Category Archives: ACADEMIC WRITING

The Strangely Familiar History of the Unitary Theory of Perpetration

visions-of-justice-cove

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)
  • Murielle Delmas-Marty (Collège de France)
  • Marcus Dubber (University of Toronto)

The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute

47 N.Y.U. Journal of International Law and Politics (2014), 86 pages.

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In this Article, I point to the advantages of processing Alien Tort Statute (ATS) cases against corporations through the lens of corporate criminal liability for international crimes, showing how this provides doctrinal and conceptual responses to criticisms of the ATS. The article was cited by the Appeals Chamber of the Special Tribunal for Lebanon in its controversial decision to try a corporation for contempt.

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

For the reaction of members of prominent civil society organizations to the Article, see:

Ten Reasons for Adopting a Universal Concept of Participation in Atrocity

pluralism

Pluralism in International Criminal Law (forthcoming) (Elies van Sliedregt and Sergey Vasiliev eds., OUP 2014). 28 pages.

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In this article, I argue for a universal concept of participation that would apply whenever an international crime is charged, regardless of the jurisdiction hearing the case. I argue that there are important reasons why a single universal standard should develop in international criminal justice, instead of simply deferring to whatever doctrine comes with the jurisdiction hearing the case. In 2014, the Appeals Chamber of the International Criminal Court cited the article in its inaugural judgement.

Complicity

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Oxford Handbook of Criminal Law (Markus Dubber & Tatjana Hörnle eds., OUP 2014) (peer reviewed). 31 pages.

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This essay provides a comparative overview of the criminal law and theory pertaining to complicity. Instead of taking a strong prescriptive position on the best way to construct accomplice liability, I chart a series of recurrent normative problems in this area and point to various solutions these problems have generated in practice. I conclude that the subject deserves our ongoing intellectual engagement, since it goes to the heart of our attempts to live decently, in this our very imperfect world.

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

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

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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

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This paper offers the first detailed account of the especially important role 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. The paper uses examples from international criminal justice as illustrations, 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.

The End of “Modes of Liability” for International Crimes

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

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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 the sequel to this 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

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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

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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.