ (2002) 15 LJIL 179.

163 Indeed, as will be discussed infra, on occasions when defence lawyers argued for causal contribution as a requirement, their arguments were quite easily (and at times derisively) dismissed as failing to understand command responsibility or even as seeking to frustrate the doctrine.

164 While humanitarian law quite reasonably imposes a duty to punish past violations, this is not the same as saying that the commander is guilty of the past crimes; criminal law requires consideration of additional principles before personal guilt may be assigned.

165 Protocol Additional to the Geneva Convention of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts (AP I), 8 June 1977. One may query why the Additional Protocols appear to have avoided the conflation problem. It will be argued infra (section 4) that those responsible for articulating rules have less incentive to consider fundamental principles when drafting rules for enemies or strangers, whereas inclusive and deliberative processes, which proceed from an initial position more closely approximating a ‘veil of ignorance’, tend to produce more sensitivity to fundamental principles.

166 AP I, Art. 87. Art. 87(3) provides, ‘The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.’

167 Such remedies are applied against the state or the party to the conflict, and include the payment of reparations (Art. 91), and exposure to fact-finding (Art. 90) and to Security Council action (Art. 89). States are internationally liable for breaches by their commanders (Art. 91).

168 Sandoz et al., supra note 132, at 1018.

169 AP I, Art. 91.

170 Such conflation may also be found in the Yamashita decision (supra note 49), which not only illustrates victim-focused teleological reasoning (as discussed in section 2) but also illustrates conflation between criminal law and humanitarian law, as it derived the command responsibility principle from the purposes of the laws of war. The majority decision converted a humanitarian law duty into a criminal law norm, and because of its assertion that it was simply applying existing law, it did not engage in reflection on compliance with fundamental principles. As Justice Murphy argued in dissent, the majority approach overlooked the difference between civil claims and ‘charging an individual with a crime against the laws of war’ (ibid., at 36–7).

171 ICTY Statute, Art. 7(3), ICTR Statute, Art. 6(3). The report of the drafters indicates no intention to change the law: Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), at para. 56; the premise was to apply only rules ‘rules . . . which are beyond any doubt part of customary law’ (para. 34).

172 Prosecutor v. Blaškić, supra note 28, paras. 73 and 78. A similar argument (relying on the principle of culpability rather than the principle of legality) was also easily rejected in Čelebići, supra note 5, at paras. 396 ff. After a half-sentence acknowledgement of ‘the central place assumed by the principle of causation in criminal law’, the trial chamber rejected a causation requirement on doctrinal grounds (absence of precedent requiring it) without considering fundamental principles.

173 Prosecutor v. Blaškić, supra note 28, para. 83.

174 Ibid. (emphasis in original).

175 For example, in Čelebići, the Prosecution argued that ‘the Statute's language of “knew or had reason to know” must be construed as having the same meaning as the applicable standard under existing humanitarian law, including Protocol I’: Čelebići, supra note 5, para. 382. Although the Chamber ultimately had a narrower reading of the ‘had reason to know’ standard than did the prosecution, it based its reading on Additional Protocol I and hence did accept the assumption that the meaning is the same as in humanitarian law. The Chamber did not review whether fundamental principles of criminal law require a different standard (mens rea) than humanitarian law (paras. 390–393).

176 See, e.g., Fox, supra note 22, at 443, arguing that an interpretation not encompassing all of Art. 87(3) would be ‘erroneous’, ‘illogical’, and ‘contradicted by the plain language of the Protocol’ (at 466), and would mean a ‘gap [that will] allow certain atrocities to go unpunished’ (at 444) and ‘a troubling drift toward allowing impunity’ (at 494). See also Mettraux, supra note 98, at 301 (‘gaping hole’, ‘highly questionable from a legal and practical point of view’). Similarly, van Schaack argues that the causal requirement in the ICC Statute (which as argued in section 2.2 is essential for compliance with the principle of culpability) is a ‘step backward’ that ‘significantly truncates’ the doctrine, and the resulting ‘lacuna’ or ‘loophole’ ‘sends a message’ that it is acceptable not to punish: B. van Schaack, ‘Command Responsibility: A Step Backwards’, On the Record – International Criminal Court, Issue 13 (Part 2), 17 July 1998, available at www.advocacynet.org/resource/369#Command_Responsibility:_A_Step_Backwards. Paust, supra note 129, at 305, sees the causal contribution requirement as a ‘problem’ and hopes that a creative interpretation, in the light of ‘customary international law’ can fill in such ‘needless limitations’.

177 G. Robertson, Crimes against Humanity: The Struggle for Global Justice (2006), at 624.

178 Ibid., at 176 (emphasis omitted).

179 Ibid., at 2.

180 ‘Sovereignty appears in the arguments of lawyers, the commitments of diplomats and the reassurances of international bureaucrats as a barrier to the over-ambitious extension of ICL’. G. Simpson, ‘Politics, Sovereignty, Remembrance’, in D. McGoldrick, P. Rowe, and E. Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues (2004), at 53.

181 ‘[W]henever state sovereignty explodes onto the scene, it may demolish the very bricks and mortar on which the Law of Nations Is Built’: A. Cassese, ‘Current Trends towards Criminal Prosecution’, in N. Passas (ed.), International Crimes (2003), at 587.

182 See, e.g., Prosecutor v. Tadić, supra note 46, at para. 55.

183 ‘The contradiction between the principle of national sovereignty and the universal nature of human rights reaches its apogee faced with crimes against humanity. Humanitarian law – and universal conscience – dictate that these crimes must not go unpunished. But State sovereignty subjects this demand for justice to the contingencies of political choices’: R. Badinter, ‘International Criminal Justice: From Darkness to Light’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), at 1932.

184 ‘Throughout the twentieth century, state sovereignty has provided one of the most enduring obstacles for advancing ICL’: S. C. Roach, Politicizing the ICC: The Convergence of Ethics, Politics and Law (2006), at 19.

185 Robertson, supra note 177, at xxx.

186 ‘[The ICC is] the primary reference for those who believe that borders, state sovereignty and political expediency cannot shield the perpetrators of massive human rights violations from prosecution. . . . It is widely acknowledged that the moral commitment to protect the most fundamental human rights at a global scale trumps state sovereignty and the legal pillars that sustained classic international law’. Diaz, P. C., ‘The ICC in Northern Uganda: Peace First, Justice Later’, (2005) 2 Eyes on the ICC 17.

187 ‘It would be a travesty of law and a betrayal of the human need for justice, should the concept of State sovereignty be allowed to be raised successfully against human rights’: Prosecutor v. Tadić, supra note 46, at para. 58.

188 R. Cryer, ‘International Criminal Law vs. State Sovereignty: Another Round?’ (2005) 16 EJIL 979, at 980; see also F. Mégret, ‘Politics of International Criminal Justice’, (2002) 13 EJIL 1261, at 1261.

189 See, e.g., Mégret, supra note 188, at 1261 and 1279–80, referring to these ‘clichés’ about sovereignty that both ‘buttress and undermine the human rights programme’, but which overlook sovereignty's ‘emancipatory potential’ and its role in self-determination.

190 For examples see Fox, supra note 22, at 480 (requirement of causal contribution is one of the ‘weaknesses and limitations’ of the Rome Statute), overlooking the possible significance of the culpability principle. Boot, supra note 21, at 606 and 640 (interpretation of war crimes narrower than Tadić and not including political groups in genocide ‘manifestly show to what extent States have sought to protect their sovereignty, which prevailed over human rights concerns’), overlooking the possibility that states felt constrained by the current state of the law (principle of legality). For further examples drawing from a variety of authors and issues, see Mettraux, G., ‘Crimes against Humanity in the Jurisprudence of the ICTY and ICTR’, (2002) 43 (1)Harvard International Law Journal 237, at 279 (summarily dismissing a codification of crimes against humanity on the grounds that it was a ‘highly political affair’); A. Pellet, ‘Applicable Law’, in Cassese et al., supra note 183, at 1056 (‘pretext’); Hunt, D., ‘High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’, (2004) 2 Journal of International Criminal Justice 56, at 57–8, 68 and 70 (‘compromise and expediency’; ‘powers of judges were strongly curtailed to assuage the fears . . . that the court could infringe upon sovereignty’); Sadat, supra note 137, at 152 and 267 (‘compromises’); Bassiouni, supra note 22, at 202 (‘mostly for political reasons’), each of which fails to contemplate fundamental principles (such as the principle of legality) as a possible consideration.

191 See, e.g., Boot, supra note 21, at 434: ‘By expanding the protection of specifically mentioned groups to all permanent and stable groups in the definition of genocide, as well as expanding the boundaries of “racial groups”, the Tribunals also tend to let humanitarian gains prevail over arguments of State sovereignty.’ This leaves the question of whether humanitarianism and sovereignty are the only factors in play.

192 R. Cryer, Prosecuting International Crimes (2005).

193 See examples at note 190.

194 Such incentives may include the wish to send deterrent messages, to demonstrate righteousness (especially insofar as tribunals may be a salve for failure to make a more robust intervention), and the reputational incentives mentioned above, section 1.

195 Damaska, supra note 15, at 489 observes that ‘the builders of current [ICL] take a rather uncritical stance’ toward Nuremberg and related jurisprudence, as ‘they stop deferentially before each decision as if it were a station in a pilgrimage’.

196 See, e.g., Paust, supra note 129, at 240, arguing that definitions of crimes against humanity subsequent to the Nuremberg definition ‘are severely limited in their reach, and do not reflect customary international law as evidenced in earlier instruments’. However, as the definition of crimes against humanity in Nuremberg was excessively vague and open-ended and delineated no thresholds at all – indeed almost any crime could constitute a crime against humanity under that ‘definition’ – the principles of fair warning and legality cry out for clarification of the concept.

197 For example, the Nuremberg Charter in Art. 6 included an illustrative list of war crimes, with an open-ended ‘shall include, but not be limited to’ introduction; the Tokyo Charter in Art. 5 did away with the illustrative list and left it entirely to the judges; the ICTY Statute in Art. 3 included a ‘shall include, but not be limited to’ illustrative list, as did the ICTR Statute in Art. 4.

198 See, e.g., Robinson, P., ‘Fair Notice and Fair Adjudication: Two Kinds of Legality’, (2005) 154 University of Pennsylvania Law Review 335, at 340, 344.

199 See Hunt, supra note 190, esp. at 56–9; see Pellet, supra note 190, esp. at 1056.

200 Hunt, supra note 190, at 56–9.

201 Pellet, supra note 190, at 1058.

202 See Yamashita, supra note 49, and Trial of Wilhelm List and Others (The Hostages Case), (1949) 8 Law Reports of Trials of War Crimes 1.

203 U.S. v. Medina, CM 427162 (ACMR, 1971) 8.

204 AP I, Art. 86(2); compare AP I, Art. 87.

205 ICTY Statute, Art. 7(3); ICTR Statute, Art. 6(3).

206 ICC Statute, Art. 28.

207 See supra, section 3.2. If correct, then this appears to be one of the examples where rule articulators suddenly developed a refined appreciation for fundamental principles of justice when their own nationals and officials are subject to the norm, as opposed to foes or strangers.

208 Prosecutor v. Hadžihasanović, supra note 34, Separate and Partially Dissenting Opinion of Judge David Hunt, paras. 29–30. As a simultaneous statement by 120 states, the Rome Statute offers significant evidence of customary law: Prosecutor v. Furundzija, Judgement, Trial Chamber, Case No. IT-95-17/1, 10 December 1998, at para. 227.

209 Prosecutor v. Hadžihasanović, supra note 34, Separate and Partially Dissenting Opinion of Judge David Hunt, paras. 30–32.

210 See, e.g., Van Schaack, supra note 176 (‘step backward’); Vetter, supra note 22 (‘weakness’); Paust, supra note 129 (‘needless limitation’); Fox, supra note 22 (‘gap’, ‘troubling drift toward allowing impunity’).

211 See supra, section 1.

212 See, e.g., Fletcher, supra note 3, at 43–57 (‘subject v. object’); Husak, supra note 64 (‘means v. ends’). L. Fuller, The Morality of Law (1964), 162, argues that ‘every departure from the principles of law's inner morality is an affront to man's dignity as a responsible agent’. Damaska, supra note 15, at 456, emphasizes the internal contradiction with the humanitarian aims of ICL, asking whether it is proper for ICL, ‘given its humanistic orientation, to dispread widespread culpability – restricting principles of municipal law – principles that are themselves inspired by humanistic concerns’.

213 Consequentialist arguments can also be advanced in favour of adhering to liberal principles that circumscribe retribution. For example, Robinson, P. and Darley, J., ‘The Utility of Desert’, (1997) 91 Northwestern University Law Review 453, argue that obedience to law depends in large part on internalization of norms and the pressure of social networks (as opposed to calculation of risks), and that criminal law can serve as a yardstick for both of these processes, insofar as it is perceived as credible and authoritative. However, its credibility depends on general compliance with community perceptions of just desert. In this way, there may be utilitarian value in complying with retributive principles, and conversely the marginal benefits of harsher laws may be outweighed by cost in terms of reducing credibility and hence influence in crime control.

214 Prosecutor v. Norman, Child Recruitment Decision, Appeals Chamber, Dissenting opinion of Justice Robertson, Case No. SCSL-2004-14-AR72(E), 31 May 2004, at para. 14.

215 Some scholars have suggested steps in such a direction, noting for example that the paradigm of individual culpability may be altered in contexts where atrocities are not a product of individual deviance but rather of compliance with deviant societal norms. However, even these revised theories do not absolve the need to grapple with principled limits on the punishment of autonomous individuals. See, e.g., Reisman, M., ‘Legal Responses to Genocide and Other Massive Violations of Human Rights’, (1996) 59 Law and Contemporary Problems 75, at 77. Special challenges of organizational behaviour and diffusion of responsibility, the meaning of ‘fair warning’ in a decentralized criminalization system, or the need to tap into non-Western cultural traditions could conceivably be elements of a revamped and tailored theoretical justification. For some related material see, e.g., Luban, D., Strudler, A., and Wasserman, D., ‘Moral Responsibility in the Age of Bureaucracy’, (1992) 90 Michigan Law Review 2348, on diffusion of responsibility in organizational structures; Drumbl, M., ‘Toward a Criminology of International Crime’, (2003) 19 Ohio State Journal on Dispute Resolution 263; M. Drumbl, Atrocity, Punishment and International Law (2007); Cassese, supra note 5, at 135–6; Damaska, supra note 15, at 457 and 475–8; Osiel, supra note 17; Fletcher, G., ‘Collective Guilt and Collective Punishment’, (2004) 5 Theoretical Inquiries in Law, available at www.bepress.com/til/default/vol5/iss1/art6, esp. at 168–9 and 173–4; Fletcher, L., ‘From Indifference to Engagement: Bystanders and International Criminal Justice’, (2005) 26 Michigan Journal of International Law 1013.

* Assistant Professor, Faculty of Law, Queen's University. This article was written during a fellowship at the University of Toronto Faculty of Law. The author is immensely grateful to all who provided comments on this paper. Robert Cryer, Mark Drumbl, and Karen Knop provided feedback in early discussions about the ideas presented herein. William Burke-White, Larry May, Michael Newton, Mary Ellen O'Connell, Valerie Oosterveld, Brad Roth, Leila Sadat, Andrew Strauss, Stephen Thaman, and Jenia Iontcheva Turner provided thoughtful comments at a January 2008 workshop at Washington University in St. Louis. Ben Alarie, Nehal Bhuta, Jutta Brunnée, Randal Graham, Ed Morgan, Kent Roach, and Simon Stern provided valuable thoughts on earlier versions of the paper, which also benefited from discussions in a presentation at Queen's University in December 2007 and a faculty workshop at the University of Toronto in March 2008. I wish to thank Andrea Ewing and Anatoly Vlasov for excellent research assistance.

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
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