All posts by James G. Stewart

“A Town or Place, Even When Taken by Assault”: The Legally Redundant, Archaic, Unnecessary, and Confusing Wording in the ICC’s Definition of Pillage

Pillage means theft during war. Curiously, Articles 8(2)(b)(xvi) and 8(2)(e)(v) of the ICC Statute prohibit: “Pillaging a town or place, even when taken by assault.” Only the first of these words has any legal significance. The remaining nine are beginning to cause a great deal of confusion that risks undermining justice.

Here is some evidence of that confusion:

  • This past month, I attended a conference in Kinshasa, Democratic Republic of Congo on Economic Crimes in Times of War where a prosecutor I very much respect raised the inclusion of “a town or place, even when taken by assault” in this offense as a possible barrier to using pillage to address the illegal exploitation of natural resources;
  • A number of academics writing about pillage have pointed to this language to suggest that this offense might not apply to commercial actors involved in the illegal exploitation of conflict commodities or that the war crime of pillage in the ICC Statute clearly contemplates other situations; and
  • Perhaps most strangely, in the recent judgment against Congolese politician Jean-Pierre Bemba, the International Criminal Court itself has interpreted the words “a town or place, even when taken by assault” as implying that the pillage of a single house would not suffice.[1]

Having spent a number of years researching and writing about pillage as applied to natural resources (see the fruits of these labors here and a conference summary here), I very much disagree with these views. In what follows, I explain why I view these additional nine words as legally redundant, archaic, unnecessary and confusing. In particular, I provide five reasons why I am of this opinion in a bid to clarify what I perceive to be an unfortunate but understandable misreading.

First, the ICC’s Element of Crimes, which set out requisite legal elements for each crime in the ICC Statute, make no mention of “town”, “place” or “assault” at all, implying that these additional words are legally redundant. The Elements of Crimes read as follows:

  1. The perpetrator appropriated certain property.
  2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.[*]
  3. The appropriation was without the consent of the owner.
  4. The conduct took place in the context of and was associated with an international or non-international armed conflict.
  5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

[*]     As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging

I have expressed disagreement with one particular aspect of this definition, namely “for private or personal use” (See here, paras. 16 – 17). My misgivings are, however, beside the point for present purposes. Regardless of this particular disagreement, it is still noteworthy that the definition in the ICC Elements makes no mention of “town”, “place” or assault.”

Second, other courts and tribunals that have prosecuted pillage (under the labels plunder, looting and spoliation) never refer to “town”, “place” or “assault” either. The Statutes of the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), for instance, simply list “pillage” among war crimes applicable within their jurisdiction.[2] The fact that these and other authoritative applications of pillage make no reference to “town”, “place” or “assault” confirms that this language in the ICC Statute is legally vacuous.

Third, the reference to “a town or place, even when taken by assault” is archaic and practically obsolete. This wording comes from The Hague Regulations of 1907, Article 28 of which states that “[t]he pillage of a town or place, even when taken by assault, is prohibited.” But the history behind the provision reveals that the wording has no contemporary significance – it merely covers over an old exception that has no relevance to modern warfare. In other words, it does no normative work.

As late as the eighteenth century, pillage was perfectly legal.[3] Its subsequent prohibition came in stages. In the first instance, pillage was prohibited but subject to one important exception. As Bentworth explains “the old custom of pillage… was still retained where a besieged town was taken after having been stormed; but this was by way of penalty for obstinacy.”[4] Although pillage was prohibited, if a local population required an invading force to go to the great trouble of laying a siege, their town could be pillaged if the siege proved successful.

In the second stage, however, the laws of war sought to repeal even this exception and outlaw pillage categorically. Thus, the Hague Regulations of 1907 emphasis that “the pillage of a town or place, even when taken by assault, is prohibited.” As this history reveals, the archaic language in this provision was only meant to insist that the prohibition now extended to and encompassed the exception too; it was never meant to restrict the basic, broad proposition that pillage means theft during war.

Fourth, the inclusion of the references to “town”, “place” and “assault” in the ICC Statute was unnecessary, even if one did want to remain faithful to The Hague Regulations of 1907. Tellingly, a different provision in the very same Hague Regulations also stipulates more simply that “[p]illage is formally prohibited.”[5] The decision to include the more obscure, archaic, legally redundant alternative that referenced “town”, “place” and “assault” in the ICC Statute was therefore a poor choice.

Fifth and finally, this language is especially confusing. On its face, it appears unclear, outdated and a reflection of only European experiences of warfare. Already, it has understandably misled some of the very best prosecutors, judges, and academics who work in this field. My only hope is that the poor drafting of this component of the ICC Statute, which is without legal effect, does not inhibit principled applications of the rule in appropriate cases.


[1] See Bemba Trial Judgement, para 117 (stating that “Article 8(2)(e)(v) relates to ‘pillaging a town or place’, and therefore the pillaging of a single house would not suffice.”)

[2] Statute of the International Criminal Tribunal for Rwanda, Article 4(f); Statute of the Special Court for Sierra Leone, Article 3(f ).

[3] In 1718, for example, Vattel reflected that “it is not, generally speaking, contrary to the laws of war to plunder and lay waste to a country.” Vattel, The Law of Nations, (1797), p. 291-292. For other examples, see Grotius, Rights of War and Peace, pp. 332-334. See also, Takahashi, Cases on International Law During the Chino-Japanese War, 1899, pp. 155-156.

[4] Norman Bentworth, The Law of Private Property in War, (1907), p. 8. Similarly, Lawrence explains that during the Middle Ages, “[w]hen a place was taken by storm it was given up to pillage and rapine, no attempt to restrain the passions of the victorious soldiery being made by their commanders.” Lawrence, The Principles of International Law, (1899) p. 38.

[5] Hague Regulations 1907, Article 47.

Deterrence of and Through Other Actors

As I mentioned in my earlier introduction to their groundbreaking piece, I believe Professors Jo and Simmon’s article (available here) is exceptionally important. In particular, I very much appreciate their addition of new theoretical nuance and empirical insight to the question of deterrence in international criminal law. My reactions are less a critique and more a set of pointers about other avenues through which empiricists (these or others) might think about measuring the role of international criminal justice in deterring atrocities in the future work they call for.  As with other aspects of my research, I am interested in the role of business in this regard, which is not a topic that is directly broached in this excellent paper. I briefly demonstrate the advantages of reorienting our thinking about deterrence towards economic actors as well as one particular danger this shift could entail.

Professors Jo and Simmons are rightly sensitive to the differences “type of actor” might generate for an assessment of the ICC’s deterrence. Astutely, they disaggregate states from rebel groups, then rebel groups with secessionist aspirations from those without. Likewise, in recognizing that deterrence might not operate uniformly across all international crimes, they wisely limit their project to a single international crime: intentional killing of civilians. In light of these limitations, they “encourage further research into a range of heinous crimes – from sexual violence to trafficking in children to widespread pillaging – that the ICC was meant to address.”

If this further research comes to pass, I would recommend: (a) further disaggregating the types of actors it focuses on beyond just states and armed groups, and (b) moving beyond the single crime model to assess the extent to which deterring some international crimes can ratchet up the deterrence of others.

Before I get to these arguments, I pause to reiterate a fact I hope is widely accepted, namely, that State actors and rebel groups are not the only agents implicated in atrocities—businesspeople and the corporations they represent are often instigators, masterminds and accomplices, too. I insist on these various forms of participation in deliberate opposition to a widespread but I think unfortunate perception that business invariably plays a role that is peripheral or auxiliary to mass violence. As others have shown (see infra), even the Nuremberg Judgment recognized that the most powerful German “industrialists” signed a petition calling on President Hindenburg to appoint Adolf Hitler Chancellor. In fact, Jonathan Bush has argued that a member of the company IG Farben paid a substantial bribe to facilitate that end. More recently, several modern cases in Africa also involve businesses at the helm of terrible bloodshed, not complicit in it.

Given this reality, it is curious that much of the literature on deterrence of atrocity to date has left business out, arguing that any rational incentive generated by criminal law is unlikely to restrain the fierce passion required to perpetrate offenses of this barbarity, particularly when the probability of prosecution is so low. Yet, as I have argued elsewhere, corporations and their representatives dispassionately pursuing profit rather than historical grievances, inter-ethnic rivalries or military control over capital cities also satisfy the formal elements of international crimes in certain circumstances. And importantly, the transnational corporations that sustain bloodshed are more exposed to foreign law enforcement, more prone to rational deliberation through their commitment to profit maximization, and likely to perceive conviction for a war crime as nothing short of a commercial catastrophe. Thus, they may be more easily deterred than the armed groups Jo and Simmons focus on.

Corporate offending should itself be deterred, but focusing on businesses may also have important trickle-down effects for the deterrence of armed groups Jo and Simmons address. In a recent debate about impunity staged by the International Center on Transitional Justice, I argued that prosecuting the arms vendors who provide weapons to notoriously brutal armed groups as accomplices may, in appropriate cases, be a way of incentivizing greater compliance with ICL norms by warring factions themselves. Prosecuting weapons vendors for complicity would say to states and rebel groups alike, “If your men don’t stop these intentional killings of civilians, you won’t get weapons because your suppliers will fear becoming implicated in these crimes, and without weapons, you’ll lose the war.” Tying military objectives to the need to observe law of war precepts may assist in deterring atrocity. Obviously, this basic model is very simplistic, but I wonder if it reveals possibilities that should feature in the future work Professors Jo and Simmons call for.

This brings us to “widespread pillaging.” Uncomfortably, in virtually every situation the ICC is presently addressing, commercial pillage of natural resources has provided a means and motivation for atrocity (I do not claim that it is necessarily the only or even the dominant motivation). Prosecuting commercial actors for pillaging conflict commodities, therefore, reveals another aspect of the new promise for deterring atrocity—the war crime of pillage is a gateway to many other international crimes. On the upside, focusing on commercial pillage of natural resources may deter actors who collectively make counterfactually dependent contributions to intentional killings of civilians in most modern conflicts – without the trade in pillaged diamonds, tin or oil, the perpetrators of mass violence will be less motivated to go to war and less able to bankroll atrocity once conflict erupts. On the downside, there is also a risk of over-deterrence, where the threat of sharp judicial redress deters legitimate commercial actors from operating in volatile political climates, thereby elevating worst actors into positions of authority and penalizing civilians who are dependent on illicit mining for basic sustenance in survival economies. Optimizing deterrence is thus another key question for the future.

In all, I view Professors Jo and Simmons’ article as a wonderful opening contribution to an emerging field. I hope this symposium will foster new scholarship on these critically important issues, and that this new work will also extend to and perhaps center on, the commercial sides of atrocity.

New Symposium: Can the International Criminal Court Deter Atrocity?

Professors Hyeran Jo and Beth Simmons have authored what is arguably one of the most important articles in the field of international criminal justice in recent times. Their piece, entitled Can the International Criminal Court Deter Atrocity? (available here), defies almost all previous thinking about deterrence of atrocity by answering the question in the affirmative. Moreover, in rehearsing the previous literature on the topic, Professors Jo and Simmons lament how “[p]ractically no systematic evidence has been produced to date to support such concerns.” To correct for this deficit, they embark on a multi-faceted empirical analysis to measure the deterrent effect of the International Criminal Court, controlling for a whole range of extraneous factors that might explain the trends they observe.

I will not attempt to summarize their reasoning or findings in any great detail, but several aspects are worth emphasizing briefly. The authors begin by rehearsing much of the earlier (skeptical) literature on deterrence in international criminal justice, then offer a theory of the ICC’s “conditional impact.” The theory they develop assesses (a) prosecutorial deterrence (court-ordered punishment) as well as (b) social deterrence (extra-legal social costs associated with law violation). Having set out their theoretical expectations, Professors Jo and Simmons adopt a sampling strategy that involves 101 states and 264 rebel groups. From their ensuing analysis, they conclude that:

  • “If hypothetically, 100 civilians were killed by a non-ratifying government [of the ICC Statute], our estimates suggest about 53 civilians are likely to be killed, assuming ratification with all other control variables held constant.” (Page 28)


  • “a hypothetical well-organized secessionist movement that would have used tactics intentionally leading to the deaths of 100 civilians in the years prior to the ICC’s entry into force might have ‘only’ killed 82 civilians after entry into force, holding all other variables at their mean.” (Page 35)

Quite apart from the significance of offering a new empiricism that leads to a diametrically opposite conclusion to previous literature on this topic, the paper also adds new layers to debates about the value and legitimacy of international criminal justice as a field (I catch myself here since I am more interested in national trials for international crimes than international and critical of tendencies to lump all institutions capable of enforcing these crimes into a monolithic whole in assessing legitimacy). Even limiting our gaze to just international institutions, however, if the ICC deters meaningfully, perhaps its selectivity is less of a problem than previously imagined? Alternatively, perhaps the institution’s politics are worth tolerating?

This paper is also exciting is that, together with Kathryn Sikkink’s recent work, it marks an important empirical shift in literature on international criminal justice that is supportive of the project. In recent years, much of the discourse around international criminal justice has been critical in orientation (for my own contribution in this spirit with Asad Kiyani, see here). Nevertheless, as this blog’s manifesto intimates, I am enthusiastic about the rise of a different, relatively new, and sympathetic discourse about international criminal justice, which I hope informs a broad intellectualism in the field. Thus, I’m grateful to authors and commentators for sharing their expertise on these immensely important issues over the next fortnight. The commentators’ names and posts are listed here.

The Strangely Familiar History of the Unitary Theory of Perpetration


Bruce Ackerman et al. (eds.), Visions of Justice, Essays in Honor of Professor Mirjan Damaška (Duncker & Humblot, Berlin, 2016)

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A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participation in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. This Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favour of a unitary variant. Curiously, the same problems Norway, Denmark, Italy, Austria and Brazil sought to solve in dispensing with differentiated systems of blame attribution are prominent in international criminal justice today. The eerie sense of déjà vu that arises from reading these histories suggests that the unitary theory may have real potential as a way through many of the key points of conceptual impasse that presently characterize this aspect of the field.  In this respect, the Article seeks to contribute an historical perspective to a burgeoning dialogue about forms of blame attribution internationally by again questioning whether the great struggle with “modes of liability” is worth continuing.

For reactions to and criticisms of this paper, see:

This Article is a sequel to an earlier theoretical defense of the unitary theory of perpetration. For this earlier work, see:

The Ahistoricism of Legal Pluralism in International Criminal Law

Co-authored with Asad Kiyani. American Journal of Comparative Law (2017) (peer reviewed), 81 pages.

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International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, this approach omits a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values. This, we say, is often a false equation that results in important normative distortions, with major implications for the field’s self-image, function and legitimacy. To reinsert that history, this Article undertakes a very substantial review of the history of criminal doctrine in various national legal systems, as well as international correlates at each stage of the field’s development.

Watch this space in the coming weeks for a mini-symposium about this article, including criticisms from:

  • Paul Schiff Berman (George Washington)
  • Neha Jain (University of Minnesota)
  • Kevin Davis (NYU)
  • Mireille Delmas-Marty (Collège de France)
  • Markus Dubber (University of Toronto)

Judicial Rejection of “Specific Direction” is Widespread

I hadn’t thought to use this blog to write individual posts on new judgments or decisions in international criminal law but at the instigation of some friends, I’m persuaded to offer some very short reactions to a number of interesting blog posts in the past week on “specific direction.” The posts include commentary by Marko Milanović, Kevin Heller, Dov Jacobs and Jens Ohlin. Despite my initial reticence to re-engage with this topic in the blogosphere, it struck me that offering some thoughts on these ideas would also be an appropriate topic to end the year on and a convenient pretext for me to wish readers happy holidays and a prosperous new year.

By way of background, the latest discussions of “specific direction” in complicity stem from a judgment by the ICTY Appeals Chamber in the Stanišić & Simatović case (hereafter “Stanišić), which again rejected “specific direction” as a relevant aspect of the actus reus for aiding and abetting (see paras 94 – 109). As most readers will know, a differently constituted Appeals Chamber at the ICTY had adopted the controversial “specific direction” standard two years ago in a case called Perišić (paras 17 –74), before the same body (differently constituted) reversed itself in a very detailed judgment called Šainović (paras 1617 – 1651). But as I point out below, the judicial treatment of this question since Perišić is actually a lot thicker than this brief history would suggest: rejection of “specific direction” is far wider.

To review, I was opposed to “specific direction” when it first emerged in Perišić. I have always thought that “specific direction” as announced by the ICTY in that case was a misreading of casual language in Tadić. I won’t rehearse everything I wrote opposing “specific direction” at the time, but I do want to reiterate my empirical findings that the concept had no grounding in customary international law, comparative criminal law or previous discussions of the theory of complicity by leading experts (see here). In addition, I also wrote a blog post on Opinio Juris responding to Kevin Heller’s thoughtful defense of the doctrine. To the extent that experts at the national level have considered this problem, this is the established orthodoxy on the topic.

To complete this (overly) long introduction, I should say that I’ve always insisted that specificity is one of the many difficult questions in the theory of complicity (see here). For this reason, I’m looking forward to reading Sasha Greenawalt’s new draft article on the topic in the new year, which discusses “specific direction” by drawing on much of the voluminous and difficult literature on the theory of complicity (sorry for the delay getting to this Sasha). I very much admire Sasha’s work and I’m very pleased to have colleagues engaging with this thorny literature, especially if they reach different conclusions to mine. As I’ve mentioned public recently, I believe that a major public debate on complicity will be a great benefit to the world, even if no consensus ever emerges about its contours.

With all these preliminaries said and done, I set out below a very short list of thoughts about the most recent emanation of the “specific direction” debate in the blogosphere. I hope some of my reactions are helpful:

  1. I would like to suggest that our discussion of “specific direction” would be far clearer if we dropped the word “direction” out of “specific direction,” calling this the specificity issue in complicity or some other clearer label depending on what we mean. As I say, “specific direction” was very casual language first employed in Tadić that didn’t really mean terribly much before Perišić (see here). The definition the Perišić court gave the concept really does the specificity problem a disservice – recall that according to the Perišić definition “specific direction” entails: (a) an assessment of whether the recipient of the aid is “an organisation whose sole and exclusive purpose was the commission of crimes” (Perišić Appeal Judgment, para. 52); (b) whether the aider “endorsed a policy of assisting” (Perišić Appeal Judgment, para. 52); and (c) a distinction based on whether the aider is present at the scene of the crime or not (Perišić Appeal Judgment, para. 39, 70). I maintain that these positions are clear misreadings of complicity and that they only detract from: (a) whatever there is that’s genuinely problematic about the specificity problem in complicity; and (b) attempts to account for that residual difficulty in the theory of blame attribution writ large. I also believe that, because advocates seldom define what they mean by the term “specific direction”, we frequently talk past one another.
  1. My main contribution to the discussions in the blogosphere, however, is to place a far larger number of cases on the table for discussion. In particular, I think it bears noting that many courts have now rejected “specific direction,” such that a differently constituted court in Stanišić could not really have taken us back to Perišić even if it had decided to readopt the controversial concept. The list of cases that have rejected “specific direction” now includes:
  • The ICTY Appeals Chamber in Šainović (paras 1617 – 1651);
  • The ICTY Appeals Chamber in Popović (para 1758)
  • The ICTY Appeals Chamber in Stanišić (paras 94 – 109)
  • The ICTR Appeals Chamber in Nyiramasuhuko et al (see para 44 of Judge Agius’s Separate Opinion)
  • The Charles Taylor Appeal Judgment (see here, paras 466 – 481).
  • The ECCC in Case No 002/01 (see paras 707 – 710)

I got the sense from some of the commentary in the last week or so that the rejection of “specific direction” here again in Stanišić was somehow a farce given the composition of the bench in this case or the lack of reasoning substantiating the position. To my mind, the first of these arguments plays down that a variety of courts, at both trial and appellate levels, have rejected the standard. Thus, the supposition that a differently constituted court would have just reinstated Perišić as a norm in ICL as a field is, I think, unconvincing.

  1. To expand on this observation, I plot here the number of judges across all courts and tribunals who have voted for and against “specific direction,” from Perisic onwards. By my rough count, at least 20 different judges have had opportunity to pronounce on “specific direction” if one includes the Perišić court and everyone since in the different cases I list in 2 above. Three judges endorsed the concept in Perišić, and now Judge Afande has on entirely different grounds, but that still leaves a full 16 judges who have voted to have it overturned, some multiple times. By the by, this includes Judge Khan in Nyiramasuhuko, which means that even in Stanišić, the Agius/Afande coalition would likely have been inadequate to reinstate the standard had the judicial changes many lament not taken place. Nevertheless, even if Khan had been on the case and helped reinstate “specific direction” in Stanišić, the resulting judgment would still be at sharp odds with the vast majority of judicial thinking on the topic. Four times more judges think it is incorrect than are willing to endorse it.
  1. Looking through these more recent cases post Perišić, I read one additional judgment (not in my list in 2 above) that I think warrants mention. The ICTR’s Ngirabatware Appeals Judgment was presided over by Judge Meron and included Judge Liu, but it also involved three other judges who were entirely new to the issue. Logically, counsel for the defense argued, drawing on Perišić, that “the Trial Chamber erred in failing to determine whether the ‘specific direction’ requirement of aiding and abetting had been satisfied in his case.” (see para 145). The Appeals Chamber unanimously rejected this argument, despite their finding that “the Interahamwe used at least some of the weapons Ngirabatware distributed […] during the attacks and killings” (see para. 148) (my emphasis). Again, I’m not sure what “specific direction” means in its best light, but if it operates to deny complicity where conduct has a dual use, then surely Ngirabatware’s conduct was not “specifically directed” and he should have been acquitted. I suspect that people may argue about this given Ngirabatware’s intentions (separate from “specific direction”), but I wanted to highlight the case to suggest that even the minority of judges who advocate for this controversial standard in complicity are less than clear about when it applies and how.
  1. On the issue of substantive reasoning, I don’t necessarily share the concern about the absence of deep reasoning in the Stanišić Judgment. I take this position because the prior decision in Šainović was surely amongst the most meticulously researched judgments in the history of this discipline, drawing on the criminal law of an enormous number of states (see Šainović Appeal Judgment, paras 1617 – 1651). I’d written a doctorate that addressed the comparative law and theory of accomplice liability in ICL, then four years of further research on the topic thereafter, but still there were many sources in this judgment I’d never even heard of before. I can’t imagine what it took to acquire and analyse all these legal materials in such a short period of time, but however one views “specific direction” as a normative concept, I think we have to acknowledge that this depth of research and justification goes far beyond what criminal courts normally offer. In fact, to the best of my knowledge, it is without parallel on any other issue in ICL before or since. Accordingly, I didn’t see terribly much reason for the Stanišić Appeal Judgment to reinvent the wheel on this; it had been fully addressed previously. To be clear, no court has offered a compelling theoretical explanation of this problem, but I believe that task falls to academics.
  1. This brings me to Judge Afande’s apparent endorsement of “specific direction” by way of dissent in Stanišić, wherein he is the first and only judge to defend the concept since Perišić (Judge Tuzmukhamedov questioned the need to address it on the facts in Šainović but he did not opine on the propriety of the doctrine itself and Judge Agius has included a paragraph in two judgments maintaining his earlier reasoning without further argument). Although I respect Judge Afande’s attempt at finding a third way through a difficult legal problem and competing dissenting positions, it strikes me that: (a) the account he offers is no longer speaking about “specific direction” as espoused by Perišić (see my point 1 above); (b) his methods for this novel third way are at times highly suspect, like the use of dictionary definitions to cut through all previous debates; and (c) the resulting position is hard to reconcile with any of the different schools of thinking about blame attribution in the theory of complicity (see here). Perhaps others will defend Afande’s reasoning, but personally, I have some difficulty imagining that it will prove adequately convincing to bring so many judges around to readopting “specific direction” given the widespread judicial disagreement with it now. My guess is that only the in-depth work of scholars will be able to do that at this point, to the extent that they are able to establish that the problem of specificity (or whatever more accurate label we can attribute to the problem) cannot be accommodated anywhere else in conventional theories of blame attribution.
  1. Finally, a brief word about the changes to the composition of the bench in Stanišić. As my colleagues have pointed out, two of the judges were replaced with others before the Stanišić appeal hearing. I know very little about this backstory and have consistently steered clear of the various political controversies surrounding “specific direction”, but I confess that I don’t fully understand the complaint that the composition made the decision predictable or arbitrary. Judge Meron, himself an advocate of “specific direction,” appointed one judge for and another against “specific direction.” I see no scandal. The orders doing so were perfectly hum-drum, speaking about “the appeal management and case distribution needs of the Tribunal.” Isn’t this entirely normal and very banal? As we now know, it’s unlikely to have changed anything in the concrete case (Khan appears to be against “specific direction”) or the field as a whole (the vast majority of ICL judges clearly oppose “specific direction.”) As for predictability, I’m not sure what the problem with that is either. Many would argue that predictability is highly desirable in a criminal trial. Moreover, judges the world over almost always come with a known set of legal commitments. Think of the US Supreme Court. The parallel isn’t entirely direct, but I wanted to raise these points because I’m not convinced that this situation at the ICTY is quite as bad, surprising or irregular as some of the previous commentators have suggested. To my mind, the only thing that would be objectionably arbitrary is if, by chance, the very few international judges prepared to endorse “specific direction” again found themselves on a single appellate bench.

In any event, I hope some of the foregoing is helpful. I’ve written this uncomfortably quickly, so I hope readers will correct my errors, if there are any. Once again, I encourage scholars of all stripes to engage with this issue and the very many other difficult problems in the theory of complicity. As I mention, I believe they are part of an important struggle to lead ethically decent lives in a world that is at once highly inter-connected and very dysfunctional.

Happy holidays to one and all.


The Argor Heraeus Decision on Corporate Pillage of Gold

Earlier this year, a Swiss federal prosecutor wrote a reasoned opinion declining to prosecute a company named Argor Heraeus for pillaging Congolese Gold. I am grateful to Bénédict De Moerloose at TRIAL in Geneva and Ken Hurwitz at the Open Society Justice Initiative for their blessing to post the prosecutor’s decision (hereafter “the Decision”) here. The original German version of the Decision and an English translation the Open Society commissioned are now available in the links in this sentence. To the best of my knowledge, these documents are not online elsewhere, although the prosecutor did make them public by sending them to journalists (see here) and to the parties to the complaint.

I thought to write a neutral and constructive legal assessment of the prosecutor’s decision given that, some years ago, I wrote a legal study of pillage as applied to natural resources (see the English version here and the French version here), as well as an academic article that used the fact of a formal investigation against Argor Heraeus as an illustration of an important new legal development (see here). For present purposes, my neutrality is ensured by the fact that I know nothing whatsoever about the veracity of the allegations in the complaint, and I certainly do not vouch for or endorse any statement of fact about this case in the Decision or elsewhere. Accordingly, I also cannot form an opinion about whether or not the conclusion is correct.

Instead, I want to offer a balanced legal appraisal of the prosecutor’s reasoning in this the first formal document to discuss corporate pillage of natural resources ever. As will become apparent, I consider that the bulk of the legal reasoning is excellent but it is occasionally slightly erroneous – to the company’s benefit as well as its detriment. I hope my reactions are useful to reflections about this and other pillage cases moving forward, especially for a separate new case against a Belgian businessman involving the alleged pillage of Sierra Leonean diamonds, which has just resulted in an arrest in Belgium.

I resist the temptation to rehearse the factual allegations against Argor-Heraeus since these are contained in the Decision itself. Instead, I focus my legal assessment on pillage alone, even though the back end of the Decision also considers money laundering. The paragraph numbers I use within my headings below correspond to the paragraph number used in the Swiss prosecutor’s Decision. I have also cross-referenced relevant portions of my work with the Open Society on pillage whenever possible in the hope of providing a resource for those who wish to pursue these questions in greater depth than I can offer here.

Para 5.1.2 – For Private or Personal Use

The Decision adopts the definition of pillage set out in the ICC Elements of Crimes, which include the requirement that “The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.” In the ICC Elements of Crimes, this particular element is accompanied by an asterisked footnote, which reads: “As indicated by the use of the term “private or personal use,” appropriations justified by military necessity cannot constitute the crime of pillaging.” I certainly understand that adopting this definition of pillage from a source as apparently authoritative as the ICC is attractive, but I have argued that this element of the definition of pillage in the ICC Elements of Crimes is not part of the crime of pillage and courts have vindicated this position.

In the Pillage Manual (see paras. 16-20), I set out how this “private or personal use” element in the ICC Elements of Crimes is: (a) not binding even on the ICC; (b) inconsistent with the exceptions set out in the Hague Regulations of 1907; (c) at odds with the vast majority of pillage cases post WWII, which involved prodigious pillage of natural resources to further the Nazi war machine, not for personal or private profit; (d) inconsistent with the case law of other international courts and tribunals that define pillage without referencing “personal or private use”, and (e) at odds with the explicit finding of the SCSL that “the requirement of ‘private or personal use’ is unduly restrictive and ought not to be an element of the crime of pillage.”

It is not evident that the issue played any real role in the ultimate result in the Decision, but legally speaking, the question matters a great deal because this aspect of the definition in the ICC Elements of Crimes arguably implies that armed groups can expropriate resources for military purposes during war, which I think is not correct save under very specific circumstances I set out in the Pillage Manual (see paras. 78-100). Although not especially pertinent here, the error is somewhat unfortunate in that it disseminates an inaccurate message about the significance of pillage for resource wars.

Para 5.1.2  – The Element of Force

Within the portion of the reasoning dedicated to defining pillage, the Decision also stipulates that “[t]o some extent it is also required that an element of force must be present during pillaging.” I do not agree that this phrase should be included in this reasoning insofar as it misleadingly implies that companies or the armed groups they purchase from must use force to commit pillage. While their operations certainly must be “closely related” to an armed conflict (see Pillage Manual, paras. 32-39), force is not an element of the offense of pillage itself. I explain the various reasons why below.

As support for its statement about pillaging requiring force, the Decision refers to in the ICTY’s Mucić Trial Judgment, which reads:

“While it may be noted that the concept of pillage in the traditional sense implied an element of violence [footnote 604] not necessarily present in the offence of plunder, [footnote 605] it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous.”

In my view, there are several problems with the prosecutor’s reliance on this statement in the Decision:

  • The use of force is not an aspect of the ICC Elements that the Argor Decision draws on earlier to define pillage. It seems methodologically inconsistent to rely on the ICC Elements for “private and personal use,” then disagree with them later without good reason;
  • There is a great deal of case law saying pillage and plunder are synonyms, and they are translated between French and English as such. (see Pillage Manual, paras. 10-14) None of these definitions require force;
  • To the best of my knowledge, the words “implied an element of violence” in the Mucić Trial Judgment have not appeared in any of the many pillage cases since this passing reference. It is therefore somewhat surprising that the language resurfaces here; and
  • Footnotes 604 and 605 in the Mucić Trial Judgement provide very weak support for the proposition in any event. They are nowhere near evidencing virtually uniform state practice capable of supporting the proposition’s existence in customary international law, perhaps explaining why the passing comment in Mucić has not appeared elsewhere.

Section. 5.1.3 – Indirect Appropriation

A survey of case law governing pillage shows that the term “appropriate” in the ICC Elements of Crimes includes direct appropriation of property from the owner as well as indirect appropriation from an intermediary by purchasing stolen property (see Pillage Manual, paras. 40-49). The indirect appropriation limb of this interpretation is supported by the literal language of the ICC Elements of Crimes and at least twenty-six cases from post WWII trials, as well as conceptual first principles (see Pillage Manual, paras. 44-49). The Decision attempts to avoid these sources of authority by arguing that “[i]f even one accepts the view of STEWART, the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”

I address the argument about conversion rather than theft of the property that the second aspect of the sentence references further below. For now, I want to make a minor point, namely that the basis for indirect perpetration is not reducible to my view. As the Pillage Manual shows (see paras. 44-49), there are at least twenty-six incidents of indirect appropriation in the history of pillage cases, and generally, this extent of practice is more than adequate to ground an interpretation of customary international law in international criminal law. As I go on to mention, this interpretation of pillage is also conceptually coherent – although many legal systems disaggregate receiving stolen property from theft, others do not, and it is coherent to treat subsequent transfers of property as a new appropriation depriving the true owner of the property (see Pillage Manual, para. 48)

One recent development in the law of pillage that is not mentioned in my earlier work with the Open Society warrants mention here, too. If the prosecutor was concerned that the indirect appropriation principle could implicate consumers of products manufactured from pillaged conflict commodities, there were better ways of addressing that concern. The recent case law on pillage emanating from the ICC requires a “substantial” acquisition of property to constitute the crime, which helps address this concern. Although the term “substantial” is often difficult to define with perfect precision, there is no doubt that it should exclude consumers who purchase commodities constructed from pillaged natural resources. For reasons I mention below (see Section 5.2 below), the indirect appropriation principle is also important in addressing ex post facto causation in complicity.

Section. 5.1.3 – Conversion not Theft

As I mention above, the prosecutor avoids indirect appropriation as an aspect of pillage by arguing that, in any event, “the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”  Apparently, the gold remained the property of a third party intermediary while Argor was involved in refining it. I do not think this argument is quite as clear cut at the Decision suggests; regardless of whether a company actually acquires title, they may have converted the property and conversion may suffice for pillage. In Anglo-American criminal law, the difference between conversion and theft turns on whether the party misappropriating the property wants to take title in the property or not. Interestingly, if one looks at the table of cases at the back of the Pillage Manual (see Annex A), a number of WWII pillage cases involved conversion alone (note that some of the of the “coercion” references should read “conversion”). Conceptually, this makes some sense. The overarching legal test is whether the accused “appropriated” property without the consent of the owner; it makes no mention of whether the deprivation must be permanent or just temporary. In any event, this is a question that requires more careful research and thought. Moreover, in the abstract, an agreement to help an intermediary dispose of conflict gold could make a refinery complicit in the intermediary’s pillage if the agreement existed ahead of time, even if pillage does require an intention to acquire the property permanently. I address a closely related issue next.

Section. 5.2 – Causation in Complicity

The prosecutor makes an argument in the complicity section of the Decision that goes against the company, which I think is probably incorrect. The decision states that:

“The refining and hence increased value of the raw gold by [ARGOR-HERAEUS] is therefore causative of the pillaging by the FNI in the sense that, without the prospect of refining it to fine gold with a standardised gold context, pillaging, illegal trading and smuggling of raw gold would by no means have been a lucrative affair for the FNI.”

This argument is compelling on its face but it is actually an instance of ex post facto aiding and abetting, since the original pillage is complete by the time the company allegedly acquired the gold. There is an interesting discussion of this problem of ex post facto aiding and abetting in modern international criminal law. To make a longer debate short, you cannot make a causal contribution to a completed crime unless you had an agreement to do so ahead of time. Here, it is not clear that this is the case, meaning that the company could not be complicit in the original act of pillage by purchasing the resources subsequently absent some type of collaboration ab initio. 

Consequently, this type of allegation is probably better conceived as complicity after the fact, which was carved off from complicity proper in most jurisdictions over a century ago precisely because of these types of problems with retroactive causation. These problems are part of the reason why indirect appropriation (see Section 5.1.3 above) is such a significant aspect of the law governing pillage – it overcomes this difficulty with ex post facto aiding and abetting by implicating purchasers in a separate act of pillage. For these reasons, following the case law that mandates indirect appropriation was probably preferable to over-extending causation in the realm of complicity.

Section. 5.2 – The Mental Element for Complicity.

There is much discussion about the mental element(s) required for complicity, and I have written about these from a comparative perspective (see here) as well as at the ICC as part of an expert symposium held on this blog some months ago (see here). The Decision weighs in on these interesting discussions by, I believe correctly, insisting that “should have known” is too low for complicity. There are very few systems of criminal justice that consider negligence appropriate as a standard for accomplice liability and I believe it has no role in international criminal justice (although I believe it should be the central touchstone in business and human rights. See here). Nonetheless, there are still grounds for questioning the mental element for complicity the Decision adopts.

In particular, the Decision makes no mention of dolus eventualis. One of the leading Swiss textbooks on criminal law indicates that “Le complice doit avoir l’intention de favoriser la commission de l’infraction, mais le dol éventuel suffit.” (The accomplice must have the intention to favor the commission of the crime, but dolus eventalis suffices). See Michel Dupuis, Bernard Geller & Gilles Monnier, Code Pénal: Petit Commentaire (2012), p. 191. In other words, intention is required, but intention includes a cognitive appreciation of a risk plus a volitional “making peace” with that risk. It is somewhat strange that this standard does not feature in this analysis. I also understand that dolus eventualis was an issue in an earlier Swiss decision by a prosecutor when problems with “neutral acts” arose. Thus, it is unclear why no recognition of this broader mental element for complicity emerged in the Decision, and why so-called “neutral acts” did not reappear here either.

* * *

I hope the foregoing is somewhat helpful. Again, I am in no position to express an opinion about whether this Decision is rightly decided on issues of fact. My kind thanks again to Bénédict De Moerloose at TRIAL and Ken Hurwitz at the Open Society Justice Initiative for offering to post this material here.


Civil Society’s Reflections on Corporate Responsibility for International Crimes: An Introduction and Open Invitation

Promoting dialogue between academics and civil society is one of the founding aspirations of this blog. In the manifesto, I emphasize how greater dialogue of this sort will help maintain a kind of symbiosis between theory and practice, which in turn, assists keeping the former informed and the latter defensible. This focus arises from my interest in philosophical pragmatism, which doesn’t mean just muddling through as is the colloquial understanding of pragmatism, but instead promotes high-theory that does not occupy an ethereal position divorced from reality. I’m interested in a two-way, respectfully critical dialogue between the academy and the civil society.

In that spirit, I wanted to invite members of civil society to critically engage with a recent article I wrote entitled The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. In a previous online discussion, a set of distinguished academics kindly agreed to criticize the article, and my friends at Opinio Juris generously played host. The responses from Samuel Moyn (Harvard), Steven Ratner (Michigan) and Beth Stephens (Rutgers), together with my replies to them (see here), proved helpful in clarifying the scope of the idea, areas for further research and points of residual disagreement.

In this symposium, I will replicate our discussion about corporate responsibility for international crimes within civil society. In an initial set of commentary, representatives from Global Witness, Human Rights Watch, the International Centre for Transitional Justice, Enough, FAFO, and the European Centre for Constitutional and Human Rights will all post insightful reflections that add much new information and perspective to our earlier debates. These leading commentators collectively boast years of experience dealing with these issues at the coalface, which is evident from their excellent contributions. I begin their commentary tomorrow.

At the same time, there are two obvious problems with this excellent set of commentators. First, they all emanate from the West, which robs the debate of input from civil society in Third World countries likely to be most affected by cases against businesses. I know of some NGOs in these parts of the world who are especially critical of corporate accountability, so it would be a shame not to include their voices in this discussion. Second, all of the commentators I have arranged are generally supportive of this form of corporate accountability, which is gratifying to me as author of the underlying article, but inconsistent with my desire to host a range of competing viewpoints.

This brings us to the open invitation. In addition to posting the thoughts of these leading Western NGOs, I invite representatives from civil society from throughout the world to write and submit a short blog post responding to the ideas in the article itself and our debates. Here are the guidelines for submissions:

  • Submissions must respect the principles in the blog’s manifesto. See here.
  • Submissions should be a maximum of 1,500 words including footnotes (if you decide to include footnotes at all);
  • Your submission should begin with a sentence or two describing your organization, where you are based, and the work you do;
  • Your submission should contain absolutely no allegations against particular companies. I am interested in ideas, not allegations;
  • I will preference submissions that show signs of having engaged with the article and debate here;
  • Articles can be submitted to me in English or French. Regrettably, I cannot host submissions in other languages;
  • Please send the submission by email to: with the words “Civil Society Blog Submission” in the email’s subject line;
  • I will publish up to 15 submissions if I get this many. I cannot guarantee that I’ll publish all submissions, but I am hoping to get enough responses to publish a variety from different parts of the world.

The deadline for submissions is 20 April, 2015.

I hope that, by engaging a set of Western NGOs together with numerous others from throughout the world, the resulting discussion will provide a diverse set of ideas for and against this type of accountability.



Blackwater’s Unsung Heroes

This piece is a cross-post from something Sara Grey and I published on Just Security several days ago (see here). Working on atrocities can be corrosive of one’s respect for humanity, so honoring incidents of moral courage is a healthy antidote. I remember one example of a junior soldier refusing his drunk (and armed) superior officer access to a warehouse of women at Čelebići prison camp in Bosnia for fear that the women would be raped, but this is an especially striking story of moral courage, too. Note that deliberately, we have never said anything about our perception of the guilt or innocence of the four Blackwater guards tried in Washington D.C., even though we collectively sat through the whole trial. I am grateful to Matt Murphy and Adam Frost for their kind emails to me since we originally posted this.

In a recent discussion of newly released memos on torture in the War on Terror, David Cole has surmised that “had anyone had the temerity to say no, the program almost certainty would have halted.” Likewise, in an excellent two-part blog (here and here) a decade after the Abu Ghraib scandal, David Luban cited Hannah Arendt’s observation that “most people will comply but some people will not,” before lauding those who never lost their moral bearings in America’s decent into systematized torture.

Some time has passed since four Blackwater guards were convicted last October of killing numerous unarmed civilians at Nisour Square, Baghdad. Understandably, the trial and verdict attracted a great deal of media attention, but something very important, paralleling the concerns that preoccupy Luban and Cole, has gone entirely unnoticed in the aftermath. Some people within that Blackwater unit said “no,” and maintained that position in the face of tremendous opposition.

Based on public perception, one might be tempted to think that nothing noble happened amongst the group of Blackwater guards at Nisour Square that afternoon. That impression is wrong. On the contrary, three members of Blackwater’s Raven 23 team who deployed that day displayed tremendous moral courage during and after the massacre. Without them, the death toll would likely be higher and there would almost certainly have been no trial or convictions. For this reason, we must remember, honor and celebrate their moral courage and humanity.

When Raven 23 set out from the Green Zone on September 16, 2007, Mark Mealy, Matthew Murphy, and Adam Frost were in the first two of four armored vehicles. According to their own testimony at trial, they watched in horror as their mission quickly transformed into what Murphy later called “the most horribly botched thing I’ve ever seen in my life.”

Matthew Murphy, now a policeman in Boston, was a rifleman in the Marines for two years before joining Blackwater in Iraq. During the trial, he testified that he heard gunfire from his teammates, then looked over his left shoulder to see one of them firing grenades at a white Kia, before others also turned their machine guns on civilians in a traffic jam. On the stand, Murphy bravely contradicted his teammates who said that they regretted nothing, by testifying that he saw no incoming gunfire and perceived no threat.

After the ordeal subsided, the Blackwater convoy left Nisour Square to the North against the flow of traffic, in what prosecutors described as like trying to enter a football stadium at the end of a game while the crowd is pouring out to the parking lot. During this obstructed exit, Murphy signaled to some children to get down, out of fear for what his teammates might do. It’s hard to say in hindsight what might have happened if he hadn’t done this, but given how events unfolded that day, there are strong chances Murphy prevented more unnecessary casualties.

Later, two cars blocked the convoy’s path, so Murphy directed the cars to turn around. When one of his teammates, Paul Slough, opened fire on the vehicles anyway, Murphy yelled, “Cease fucking fire!” As a result of his intervention, the injured driver was able to drive away, unlike so many others that afternoon. Needless to say, those legal advisers Luban and Cole have discussed were not in a war zone, surrounded by armed colleagues who had demonstrated the capacity to shoot people who posed no threat to them.

Murphy was not alone. Mark Mealy joined Blackwater after ten years in the Army, six of which were in active service. After retiring from the Army, he joined the National Guard with hopes of completing post-secondary education, but when his National Guard unit deployed to Iraq in 2003, his plans changed. After his Guard deployment, he worked for several private contractors in Iraq, eventually took a position with Blackwater, and in a stroke of exceptionally poor fortune, found himself in one of the firm’s armored vehicles in Nisour Square during that terrible fifteen minutes.

When the chips were down, Mealy was also on the right side of Arendt’s divide. After returning to base, he convened a meeting in his room, where he and the others we mention here confronted their teammates, saying they’d seen people “murdered out there.” Predictably, this did not go down well. The team leader barked that they needed to find a new line of work if they had a problem with what had happened. After that, the defendants gave Murphy, Frost, and Mealy the “stink eye,” and one later told Frost, now a policeman in Phoenix, that things might get rough for him around the base.

Undeterred, these three men jointly approached their commander, Chuck Pearson, complaining of “excessive use of force” and “reckless conduct.” At trial, Pearson testified that in all his years in the armed forces, he’d never seen a group of soldiers so disturbed by their own unit’s actions: the three men seemed to be in shock and Frost was crying. Revealing this emotion at trial was also an act of bravery for a soldier, but in this very human reaction, we also find something to cherish and honor.

Several days after these men met with their superior, Blackwater ordered all members of this team to report to the US Embassy in Iraq to provide confidential statements about what transpired at Nisour Square. When these statements were subsequently leaked to the public, Adam Frost began a diary to memorialize events as they really took place. In one entry he wrote:

As of now, 5 days after the event, it seems that the [State Department] and [Blackwater] are locked into their stories and the real story will forever stay shrouded from the public … .”

That this premonition did not come to pass is largely the result of these few men; Murphy, Frost, Mealy, and others who bravely provided essential testimony in the landmark trial in Washington, DC. They also paid a price for doing so. In its rousing closing statement, the prosecution told the jury that Murphy, Frost, and Mealy “were called rats and they were looked down upon by the contractor community. And they nonetheless did it. Why? Because they were courageous enough and strong enough to know that that was wrong. That was slaughter.”

None of these men worked for Blackwater again. Murphy signed another contract with the company soon after the harrowing incident, and then went on leave. While away, he got a phone call from his employer telling him that, because of the incident, he was “suspended indefinitely.” Frost also went on leave and was fired a week later. As for Mealy, he simply told the jury that he was done with Blackwater’s Raven 23 Unit.

All of this, of course, suggests that these men deserve recognition alongside the other moral heroes David Luban rightly praises. Martin Luther King, Jr. once said, “courage is an inner resolution to go forward despite obstacles.” In the face of these sorts of pressures in warfare, many would play down their conscientious reactions and say nothing, especially given the dangers they themselves faced. Murphy, Frost, and Mealy “went forward” with their consciences and emerged from this horrendous saga as unsung heroes deserving of our praise and respect.

In reading David Cole’s new reports, it’s hard not to feel like the American leadership in the War on Terror has, on these crucial issues at least, had far less moral courage or humanity in far easier personal circumstances. Perhaps that makes them all the more blameworthy.