All posts by James G. Stewart

A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity

New Criminal Law Review (peer reviewed) (in symposium), 40 pages

View here.

A criticism of corporate criminal theory, drawing on philosophical pragmatism, legal pragmatism and cases from the frontiers of international criminal justice. The paper argues that we need to embrace a pragmatic theory of corporate criminal liability that is forced upon us in a world as complex, unequal, and dysfunctional as that we presently inhabit. The article is part of a symposium on corporate criminal theory that also includes work by Markus Dubber, Tracy Isaacs and Meir Dan-Cohen.

Overdetermined Atrocities

Journal of International Criminal Justice (peer reviewed) (in symposium) 39 pages

View here.

This paper offers the first detailed account of causation in international criminal law. In particular, it deals with the problem of causal overdetermination, arguing that it represents the central moral problem in international criminal justice. An event is over-determined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, none of the soldiers are responsible for the death—none made, either directly or through others, an essential contribution to the murder. The paper uses examples from international criminal justice to illustrate the problem, namely, the responsibility of Allied Pilots for the firebombing of Dresden, corporations in Apartheid South Africa, the notorious arms vendor Viktor Bout and Thomas Lubanga, the first indictee before the International Criminal Court. The article forms part of a symposium in honor of Antonio Cassese, and was cited by the Appeals Chamber of the Special Court for Sierra Leone in the Charles Taylor judgment.

For a criticism of this article, see:

The End of “Modes of Liability” for International Crimes

Leiden Journal of International Law (2011) (peer reviewed) , 74 pages.

View here.

This article presents a theoretical criticism of the international law of complicity and the domestic criminal principles upon which it is based. It argues for a unitary theory of perpetration, ending the long-endured fixation on modes of liability within the discipline. On this account, complicity becomes a subset of a more capacious notion of perpetration along with all other forms of responsibility. The Appeals Chambers of the Special Court for Sierra Leone and the International Criminal Court have both cited the article in judgements.

For criticisms and responses to this article on Opinio Juris, see:

For longer, thoughtful criticisms of my piece, see:

For the sequel to my article, which plots the history of the unitary theory of perpetration in five different countries, see:

Corporate War Crimes: Prosecuting Pillage of Natural Resources

corpwarcrimes_eng

(OSJI, 2010) (peer reviewed), 164 pages

View here.

A detailed exploration of the law governing pillage of natural resources for war crimes prosecutors, judges, governments and civil society, which formed the basis of an international conference on the topic co-sponsored by the Dutch and Canadian Ministries of Justice between 29 and 30 October 2010. See www.pillageconference.org.

Crimes de guerre des sociétés: Condamner le pillage des ressources naturelles

corpwarcrimes_french

(OSJI, 2010) (peer reviewed), 164 pages

View here.

French version of a detailed exploration of the law governing pillage of natural resources for war crimes prosecutors, judges, governments and civil society, which formed the basis of an international conference on the topic co-sponsored by the Dutch and Canadian Ministries of Justice between 29 and 30 October 2010. See www.pillageconference.org.

Open Society Foundations, New York

“Who sold these weapons? The Accomplice Liability of Arms Vendors for International Crimes”

In recent years, a number of courts have tried businessmen who supply weapons to notoriously brutal regimes for complicity in the international crimes their clients perpetrated. James Stewart, an Open Society Fellow and former war crimes prosecutor, explores some of the implications of these cases. His work has shown, for example, that prosecuting arms vendors might be an effective means of halting the systematic rape of women in the Democratic Republic of Congo. Pursuing arms vendors for complicity in international crimes will also have serious geopolitical consequences, especially for major weapons producers like China, Russia, and the United States.

Robert Varenik, director of programs for the Open Society Justice Initiative, introduces the event.

Click here to listen to the audio from James Stewart’s talk at OSI.

The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon

Grave Breaches Special Edition Screenshot

James G. Stewart (ed) The Grave Breaches Regime in the Geneva Convention: A Reassessment Sixty Years On Journal of International Criminal Justice, Vol. 7(4) 2009 (peer reviewed).

View here.

This Article appears in an edited volume involving leading commentary on the grave breaches regime of the Geneva Conventions. I argue that there are three possible futures for the grave breaches regime: (a) continued segregation from other categories of war crimes in deference to the historical development of these crimes; (b) assimilation with other categories of war crimes, ideally through the promulgation of a more coherent treaty regime; and (c) abandonment because grave breaches entail troublesome technicalities with only marginal substantive added-value. I conclude that these war crimes will persist in a tension between these poles.

Wanton Destruction not Justified by Military Necessity; Plunder; Judicial Notice; Internationalized Armed Conflict; and Guantánamo

wanton

Antonio Cassese (ed) ‘The Oxford Companion to International Criminal Justice’ (Oxford, 2008) (peer reviewed).

View here.

These short entries provide encyclopaedia-like treatment of a range of issues in modern international criminal law, including wanton destruction not justified by military necessity, plunder, judicial notice, internationalized armed conflict and Guantánamo. The entries were solicited contributions to a treatise on international criminal law.

The Military Commissions Act’s Inconsistency with the Geneva Conventions: An Overview

Journal of International Criminal Justice, Vol. 4(1) 2007 (peer reviewed).

View here.

The article criticizes various aspects of the Military Commissions Act 2006, which governed the trial of Guantánamo detainees. The piece forms part of an expert symposium on the Military Commissions Act, which also included George Fletcher and Michael Dorf. The article is cited with approval in the amicus brief of the French Minister of Justice, which was joined by various international law experts, in the Omar Kadr case before US Military Commissions.

Re-Thinking Guantanamo: Unlawful Confinement as Applied in International Criminal Law

Journal of International Criminal Justice, Vol. 4(1) 2006 (peer reviewed).

View here.

This article was awarded the La Pira Prize in 2006 for best article by a scholar under the age of 35 years. The paper concludes that there is a striking resemblance between allegations made of detention practices at Guantánamo and many of the scenarios that gave rise to individual criminal responsibility for unlawful confinement as a grave breach of the Geneva Conventions in other contexts. As such, I gently emphasize the need to rethink the legal basis for detention at Guantánamo and point to the troubling risks of individual criminal responsibility for purporting to develop international humanitarian law through unilateral changes in policy rather than formal international law-making processes.