Category Archives: International Criminal Justice

Questions From the Unconvinced


Albin Eser is Director Emeritus and Professor Emeritus of Criminal Law, Criminal Procedure, and Comparative Criminal Law with the Law Faculty of the University of Freiburg.  He was formerly a Judge at the International Criminal Tribunal for the former Yugoslavia.


To be satisfied with the unitary theory, you must be content with the most simple solution. In my view this is not the best approach to cope with the variety of social and criminal life. As soon, however, as you wish to pay attention to the varieties of the performances of crimes, you must be prepared to make differentiations – and this may unavoidably be a source for different demarcations. But even if this entails controversies, can this be a reason to sacrifice individual justice (by distinguishing between perpetration and participation) on the altar of (unitary) simplicity?

To become convinced of the latter alternative, I would like to have these questions answered:

  • Regarding the argument that the differentiation models would not correspond to real life, is this more the case if causation is considered the only basis of imputation, thereby ignoring any differences in the manner in which, and in the weight by which, a contribution is made to the performance of a crime?
  • And if there is a factual and social difference, as can hardly be denied if the view is not normatively and holistically preprogrammed, should this difference be paid attention to only at the sentencing stage or should it rather be expressed already in the guilty verdict?
  • And if only on the sentencing level, how and according to which criteria should this be done? This is a question, by the way, which is neither dealt with in your article nor are any suggestions by your proponents of the unitary theory visible.
  • If indeed, however, even the unitary theory cannot avoid taking notice of different types and manners in which a person can be involved in the performance of a crime, why couldn’t and shouldn’t this be made public in the verdict?
  • So the only practical advantage the unitary theory seems to offer so far is a procedural one: that the problem of recharacterization may be avoided. Yet, is this really the case if even according to the unitary theory differences in the crime performance are (to be) made at the sentencing stage? In a murder case, for instance, what could a defendant do if he had defended himself by merely involuntary having told where the victim might be met but finds himself sentenced to life imprisonment because of being proven to have been on the scene and directly involved in the killing? Could his appeal be rejected by simply referring to his causal contribution, thus rendering any differential circumstances irrelevant? Or shouldn’t it rather be in the interest of individual justice to assess the penalty according to the type and weight of his contribution? However, if he thus succeeded in getting his sentence adjusted to his minor contribution, as I think he should, could this be done without differentiations and recharacterizations? So what, in the end, is finally left of assumed procedural advantages of the unitary theory?
  • Regarding your references to political and ideological superpowers smaller countries were able to free themselves from by introducing the unitary theory, should such sovereignty aspects indeed play a role as to whether criminal theory is good or bad?

A Unitary Theory is Both Viable and Preferable


Filippo de Minicis works as a Legal Officer in the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia. After graduating in law in 2004, he practiced criminal law in Italy. From 2006 to 2013, he worked first as a defence consultant and then as a Legal Officer in Chambers at the International Criminal Tribunal for the former Yugoslavia.


I agree with Professor Stewart’s proposition that a unitary model of blame attribution would be a viable and preferable option for ICL. This opinion is inevitably rooted, at least in part, in my Italian legal training. It is, however, also based on my ten years’ experience as a practitioner in ICL. Because my professional experience is limited to Italy, the ICTY, and the ECCC, my focus will be on participation as applied in those fora.[1] My observations will cover three areas: 1) the issue of the Fascist origin of the Italian Penal Code; 2) the reasons why I favour a unitary system to the current model; and 3) one aspect of the Italian system that Professor Stewart will probably not like.

 1.  Codice Rocco – An essentially liberal code in Fascist attire

Professor Stewart notes that the Fascist origins of the Italian Penal Code (known as Codice Rocco) have led some to dismiss it as a possible model for a unitary theory of participation. Stewart rejects this criticism. I do too. The Codice Rocco is divided in two parts: a general part, which contains the general principles of criminal law, such as causation, culpability, and participation; and a special part, which defines crimes and prescribes penalties. It is in the latter that the Fascist footprint is most evident, both for the nature of certain crimes (e.g. article 265 of the Code prohibits “political defeatism”) and for the order in which they appear, which echoes the hierarchy of values of the Fascist regime. The general part, however, opens by introducing the principle of legality, the prohibition of retroactive application criminal law, and the prohibition on recourse to analogy as fundamental principles of criminal law. These are principles that predate the Fascist ideology and which were part of the legal education of those who drafted the code. They stand in stark contrast to the general principles governing German criminal law during the National Socialist rule, which in substance left to the judge the freedom to incriminate whoever exhibited a behaviour that appeared to conflict with the interests of the National Socialist Party. The Codice Rocco is thus essentially a sufficiently liberal and still modern code, and while there are some articles of the general part which were influenced by the Fascist ideology, the unitary system is not one of them.

2.  A unitary model is possible and may have practical advantages

Italian law does not distinguish between principal perpetrators and accomplices. By contrast, both the ICTY and the ECCC adopt such a distinction. As an Italian lawyer trained to examine criminal liability through a monistic lens, I see the modes of liability applied by the ad hoc tribunals as an unnecessarily prescriptive characterization of different ways of participating in a crime. I hold this view because:

  • Apart from superior responsibility,[2] all modes require that the accused, by ordering, instigating, planning, or aiding and abetting,[3] substantially contributed to a crime, or that her conduct had a substantial effect on its commission.
  • Similarly, for Joint Criminal Enterprise (JCE), the law requires that the accused made a significant contribution to the common criminal plan.
  • With respect to the subjective element, they require that the accused made this contribution with the intent that the crime be perpetrated, or with the awareness of the substantial likelihood that a crime would be committed as a consequence of her conduct.
  • For aiding and abetting, the required mens rea is knowledge that the aider’s conduct will substantially contribute to the commission of the crime.
  • There is thus little difference in the required actus reus,[4] and a sufficient homogeneity on the mens rea side (knowledge, in my view, would also be a sufficient standard to attribute liability through a unitary model – see the next paragraph).

These all appear to be good reasons to consider whether the existence of a variety of modes of liability with an identical or sufficiently similar mens rea requirement is necessary. While some differences, especially if we consider the ICC Statute, do remain in the current universe of modes of liability internationally, they are of a nature that they can be reconciled in a unitary model, especially with appropriate adjustments in the sentencing law and practice. The means with which a person causes or contributes to a crime are not generally determinative of criminal liability strictu sensu. At most, they may be factors relevant for sentencing.

A word about the knowledge standard for aiding and abetting. Leaving aside Professor Stewart’s correct observations that some judgments of the ad hoc tribunals actually require a recklessness standard for aiding and abetting (i.e. knowledge of the probability that her conduct will assist the commission of the crime),[5] the knowledge standard as interpreted by the ad hoc tribunals would suffice, in Italy, to convict an accused for an intentional crime, i.e. one requiring dolus. By way of example, if I want to kill my business associate, and I ask a friend of mine to lend me his gun informing him that I need it to perpetrate the murder, if eventually I commit the murder both my friend and I will answer for it as perpetrators. I see no dogmatic problem with this approach: knowing that our conduct will cause or is likely to cause certain consequences, and still engaging in such conduct, essentially amounts to an intentional act, irrespective of whether those consequences were also desired.

In my experience, it is often practically difficult to distinguish whether a person contributed to a crime with knowledge (in the sense of awareness that one’s conduct will (likely) produce certain consequences) or intent (in the sense of knowledge with the added element of the desire to achieve certain consequences).[6] This, in turn, renders it problematic to legally characterize one’s responsibility as commission through a JCE or as aiding and abetting.[7] Let’s take the example of an alleged JCE the criminal objective of which is the deportation of an ethnic minority. To establish liability through JCE, the prosecution will need to prove that the accused, in concert with others, significantly contributed to the deportation with the intent to commit that crime. In practice, however, it may be difficult (or even impossible) to distinguish this situation from that of someone whose conduct (e.g. the provision of buses to deport the minority) substantially contributed to the deportation with knowledge that the provision of those means would assist that crime, but without the desire to achieve that result: in this scenario, the accused would incur liability via aiding and abetting. In ICL cases, there is seldom a “smoking gun” that allows a simple determination of one’s state of mind and, especially in JCE cases, intent is often inferred from a combination of knowledge and continued participation. This system, however, is far from infallible. Personally, I am not convinced that it is always (or even often) possible to distinguish if a person acted with mere knowledge or intent. Consequently, the law of the ad hoc tribunals features a theoretical distinction that the judges may not be able to apply – beyond reasonable doubt – to the facts under their scrutiny.

Thus, considering that all modes of liability (apart from – to some extent – superior responsibility which I will discuss below) can be distilled as intentional conduct causally linked to the crime, and in consideration of the mens rea issue in relation to JCE/aiding and abetting, I believe that a shift to a unitary model would be both possible and desirable. The superior who orders the pillaging of a village, the officer who plans it, the corporal who incites her troops to carry it out, the mayor of a nearby town who provide trucks to transport the loot, and the foot soldiers who remove valuables from civilian houses all contribute to the loss of property of the villagers. They are all to blame, and their responsibility can be assessed by examining whether they contributed to this loss with the required mens rea. The different degrees of responsibility of all these participants in the crime can be taken into account in sentencing, and, as Professor Stewart has argued, a summary of each convicted person’s criminal conduct could be included in the judgment’s disposition. On a more practical side, this system would also save considerable time in the drafting of international criminal judgments, where addressing multiple modes of liability requires considerable time and human resources. Since the costs of ICL are a constant concern across the international courts, together with the length of some proceedings, this practical advantage should be given just consideration.

A unitary model would not, in my view, affect an accused’s right to know the nature and cause of the charges against her, and consequently her ability to defend herself. While it is certainly indispensable – in fact, it is a fundamental right – for the accused to be informed of how she is alleged to have participated in a crime, international indictments often use rather general formulas such as “by way of her position, the accused ordered, instigated, planned, or otherwise aided and abetted…”. This practice, which very often includes charging suspects with all the available modes of liability, and then adjusting their aim during trial depending on the evidence, offers little information to the accused with respect to the actual nature of her causal contribution to the alleged crimes. On the other hand, it requires a diligent defence counsel to prepare for and address all the alleged modes. Moving away from modes of liability could require prosecutors to draft indictments which describe more precisely the accused’s alleged criminal conduct. It would also put an end to the practice of charging all modes of liability statutorily available, which in turn would allow the defence and the chambers to better focus their work and possibly shorten the duration of the proceedings.

Regarding superior responsibility, I see merits in the suggested separation of the failure to prevent from the failure to punish, treating the former as a form of participation and the latter as a separate crime. Failure to prevent crimes of subordinates which contributed, at least at the level of facilitating, the commission of the subordinates’ crimes may, if the accused acted with the required mens rea, amount to aiding and abetting by omission. In a unitary system, therefore, failure to prevent could be subsumed under a monistic model of participation which makes anyone who contributed to that crime with knowledge or intent responsible for it. As for failure to punish, the creation of a specific offence based on the commander’s dereliction of duty seems a preferable solution. First, it would avoid the theoretical difficulties encountered by judges and scholars when trying to introduce a causal nexus in this mode of liability. Second, on the front of general prevention, superiors would still be incentivized to properly exercise control and call to task criminal subordinates to avoid criminal sanctions, as well as administrative and disciplinary ones which may be imposed as accessory penalties for this type of offence. Finally, considering failure to punish as a discrete crime would be more respectful of general principles of culpability, which are violated when we convict a superior who negligently failed to punish the murder committed by his subordinate for murder (this violation is even more egregious if the superior did not have actual knowledge of the crime, but only “had reason to know” or, even worse, “should have known”).

Eliminating modes of liability, however, would certainly not be a panacea for blame attribution in ICL. In Italy, where there is a unitary system of participation, there have been long, vibrant, and often unresolved debates on different theories of causation and on the system’s adherence to the principle of culpability enshrined in the Constitution. Thus, the adoption of a unitary system in ICL would also presumably shift the debate and practical problems from modes of liability to the main pillars of blame attribution: causation and culpability. This shift would, I suspect, also be a healthy one for international criminal justice.

3.  Culpability distortions in the Italian system

With respect to culpability, Professor Stewart is perhaps too benevolent about the Italian unitary system’s ability to “avoid modes of liabilities acting as a prism that distorts responsibility, instead of assigning it in line with the culpability announced in the crime”.[8]

In Italy, the rules governing participation of a plurality of persons in the commission of a crime are set forth in articles 110 to 119 of the Penal Code. Article 110 essentially states that when a plurality of persons contribute to/participate in the commission of a crime, each of them is responsible for the sanction prescribed for that crime. The judge may then impose different sentences based on the intensity of their contribution and mens rea. To incur liability through article 110, a person must have at least “facilitated” the commission of the crime. As for the subjective element, article 110 requires either dolus or dolus eventualis (the appropriate definition of the latter is probably one of the most debated issues in Italian criminal law but, it suffices to say, dolus eventualis is generally interpreted as a higher standard than the foreseeability one in JCE III).

Article 116 of the Penal Code, however, states that when more people participate in the commission of a crime (for instance a bank robbery), if a different crime is committed by some of the participants (for instance murder), and this crime was not intended by the others, even those who did not intend the different crime will be punished for it, provided there exists a causal nexus between their conduct and the crime. If the crime not intended by some of the participants is graver than that agreed by them, the judge must take it into account at the sentencing stage. In spite of this mitigating factor, this is essentially a form of strict liability which violates the principle of culpability enshrined in the Italian Constitution.[9] The Constitutional Court partly corrected this state of affairs in 1965, stating that for a participant to incur liability for a crime different from the one she intended, the different crime must have been one that was at least a logically foreseeable development of the intended actions, according to common diligence and considering all the circumstances of the case. Thus, article 116 essentially allows a judge to convict someone for a crime requiring intent even when the evidence only establishes a much less culpable state of mind. This is one of the criticisms put forward by many scholars, including Professor Stewart, to JCE III. Those who defend article 116 might do so for reasons similar to those expressed by Professor Damaška in The Shadow Side of Command Responsibility (2001), where he stated that the persons to whom the graver crime is attributed through such system had already consciously decided to participate in a dangerous criminal activity, thus creating a “less dramatic shift in the register of culpability.”[10]

In sum, while I believe that a shift to a unitary model would be possible and could potentially have practical advantages for ICL, I am also aware that in the delicate field of criminal law there is no perfect system of blame attribution. Individual criminal responsibility is a fascinating but complex subject, and this comment of mine, based on years of practice may seem cursory from a scholarly perspective. I am aware that I have, in a non-scientific fashion, taken a position on issues which are the subject of vibrant academic debates, of long hours of legal research, and of thorough academic articles. Mine is the opinion of an Italian practitioner of international criminal justice, who in the past ten years has had the opportunity to test the advantages and limits of the pluralistic model of participation. I thank Professor Stewart for inviting me to share this practical perspective as part of this symposium.

 

 

 

 

[1] The views expressed in this comment are exclusively mine, and do not necessarily reflect the views of my present or former employers.

[2] While the jurisprudence of the ad hoc tribunals does not require a causal nexus between a commander failure to prevent and/or punish the crimes and their commission, I am aware that this position is criticized by scholars as non-reflective of customary international law. At the ICC, proof of a causal link is required, in terms of an increased risk, in relation to failure to prevent only, although some scholars and judges have expressed the view that causation is also required with regard to failure to punish.

[3] While ICTY jurisprudence cited by Professor Stewart in The End of Modes of Liability (p. 48) stated explicitly that proof of causal-effect relationship between the conduct of the aider and abettor and the commission of the crime is not necessary, it is possible that this was not meant to signify that no causal link at all is required between the acts of the aider and the crime. First, as noted by Stewart, the conduct of the aider or abettor needs to have a substantial effect on the commission of the crime. As a practitioner, I find it difficult to distinguish this requirement from causation. I am of the view that the Blaškić Chamber actually meant that the contribution of the aider or abettor need not be a conditio sine qua non. In the Applicable Law Section of the judgment in the case of Popović et al., in fact, paragraph 1018 first prescribes that the aider and abettor’s conduct must have had a substantial effect on the crime, and then clarifies that it is not necessary, however, to prove that the crime would not have been committed absent contribution of the aider and abettor.

[4] While significant is a lesser standard of contribution than substantive, I doubt that a review of the jurisprudence of the ad hoc tribunals would reveal a consistent and coherent practice in characterising the facts emerged from the evidence as a significant or substantive contribution.

[5] The End of Modes of Liability, pp. 38-39.

[6] To incur in JCE liability, a person must, inter alia, intend to further the common criminal plan.

[7] This problem is also noted by Matteo Costi in Introduzione al Diritto Penale Internazionale (terza edizione), Milano, Giuffrè, p. 117.

[8] The Strangely Familiar History of the Unitary Theory of Perpetration, p. 22.

[9] The Italian Constitution was issued in 1948, so when the Codice Rocco was issued in 1930 there was no constitutional impediment to article 116.

[10] In his article, Professor Damaška took as an example the felony murder rule in American law. It seems to me that the situation I described in the example features substantive similarity with this type of common law felony.

Norway: Three Codes, Three (Somewhat) Different Solutions


Jørn Jacobsen is a Professor in the Faculty of Law at the University of Bergen.


James G. Stewart’s argument for a unitary theory to replace the modes of liability in international criminal law is of particular interest from the point of view of Norwegian criminal law theory. Here, one of the most prominent contributors to the discipline, Bernhard Getz, made a similar claim in the latter half of the 19th century. Getz’ famous work on a unitary theory from 1875 is often hailed as a masterpiece (published in 1876 as Om den saakaldte Delagtighed i Forbrydelser – en strafferetlig Undersøkelse: Prøveforelæsning over selvvalgt Thema ved Concurrence om en Professorpost i Lovkyndighed). For good reasons too: he wrote it at only 25 years of age, and it certainly demonstrated a theoretical maturity that was a great surprise to Norway ‘s then fledgling criminal law discipline. After all, one counts Schweigaard’s commentaries from the 1840’s as the starting point for this discipline, and Getz’s work was the first significant theoretical contribution to it.

Getz became a professor the year after he published his book, and went on to have a huge impact on the formation of modern Norwegian criminal law. Getz and his close companion, Francis Hagerup, exhibited their impressive ambitions for criminal law in other manners too. They had international ambitions, and were both active in the AIDP (Association International de Droit Penal – International Association of Penal Law). Even more importantly from a Norwegian point of view, they filled key positions within the Norwegian political and legal order. Professor Hagerup served two separate terms as Prime Minister. Getz, for his part, held key positions in forming Norwegian legislation on criminal law and criminal procedure. He led both the commission preparing the Criminal Procedure Code of 1887 and the Criminal Code of 1902. He then became the first Director of Public Prosecutions in order to implement the Criminal Procedure Code of 1887. Certainly, this was the golden age for Norwegian criminal law – likely the first and only time when a criminal law professor held such prestigious positions in Norwegian society and with regard to the Norwegian criminal code, which was hailed as landmark legislation by central Continental criminal law scholars.

What then about Getz’s unitary theory? In itself, it was a critique of the then existing criminal code, the Criminal code of 1842. Norway’s first criminal code after independence was achieved in 1814. The code was itself a result of constitutionalization, as the Constitution of 1814 sect 94 required a criminal code to be enacted. This criminal code was imprinted by the Continental ideals at that time. The models used were the Code Penal (1810) and in particular the Code of Hannover (1840), which was itself inspired by Feuerbach’s Bavarian criminal code of 1813. Not surprisingly, this code differentiated between contributors to crime. In the code, a separate chapter was dedicated to ‘Participation’ (chp. 5), which was understood as something different from the ‘Perpetrator’. Here, the code had separate provisions for several different forms of participation, such as instigation of crime.

Starting from a concept of causation, Getz heavily criticized the 1842 Code. As there were no conceptual differences between the participator and the perpetrator, there was no reason to differentiate between them – thus the title ‘On so-called Participation in Crime’. The unitary theory was also the starting point for Getz when he embarked on the task of drafting the new Penal Code of 1902, which was celebrated throughout Europe. Here, in line with Getz’s program, there was no separate chapter on participation. In regard to sentencing, however, a section of the code in keeping with Stewart’s approach, assigned differences between different contributors’ importance. Getz clearly aimed at putting his theoretical enterprise into practice. However, the code of 1902 still included complicity as additional elements in a number of specific offenses. The additions do not appear to be consistently included in the code. This also left it for court practice to decide in regard to a number of offences whether complicity gave rise to criminal responsibility. In regard to several offences, the Supreme Court concluded that it did. Complicity therefore remained a central concept in Norwegian criminal law theory and practice even after Getz’s own code.

The lack of complete coherence between Getz theoretical project and his solution as a drafter of the code has often been emphasized in later literature. Unfortunately, Getz passed away at young age in 1901 – a year before his criminal code was enacted. As a consequence, we do not know how he would have responded to this criticism. Moreover, it is a point of intrigue for the current debate that later Norwegian scholars have not followed Getz’s approach on these questions. In particular, G. Astrup Hoel (1941) and Erling Johannes Husabø (1999) have criticized it. Husabø’s critique of Getz, in the most recent and extensive investigation into complicity in Norway, starts out from a different concept of causation and also offers conceptual arguments concerning the relation between ‘Perpetrator’ and ‘Participator’.

In 2015, the Norwegian code of 1902 was replaced by the Penal Code of 2005. At least in part, this legislative shift can be described as return to the original code of 1842. In the code of 2005, there is a general section on participation (sect. 15), which makes participation in crime in general subject to criminal responsibility unless otherwise stated in the offense. This new code does thereby not adopt the opposite solution to Getz’s code of 1902. In the preparatory works, there is no discussion of a unitary theory. Instead, treating complicity as a separate subject seems now to be taken for granted.

Lessons learned? There are two ways to see the rise and fall of the unitary theory in Norwegian criminal law. One way to see it is as an unfulfilled promise, one that was hindered by Getz’s early death, legal culture and other obstacles. The other way to see the Norwegian story is that the theory was flawed in the first place. There is not room for a detailed discussion of the subject here, nor on the particularities of international criminal law and the distinct challenges to modes of liability that this field of law faces. It seems clear, however, that the history of Norwegian criminal law at least is not a particularly strong argument for the potential of a unitary theory internationally.

The Unitary Form of Participation in Danish Criminal Law (and Its Potential Use in International Criminal Law)


Dr Iryna Marchuk is an Associate Professor in the Faculty of Law at the University of Copenhagen.  She has authored the monograph Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis (Springer 2014, reviewed in the Journal of Int Crim Justice 15(2), 2017).


In his article, which is a basis for this mini-symposium on criminal participation, James G. Stewart advances the unitary theory of participation that has been utilized in a number of national jurisdictions, including Denmark.[1] He opines that the Danish approach to criminal participation – being representative of the unitary form of participation – can be successfully transposed to international criminal law that has been struggling to find adequate forms of attribution that characterize responsibility for international crimes.[2] Much criticism has been directed towards the interpretation of forms of liability in the ICC that has fallen for Claus Roxin’s theory of participation that distinguishes between principals and accessories to a crime based upon the ‘control over the crime’ theory.[3] Needless to say, the introduction of Roxin’s theory into international criminal law has been subject to passionate debates among academics and practitioners alike who have pondered over its suitability for the needs of international criminal law.[4] The critics of the theory, among them James G. Stewart, have come forward with alternative suggestions as to how criminal responsibility can be assigned to those responsible for international crimes. In this mini-symposium, I was asked to comment on the applicability of the unitary form of participation from the Danish perspective. More specifically, I will focus on the historical evolution of the concept of unitary form of participation in Denmark, its understanding in the theory of criminal law, its applicability in practice, and reflect on the suitability of the unitary form of participation in international criminal law.

The unitary form of participation that does not distinguish between principals and accessories to a crime was introduced into Danish criminal law by Carl Torp who shared the views of the Norwegian scholar Bernard Getz as to the interpretation of participation in a crime. Getz’s theory, introduced in ‘On The So-Called Complicity in Crime’, is rooted in his understanding of causality.[5] In his opinion, every act that is a condition for the violation of law should be equally punishable by criminal law. This, in his view, makes a formal distinction between principals and accomplices to a crime completely unnecessary.[6] The mantle was picked up by Torp, who was inspired by Getz’s theory and advocated for abolishing the distinction between parties to a crime in Danish criminal law, as he considered the perpetrator’s and the accessory’s conduct as being equally unlawful.[7]

More specifically, Torp argued that in reality it is impossible to draw a clear distinction between a principal (gerningsmænd) and an accomplice (meddelagtige) to a crime either on the objective or on the subjective grounds.[8] He criticized the objective theory that distinguished between a principal and accomplice to a crime based on causality.[9] According to the theory, a principal is a person whose action is causal to a crime, whereas an accomplice is a person whose action is merely a condition leading to the commission of a crime. Torp opines that in the chain of causal acts, all of them are equally necessary for the crime to take place and therefore the distinction advanced by the proponents of the objective theory is irrelevant.[10]

Following this, Torp takes on the subjective theory of participation that distinguishes between a principal and an accomplice to a crime based on the person’s subjective state of mind. If a person entertains the intent for committing the crime and embraces the crime as his/her own, he/she is a principal. If the person takes part in realizing other person’s intent and advances the other person’s interests, he/she is an accomplice. Torp opines that the subjective theory does not provide any clear and practically useful distinctions between parties to a crime.[11] In fact, he argues that judges would find it practically unsolvable to draw a clear demarcating line between parties to a crime since the distinction based upon the subjective state of mind simply does not exist.[12]

Torp’s understanding of participation in a crime has been influential in Denmark. This is largely due to the fact that the unitary form of participation was incorporated into the 1930 Danish Criminal Code that introduced § 23, which does not formally distinguish between parties to a crime.[13] This marked the departure from the 1866 Criminal Code that clearly distinguished between principals and accomplices to a crime. In the explanatory notes to the to the 1930 Danish Criminal Code Draft, Torp posed an important question as to “whether all parties to a crime should be punished equally, and whether some should be punished milder than others or should be altogether relieved from criminal responsibility”.[14] He considered the equal treatment of a person who committed a crime and an accomplice fully justified since both of them had triggered conditions for the crime to take place.[15] He opined that the theoretical construction of the participation in a crime belongs to an academic discussion, whereas the law should have a rather neutral expression.[16]

As a result of Torp’s involvement in the legislative preparatory work, the 1930 Danish Criminal Code provides a rather succinct provision on criminal participation that “applies to anybody who by means of instigating, counseling or aiding has contributed to a crime”.[17] At first glance, it seems that the provision distinguishes between parties to a crime; however, the legislative intent was in fact the opposite – to erode any distinction between principals and accomplices. In other words, any contribution to a crime, regardless of whether it is physically committing the crime or providing assistance, is equally blameworthy. The introduction of the unitary form of participation has not been uncontroversial in Danish law. Ross criticized the doctrine for failing to distinguish between parties to a crime, specifically in relation to so-called ‘result’ offences (forårsagelsesdelikter).[18] He submits that there is clearly a difference between a person who fires a gun at close range and a person who supplied the gun or provided the address of a victim. He continues that it is impossible to imagine that an accomplice could have entertained the direct or probability intent as required for the crime of murder.[19] In Ross’ opinion, these considerations render the Getz-Torp theory meaningless.[20]

Although there is no formal distinction between parties to a crime in the Danish Criminal Code, the law gives broad discretionary powers to the judiciary at the sentencing stage that can impose a milder sentence based on the participant’s degree of contribution to a crime or his/her subjective state of mind. According to § 23, a sentence may be reduced in a number of situations: (1) a person who intended to provide a less substantial contribution to a crime; (2) a person who intended to strengthen an already formed criminal intent; (3) a crime was not completed; and (4) intended participation failed.[21] The judges have at their discretion to choose not to impose a sentence for participation in a crime that carries a sentence of imprisonment up to maximum of 4 months and where such participation was due to negligence.[22]

The scope of § 23 of the Danish Criminal Code is rather wide and far-reaching. As noted by Vestergaard, the Danish Criminal Code – representative of an “extreme variation of Einheitstäterbegriff” – has no counterparts in Europe when it comes to the “brevity and wideness of criminal law provisions on participation in a crime”.[23] One of the key features of participation in a crime under Danish criminal law is that there is no requirement that the principal offence be committed in order to impose criminal liability upon a party to a crime. Also, there is no requirement in Danish law that the person’s action has to be causal to the commission of the crime.[24] It is clear from the wording of § 23 that participation in a crime may take place in the form of (1) instigating, (2) counseling or (3) aiding. The provision should be read as covering all parties to a crime, including a person who commits the crime and those who in any other way contribute to the crime. Instigating is understood as covering any verbal or physical conduct that prompt another to commit a crime or encouraging another person to provide assistance, which is necessary for the commission of the crime.[25] Counseling consists of providing guidance and giving hints. As an example, the supply of information about the building’s layout, the address of a victim, or tax related information fall within counseling as understood by Danish criminal law.[26] Aiding means undertaking any preparatory or executive steps towards the commission of a crime (e.g. assistance with the transport, physical use of force).[27] Passive participation is also punishable under Danish criminal law, in particular in situations when a person has an obligation to act and could have prevented the crime from taking place. Participation in a crime may take place at any time at the preparation or execution stages of the principal offence and in some circumstances after the crime has been committed.[28] As for the mens rea required for participation in a crime, both intent and negligence will be sufficient and the required mens rea standard varies according to the mens rea, which is required for a specific crime. However, each participant is judged based on his subjective state of mind, which means that there are situations when participants in a crime are charged with different offences based on mens rea they have entertained (e.g. one participant is charged with theft, whereas another one is charged with burglary).[29]

Despite the absence of a formal distinction between parties to a crime, normal meaning is being accorded to the words ‘perpetrator’ (gerningsmand) and ‘accomplice’ (medvirkende) in academic literature and judgments of Danish courts. However, there is no consistency in the way the terminology is used since Danish courts are not bound to employ uniform terminology to distinguish between parties to a crime.[30] As an example, if the act of participation is not covered by the offence description in the special part of the Criminal Code, the Danish courts in their judgments are not obliged to refer to § 23 as a ground for imposing criminal responsibility.

This contribution to the symposium is by no means an all-exhaustive account of participation in a crime in Danish criminal law. Rather it is an attempt to outline the legal contours of the unitary form of participation as it has historically developed in Danish criminal law and has been applied in practice. The ultimate question of this symposium is whether a unitary form of perpetration – similar to the Danish example – could prove to be a useful in assigning criminal responsibility to the culprits of international crimes and be transposed to international criminal law.

First of all, I believe that the idea of the symposium itself that draws on expert opinions of scholars from different national jurisdictions is brilliant. This open conversation and exchange of opinions allow us to infer general principles underlying the attribution of individual criminal responsibility across many jurisdictions that could be distilled and applied in the context of international criminal law. Clearly, the ICC’s transposition of Roxin’s theory is problematic, as it seems unfair that the German doctrine was recognized to be well suited to cater to the needs of international criminal law without any attempt on the part of the ICC judges to conduct a thorough comparative legal analysis of the notion of criminal participation in other national jurisdictions. Hence, this invitation to contribute to the understanding and applicability of the theory of criminal participation in different national jurisdictions is particularly valuable, and hopefully will have a catalyzing effect on the interpretation of the concept of participation of crime in international criminal law.

Is there anything useful that we can learn from the Danish example? Could the unitary form of participation work in international criminal law? The fact that the unitary form of participation has been in place in Denmark since 1930 and still remains unchanged is a strong indicator that it is a workable tool. However, should the unitary form of participation find its way in international criminal law, a number of challenges associated with the implementation of the doctrine may arise:

1) Far-reaching scope of the doctrine that would allow penalizing any kind of conduct, which is part of the offence. The doctrine is extremely wide in its scope as technically any contribution to a crime, regardless of how insignificant it is, should be criminally liable. On the one hand, it seems that there would be no harm in embracing rather wide provisions on criminal participation in international criminal law that criminalize any conduct that leads to the commission of core international crimes. On the other hand, it seems very unlikely that the cases of attempted perpetration of international crimes or attempted participation more broadly would actually make it to the international courts and tribunals. The ICC is already experiencing a heavy workload investigating the crimes within the jurisdiction of the Court and preliminarily examining alleged crimes in various parts of the world. It is unlikely that the ICC would be interested in expanding its workload by looking at conduct that does not live up to the required gravity threshold in light of the insignificant contribution to a crime as it is interested in going after ‘big fish’.

2) Dangers of going back to the ‘just convict everybody’ approach in the ad hoc tribunals. One can easily see that the implementation of the unitary form of participation would benefit the work of the prosecutorial divisions of international courts and tribunals. In this case, while assigning criminal liability to the person, the Prosecutor would not have to be preoccupied with evaluating the level of contribution and marrying it with a specific mode of liability. However, the adoption of of the unitary form of participation with its broad and far-reaching scope may lead us to going back to the infamous practices of the ad hoc tribunals that have been criticized for endorsing an extremely broad form of the JCE doctrine that was equated with the ‘just convict everybody’ approach. In practice, of course, the Prosecutor of any international court or tribunal has the ability to filter cases that would be submitted for further consideration by the judges and it is unlikely that they would initiate cases where the suspect’s contribution was rather insignificant or there is a missing causal link between the person’s action and the outcome. That said, one should be aware of possible implications that could accompany the transposition of the unitary form of participation into the terrain of international criminal law.

3) Uncertainty as to the sentencing practice. The dichotomy between principals and accomplices to a crime in the German theory is clearly reflected in domestic sentencing practices. In other words, a principal whose contribution to a crime was essential deserves a higher punishment than an accomplice whose contribution to a crime was less significant. The unitary form of participation as known in Danish law recognizes all parties to a crime as equally criminally liable. Technically, all parties to a crime deserve the same punishment. However, in practice judges may chose to reduce punishment for some parties to a crime in light of specific circumstances. The transposition of the unitary form of participation to international criminal law may create difficulties at the sentencing stage. Should the judges of international courts impose the same punishment upon a rebel commander who supplied one box of Kalashnikov guns as the Head of State who masterminded and directed the implementation of the genocide campaign? If international courts opt for the unitary form of participation, the judges may choose to exercise their judicial discretion and impose punishment depending upon the role and contribution of each party to a crime.

4) No formal distinction between principals and accomplices to a crime but it is still implied. The key feature of the unitary form of participation is the absence of any formal distinction between principals and accomplices to a crime. But is such a distinction truly ignored in practice? As shown by the Danish example, although the law is formulated in neutral terms equally imposing criminal responsibility upon all parties to a crime, in practice judges do in fact distinguish among parties to a crime by imposing different sentences based upon the person’s actual involvement in the crime. In the judgments of Danish courts, words such as ‘perpetrator’ and ‘accomplice’ are attributed their normal meaning and often feature in the text of the judgments. If the form of unitary participation made its way to the ICC, the problems that the Prosecutor and judges are saddled with when matching the suspect’s conduct to the specific mode of liability would disappear. There would be no need to determine whether the suspect was a direct perpetrator or an indirect co-perpetrator based on a rather complex German ‘control over the crime’ theory. However, this does not mean that the judges wouldn’t have to be preoccupied with evaluating the level of contribution to a crime, especially at the sentencing stage.

5) Is the wording of article 25 of the Rome Statute compatible with the unitary form of participation? When the ICC judges introduced Roxin’s ‘control over the crime’ theory to distinguish between principals and accomplices to a crime, some scholars and even the ICC judges themselves were skeptical of the adopted approach. Article 25 of the Rome Statute does not mention the control over the crime approach and only lists available modes of liability. The question that has troubled academics and practitioners is whether modes of liability as listed in article 25 of the Statute are arranged in a particular hierarchical order where clear predominance is given to principal modes of liability. If the unitary form of participation is adopted in the ICC, then it does seem that the wording of article 25 is not ideal. It seems redundant to distinguish between various modes of liability to a crime if the unitary form of participation requires no such distinction. In that case, Article 25 would benefit from a more simplified formulation akin to the provision on criminal liability in the Danish Criminal Code.

6) Is universal application of the unitary form of participation truly possible? In his article, James G. Stewart posits that the unitary form of participation could serve as an effective tool to establish participation in the international crime regardless of the forum where it is charged, be it a national or an international one. Although the theory has the potential of becoming a rival to Roxin’s ‘control over the crime’ theory in the ICC, its universal applicability in the countries that ratified the Rome Statute is rather questionable. If core international crimes were to be prosecuted at the national level, the judges would still employ tools of attribution available in the national jurisdiction and do not really need to invoke the unitary form of participation to arrive at a reasonable outcome.

7) Interpretation problems. One should not discard that Denmark is a small jurisdiction where judges are trained in the same legal tradition. Whereas Danish judges are used to dealing with the unitary form of participation in practice, international judges who are trained in different national jurisdictions will undoubtedly encounter problems in applying the theory in practice. In particular, the judges who come from national jurisdictions where there is a clear divide between principals and accomplices to a crime will have a harder time grasping the applicability of the theory in practice and disagreements are likely to take place.

Conclusion

The implementation of the unitary form participation in international criminal law may prove to be a workable tool. It would undoubtedly make the job easier for the Prosecutor and the judges who would not have to be concerned about making correct determination at the initial stages of trial as to the role played by the suspect/accused in the commission of international crimes and choosing the correct mode of liability. However, it does not mean that the unitary form of participation could be a panacea from all the criminal participation related problems encountered by the ICC. As discussed above, a number of challenges may arise and disagreements may take place, especially at the sentencing stage. The major danger of the transposition of the concept is that it does not repeat the fate of the JCE doctrine (representative of the subjective theory) given its broad and far-reaching scope. My analysis of the unitary form of participation is based on my knowledge of the Danish model, which is an extreme form of Einheitstäterbegriff. I do not discard that there may be some other variations of the unitary form of participation in other national jurisdictions that may better cater to the needs of international criminal law.

[1] Stewart, James G., The Strangely Familiar History of the Unitary Theory of Perpetration (January, 2016). Forthco

ming in Bruce Ackerman et. al. (eds.), Visions of Justice, Essays in Honor of Professor Mirjan Damaška (Duncker & Humblot, Berlin, 2016). See also: Stewart, James G. “The End of ‘Modes of Liability’ for International Crimes.” Leiden Journal of International Law 25.01 (2012): 165-219.

[2] Ibid., pp. 13-18.

[3] Pre-Trial Chamber I, Prosecutor v. Thomas Lubanga Dyilo, “Decision on the confirmation of charges”, 29 January 2007, ICC-01/04-01/06-803-tEN, paras 326-341; Trial Chamber, Prosecutor v. Thomas Lubanga Dyilo, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2843, para. 994; Prosecutor v. Germain Katanga, “Judgment pursuant to Article 74 of the Statute”, 07 March 2014, ICC-01/04-01/07-3436, para. 3194. See: C. Roxin, Täterschaft und Tatherrschaft (Verlag de Gruyter, Hamburg, 8th ed., 2006), pp. 277-282.

[4] Jessberger, Florian, and Julia Geneuss. “On the Application of a Theory of Indirect Perpetration in Al Bashir German Doctrine at The Hague?.” Journal of International Criminal Justice 6.5 (2008): 853-869 (arguing in favor of the concept of indirect perpetration as a key mode of liability in ICL); Ohlin, Jens David. “Joint intentions to commit international crimes.” Chicago Journal of International Law 11.2 (2011): 693-753 (suggests a theory of joint intentions as an alternative to the JCE doctrine in the ad hoc tribunals and the control over the crime theory in the ICC); Manacorda, Stefano, and Chantal Meloni. “Indirect Perpetration versus Joint Criminal Enterprise Concurring Approaches in the Practice of International Criminal Law?.” Journal of International Criminal Justice 9.1 (2011): 159-178 (views positively the introduction of the control over the crime theory in the ICC, while at the same time highlighting some possible challenges with respect to the implementation of the doctrine in practice); Werle, Gerhard, and Boris Burghardt. “Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute.”Pluralism in International Criminal Law, Oxford University Press (2014), Forthcoming (2013) (advocates for a systematic understanding of a four level hierarchy of individual criminal responsibility in Article 25 of the Rome State as a starting point of discussion); Ohlin, Jens David, Elies Van Sliedregt, and Thomas Weigend. “Assessing the control-theory.” Leiden Journal of International Law 26.03 (2013): 725-746 (calling on the ICC Appeals Chamber to reconsider or improve the control over the crime theory in the ICC); Granik, Maria. “Indirect Perpetration Theory: A Defence.” Leiden Journal of International Law 28.04 (2015): 977-992 (critically reflects on the suggested Ohlin’s theory of joint intentions and – as a title suggests – defends the applicability of the control over the crime theory in the ICC). See also: Trial Chamber, Prosecutor v. Thomas Lubanga Dyilo, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2843, Separate Opinion of Judge Adrian Fulford; Trial Chamber II, Prosecutor v. Germain Katanga, “Judgment pursuant to Article 74 of the Statute”, 07 March 2014, ICC-01/04-01/07-3436, Minority Opinion of Judge Van den Wyngaert, paras 280-281.

[5] Getz, Bernard, Om den såkaldte delagtighed i forbrydelser (Christiania, 1875), pp. 1-3 (indledende bemærkninger).

[6] Ibid.

[7] Torp, Carl, Den Danske Strafferets almindelige del (G.E.C.Gads Forlag, København, 1905), p. 559.

[8] Ibid., p. 559.

[9] Ibid., p. 560.

[10] Ibid., p. 560.

[11] Ibid., p. 571.

[12] Ibid.

[13] Danish Criminal Code (Straffeloven), available at https://www.retsinformation.dk/Forms/R0710.aspx?id=164192

[14] Betænkning angående de af den under 11. august 1905 nedsatte Straffelovskommission udarbejdede Forslag indeholdende Udkast til Love vedrørende den borgerlige Straffelovgivning med Motiver efter Justitsministeriets Anmodning udarbejdet af Carl Torp (København, Trykt hos J. H. Schultz A/S, 1917).

[15] Ibid. See Torp’s full citation in Danish: ”Tanken er formodentlig, at den medvirkende ubetinget maa stilles lige med den, der har foretaget en Iværksættelseshandling. Denne Ligestilling er sikkert berettiget, hvor Spørgsmaalet er om Betingelserne for at opnaa Straffrihed ved Tilbagetræden, fordi den medvirkende ligesom den, der har foretaget en Iværksættelseshandling, har sat Kræfter i Bevægelse, som han ikke mere — i alt Fald ikke fuldt ud — er Herre over.

[16] Ibid. See Torp’s full citation in Danish: ”I Virkeligheden er det Spørgsmaal, som
 Straffeloven bør tage Stilling til, kun det, 
om alle Medvirkende bør straffes lige, eller om nogle, og da hvilke, bør straffes mildere end andre eller være straffri. Den teoretiske Konstruktion bør overlades Videnskaben; og Loven bør derfor saa vidt muligt vælge ganske neutrale Udtryk.” In later academic works, there is also an overwhelming support for the simplification of the rules on the participation in a crime and preference for a practically oriented law in that regard. See: Hurwitz, Stephan, Den Danske Kriminalret almindelig del, 3. Oplag (G.E.C.Gads Forlag, København, 1964), p. 499.

[17] See: § 23 (1). In Danish: ”Den for en lovovertrædelse givne straffebestemmelse omfatter alle, der ved tilskyndelse, råd eller dåd har medvirket til gerningen.”

[18] Ross, Alf, Forbrydelse og Straf: Analytiske og reformatoriske bidrag til kriminalrettens almindelige del (Nyt Nordisk Forlag Arnold Busck, København, 1974), p. 120.

[19] Ibid., p. 121.

[20] Ibid.

[21] See: § 23 (2). In Danish: Straffen kan nedsættes for den, der kun har villet yde en mindre væsentlig bistand eller styrke et allerede fattet forsæt, samt når forbrydelsen ikke er fuldbyrdet eller en tilsigtet medvirken er mislykkedes.

[22] See: § 23 (3). In Danish: For så vidt ikke andet er bestemt, kan straf for medvirken ved lovovertrædelser, der ikke straffes med højere straf end fængsel i 4 måneder, bortfalde, når den medvirkende kun har villet yde en mindre væsentlig bistand eller styrke et allerede fattet forsæt, samt når hans medvirken skyldes uagtsomhed.”

[23] Vestergaard, Jørn, Criminal Participation in Danish Law – Uniformity Unlimited? in Raimo Lahti and Kimmo Nuotio, Criminal Law Theory in Transition: Finnish and Comparative Perspectives (Finnish Lawyers’ Publishing Company, Helsinki, 1992), p. 2.

[24] Ibid. Langsted, Lars Bo, Waaben Strafferettens almindelige del, 6. reviderede udgave (Karnov Group, København, 2015), pp. 245-246.

[25] Langsted supra note 23, p. 242.

[26] Ibid.

[27] Ibid.

[28] Ibid., pp. 246-250. See also: Vestergaard supra note 22, p. 9.

[29] Langsted supra note 23, pp. 250-251. See also: Hurwitz supra note 15, pp. 506-508; Vestergaard supra note 22, p. 10;

[30] Vestergaard supra note 22, p. 4.

The Theories of Blame Attribution In Brazilian Criminal Law


Carlos Eduardo A. Japiassú is Professor of Criminal Law at the Federal University of Rio de Janeiro and Director of the PhD Program at Estácio de Sá University. He is also the Secretary General of the International Association of Penal Law (IAPL).


  1. Introduction

The various possibilities for allocating blame for criminal offending are always important issues in Brazil, especially in recent years, with the emergency of punishing large corruption scandals by the Federal Justice System. The issues are numerous, including whether all perpetrators and accomplices should be punished equally or if they deserve different degrees of punishment according to their culpability. Aiming to answer this question, three main theories have been developed within Brazil, and Brazilian legislators have explicitly adopted some of them. In response to Professor Stewart’s recent article drawing on the Brazilian experience with the unitary theory of perpetration, I provide here an overview of these three theories to reflect more on the potential example Brazil may offer international criminal justice.

  1. The Pluralist Theory

For the so-called Pluralist Theory, each individual who commits a particular wrong shall be punished particularly (delictum sui generis). This maxim means that there must be as many crimes as participants in the criminal activity, as distinct from a single crime that various actors participated in. The Pluralist Theory has not been adopted by the Brazilian legislation as a whole, but, exceptionally, the Penal Code includes certain examples of its use. These include: article 124 (abortion committed by a pregnant woman or with her consent); article 126 (abortion committed by a third person with the pregnant woman’s consent); articles 217-A (rape of a person under 14 years old); article 218 (inducing someone under 14 years old to satisfy someone else’s sexual interest); art. 235 (bigamy) (marriage by an unmarried person to someone already married, knowing this fact); articles 317 (soliciting or receiving bribery) and 333 (offering or giving bribery). 

  1. Dualist or differentiated theory

According to this theory, there is only one single criminal act and forms of participation differ on two distinct levels. Thus, the main activity is carried out by the perpetrator, whereas accessory participation exists on a lower plane, such that it is punishable with a less severe penalty. A system of this sort creates two conceptual positions: perpetrator and accomplice. According to the Dualist or differentiated theory, each of the various modes of liability assigning wrongdoing to a particular actor fall within one or the other of these two families. Convincing an unwitting child to carry out a crime on one’s behalf is a form of perpetrating the crime; providing someone with mere assistance in carrying out the crime is a species of accessorial liability.

In Brazil, the 1830 Criminal Code (articles 4, 5 and 6), as well as the 1890 Penal Code (articles 17 e 18) adopted this dualist theory, distinguishing perpetrators and accomplices. The structure and content of these articles revealed an assumption that multiple actors joined together to bring about a single criminal offence, which they committed by making a main or a secondary contribution. Although Brazilian courts largely applied it prior to 1940 (see below), many lawyers and scholars of the period sharply criticized it. For instance, Justice Nélson Hungria,[1] member of the Brazilian Federal Supreme Tribunal from 1951 to 1961, argued that the differentiated approach was too complicated and exotic. These criticisms led to the adoption of the unitary theory of perpetration in the 1940 Penal Code, which Professor Stewart’s article references.

  1. The Unitary Theory

The Unitary Theory of Perpetration rejects the distinction between perpetrator and accomplice, positing that all participants are responsible for the crime they contributed to.[2] Although this unitary theory has faced many criticisms in Brazil, it came to represent a pragmatic solution to difficulties lawyers, judges and scholars experienced with differentiated modes of liability in this country. Thus, when the Brazilian legislature formally announced a unitary theory of perpetration in article 25 of the 1940 Penal Code, it intended to bypass much of the difficulty the differentiated system was perceived to have produced by relating perpetratorship and causation (article 11).

Nevertheless, it bears stressing that the 1940 Penal Code has always maintained a certain relationship with the differentiated theory, because, when addressing sentencing in article 45 of the Code, the penalty imposed on the organizer of a criminal cooperation is elevated vis-à-vis other perpetrators and/or accomplices. At the same time, article 48, II, of the Code established that the penalty can be reduced if the individual’s conduct was less important or if he or she decided to take part in a crime different from the one which was committed. Moreover, the General Part of the 1984 Penal Code has expressly watered down the Unitary Theory adopted by the 1940 Penal Code by allowing the punishment of offenders in accordance with their culpabilities. The resulting position in current Brazilian criminal law is therefore considered to be in between unitary and differentiated theories.

Therefore, in contemporary Brazilian Penal Law, blame attribution follows a mixed unitary theory. On the one hand, the chapeau of article 29 of the Penal Code reflects the unitary theory by insisting that “whoever, in any way, concurs for the crime is under the penalties attributed to it.” On the other, the Code elsewhere recognizes the differentiated theory to some extent by instructing courts to have regard for the gravity of the penalty. As a consequence, although the concept of perpetrator and accomplice is not articulated anywhere in the Brazilian Penal Code in keeping with the unitary theory of perpetration, it is possible to assign different penalties to each of the participants, in line with the differentiated theory.

  1. Conclusion

 The adoption of the mixed unitary theory in Brazilian Penal Law is well accepted in the country. Today, there are few debates about its propriety or conceptual coherence within the Brazlian legal community, perhaps because the unitary theory provides a pragmatic answer to problems raised in criminal cases. Besides, Brazilian criminal law scholars have not tended to be especially open to innovation. This legal conservatism is no doubt a feature of Brazil’s relative isolation: it is the only Portuguese speaking country in the Americas and most of the population lives close to the Atlantic Coast. These factors help produce a culture that, despite our initial import of the unitary theory all those decades ago, now has difficulties accepting foreign innovations in general and, among penalists, arguments against new trends and changes are common.

Thus, a pragmatic approach to blame attribution plus a certain legal resistance to change may explain the longevity of the Unitary Theory in Brazil to this day. Of course, it remains unclear whether a pure rendition of this theory or a mixed variant like that now applicable in Brazilian Penal Law is a good alternative for International Criminal Law or International Criminal Courts. That said, considering the different approaches of the Ad Hoc International Criminal Tribunals and of the International Criminal Court, it may be useful to consider the Unitary Theory as a simpler tool to answer this question.

[1] Nilo Batista, Concurso de agentes. Rio de Janeiro: Lumen Juris, 2005.

[2] Roberto Lyra, Comentários ao Código Penal, Vol. II. Rio de Janeiro: Forense, 1958, p. 317.

A Unitary Theory of Perpetration? New Zealand and a Touch of the International


Sir David Baragwanath is a Judge at the Special Tribunal for Lebanon, and was President of that court between 2011 and 2015. Before this, he sat as a judge of the High Court and the Court of Appeal of New Zealand. He was made a knight companion of the New Zealand order of merit. It is a great honor to host such a distinguished compatriot here.


Synopsis

This paper considers concepts of unitary theory of perpetration in relation to New Zealand domestic law and touches on aspects of international criminal law.  It argues:

  • that New Zealand law adopts in s 66(1) of its Crimes Act 1961 a dilute unitary approach (from which a divided Supreme Court in Ahsin v The Queen [2014] NZSC 153 has recently created a partial exception) and in s 66(2) a mixed unitary and non-unitary approach. It may be expected that New Zealand will prefer the recent UK Supreme Court and Privy Council decisions in R v Jogee [2016] UKSC 8 [2016] UKPC 7, which accord with the language of s 66(2), to the decision of the High Court of Australia in Miller v The Queen [2016] HCA 30 which preferred the approach of R v Chan Wing-Siu [1985] AC 168(PC) which, having been as accepted for 30 years as stating English law, was rejected in Jogee;
  • that the decision of the Special Tribunal for Lebanon in Interlocutory Decision on the Applicable Law STL-11-01/I 16 February 2011 (STL Casebook 2011 pp167-8, 177 and 182) paras 227, 248-9 and 259 n 381) in relation to terrorism (at para 249) conforms with Jogee by rejecting JCE III for crimes of specific intent;  other cases cited (para 239) adopt the more rigorous approach of a form of  JCE III which conforms with Chan Wing-Siu but not with the Statute of the STL.

The New Zealand statute

New Zealand criminal law is codified by the Crimes Act 1961 which states:

Part 4 Parties to the commission of offences

66 Parties to offences

(1) Every one is a party to and guilty of an offence who—

(a)  actually commits the offence; or

(b)  does or omits an act for the purpose of aiding any person to commit the offence; or

(c)  abets any person in the commission of the offence; or

(d)  incites, counsels, or procures any person to commit the offence.

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Discussion

In Alan Reed and Michael Bohlander’s Participation in Crime: Domestic and Comparative Perspectives,[2] Julie Tolmie of the University of Auckland gives a valuable overview of the New  Zealand perspective.

S66(1), as far as it goes, applies what James Stewart terms “a watered down unitary concept”: “criminal legislation [that] … articulates the different forms of causal connections that might apply within a unitary framework” and, unlike any example of  his pure unitary theory”, “does … forewarn would-be  criminals of their exposure to potentially serious criminal responsibility” and so not “violating  the principle of legality.”[3]  Both the “person who actually commits the offence” and all who “aid…, abet, incite, counsel or procure” the offence are party to and guilty of it.  All are factual contributors, in different ways, to the very same crime.  Each personally commits an act which in fact is causally connected to achieving the crime.

S66(2) provides a further pathway to liability for an offence by the one, who in the language of s66(1)(a), actually commits the offence,  on the part of all others who fall within the scope of s 66(2).

S66(2) constitutes in part a unitary offence – a single offence, to which all liable for it are regarded as parties. But in part it is not unitary: liability of Parties B1-B? for the offence committed by Party A does not derive from their factual contributions, in different ways, to the very same crime.  It is not necessary that, as in the case of s 66(1), each personally commits an act which in fact is causally connected to achieving the crime.   Instead S 66(2) imputes to Parties B –B? a legal vicarious liability for the offence Z of A, on account of (1) their being party with A to a common purpose (say bank robbery) which they share with him ( to commit that offence ), coupled (2) with their knowledge that his committing a different offence (say murder) is a probable consequence.

It should be added that in Ahsin the New Zealand Supreme Court, reversing Court of Appeal authority, held that s 66(2) imposes liability both for the robbery/ murder case just mentioned and also for a single offence the object of some common purpose. I respectfully disagree with that conclusion, based on a purely verbal reference to the words “common purpose” that can literally embrace the case of a single crime.    But the context does not permit that conclusion.    The “common purpose” is to commit a crime.  Once that element is established and the crime is committed the case under S66(1) is complete.  There is simply no reason to have s66(2) apply to that crime.  Its function is to impose liability for a second and distinct crime where the elaborate further mens rea condition is proved.  Ahsin unnecessarily complicates the clear and simple language of the statute.

There is a striking contrast with such non-unitary jurisdictions as Germany and Lebanon, whose Criminal Code distinguishes sharply between “the perpetrator of an offence” (Criminal Code Art 212) and others, such as “an accomplice”(Art 213) and “an instigator” (art 217).

Cassese writing extrajudicially pointed out that in international criminal law

…although it is not strictly required by any of the statutes of the modern international criminal courts, the judicial practice has been to classify every charge and conviction by mode of liability. Thus, the discussion of the modes of liability – whether it is, for example, commission, aiding and abetting, ordering, or command responsibility – is a focus of almost every judgment. [4]

Yet unless the law so requires, this complication of  trial and adjudication, by the introduction to international criminal law of concepts of “modes of liability” not stipulated by legislation or required by any general principle of law, is unnecessary.  Its use may illustrate the old habit of lawyers to create imaginary goblins.  Familiar examples are the notion that there is some such thing – Kant’s ding an sich­, a real entity – as “possession”, or “a company”, beyond the legal result created by rules of law.  Each has been demolished by masters of jurisprudence; [5] it is time for the same to be done to modes of liability in jurisdictions that do not stipulate for them.  Otherwise international criminal procedure, already complex and expensive, adds to those problems by forcing itself to leap over self-created non-existent hurdles.

The following draws on Edmonds v The Queen [2011] NZSC 159 at [21ff] where William Young J described the history of the New Zealand legislation and provided a comparison with the laws of England and Wales.

The New Zealand Act derives its s66(1)(b)-(d) from s71 of the 1879 draft Code prepared by the Stephen Commission and s8 of the (current) Accessories and Abettors Act 1861 (UK), but there has been divergence between the English and New Zealand jurisdictions in relation to mens rea.  The New Zealand aiding and abetting cases require the Crown to establish that the secondary party intentionally helped or encouraged the principal offender with knowledge of the essential matters constituting the offence, including the principal’s mens rea.   Some English cases on aiding and abetting suggest that recklessness or foresight, rather than knowledge, is sufficient. [6]

As to s66(2), William Young J observed:

[23] The general common law principles of joint enterprise liability correspond closely to s 66(2).

Chan Wing-Siu, Jugee and Miller

A footnote then cites Chan Wing-Siu v R [1985] AC 168 (PC) and suggests that its author, Sir Robin Cooke, then President of the Court of Appeal of New Zealand and later a Law Lord, would have had s66(2) well in mind.  In fact its language, requiring that “the commission of that offence was known to be a probable consequence of the prosecution of the common purpose”  is more exacting than that required by Chan Wing-Siu.  There:

it was submitted for the appellants that it was not enough if an appellant foresaw death of grievous bodily harm as a possible consequence of the joint enterprise: that the jury ought to have been directed that it must be proved that he foresaw that one of those consequences would probably  result.

The former was held to suffice.

The citation from Edmonds continues:

It is, however, important to recognise that the common law status of joint enterprise liability principles means they are more susceptible to judicial development than s 66(2).

Given the leap in Chan Wing-Siu from the “probable consequence”of s 66(2) to the lesser “possible consequence” test adopted, the observation was correct.

After Chan Wing-Siu v R had been followed for three decades by English law, including R v Powell [1999] AC 1, [1997] UKHL 45, in R v Jogee [2016] UKSC 8 [2016] UKPC 7 a joint judgment of the UK Supreme Court and the Privy Council rejected Chan Wing-Siu v R.  It held that Party B is not guilty unless he acted with the same mental intent the law requires of Party A (Party B’s intent may be conditional –  agreement that if the occasion arose A’s crime would be committed: at para 94).

The High Court of Australia in Miller v The Queen [2016] HCA 30 has since declined to depart from the Chan Wing-Siu v R principle which it had previously endorsed. Recently, in HKSAR v Chan Kam Shing FACC No. 5 of 2016 , delivered on 16 December 2016, the Final Court of Hong Kong preferred the Cooke and High Court of Australia decisions to the UKSC and PC.

In Ahsin v The Queen [2014] NZSC 153 the majority of the Supreme Court at [92] and William Young J (concurring in part) at [240] cited Chan Wing-Siu v R without discussing the point later discussed in  Jogee and in Miller.  Elias CJ [20] and William Young J [245 ff] dissented from the view of the majority that an offence by an accessory party is complete when assistance is given, considering that the assistance or encouragement “must continue at the time of the commission of the offence.”   Such distinction was relevant to the debate in that case as to whether absence of  “withdrawal” is an element of the offence, to be excluded by the prosecution (minority view), or a substantive defence, requiring evidence of withdrawal before such issue is left to the jury (majority [120); Elias CJ [21]; William Young J [244 ff].   The majority opinion on these points entails a breach of the unitary principle in relation to s66(1)(b): unlike others charged under s66(1), those charged under that provision appear to be entitled to a defence of withdrawal which does not negate assistance previously provided: William Young J at [253].

The STL

The Special Tribunal for Lebanon is empowered by its Statute to apply to party liability either the criminal law of Lebanon (Article 2), with its non-unitary approach, or a formulation of international criminal law (Article 3).  In Interlocutory Decision on the Applicable Law its Appeals Chamber has held that the principle favor rei entitles the accused to select whichever is more favourable to the defence.

Article 3 of the Statute provides for individual responsibility if an accused either infringed Article 2 or:

… Contributed in any other way to the commission of the crimes set forth in Article 2 … by a group of persons acting with a common purpose, where such contribution is intentional and is either made with the aim of furthering the general activity or purpose of the group or in the knowledge of the intention of the group to commit the crime.

The emphasised passage does not justify application by the STL of a Chan Wing-Siu approach  There is some support however for such approach in cited decisions at international law.

In “The End of ‘Modes of Liability’ for International Crimes” (2012) 25 Leiden Journal of International Law 165 Professor Stewart mounted a particular challenge to JCE III.    I add to his reference to Antonio Cassese’s essay [7] the discussion of international criminal law in the judgment of the Appeals Chamber of the  Special Tribunal for Lebanon in Interlocutory Decision on the Applicable Law STL-11-01/I 16 February  2011 (STL Casebook 2011 pp167-8, 177 and 182) paras 227, 248-9 and 259 n 381) , requiring Party B to be aware either of the criminal intent of Party A or of the substantial likelihood that Party A will commit the crime.

There may be noted however the citation of “JCE III” decisions requiring only that the secondary offender “(i) was aware that the resulting crime was foreseeable  as a possible consequence of the execution of the JCE, and nonetheless (ii) willingly took the risk that the incidental crime might be committed and continued to participate in the enterprise with that subjective awareness”(p174 para 241).  That is pure Chan Wing-Siu. But the Appeals Chamber did not apply such principle to the case of specific intent crimes such as terrorism, holding:

249 … the better approach is not to allow convictions under JCE III for specific intent crimes like terrorism… He must have the required specific intent for terrorism; he must specifically intend to cause panic or to coerce a national or international authority [according to the STL AC’s definition of terrorism].

This is not the occasion to debate the topic of Chan Wing-Siu type JCE III, which is not permitted by the STL Statute.  Or whether a Chan Wing-Siu approach might be warranted in the case of a commander such as General Yamashita (cf In re Yamashita 327 US 1 (1946)).

Conclusion

The STL AC’s approach to international criminal law coincides with the NZ watered down unitary principle of s 66(1) and its mix of unitary and non-unitary approach in s 66(2).  It conforms with Jogee in the case of terrorism;  other cases of JCE III cited in the decision do not.

 

[1] KNZM  former Judge of the Court of Appeal of New Zealand, President of the New Zealand Law Commission, New Zealand Member of the Permanent Court of Arbitration;  Appellate Judge and past President the Special Tribunal for Lebanon, Overseas Bencher The Inner Temple

[2] Ashgate 2013

[3] James G. Stewart, Complicity, in Oxford Handbook of Criminal Law (Markus Dubber & Tatjana Hörnle eds., OUP 2014),  at 539-540.

[4] Cassese’s International Criminal Law (3ed Oxford 2013) 162

[5] “it is impossible to define a legal concept, and […] the task of legal writers should be rather to describe the use of a word like ‘possession’ in the particular legal rules in which it occurs. ‘Possession’ in the legal sense has no meaning at all apart from the rules of law in which it is used as a tool of legal thought.  “The Concept of Possession in English Law” by Professor D.R. Harris QC in Oxford Essays in Jurisprudence (ed AG Guest, Oxford 1961) 69 at 70 drawing on Bentham and HLA Hart.

Lord Hoffmann in Meridian Global Funds Management Asia Ltd v The Securities Commission (1995):

… a reference to a company “ as such” might suggest that there is something out there called a company of which it can be meaningfully said that it can or cannot do something.  There is in fact no such thing as the company as such, no ding an sich, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company.

 [1995] UKPC 5, [1995] 2 AC 500 at [10]

[6] Eg R v Rook [1993] 1 WLR 1005 (CA) criticized by AP Simester “The Mental Element in Complicity” (2006) 122 LQR 578.

[7] Nn 25 and 56

New Symposium: The Strangely Familiar History of the Unitary Theory of Perpetration

To date, I have largely used this blog to host debates about other people’s scholarly work. In this instance, I wanted to host a discussion about an article I authored for a Festschrift in honor of Yale Professor Mirjan Damaška, which is entitled The Strangely Familiar History of the Unitary Theory of Perpetration. I thought to invite a range of judges, expert practitioners from international criminal law (“ICL”) institutions as well as scholars from countries that adopt the theory of blame attribution I advocate for to comment on the idea of abandoning “modes of liability” in ICL entirely. Somewhat strangely, the long debates about these questions in the field have mainly involved academics from dominant Western countries, but none of the world’s leading experts from jurisdictions that adopt the unitary theory of perpetration have had an opportunity to engage with the debate about whether we should have forms of participation in ICL or do without them as per their own national systems. Both the article and this symposium are an attempt to bring these perspectives to the fore without, of course, prejudging how these particular commentators will see the issues in question or respond to my treatment of them in the article.

I begin by introducing the discussion’s relevance for international law. To do so, I reiterate an argument I recently made about the significance of these issues for global governance. Modes of liability, or forms of attribution as they are probably better labelled, can be fairly arid, technical, technocratic concepts in the theory of criminal law that are not normally of great interest to international lawyers. But I want to depict them in a way that highlights their great regulatory potential on an international plane. If one thinks of all of the harms in the world on the one hand, then all of the actors operating globally on the other, modes are attribution are those devices that exist between these two sets, reaching into the ocean of actors to tie them to particular atrocities. One can therefore understand how these concepts can have huge implications for global regulation, even though they are cast in fairly technocratic language that can be quite alienating to international lawyers. Of late, there is seemingly a rising recognition of this fact for a variety of global issues, including counterterrorism, foreign assistance, and business.

Against this backdrop, let me introduce the unitary theory. A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. So, whereas modern international courts and tribunals employ different legal tests to differentiate aiding and abetting from joint criminal enterprise, superior responsibility and indirect co-perpetration, a unitary theory of perpetration condenses all of these standards into a singular unified standard that only requires a substantial causal contribution to the consummated offense together with the blameworthy moral choice announced in the crime with which the accused is charged. It is worth noting, however, that there are pure, functional and sentence-based variants of this unitary theory (for discussion, see here, pp. 8-10), which come with different contours. For present purposes, however, the key aspect of the unitary theory I want to emphasize is that the formal legal elements of blame attribution remain constant across the different relationships actors bear to atrocity.

Initially, international courts employed a unitary theory of perpetration in practice. Although the Nuremberg and Tokyo Charters explicitly enumerated different forms of attribution, the Nuremberg Tribunal itself often just considered whether an accused was “concerned in,” “connected with”, “inculpated in” or “implicated in” international crimes. As many leading commentators now accept, this approach entailed a functional unitary theory of perpetration, namely, a system of blame attribution that declined to disaggregate modes of participation into formal legal concepts like aiding and abetting, superior responsibility or JCE, instead holding the substantive elements of blame attribution constant across the various roles different actors might play. In the modern era, however, ICL absorbed dominant Western doctrine to supplant this history, first from the Anglo-American system then from Germany. Whatever one might say about these shifts as matters of customary international law, it is striking that neither set of practices was informed by the experience of states throughout the world that had abandoned modes of liability. This article and mini-symposium introduce that missing comparative experience.

Conceptually, this article is the sequel to a more conceptual piece I authored some years ago entitled The End of Modes of Liability for International Crimes. In that earlier article, I had argued that a conceptually coherent concept of complicity involves its disappearance into a more capacious single notion of perpetration, and that by the same analytical method, all modes of liability in international criminal law should suffer a similar fate. Having worked on these issues for many years as a practitioner before coming to the theory, my sense was that practically speaking too, the unitary theory of perpetration offered a way out of a difficult legal morass for practitioners. In my experience, standards for blame attribution are sometimes harsh, often unprincipled, in a constant state of flux and inconsistent with the expressive aspirations of the field across diverse cultures. At the very least, then, my hope was to invite robust scholarly defenses of the system in place. Moreover, I was particularly motivated to undermine the justification, which I heard a lot in practice, that the existing approach in ICL is defensible because several large Western states adopt it. To my mind, that argument is not sound.

Several prominent scholars, whose work I respect, have since offered helpful defenses of the differentiated system in response to my earlier argument (see Werle and Burghardt, Jackson, Steer). Although these excellent initial works certainly advance the debate, I am also convinced that the comparative experience I attempt to offer in The Strangely Familiar History of the Unitary Theory of Perpetration represents another important piece of the puzzle that has not figured in these debates before now. In the hope that others will pick up on aspects of these discussions to defend the differentiated approach or deepen thinking about the unitary theory, I am excited to host a range of prominent judges, one practitioner, and a host of leading scholars from each of the jurisdictions I discuss to participate in this mini-symposium (see list of commentators here). I am honored to have leading experts speaking for their own hitherto neglected legal traditions.

 

The Historical Importance of the Kouwenhoven Trial

Last month, a Dutch Court of Appeal convicted Dutch businessman Guus Kouwenhoven for complicity in war crimes that were perpetrated in Liberia and Guinea a little less than two decades ago. Kouwenhoven was a timber merchant, who also shipped weapons to the Liberian President Charles Taylor in clear violation of UN arms embargoes, which Taylor used to brutally terrorize civilian populations. The Kouwenhoven judgment is now available in English (see here). I know something of the backstory behind the case through the work of Global Witness, have benefited from Dieneke De Vos’s very helpful overview of the judgment (see here), and learned from Ruben Carranza at the International Center of Transitional Justice’s discussion of the trial’s significance as part of broader aspirations for economic accountability in transitional justice (see here). In what follows, I consider the self-consciously provocative claim that Kouwenhoven is among the most important war crimes cases in the history of international criminal justice.

There are several reasons why the Kouwenhoven case might come in at the top of a ranking of war crimes trials, if one were prepared to undertake such a strange exercise. No doubt, readers will object that the assumptions underlying my prioritization go largely unannounced, are highly contentious, leave much out that others might place greater weight on and presuppose the propriety of criminal law trials as a response to atrocity in the first place. All this I concede, but to guard against the possibility that this precedent’s potentially tremendous implications for this and associated fields might escape detection by relevant audiences, I here set out a brief series of reasons why the case may well live up to the grandiose billing I  assign it. Also, because comparing this case to the Hissène Habre trial in Senegal, the Justice Case at Nuremberg and the prosecution of war crimes in civil wars for the first time at the ICTY would involve unnecessary political insensitivity, I avoid all comparison by merely highlighting the Kouwenhoven case’s claim to the title.

To begin, the Kouwenhoven case brings accountability to the worst elements of the arms trade in ways that are almost entirely unprecedented. I will not labor the characteristics of the dark side of the global trade in weaponry, except to point out that authors like Andrew Feinstein paint a harrowing picture of it. Before now, the very worst weapons transfers to regimes bent on mass violence have taken place in a regulatory vacuum characterized by the almost perfect absence of all forms of accountability. Violations of UN-imposed arms embargoes, for instance, have stimulated almost no legal scrutiny. I say “almost” because a study I undertook together with a team of researchers some years ago of all UN arms embargo violations as documented by UN Panels of Experts since 1993 discovered that of 502 alleged violations, only 1 led to legal accountability for sanctions violations.[1] Against this backdrop, the Kouwenhoven case is the first that holds a nefarious arms vendor responsible for complicity in African atrocities.

In so doing, the case complements other regulatory initiatives. As many will know, the signing of a UN Arms Trade Treaty has sought to make the human rights and humanitarian law records of end-users relevant to the legality of transferring weapons to them. The adoption of the treaty is salutary, long overdue, and aside from its own regulatory effect, it helpfully draws attention to the tremendous social upheaval caused by what Harold Koh once described as “a world drowning in guns.” At the same time, the very idea that a new treaty should be needed to make the human rights and international humanitarian law records of end-users relevant to the legality of transfers will likely leave criminal lawyers and moral theorists slightly perplexed; the pre-existing notion of complicity already achieves that purpose. By enforcing this pre-existing norm, the Kouwenhoven case employs expressive condemnation to transmit the underlying moral principle across surrounding initiatives.

In addition, the contours of the version of complicity the Kouwenhoven trial employs helps overcome the ubiquitous but overly restrictive debate about the doctrine in Business and Human Rights.[2] For many years, litigation brought predominantly under the auspices of the now (nearly?) defunct Alien Tort Statute debated whether an accomplice must share a principal perpetrator’s purpose to carry out an international crime (Kouwenhoven would have to have positively wanted his weapons to bring about international crimes in Liberia and Guinea), as compared with a knowledge standard (which made cognition rather than volition the touchstone for complicity, thereby criminalizing indifferent implication in atrocity for profit). Understandably, Business and Human Rights largely absorbed these standards. As I have argued elsewhere (see here), however, this binary was never a complete articulation of the universe of available standards for complicity globally. The Kouwenhoven case confirms this proposition by applying a less stringent, dual test.[3] Although the case only indirectly relates to human rights, it is important because of the lessons it holds for that adjacent field.

This brings us to the theory of accomplice liability. Like all notions of complicity, the iteration the court adopts in the Kouwenhoven case is theoretically contestable,[4] and one can only anticipate that it will be a central point of Kouwenhoven’s appeal. Nonetheless, whatever debate the standard generates before and beyond the Dutch judiciary, the Kouwenhoven trial is important because it not only brings these even more accountability-friendly variants of complicity to the fore, it also reiterates the pressing importance of theoretical debates about the shape the doctrine should take globally. In earlier work, I entitled a section of an article on this topic “Towards a Moral Theory of Accomplice Liability,” precisely because cases like Kouwenhoven should be grounded in defensible first principles that I am tempted to think should be universal. That a businessman is sentenced to 19 years in prison via application of this doctrine amplifies the need for critical engagement with these ideas, including the need for further thinking about assigning complicity different meanings from one jurisdiction to the next.[5] In both these respects, the case is again critically important.

Significantly, it also involves the Dutch prosecuting their own national for participating in African atrocities, thus marking a move away from the “victor’s justice” paradigm that has long characterised international criminal justice. The term “victor’s justice” evokes the one-sided justice dispensed at Nuremberg despite no shortage of Allied offending, but it remains a recurrent theme in critiques of modern international criminal justice too. The longevity of the critique is understandable given ICL’s uneven record of enforcement at the international level, but what of enforcement locally? Although Kouwenhoven certainly does not offer a silver bullet through the power politics that made internationalising trials necessary in the first place, it certainly marks an important and under-theorized turn away from victor’s justice. In particular, it sounds the emergence of a new element of what Kathryn Sikkink calls a “Justice Cascade” – some states are beginning to take responsibility for war crimes committed by their own nationals, including their businesspeople. From an historical perspective, the shift seems momentous – although the circumstances are very different, the reluctance to assume this responsibility after WWI was so pronounced that it nearly caused a revolution in Germany and a return to war in Europe (see here).

Relatedly, the Kouwenhoven case promises to dilute perceptions that ICL is, to paraphrase Rwandan President Paul Kagame, a neo-colonial tool. In my view, that claim was always overstated, but it is hard to overlook the spectacle of indicting the most senior Congolese and Sudanese political leaders for pillaging property that is epiphenomenal to African armed conflicts without addressing corporate responsibility for the same offense that drives resource wars. In the past, the ICC prosecutor’s explanation for the unique focus on Africans has been that Africa produces the most serious atrocities, taking human suffering as a metric. Yet, as I have argued elsewhere, there is a fallacy in this justification: it assumes that only Africans are responsible for atrocities in Africa. To entertain this assumption is to overlook the long history of commercial implication in and, in especially egregious circumstances, instigation of atrocity in Africa, of which Kouwenhoven is an exemplar. By holding him accountable, this trial goes some way in addressing the fallacy, undermining the neo-colonial critique, and improving the field’s wider claims to legitimacy.

The case achieves this improvement by, at least in this instance, simultaneously overcoming a strangely regressive element of modern ICL. As many have shown, the awareness of corporate implication in atrocity was so prominent in the minds of the architects of post-WWII justice that they very nearly staged a second prosecution of “industrialists” after the main Nuremberg trial. While this business-specific second trial never came to pass, businesspeople were tried within the Nuremberg trial itself as well as in trials staged in occupied zones throughout Europe. Whatever the political aspirations for these processes at the time, for better or worse, their example has not formed a discernable part of the stratospheric ascendance of modern international criminal justice. While public recognition of corporate implication in atrocity grew dramatically after the Cold War, the rebirth of modern ICL over the same period overlooked the commercial angle its earlier incarnation viewed as painfully obvious. The Kouwenhoven trial is a partial correction for this curious regression, which again makes it all the more important in relative terms.

In the end, it is too early to discern the Kouwenhoven case’s overall significance, let alone pronounce on its relative importance even if one were prepared to try ranking the unrankable. With time, it may well prove to be a distracting fig-leaf over a colossal systemic problem, a weak apology for the one-sidedness of ICL’s enforcement globally, or the exception that reinforces the rule of very near total absence of accountability for the worst forms of corporate malfeasance in war. For now, though, it appears more likely that the Kouwenhoven trial is an important milestone in an imperfect, vulnerable, and under-theorized cultural shift in the long struggle to stem atrocity. In case it needs saying, no one should confuse this shift, if it is that, as being a panacea for all the woes of commercial interests in mass violence or delude themselves that criminal justice is anywhere near a sufficient substitute for ethical and political engagement with these problems. Likewise, no one has claimed that cases like this are beyond reproach or that they perfect the system.

In these respects too, the Kouwenhoven trial is important because it invites rigorous, inter-disciplinary scholarly argument for and against this type of accountability.

 

[1] Judgment of Replacement Rol N° 4465-09 (19 January 2012) (Chile’s Supreme Court) <http://www.poderjudicial.cl/modulos/InformacionCausas/INF_causas_corte_supr.php?opc_menu=7&opc_item=2> accessed 2 February 2012. Arguably, the American case against Viktor Bout offers another example, although technically, he was tried for his willingness in a sting operation staged by the FBI rather than for his complicity in any of the many atrocities his weapons smuggling enabled.

[2] My preliminary thoughts about the complicity-debate in Business and Human Rights are online, here.

[3] My kind thanks to Dieneke Vos, who generously provided the following translation of the relevant passage in the Kouwehnoven judgment: “In accordance with established jurisprudence, to convict for complicity, it must be proven not only that the accused person’s intent was directed at the contribution or facilitation of that crime in accordance with article 48 of the criminal code, but also that his intent – whether or not conditional – was directed at the crime committed by a third person, in this case the commission of war crimes.” In other words, under Dutch law complicity requires what the court calls “double intent”: intent to contribute means, and intent relating to the specific crime. The court adds that the accused person’s contribution need not have been indispensable or causal. It is sufficient for the contribution to have “actually encouraged or facilitated the commission of the crime”

[4] For an overview of competing theories as well as recurrent conceptual problems in the theory of complicity, see here. For my attempt to ascertain the meaning of complicity in the ICC statute, see this blog post and the various expert posts it draws upon.

[5] I have argued elsewhere that a multiplicity of complicity standards that can couple with international crimes throughout the world is not desirable. See here. For my (qualified) response with Asad Kiyani to objections that this argument unjustifiably tramples on important social and cultural values that are reflected in diverse criminal doctrine, see here.

New Symposium: Steven Ratner’s The Thin Justice of International Law

Steven Ratner has written an important book entitled The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP, 2015). The book is especially significant because it uses ethics and moral philosophy to assess and criticize a series of sub-branches of international law. These sub-branches include statehood, territorial-based protections of Human Rights, regulation of global trade and investment, and international criminal, humanitarian and environmental law. In addition to this remarkable breadth, the book is one of the first attempts to marry international law and moral philosophy in a systemic way, which is especially interesting to those of us who have explored both of those areas as vehicles for assessing the responsibility of individuals (and corporations) for international crimes. Ratner has, in other words, considered an interesting normative coupling in far greater depth than others before him, and advanced this analytical scheme far further afield.

I will not say terribly much more introducing the book, except to add that Ratner employs human rights and peace as dual normative pillars derived from the interface of ethics and international law as lens through which to critically review the various sub-fields in the discipline I mention. Thus, his masterful treatment of these issues will also be particularly interesting to scholars of both human rights and peace studies, in addition to the other subject-areas of international law he takes up in the book. My reluctance to say terribly much more introducing the book is partly because Ratner has penned his own detailed introduction for an earlier blog discussion and I am confident that my own attempts would be less true to his origin message and less representative of the numerous significant points the book makes. I therefore leave my own reactions to the substantive section of our symposium, which will appear on this blog over the coming two weeks.

There are several reasons I thought to stage this symposium. Although others have hosted excellent symposia already (see here), I wanted to continue the conversation between philosophers and international lawyers in order to help an important interdisciplinary dialogue grow. I also wanted to host a discussion of this book because Ratner’s text is exemplary of all of the elements in this blog’s manifesto: Thin Justice of International Law is very normatively creative, aesthetically excellent, deliberately caters to a plural intellectual community and explicitly adopts symbiosis between theory and practice as a method. For all these reasons, I am excited to play host to a fantastic set of scholars whose work I have admired for some time. In particular, Karen Alter, David Luban and Colleen Murphy will join me (see table of contents here) in offering respectfully critical reflections on Ratner’s book.

I am confident that the resulting dialogue will prove stimulating to all those interested in moral philosophy, global justice and their intersection with international law.

How Would War Crimes Prosecutors Classify the Syrian Conflict(s)?

Over the past few weeks, a great number of excellent scholars have debated how to classify the contemporary armed conflict(s) in Syria. In particular, Ryan Goodman (here, and here), Adil Haque (see here, here), Oona Hathaway (on Twitter), Deborah Pearlstein (see here and here), Gabor Rona (see here), Terry Gill (see excellent article here, and blog here), and Dapo Akande (see excellent article here and blog here) have all debated the trigger points of non-international armed conflict (“NIAC”) and whether the Syrian conflict(s) are now rendered international armed conflicts (“IAC”) by American, Turkish and Russian military intervention. I join the discussion to ask how war crimes prosecutors are likely to see these issues, then to raise the possibility (born of working in this capacity myself) that an analytically satisfying solution to these debates about internationalized armed conflict might be structurally unavailable. I begin by introducing these perspectives, then plot a set of doctrinal points that arise from ICL’s encounter with the phenomenon of conflict classification. I end by reiterating my earlier normative critique of the international/non-international bifurcation in the laws of armed conflict (see here), which emerged from my own intellectual dissatisfaction as a war crimes prosecutor over a decade ago.

To begin, let me flesh out why inquiring about war crimes prosecutors’ perspectives might be a helpful supplement to the debates about conflict classification in Syria thus far. Most obviously, if the reason for insisting on qualifying the armed conflict in Syria is to promote the prosecution of war crimes, it could be helpful to understand how courts tasked with trying war crimes are likely to undertake that classification process if these trials ever come to pass. But perhaps more importantly, war crimes prosecutors have confronted more or less exactly the same difficulties that animate these debates for over twenty years now, albeit in the context of the multiple, changing and overlapping international/non-international conflicts in the former Yugoslavia and the Democratic Republic of Congo rather than Syria. Much of the resulting caselaw is exceptionally detailed, and as a body of experience, it is useful as a tool to help mediate between competing arguments here. In fact, ICL’s long history of classifying armed conflicts is also of assistance in that it shows these institutions attempting to avoid the classification process wherever possible. As I explain below, revealing their attempts to bypass the classification conundrum is an important aspect of the added value a war crimes prosecutor’s perspective may provide.

This brings us to my second initial perspective. If ICL has done its best to pull away from the riddle of classifying internationalized conflicts like that in Syria, it is somewhat peculiar that when faced with Terry Gill’s harrowing revelation that “[t]here are reportedly hundreds (by some accounts approximately 1,500) of armed groups and militias active in the Syrian conflict” that no one has yet objected that this distinction between IACs and NIACs cannot be meaningfully made. The closest we get thus far is Professor Gill’s admission that “[it] would be well-nigh impossible to draw a coherent picture of the entire mosaic of armed groups and their aims, actions and alignments.” (see here, p. 355). In addition, we have not heard that even where the application of these tests for internationalization is more clear cut, the ability of armed groups to comply with standards we ourselves cannot agree upon in the heat of battle, in the context of changing military relationships, based on closely guarded information seems marginal. I am reminded, for instance, of Marco Sassòli and Laura Olsen’s argument that “there is no reason to think that, during a conflict, one could convince a military commander to respect certain rules by arguing that he is an agent of a foreign country.”[1]

Admittedly, I am reiterating here an argument I first made over a decade ago after first working on these issues at two different war crimes tribunals, in which I pointed out the unavoidable dangers of analytical incoherence in qualifying internationalized armed conflict, then posited the possibility of a unified system of IHL that would be applicable to all types of armed conflict (see here). I made this argument in order to circumvent the otherwise insurmountable analytical difficulty I had experienced in practice. As I explain in that article, the way out I propose was not new even then: the ICRC had advanced this argument at every stage in the codification of major IHL instruments, various luminaries such as George Aldrich had endorsed it in light of the Vietnam experience, and the history of ICL is replete with judicial statements like “it is only natural that the aforementioned dichotomy [between IAC and NIAC] should gradually lose its weight.”[2] As I will explain shortly, ICL not only offers a set of lessons about the classification process that have not fully informed the various online debates about Syria thus far, it also reveals a pattern of deliberate attempts to avoid the problem wherever possible. This reality speaks to an ongoing concern about the practicality of the tests in discussion presently and the availability of third approaches that might be appealing to prosecutors if cases from Syria are ever heard.

I move, then, to my five doctrinal observations about the history of conflict classification in ICL and its salience to these debates:

First, although it is probably technically correct to say that Tadić is the leading judicial decision in this area, to leave matters at that risks undervaluing over two decades of judicial experience classifying armed conflicts post Tadić before a wide variety of courts and tribunals (national and otherwise). In fact, a number of initiatives within these institutions deliberately sought to build upon the initial foundations set by Tadić. In 2007, for instance, I was asked (ironically given my earlier article calling for the abandonment of the distinction) to lead a process for the Office of the Prosecutor of the ICTY that developed a more comprehensive matrix of factors that go to making up a non-international armed conflict. This project led to far more detailed sets of factors that would establish both limbs of the test for a non-international armed conflict—intensity and military organization—in a trilogy of cases involving the Kosovo Liberation Army and the Albanian National Liberation Army in Macedonia.[3] The painstaking depth these and other cases go to in applying the tests may be helpful to friends and colleagues engaged in these debates, beyond just the foundational importance of Tadić itself. They may also act as templates for prosecutors asked to prosecute war crimes arising out of modern-day Syria.

Second, let me add one problem from this history to the current debate about Syria in order to point to a sub-issue that adds further complexity, in ways that might also militate in favour of a simpler unified approach moving forward. As all the experts engaged in this debate will know, Additional Protocol II (“APII”) entails a different test for NIAC that arguably lifts the intensity requirement above that applicable to Common Article 3 conflicts and that also appends the requirement that the armed group enjoy territorial control. Some courts, like the ICC, have rejected the territorial control element for purposes of determining a NIAC under its statute,[4] but the Special Court for Sierra Leone has insisted on it as a requisite element of war crimes that derive from APII.[5] So, in the same way that Ryan Goodman has pointed out that Russia is a signatory to API for the purposes of determining the applicable law in Syria (see here), war crimes prosecutors are also likely to be confronted by the reality that: (a) Russia is party to APII too; (b) that APII requires territorial control in addition to the intensity and military organization elements for armed conflicts in Common Article 3 NIACs; and (c) that the question of classifying the law applicable in the Syrian context may be even thornier than our debates to date have revealed.

Third, once these issues are viewed through the eyes of war crimes prosecutors, it will likely become apparent that the first prong of the test for internationalization in ICL appears to have escaped close scrutiny in the debates about Syria thus far. Before now, my friends and colleagues who have engaged in this debate have largely focused on the absence of consent on the part of the Syrian government to the various manifestations of US military force in Syria, arguing about whether the absence of Syrian consent means that the United States is presently engaged in an IAC with Syria and/or Russia. And yet, the test for internationalization in ICL is appreciably wider in scope, and although controversial, a number of ICL cases will act as precedents for war crimes prosecutors focused on Syria who are eager to establish their jurisdiction over the full panoply of war crimes applicable in IAC. To recall, in the famed Tadić Appeal Judgement, the Appeals Chamber of the ICTY stipulated that:

“It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”[6] (emphasis added)

Importantly, a number of international courts and tribunals have interpreted the reference to “another State interven[ing] in that conflict through its troops” as extending beyond actual armed force between States Parties. To be precise, a number of decisions apply the body of law applicable to IACs to all state and non-state actors within a conflict zone where a foreign military intervention only indirectly affects independent internal conflict(s). I provide several examples of this reality from ICL caselaw in my earlier article (see here, pages 328-333), but to cite just one here, the Kordić & Čerkez Judgement found that the Croatian government’s intervention in the conflict against Serb forces in Bosnia internationalized a separate conflict in which the Croatian government had no direct military involvement, namely the conflict between Bosnian Croats and Bosnian Muslims.[7] According to the Trial Chamber, it did this “by enabling the Bosnian Croats to deploy additional forces in their struggle against the Bosnian Muslims.”[8] Thus, the Tribunal applied the laws applicable to IACs to all actors discussed, including non-state armed groups. Our debates about the absence of state consent—certainly a vitally important issue—played no part in this classification. Depending on the war crimes involved, war crimes prosecutors considering trials arising out of Syria may well take inspiration from these precedents.

Fourth, the debate up until now has only tacitly referenced “Mixed” versus “Global” theories of conflict classification, which polarized scholars and practitioners in the early years of ICL’s encounter with this problem. The mixed approach—what Terry Gill calls “parallel conflicts”—is reflected in the refrain from Tadić that the violence in the former Yugoslavia could be characterized “at different times and places as either internal or international armed conflicts, or as a mixed internal-international conflict”[9] and that “depending upon the circumstances, [the conflict may] be international in character alongside an internal armed conflict.”[10] And yet, an alternative “global” approach pre and post-dates these tests; many experts have acknowledged that distinguishing between IACs and NIACs is practically impossible in many modern armed conflicts given the indecipherably complex and constantly dynamic interaction between state and non-state actors in internationalized warfare. According to this global approach, the full body of IHL applicable to IACs apply to all armed groups, state and non-state, in an entire territory that contains multiple conflicts of international and internal origin. As I show in the article (see here, pp. 334-335), the US government, Theodore Meron, various ICTY judges and even the ICRC appear to have endorsed this approach in certain circumstances.

These ideas have featured only tacitly in the recent online debate about conflict classification in Syria. Terry Gill’s excellent article, for instance, starts off assuming a mixed approach to classification (he calls “parallel”), but when faced with the tremendous complexity of the task in certain scenarios he shifts to the global alternative, before he later shifts back. A variant of the global approach seems evident, for example, where he concedes that “[t]he fact that these parties have different objectives and have clashed with one another on occasion (or in the case of ISIS and the Kurdish YPG on an ongoing basis) does not change the fact that there is one overall conflict of a non-international character within Syria with a number of different parties. The alternative of looking at each conflict as a separate conflict makes no factual or legal sense.”[11] To my mind, this quite understandable oscillation between mixed and global approaches emulates that in earlier ICTY caselaw. Moreover, it is also interesting to see the same oscillation play out at the ICC in a conflict strikingly similar to Syria legally speaking; a conflict Madeline Albright once dubbed “Africa’s First World War.”

In recent years, a Pre-Trial Chamber at the ICC in the case against Thomas Lubanga cited the two prong test from Tadić I quote above, then indicated that, “where a State does not intervene directly on the territory of another State through its own troops, the overall control test will be used to determine whether armed forces are acting on behalf of the first State.” (emphasis in original).[12] By implication, the overall control test is not relevant where there is direct military intervention, which will operate to internationalize all conflict in a globalizing fashion in line with cases like Kordić & Čerkez I referenced above. Again, the important topic of State consent we have debated did not feature in this analysis. Thus, the Pre-Trial Chamber concluded that the armed conflicts between various non-state actors in the region were subject to the law governing IAC because Uganda was an occupying power in the region. In the Pre-Trial Chamber’s own words: “as a result of the presence of the Republic of Uganda as an occupying Power, the armed conflict which occurred in Ituri [between various non-state actors] can be characterised as an armed conflict on an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan army.”[13]

At trial, a differently constituted bench disagreed with the Pre-Trial Chamber’s characterization by effectively adopting a more stringent mixed approach. Instead of citing the Tadić two limbed test, which entailed both direct and indirect intervention as bases for internationalization, the Chamber ignored the first element based on direct foreign intervention and the line of cases like Kordić & Čerkez applying it, then discredited evidence about Rwandan and Ugandan control over various armed groups fighting in the region in assessing the second. As a result of this shift in technique, the ICC Trial Chamber in one and the same case revised the Pre-Trial’s position by concluding that the conflict between these various non-state groups “was non-international in nature.”[14] This mixed approach has gained ascendancy at the ICC ever since so is likely to be especially influential to war crimes prosecutors contemplating the terrible conflagration in Syria. Nevertheless, it is also notable that aside from marking a repetition of the oscillation between mixed and global approaches, in a passage I am tempted to read as conveying regret, the Court remarked that “some academics, practitioners, and a line of jurisprudence from ad hoc tribunals have questioned the usefulness of the distinction between international and non-international armed conflicts… The Chamber does not have the power to reformulate the Court’s statutory framework.”[15]

From an analytical standpoint, the problem is that both of the approaches are difficult to justify, which perhaps explains the seemingly constant oscillation between them. The great difficulty is that the metrics for explaining when to prefer the mixed and when to favour the global are extraneous to the legal tests and go unannounced. More broadly, in my earlier piece, I argued that the relative strengths and weaknesses of the “mixed” and “global” views indicate that reaching any sort of agreement about the classification of complex internationalized conflicts like Syria within the present framework will inevitably involve choosing between a theory that cannot work (the mixed approach) and a practice that is not justified (the global approach). (see here, p. 335). The challenge, therefore, is very much to the structure of IHL generally. For present purposes, I wonder if our debates about classification could benefit from keeping these arguments in mind, although as I hint at throughout, the better way of promoting accountability may lie in convincing war crimes prosecutors that they need not try to resolve issues we cannot.

Fifth, avenues exist that allow us to do just this. Because these issues are so factually complex, analytically unsatisfying, enormously time consuming to prove, and ultimately, often morally irrelevant, courts have attempted legal run-arounds wherever possible. A number of the scholars in this online debate have rightly pointed out the areas of substantive disparity between IAC and NIAC, but if war crimes are the emphasis in general, and murder, rape and torture the central pre-occupations in particular, it might be possible to dispense with the characterization process all together. At a certain point in its maturation, the ICTY and various national criminal courts adopted just this approach as a response to the sorts of classification quandaries we are debating (for examples, see here, p. 864). They did this by relying on the ICJ’s dicta in the Nuclear Weapons case that Common Article 3 is an “elementary consideration of humanity” applicable in both variety of armed conflict (an approach later echoed by the US Supreme Court in Hamdan). Armed with this blanket principle, prosecutors might look at a conflict like that in Syria, banish grave breaches immediately because of the difficult technicalities they entail, then opt for Common Article 3 prosecutions to avoid the intractable complexities we are presently engaged with. I have pointed to the problems this approach can give rise to elsewhere (see here, p. 875), but for present purposes, this strategy may be the best way of incentivizing war crimes prosecutors to take up these cases despite our understandably protracted disagreement.

This brings us to a fork in the road, where I move away from a perspective grounded in ICL doctrine into a purely normative mode, which originally developed as a response to my experiences with these problems as a practitioner. I have four normative points:

First, I believe that the idea of single body of IHL applicable in all types of conflicts deserves far greater intellectual engagement. Admittedly, as my earlier article readily conceded, that project is conceptually challenging and politically unlikely because it has to address the absence of combatant status or a law of occupation in NIACs, two issues not likely to be readily resolved. I will not attempt to broach these conceptual issues here, other than to offer up the notion that it is hard to incentivize compliance with IHL by non-state groups without offering something akin to combatant status and to observe how these difficulties already arise in internationalized non-international armed conflicts (see here, p. 345). In addition, I respect the reality that opening up the Geneva Conventions for renegotiation in a post Sept 11 world would likely lead to a net diminution of humanitarian protections, but regardless of whether a unified body of law that is not regressive can ever be politically realized in even the medium-term, I reiterate my now dated calls for greater engagement with the unification project as a normative agenda, perhaps as part of or an appendage to Columbia’s project on harmonizing standards for armed conflict (see here). One upside is that it stands to make war crimes prosecutions in places like Syria easier.

Second, the engagement with what Adil Haque eloquently calls “triggers and thresholds” (see here) is exceptionally interesting. I was particularly struck by Adil’s very insightful conclusion that “we should accept a unilateral trigger and nominal threshold for both IAC and NIAC.” If this approach is defensible, he has found a solution to a key problem for a unified body of norms that dispenses with the IAC/NIAC classification altogether. To address this problem of disparate trigger mechanisms in my earlier proposal, I borrowed from a proposition by the Brazilian government during the negotiation of APII, which suggested that the application of IHL in all types of conflict could be triggered by armed violence between “organized armed forces or other organized armed groups under a responsible and identifiable authority, and clearly distinguished from the civilian population.” (see here, p. 345). I am less sure that this is much of a solution now, so I am particularly enthusiastic for creative new thinking like that Adil Haque offers as well as the intentionality approach Michael Adams and Ryan Goodman have suggested (see here). In the same breadth, my enthusiasm is strictly conditional on the need for these innovative new standards to avoid watering down pre-existing IHL protections and prevent against a new field of application that makes departures from human rights standards easier, more frequent, or simply more justifiable.

Third, I sense that the law of armed conflict is caught between its aspirations for humanitarian protection and an anxiety about its own complicity in violence. On the one hand, I certainly understand and appreciate the argument by Adil Haque and others that IHL does not authorize anything; it merely restrains. So when Gabor Rona complains (see here) that qualifying the armed conflict as international might trigger “the same targeting and detention rules that would apply between the US and Syria.. wherever US and Russian interests rub up against each other,” the retort is that if the US and Russia do carry out these unthinkable actions, it will be for altogether different political reasons that are entirely seperable from the body of IHL that will apply to them as they do so. Conversely, one does not have to tax one’s memory too hard to recall the Bush Administration’s use of the laws of war to publicly justify important excess. The laws of war rhetoric helped enable indefinite detention of detainees at Guantánamo (without conferred them with corresponding protections) and had a quite terrible trickle-down effect in Uganda, Liberia, Chechnya and beyond, where conflicts were quickly re-imagined as “Wars on Terror.” The reality is that historically speaking, the laws of armed conflict are often used to justify violence.[16] To my mind, thinking through ways of undermining this complicity should also be a first order task for IHL scholars.

Fourth, a unified body of IHL could help do just this by depoliticizing the significance of a conflict’s classification one way or the other. Much of the resistance to Ryan Goodman’s argument (see here) that the US is already in an IAC stems from a concern that this recognition would be politically provocative, thereby entailing a weak variant of the complicity-in-violence-anxiety I reference immediately above. Gabor Rona, for example, mentions his concern about the classification “upping the ante” (see here); Deborah Pearlstein reasonably worries that “Syria and Russia would view such a statement as provocatively signaling a U.S. intention to embark upon a new and different course of hostilities” (see here); and Terry Gill’s very helpful article ends with a series of warnings about “drawing conclusions which open the door to a widening of the conflict.” (see here, p. 380). Ironically, in my earlier article, I used Russian intervention in Afghanistan several decades ago to highlight equivalent concerns for politicization then (see here, pp. 342). I also suggested that a unified body of armed conflict that stripped away the IAC/NIAC distinction might offer a way out that minimizes these tensions, at least partially, by allowing us to insist that all parties are bound by IHL in their military actions without saying more.

The foregoing does not offer obvious solutions for the Syrian classification, but I hope that some of the terrain I traverse is useful for further discussions of these important issues.

__________________________________________________________________________

[1] M. Sassòli and L. M. Olson, “International decision: Prosecutor v. Tadić (Judgement)”, American Journal of International Law, Vol. 94, July 2000, p.

[2] Tadić Jurisdiction Appeal, para. 97

[3] The principle case was Prosecutor v. Boškoski, but the same principles are also evident in the Prosecutor v. Limaj and Prosecutor v. Haradinaj cases.

[4] Prosecutor v Lubanga Trial Judgment, para. 536.

[5] Prosecutor v Sesay et al, SCSL-04-15-T, Judgement, 2 March 2009, para. 966. (“the Prosecution must also prove the elements of Article 1 of Additional Protocol II, namely that the dissident armed forces or other organised groups participating in the conflict: […] (ii) Were able to exercise such control over a part of their territory as to enable them to carry out sustained and concerted military operations.”)

[6] Prosecutor v. Tadić, T-94-1-A, Judgement, 15 July 1999, para. 84

[7] Prosecutor v. Kordić & Čerkez, IT-95-14/2-T, Judgement, 26 February 2001

[8] Ibid., para. 108(2).

[9] Tadić Appeal Judgement, para. 73

[10] Id.

[11] Gill, p. 375.

[12] Prosecutor v Lubanga, Decision on Confirmation of Charges, 29 Jan 2007, para. 220

[13] Prosecutor v Lubanga, Decision on Confirmation of Charges, 29 Jan 2007, para. 220.

[14] Lubanga Trial Judgment, 14 March 2012, para. 567.

[15] Ibid, para 539.

[16] In my view, one of the best arguments to this effect is still Chris Jochnick & Roger Normand  “The Legitimation of Violence: A Critical History of the Laws of War” (1994) 35 Harvard Int’l LJ  49-95; 387-416.