Thursday, August 25, 2011

ICL & individual responsibility

(Thanks to IntlLawGrrls for the generous invitation to contribute this guest post)

The tension between the individual and the collective is an enduring feature of international criminal law.
Hardly any area of the law, ranging from the definitions of crimes to the design and procedural framework of international criminal institutions, remains impervious to its infiltration.
However, international criminal law's greatest challenge -- and paradoxically, its most culpable neglect -- has been in the demarcation of modes of liability that can truly reflect our intuitions about the nature of individual responsibility for crimes that are by their very nature collective.
Indeed, the entire edifice of accountability for international crimes has been constructed in the absence of any coherent theory of principal responsibility for the commission of the crime.
In discussing modes of responsibility, courts and commentators oscillate between the doctrines of joint criminal enterprise, or JCE (prior IntLawGrrls posts), on the one hand, and co-perpetration and indirect perpetration, on the other:
► A doctrine largely influenced by common law, joint criminal enterprise has close analogues in the doctrine of joint enterprise in English law and in the Pinkerton conspiracy doctrine in U.S. law. JCE has been in vogue for much of the existence of the ad hoc criminal tribunals, especially the International Criminal Tribunal for the former Yugoslavia (top right) and the International Criminal Tribunal for Rwanda (lower right) (credit for photo courtesy of the ICTY; credit for ICTR photo)
► Co-perpetration and indirect perpetration are based on established modes of responsibility in German criminal law, and are currently the favored doctrines at the International Criminal Court (above left). (photo credit)
Whether as a result of its accessibility to common law lawyers, or because of its more established presence in tribunal jurisprudence, almost no aspect of JCE has been left unanalyzed.
Co-perpetration and indirect perpetration have proved more elusive.
English-language literature on both doctrines is limited: most commentators on the doctrines, mainly academics trained in the civil law tradition, only provide the gist of the doctrines or allude to specific aspects, without examining the theories and the controversies surrounding them in any detail.
The elucidation of the doctrines in the jurisprudence of the tribunals is also quite sparse, and is based on primarily German- or Spanish-language sources. Not surprisingly, persons without sufficient command of legal literature in these languages have been compelled to understand and critique the doctrines through reliance on scattered, and sometimes opaque references, by academics and by the ICC.
In my article "The Control Theory of Perpetration in International Criminal Law," forthcoming in the Chicago Journal of International Law, I seek to lay the foundations for an informed debate on theories of responsibility for international crimes.
To do so, I familiarize the audience of comparative and international criminal lawyers with doctrines of perpetration in German criminal law and their adoption by international criminal tribunals. I also take the first steps in this debate, by subjecting to scrutiny, and ultimately by rejecting, recent criticisms that have been leveled against these perpetration concepts. While I remain committed to the view that an uncritical and wholesale transfer of these domestic modes of responsibility to the international courts would be deeply problematic, I highlight their importance to the project of building conceptually sound and practically useful doctrines of responsibility for international crimes.
Although my article touches on the fairly narrow issue of attribution of responsibility, it opens up a host of issues that I believe remain insufficiently addressed and that will be crucial to the project of international criminal justice:
► What, for instance, is the relationship between comparative criminal law and international criminal law?
► To what extent does international criminal law’s composite identity -- as an amalgam of public international law and criminal law-- impact the methodology and sources of law that lawyers, judges, and scholars may rely on in refining concepts in this area of the law?
► How do we ensure that the international criminal lawyer is truly a world citizen who is comfortable navigating the criminal law systems of different countries, notwithstanding the constraints of language, legal culture, and legal training?

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