International criminal law recognizes certain defences, excuses and justifications that may be raised against a charge of genocide. These include mistake of fact, duress and necessity and self-defence. The defences are codified in detailed provisions of the Rome Statute but they are also derived from case law. The Rome Statute declares that an order to commit genocide is ’manifestly unlawful’ and therefore unavaible to an accused person. A defence of ’official capacity’ is explicitly excluded by article IV of the Convention whereby offenders must be punished ’whether they are constitutionally responsible rulers, public officials or private individuals’.

The definition of genocide in the 1948 Convention requires that at least one of the punishable acts listed in the paragraphs of article II be committed with the specific intent or dolus specialis to destroy the protected group. This high threshold is often difficutl to prove, notably when the evidence of intent is essentially circumstantial and based upon infererences drawn from a pattern of conduct. International courts and tribunals have taken the view that this intent must be to destroy the group physically, rejecting an approach whereby it is sufficient to deprive the group of its culture, its language or its ancestral territory. The definition accepts that the intended destruction be ’in whole or in part’, to which case law has added the requirement that this be a ’substantial part’. The words ’as such’ conclude the definitiion; they have been considered to point to a requirement of racist or discriminatory motive.

[42.1] A statutory offence may contain, expressly or by implication, a proposition as to a state of mind. At common law the state of mind that an offence contains is known as ‘mens rea’.

Corporations can be implicated in human rights violations in direct and indirect ways: Direct violations are caused by corporations through their own activities; indirect violations are caused by third parties and corporations contribute indirectly. This chapter looks in detail at this important distinction between direct and indirect human rights violations. It presents a common typology of different kinds of complicity, ranging from direct to indirect, beneficial and silent complicity. It then contrasts some legal and non-legal implications deriving from these. Before doing so, some critical reflection on terminology is provided, particularly as it pertains to the notions of human rights impacts and human rights violations.

The standard way to distinguish between negligence and recklessness is in terms of the agent’s awareness of the risk he is taking. An agent who knows that there is a risk of harm is reckless, an agent who does not know (leaving aside for now whether the belief is reasonable or not) is negligent. Antony Duff argues that we should amend this slightly – What renders an agent reckless is not caring enough about a risk. Duff’s amendment suggests, very plausibly, that mere lack of awareness is not what really matters morally. What matters, rather, is why an agent is not aware. This is taken for granted in the background conditions for negligence – which, for example, should be distinguished from stupidity. An agent may not be aware of a risk because she is not cognitively capable of such awareness. The background condition for negligence is that an agent could have been aware of the risk, but is not. So if an agent could have been aware of a risk, but is not because she was too lazy to look out the window, or check her calendar, or whatever, if, in other words, the reason that she is not aware of the risk is that she does not care enough, she should count as acting recklessly rather than negligently. I argue that there is something in Duff’s view to be rescued here. The rapist who does not understand or accept sexual refusal is not reckless if he has no awareness at any level of the relevant descriptive and normative facts. However, he should not be seen as negligent either. The structure of the situation is such that his ignorance is systematic, not one off. I argue that it is an important feature of negligence that it is one off, that it is not connected to a system of oppression. This gives us a justification for moralizing the ‘reasonable belief’ requirement in sexual consent cases. Even when a belief is reasonable by epistemic standards, it may be unreasonable by moral standards. The overall point here is that in a society riven by sexism, the essential definition of rape must advert to reasonable moral beliefs rather than reasonable epistemic beliefs.

This chapter defends three ideas. (1) That negligence is essentially a conative failure to exercise due care. The negligent agent doesn’t care enough about a relevant moral aim. (2) Resultantly, the potential cognitive failures of agents, whether they foresee or fail to foresee certain risks of harm, are only incidentally relevant to their negligence. In this way, (3) negligence is conceptually contiguous with recklessness. The hallmark of both reckless and negligence conduct is an insufficient regard for the legitimate interests of others, and what separates them is better understood in terms of conative differences in how each agent disregards those interests, rather than cognitive differences in advertence. I examine these claims in the context of a puzzle regarding negligence and foresight, and consider the implications of my conclusions for negligence culpability in morality and the traditional hierarchy of mens rea in the law.

In this chapter, I move on to resulting normative questions about the culpability principle, causal contribution, and command responsibility. I engage in deontic analysis of what type of contribution the culpability principle actually requires, and whether the requirement might be reconceived.

First, I will examine why criminal law requires causal contribution, and the degree of contribution required. I will argue that the requirement in relation to accessories is not onerous; ‘risk aggravation’ satisfies the culpability principle.

Second, I consider ambitious proposals to re-imagine culpability, i.e. to develop a new deontic account that does not require any causal contribution. A theme of this book is that ICL can present us with new questions that can lead us to adjust our basic assumptions from criminal law theory. On this issue, however, although the arguments are intriguing, my conclusion is that on a coherentist all-things-considered judgement, they are as yet far too tentative and undeveloped to provide a convincing basis for criminal sanctions. Accordingly, the current best theory is that accessories must at least elevate the risk of the crimes occurring.

This chapter examines whether global poverty is sufficient to justify resistance. It sets a high bar for activating the right to resistance by aligning it with crimes against humanity and genocide. These are test cases that intuitively justify resistance. If one could not resist Nazism, then the right to resistance would be meaningless. It argues that comparisons between global poverty and genocide are inaccurate; they fail to capture the distinctive collective nature of genocide as a crime. The same cannot be said with crimes against humanity. There is no reason to disqualify global poverty based on the elements of a crime against humanity. This, however, does not make a comparison valid.

The second half of the chapter argues that global poverty is comparable to the crimes of slavery and apartheid. This is because each case is characterised by extreme domination either interactionally or systemically. This is sufficient to make the case that global poverty is comparable to a crime against humanity and therefore triggers the right to resistance.

The two instruments the state uses to maintain order are the corrective and the preventive. Those who reject the notion of moral responsibility either prefer to abandon punishment in favor of preventive techniques or seek to justify (nonretributive) punishment. Although I think punishment is essentially retributive and cannot be justified, I also think we must, if possible, avoid yielding to the preventive worldview. We must distinguish the lengths to which we are willing to go with incompetent or irrational individuals who are dangerous from the lengths to which we are willing to go with rational and competent offenders. My view is that borrowing from punishment its harsh methods we maintain the dignity of competent offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crime. I call this approach correction rather than punishment, because it lacks the retributive element that makes punishment punishment. Here I suggest how this view might be defended if we start, as Fichte does, from the assumption that those who violate any law deserve to be made outlaws; in current terminology, to be subjected to preventive detention and preventive techniques generally.

This chapter discusses the implications of rejecting the notions of free will and retribution for the process of establishing criminal liability in a trial. It is a general principle of UK and American law that before a person can be convicted of a crime the prosecution must prove three things. Firstly, the accused must have performed the actus reus (the prohibited act). Secondly (with the exception of strict liability offences), the prosecution must prove mens rea, a mental state such as intention or recklessness. Thirdly, the accused must lack a valid defense, such as self-defense. This chapter argues that these prerequisites should be retained. It offers a rationale for these prerequisites that appeals to the value of liberty and moral communication but does not depend on the concepts of free will and retribution. This chapter then focuses on two defenses: self-defense and provocation. It argues that without these two concepts, the “right” to self-defense cannot be understood as a strong justification. Rather, self-defense involves permissible action. This chapter also argues that, without the concepts of free will and retribution, the partial defense of provocation cannot be based on the idea of justified anger but rather on understandable emotional distress.

Focused on confession, Chapter 5 opens with a vignette in which a royal justice prods a first-time criminal defendant to confess to being a horse thief. The chapter argues that medieval English culture was imbued with the practice of confession, which occurred not only in the ecclesiastical context but was also a central part of felony procedure. Moreover, it demonstrates that the priest-confessor’s art of circumstantial inquiry, designed to ensure that a person confessed his or her sins fully to receive the appropriate penance, was adapted and adopted by the king’s coroners, who undertook an inquiry into the facts underlying homicide offenses. Downplaying the English exceptionalist narrative of the diverging paths in criminal procedure in England and continental Europe after Lateran IV, the chapter emphasizes the central role played by confession in medieval English felony procedure.

Opening with a dramatic encounter between two angry lords and their opposing retinues of loyal men, Chapter 3 explores the role played by anger in medieval English legal and literary culture. Following a brief introduction to the field of the history of emotion, the chapter explores the etymology of several anger-related words in Latin, Anglo-Norman French, and Middle English. Using John Gower’s Mirour de l’Homme, the chapter demonstrates the complexities of medieval English understandings of the passion of anger. Moving from literature to legal texts, the chapter then explores the language used in the plea rolls to describe sudden anger, long-standing hatred, and other emotion-filled states. The chapter closes with another Gower tale in which the sin of incest is treated as secondary to the damnable sin of uncontrolled wrath.

Chapter 1 introduces the argument that mens rea, or guilty mind, was central to medieval English jurors’ understandings of guilt and innocence and also central to the meaning of the word “felony” itself. After exploring competing etymological theories, including those of Edward Coke, Henry Spelman, William Blackstone, and Jeremy Bentham, the chapter argues in favor of Coke’s interpretation, tracing the meaning of felony to its root in the Latin fel, or gall, a bodily humor associated with bitterness and, by analogy, wickedness. By demonstrating the survival of a feudal connotation of felony in England, and a crime-related connotation in Normandy, the chapter also emphasizes the cross-channel exchange of ideas and downplays the English exceptionalist narrative that has dominated earlier discussions of the meaning of felony.

Chapter 7 turns to the broader issue of felony judging. Methodologically, the chapter relies more heavily on extra-legal sources, both religious and more purely literary, due to the limited discussion of approaches to decision-making by justices and juries within legal records. The chapter emphasizes the dangers involved in the act of judging but also suggests that emphasis on the dangers can obscure the prosaic nature of judging in medieval England. Despite concerns with the Last Judgment, medieval culture embraced prudential judgment as a routine fact of life. One finds medieval English men comfortably handing down verdicts in a wide range of disputes, felony cases being only the most extreme example due to the blood sanctions attached to them. The chapter considers how individuals reconciled their fear of judging with the expectation that they issue verdicts in routine and extreme cases alike, calling attention both to the ubiquity of judging in daily life and concerns over recidivism and crime that helped counterbalance fears of the Last Judgment.

Chapter 8 opens with the story of Erkenwald and the righteous pagan judge, inviting the reader to consider not only the complexities of defendants’ mental state, but also the mental state of persons engaged in the act of judging; this, too, would be subject to scrutiny at the Last Judgment. The chapter argues that medieval English felony law was based upon the equitable balancing of harsh justice and mercy; for a justice or jurors to stray too far in either direction could be condemnable. Drawing upon cautionary tales about judging, the chapter highlights themes that appear in medieval English literary and religious sources, including the notion that justices should not waver too greatly in decision-making, being swayed by money or ill advice; that justices should also not be too inflexible, but should rather reconsider a judgment that in hindsight appeared to be mistaken; and that justices and jurors should beware lest their decisions be informed by anger rather than measured consideration of the facts. The chapter illuminates the ways in which mind mattered not just for determining the culpability of criminal defendants, but also for assessing the culpability of individuals tasked with sending felons to the gallows.

Opening with a dramatic encounter between two angry lords and their opposing retinues of loyal men, Chapter 3 explores the role played by anger in medieval English legal and literary culture. Following a brief introduction to the field of the history of emotion, the chapter explores the etymology of several anger-related words in Latin, Anglo-Norman French, and Middle English. Using John Gower’s Mirour de l’Homme, the chapter demonstrates the complexities of medieval English understandings of the passion of anger. Moving from literature to legal texts, the chapter then explores the language used in the plea rolls to describe sudden anger, long-standing hatred, and other emotion-filled states. The chapter closes with another Gower tale in which the sin of incest is treated as secondary to the damnable sin of uncontrolled wrath.