Category Archives: Articles

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:

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:

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

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

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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).

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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.

Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent

The International Criminal Law Review Vol. 3(3) 2003 (peer reviewed).

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This article was cited with approval by the Special Court for Sierra Leone and the Appeals Chamber of the International Criminal Tribunal for Rwanda in the decision to take judicial notice of the Rwandan Genocide. It argues for great use of judicial notice in international criminal justice as a means of overcoming the need to prove background contextual elements of international crimes, such as the existence of an armed conflict, especially when they are common knowledge and previously adjudicated.

 

Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict

The International Review of the Red Cross, June 2003, Vol. 85 No 850, 313 (peer reviewed).

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This article argues for the abolition of the distinction between international and non-international armed conflict in the laws of armed conflict, by highlighting the current dichotomy’s failure to cope with conflicts that contain both elements, namely, internationalized armed conflicts. The article was cited within the International Criminal Court’s first judgment, was listed as one of four documents of interest on the ICRC’s main international humanitarian law webpage, and is translated into Arabic, Spanish and Russian.