Bruce Ackerman et al. (eds.), Visions of Justice, Essays in Honor of Professor Mirjan Damaška (Duncker & Humblot, Berlin, 2016)
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:
- Judge Sir David Baragwanath, Judge at the Special Tribunal for Lebanon, A Unitary Theory of Perpetration? New Zealand and a Touch of the International
- Professor Carlos Eduardo A. Japiassú, Theories of Blame Attribution in Brazilian Law
- Professor Iryna Marchuk, The Unitary Form of Participation in Danish Criminal Law (and its Potential Use in International Criminal Law)
- Professor Jørn Jacobsen, Norway: Three Codes, Three (Somewhat Different) Solutions
- Filippo De Minicis, Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia, A Unitary Theory is Both Viable and Preferable
- Professor Albin Eser, formerly Judge International Criminal Tribunal for the former Yugoslavia, Questions from the Unconvinced
- James G Stewart, An Open Invitation to Further Debate (Instead of an Amicus Brief)
This Article is a sequel to an earlier theoretical defense of the unitary theory of perpetration. For this earlier work, see:
Pluralism in International Criminal Law (forthcoming) (Elies van Sliedregt and Sergey Vasiliev eds., OUP 2014). 28 pages.
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.
Oxford Handbook of Criminal Law (Markus Dubber & Tatjana Hörnle eds., OUP 2014) (peer reviewed). 31 pages.
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.
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).
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.
Antonio Cassese (ed) ‘The Oxford Companion to International Criminal Justice’ (Oxford, 2008) (peer reviewed).
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.