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4. The Advent of an International Criminal Court

This is a translation of a lecture I gave at the Collège de France on 18 June 2019 as part of a series entitled The History and Future of International Criminal Justice. A video of the French-language original of this lecture is available online here.

A. Introduction

Members of the Collège de France, distinguished guests, ladies and gentlemen. We arrive at the fourth and final lecture in this series on the history of international criminal justice. Today we will focus on the ICC, which was established in The Hague in 2002. 

This court should not be confused with the International Criminal Tribunal for the former Yugoslavia, nor with the International Court of Justice, both of which are also located in The Hague.  As we will see, the International Criminal Court is quite different to both. Indeed, it is an institution that people have been trying to establish for more than 150 years. 

Today, I will again use the six themes I have employed throughout this series of lectures to frame this discussion. For those of you have not attended the previous presentations, they are: a narrative of the ICC, a discussion of its purposes, an exploration of its political significance, alternatives to prosecution, the law, and consequences of the court’s work.  I hope to show that even though the ICC was established to transcend many aspects of the previous iterations of international criminal law, it still mimics them in many respects. 

In my first presentation, I began with a series of theses about international criminal law. I will not repeat them now, but at the end of my presentation about the ICC, I will return to these theses as a way of summarizing the entire series of lectures.  As I mentioned at the beginning of the first lecture, I hope you will emerge with a sense of the potential and limitations of international criminal justice.

B. Narrative Overview of the International Criminal Court

Allow me to begin with a narrative.  There have been major attempts to establish a permanent International Criminal Court for at least 150 years.  In 1870, Gustav Moynier, the founder of the International Committee of the Red Cross, authored a treatise arguing for the creation of an International Criminal Court.  How else could we enforce the laws of war? How could we get past the problem of partiality in enforcing them?[1]  

In 1919, the Commission of Responsibility established by the Entente Powers recommended the establishment of an International Criminal Court.[2]  In 1920, an advisory committee created by the League of Nations to draft a statute for the Permanent Court of Justice proposed giving the Court jurisdiction over “crimes against the universal Law of Nations.”[3]  The Genocide Convention in 1951 references an “international penal tribunal” in the hope that one be established.  

Then in 1998, in the fertile political space between the fall of the Berlin Wall and September 11, 2001, States agreed to establish a permanent International Court.  The historic milestone was met with enormous euphoria, although others warned that there could be no escape from politics. 

One of my theses is that each new iteration of international criminal justice has attempted to improve on the shortcomings of its predecessor.  With the ICC, formally, there was much to celebrate in this respect.  All the other international courts and tribunals we have discussed were established post hoc, whereas the ICC was created ex ante in anticipation of atrocities.  Moreover, because the ICC was established by treaty, it promised to end the history of imposing criminal institutions on states that did not agree to them.  Although the statute did envision the UN Security Council referring cases to the ICC, for the most part, the court relied on states to willingly consent to the institution’s jurisdiction.  

In this sense, the ICC promised to move us past victor’s justice.  As a result of this new structure, the ICC also promised to transcend the problem of retroactive law, which had troubled the field from the very beginning.  Standards would be defined and agreed to in advance.  And finally, the ICC would have global reach, instead of being limited to a very particular geography or time period like all its predecessors. 

Depending on how one counts, the court has arguably attracted widespread adherence.  As of today, 123 of 195 states are members of the ICC, meaning that the court has jurisdiction over international crimes committed on their territory or by their nationals overseas.  

Clearly 123 out of 195 states is a major majority, but the absences are also very important.  Russia, China, The United States, India, Pakistan, and Indonesia are not members of the ICC.  In short, more than half the world’s population and most superpowers are not party to the ICC system. 

It is fair to say that in the first 17 years of the Court’s existence have been difficult.  In all, it has indicted 37 people people and only had 3 convictions.  Admittedly, four of the 27 people died before being arrested and another 11 more have not been transferred to the court, but a series of high profile acquittals have badly hurt the institution’s reputation.  

In large part, the experience indicates that the institution could not transcend the tension between politics and morality that has always characterized this field.  In the time that remains, I hope to provide you with several illustrations within the six themes I have used throughout these lectures, showing how the ICC replicated previous historical experiences. 

Before I move to the next theme, I want to highlight one structural feature of the ICC that is crucial to your understanding.  It is also a feature that replicates a feature of the ways trials were designed after the first world war, which produced similar problems then.  The ICC is designed to be a backup to national trials, giving national courts the first opportunity to hear cases.  Using the term complementarity, the ICC is only able to hear cases if it establishes that national courts are “unwilling or unable” to bring the cases themselves.  This structure replicates Leipzig.  

After the first World War, the Treaty of Versailles contained provisions that required the Germans to extradite its nationals to the Entente powers to be tried there, but when the Germans refused for reasons of honour, the Entente Powers reluctantly agreed to allow Germany to try its own nationals.  In our earlier lecture, I called this vanquished’s justice.  

According to Gerd Hankel, the Entente only agreed to this vanquished’s justice on the basis that they could reassert jurisdiction if the German trials proved to be “exclusively aimed at protecting the guilty from punishment for their offenses.”[4]  Of course, the Leipzig trials proved to be a farce because of the conflict of interest in the prosecuting state. Moreover, it was impossible for Entente powers to reassert jurisdiction.  

As I hope will become clear, in many respects, the ICC’s structure and experience mirrors this history.

C. The Purposes of the International Criminal Court

I move then to my second theme, the purposes of the ICC. 

As we have seen, international criminal justice has multiple possible purposes, and these are not fully articulated or prioritized.  In my previous presentations I have discussed retribution on the basis of moral indignation, deterrence, incapacitation, regime change, reconciliation and others. All of these purposes are also applicable to the role of the ICC, but I want to emphasize two others that are especially prominent at the ICC.  Both are contained in the preamble to the ICC Statute. 

First, the preamble states, and I cite, 

“Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”  

This idea of atrocities as shocking the conscience of humanity is not new; in fact it has been used from the earliest discussions after the First World War and at every stage since.  I used the facts from the Doctor’s case at Nuremberg to try to produce this sense of moral shock for you, and I will give another example from Colombia later in this lecture. I share these stories because I want to provide you with a small dose of the feeling that has propelled this field morally. 

However, many criticize the weight placed on this sentiment politically.  Many political scientists are deeply skeptical of the idea of atrocities “shocking the conscience of mankind.”[5]  They argue that this grandiose language is an attempt to override politics, that it assumes more moral uniformity in the world than there is, and that it crowds out other equally compelling agendas, like global poverty. 

While this is all likely true, having seen these realities up close, I affirm that the shock is very significant and that to feel moral outrage as a response to it is a very natural, psychically healthy and perhaps universal human reaction. That outrage stems from a sense that the perpetrators made these choices.  

In addition, as matter of history, I believe that this shock to our conscience is a driving force behind much of what we have discussed even if it has been selectively deployed for political reasons.  Thus, in just this purpose, we see the tension between morality and politics that forms a theme in these presentations. 

Similarly, the preamble to the ICC Statute also states, and I cite again,  

“Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”  

I argue that this notion of impunity is also a moral idea; it is about not letting them get away with it.  To do so would be morally absurd.  In fact, all the moral absurdities we have seen over the course of these lectures inform this notion of impunity.  

Again, there is an excellent critical literature arguing that this notion of impunity is far too blunt and that it allows us to look past all of the shortcomings of international criminal justice,[6] which we have discussed over the course of this series.  Like Aleksandr Solzhenitsyn, who I discussed in the last lecture, I believe both these things are true.

D. Political Implications of the International Criminal Court

We come to the third theme I will use to explore the ICC, political implications.  There is so much we could talk about here, but I will limit myself to highlighting three parallels between the ICC and earlier manifestations of international criminal law. 

First, the ICC is also susceptible to double standards by great powers.  In the negotiating of the ICC Statute, states made many compromises to accommodate American interests, only to find that the US would not become a member to the Statute.  

In deference to the authority of the UN Security Council, the ICC Statute would formally envision the ability of the Security Council to refer situations to the Court.  These referrals would give the court jurisdiction over the country referred, regardless of whether the State concerned had signed and ratified the ICC treaty.  When the United Nations Security Council referred Sudan and then Libya, the American government made their agreement conditional on inserting language that exempted nationals from third-world states that are not parties, so that American troops could not be prosecuted at the ICC while others could. 

Most recently, the US government has openly threatened the ICC prosecutor with sanctions if she proceeds with an investigation of allegations of systematic torture by US troops in Afghanistan.  Because Afghanistan is a member of the ICC, the Court enjoys jurisdiction over all international crimes committed by all nationals on that territory.  Unfortunately, all of this mimics Nuremberg and Tokyo Tribunals, where Allies constructed international trials for others while insulating themselves from their own responsibilities.

Second, the ICC  faces the same co-operation dilemmas we discussed with respect to the Rwanda Tribunal, the ICTR. In my earlier lecture, I cited authors like Thierry Cuvellieur and Victor Peskin,[7] who argued that the Rwandan government was able to control the prosecutorial agenda of the ICTR by threatening to withdraw co-operation, either by preventing Rwanda witness from traveling to the Tribunal in neighbouring Tanzania or by refusing to ensure security of investigators.  

A number of more recent authors argue that similar problems exist with the ICC’s work elsewhere in Africa.[8]  The ICC needs the co-operation of governments to gain access to evidence, for security while undertaking investigations and to make arrests.  This is problematic when leaders of the states the ICC is cooperating with have very poor democratic credentials and considerable blood on their own hands. Again, the concern is that politics has overrun issues of equality, and that our moral concern has been instrumentalized for particular political interests. And again, there is a concern that we have not escaped victor’s justice in practice. 

Third, the ICC has become embroiled in heated disputes between previously warring states. For example, the ICC is presently investigating the Georgia Russia war that took place in 2008.  It is widely accepted that both sides committed international crimes during that conflict, but there appear to be important impediments to prosecutions.  A recent report states that “on the Georgian side there were concerns that Russian authorities were sending witness statements that were falsified or otherwise less than credible”.[9]  On the other side, the ICC has also noted “Russia’s claim that it could not proceed with its national investigation because Georgia refused to provide legal assistance.”[10] 

This narrative reminds us of the trials after the First World War, where convictions par coutumace in France and Belgium were met with acquittals in Leipzig in a climate of open hatred.  In either case, it is far from clear how international criminal justice might operate when, politically speaking, opposing sides want to use trials as a continuation of war.

E. Alternatives to Prosecutions

We come to the fourth theme I explore in these lectures, the alternatives to prosecution.  

In our previous discussions, we addressed many alternatives, including exile after the First World War, summary executions are the Second World War and Truth and Reconciliation Commissions after the Cold War. All of these, and many others we considered, are also feasible for the ICC.  This shows again how complex the choices about addressing atrocity are.  

Although it is not entirely new, I want to discuss an alternative that has become especially important for the ICC, that is amnesties in order to end a war and bring about peace instead of criminal prosecutions. 

Although the Yugoslav Tribunal also existed during ongoing armed violence, the vast majority of the courts we have considered in this series of lectures have involved institutions that were established after violence had come to an end.  In some instances, the lapse of time between the end of the violence in question and the establishment of the tribunal is very considerable.  The Cambodia Tribunal, for example, was established in 2001 to address the Khmer Rouge’s atrocities more than two decades earlier between 1975 and 1979.  

In the case of the ICC, though, it exists as atrocities take place. This reality raises the question of whether it should play a role attempting to end wars. Suddenly, conflict resolution is also a goal for international criminal justice. In this regard, there is a significant debate about whether amnesties for atrocities should be offered to incentivize warring factions to put down their weapons. If they will face prosecution when they stop fighting, they will not. 

By insisting on criminal accountability, international criminal law might prolong violence by preventing warring groups from reaching a peace deal. Conversely, by offering amnesties, you incentivize armed violence in general and atrocities in particular. 

I will use the Colombian situation as an example. As many will know, Colombia reached an historic peace deal with the FARC in 2016 after 50 years of war.  What to do about the international crimes over that period was a difficult issue for the parties to the conflict, and for the ICC that had jurisdiction over the crimes.  

I will share with you the details of one set of alleged international crimes in Colombia to make these dilemmas real, and to let you again feel the moral shock that has animated a large part of this field for the past century. Allegedly, between 2002 and 2008, the Colombia army routinely executed civilians. According to a report by Human Rights Watch, and I cite,  

“Under pressure from superiors to show positive results and boost body counts in their war against guerrillas, soldiers and officers abducted victims or lured them to remote locations under false pretenses—such as with promises of work—killed them, placed weapons on their dead bodies, and then reported them as enemy combatants killed in action.”[11] 

Apparently, there are at least 3000 such cases under investigation.  For me, it is often the combination of human creativity and brutal violence that is most shocking, perhaps because it reveals human agency most clearly.

In the shadow of these atrocities in Colombia, commentators like René Urueña have argued that the ICC has played an influential role in the Colombian Peace Process.[12]  Some view the ICC’s flexible agreement to allow substantially reduced sentences for truth telling in Colombian courts as facilitating the historic peace deal, whereas others are more critical about the ICC’s insistence that there must be trials.[13]  

In either instance, it is clear that the ICC has yet another major conceptual issue to address in considering international prosecutions.  It is also clear that these decisions can have major ramifications for people suffering the scourge of war. These problems too are great moral responsibilities. 

F. The Law

This brings us to our fifth theme, the law.  I will offer positive and critical perspectives on the law enshrined within the ICC Statute. 

On the positive side, the ICC Statute largely moves us beyond the struggles with retroactive law.  With exceptions I can discuss in response to questions at the end if people are interested, the ICC has a formal and detailed articulation of the relevant international crimes, forms of responsibility, and key procedure, which can be applied prospectively.  In terms of content, the ICC Statute also represents a more advanced set of norms that better reflect the realities of war.

For example, authors like Tuba Inal have shown how previous understandings of international criminal law payed very little attention to the experience of women in war.[14]  Inal shows how this results from the very limited participation of women within the negotiation of international treaties governing international humanitarian law.  As late as 1977, rape was still not formally recognized as a war crime in the field.  The Statute of the ICC corrects this, containing a new and varied set of criminal offenses that better reflect women’s experience of warfare and atrocity.  

Others see the glass as half empty. The international law scholar Gerry Simpson, for example, argues that international criminal law makes arbitrary distinctions between violence by hand and violence by political economy.[15]  This criticism is partly concerned that international criminal law is doing very little about global poverty, which kills vastly more people each day than perpetrators of international crimes. Indeed, some of these facts about global poverty are staggering:  

  • 2.3 billion people still do not have basic sanitation facilities such as toilets,  
  • there are 750 million illiterate adults, two-thirds of whom are women; 
  • one out of eight women die giving birth in Sierra Leone; 
  • and diarrhea caused by inadequate drinking water and sanitation kills an estimated 842,000 people every year globally.  

As Gandhi is famous for saying, “poverty is the worst form of violence.” Some argue that international criminal law helps us forget this.

G. Consequences of ICC Trials

This brings us to our sixth and final theme, the consequences.  There are many we could discuss here but I will mention only two sets, both positive and critical. 

On the positive side, there are a number of important researchers who use empirical methods to assess the impact of international criminal justice.  Beth Simmons and Hyeran Jo have published an important paper arguing that empirical evidence indicates that the ICC is having a demonstrable effect on the deterrence of atrocities.[16] Using empirical methods also, Kathryn Sikkink argues that international criminal justice has a beneficial effect on human rights performance, not just within the states where the prosecution is brought, but also in the surrounding regions.[17]  

These findings are the subject of much debate, but they reinforce the importance of the ICC.  They implicitly suggest that despite its shortcomings, the ICC’s moral contribution outweighs its deficiencies. 

Others view the ICC as an illegitimate neo-colonial institution that does more harm than good.  Scholars like Mahmood Mamdani, Kamari Clarke and many others are deeply skeptical about the future of the ICC, arguing that its unique focus on Africans presently reveals its continuity with the civilizing mission of colonialism.[18] With the African Union and various African Presidents expressing similar views, a number of states have withdrawn from the court based on these observations.  Moreover, scholars like Sarah Nouwen and Phil Clarke argue that the Court is exacerbating human rights problems in recipient states.[19]

To my mind, again, both these positive and critical perceptions are potentially correct; much depends on context. 


To conclude this series of lectures, I want to return to the theses I began with for the first of my presentations. I will summarise where we have come in the context of each thesis, and offer some tentative suggestions for how the field may continue into the future. 

My first thesis was that, for over a century now, the end of each major global war has resulted in the championing of international criminal justice to pursue a wide range of objectives that are not coherently defined or prioritized.  While Sikkink refers to the rise of international criminal justice in recent years as a “justice cascade”,[20] in truth, all the periods we discussed involved deluges of prosecutions.  

There were over 1,600 trials par coutumace in France and Belgium after the First World War, we saw how between 2 and 3 percent of the population of Europe was charged for treason, collaboration or war crimes after WWII, and the globalization of international criminal justice after the Cold war has been equally spectacular.  In each of these scenarios, trials have pursued a range of objectives, including retribution, deterrence, incapacitation, regime change, reconciliation, peace and more.  We have not chosen between these goals or prioritized them. 

Second, I argued that International criminal justice is constituted by a tension between the very intense moral sentiments about responsibility for atrocity and the politics that tend to instrumentalize those sentiments on the other.  

I have tried to help you experience these moral sentiments by telling you stories about German orders to massacre all French prisoners during the First World War, brutal medical experiments undertaken by Nazi doctors on prisoners within concentration camp during the Second World War, and allegations of false positive executions in Colombia in in the past decade.  

I’ve also shown how moral absurdity has acted as a powerful argument for criminal responsibility at all stages of this history.  At the same time, I have tried to show how every manifestation of these trials has involved unequal enforcement.   

Third, I have described how the history of international criminal justice is often a reactionary attempt to reconstitute the balance between these poles, morality and power, in light of the shortcomings of an earlier period.  We saw how Nuremberg and Toyko were direct and opposite reactions to the perceived failures of the vanquished’s justice at Leipzig.  In addition, the victor’s justice dispensed after the Second War War had to be overcome by ad hoc tribunals created by the United Nations, a putatively neutral party. In turn, the very limited geographical and temporal focus of ad hoc tribunals was overcome by a permanent International Criminal Court that was not limited in the same ways.  

Fourth, I argued that neither moral sentiment nor power will ever claim final victory over the other in our thinking about accountability for atrocities.  

Consequently, the history of international trials reveal something significant about the potential and limitations of international criminal justice in the current global legal order.  On the one hand, it is very human to feel great moral outrage about atrocities, and there will always be those who seek to address these sentiments in a legalistic fashion.  They will be joined by those who see ethical and consequential value in these prosecutions.  

On the other hand, those who view the frequent political instrumentalization of these trials as undermining the project will also find much to justify their opinion. 

But assuming international criminal justice persists as a very human reaction to atrocity, those committed to the field will have to develop a fresh strategy for maximizing the moral value of these trials while minimizing their political instrumentalization.   No doubt, this task will require very considerable imagination, a significant degree of political courage, great sensitivity to the very many variables we have discussed, and an awareness of how trials might have unintended consequences.  I am convinced that an honest inquiry into the history of international criminal justice can be helpful to this process. Indeed, it will be crucial to my generation’s spirited efforts in pursuit of the ideal, never again. 

[1] Gustave Moynier, Essai sur les caractères généraux des lois de la guerre (1895).

[2] M. Adatci, Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 14 Am. J. Int. Law 95 (1920).

[3] See Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 82–83 (1 edition ed. 2014).

[4] Gerd Hankel, The Leipzig Trials: German War Crimes and Their Legal Consequences after World War I 31 (2014).

[5] Brad R. Roth, Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice, 8 St. Clara J. Int. Law 231, 284 (2010).

[6] Karen Engle, Zinaida Miller & D. M. Davis, Anti-Impunity and the Human Rights Agenda See, for example, (2016).

[7] Thierry Cruvellier, Court of Remorse: Inside the International Criminal Tribunal for Rwanda (2010); Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (2008).

[8] See in particular, Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics (2018).

[9] Human RIghts Watch, Pressure Point: The ICC’s Impact on National Justice 67 (2018), (last visited Nov 30, 2019).

[10] Id. at 67.

[11] Nick Miroff, Colombian army killed civilians to fake battlefield success, rights group says, Washington Post, June 24, 2015, (last visited Dec 1, 2019).

[12] René Urueña, Prosecutorial Politics: The ICC’s Influence in Colombian Peace Processes, 2003–2017, 111 Am. J. Int. Law 104–125 (2017).

[13] Id.

[14] Tuba Inal, Looting and Rape in Wartime (Reprint edition ed. 2016).

[15] Gerry Simpson, Human Rights with a Vengeance: One Hundred Years of Retributive Humanitarianism Kirby Lecture in International Law 2015, 33 Aust. Yearb. Int. Law 1–14 (2015).

[16] Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, 70 Int. Organ. 443–475 (2016).

[17] Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (1 ed. 2011).

[18] Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (1 edition ed. 2009); Mahmood Mamdani, The International Criminal Court’s Case Against the President of Sudan: A Critical Look, 62 J. Int. Aff. 85–92 (2009).

[19] Clark, supra note 8; Sarah M. H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (2013).

[20] Sikkink, supra note 17.

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.

One of the Missing Pieces in the Accountability Puzzle

Arvind Ganesan is the Director of Business and Human Rights at Human Rights Watch.

Professor Stewart’s proposal is intriguing. Incorporating international crimes into a slowly evolving legal regime that might eventually hold companies accountable for complicity in abuses abroad could be a useful step. Even though his proposal is limited to “international crimes” that would only cover a narrow set of abuses relative to all of the human rights issues companies have, it still is worth exploring.

Whether one agrees or disagrees with his thesis, one thing is clear: his proposal is part of a larger trend towards stronger mechanisms that could institutionalize enforcement of the human rights responsibilities of companies.

In the late 1990s when Human Rights Watch first began work on Business and Human Rights, most companies did not accept that they had human rights responsibilities. The earliest cases under the Alien Tort Statute (ATS) against companies had been filed against Texaco (now Chevron) in Ecuador and against Unocal (now Chevron) in Burma, but had not reached any resolution. A number of companies were criticized because of human rights issues related to their operations, but were still resistant to changing their practices.

Most companies argued that host governments needed to address the abuses. By the beginning of the 21st century, some companies (mainly those burned by public criticism) started to grudgingly move to adopt human rights standards. The first company codes of conduct started to appear along with the first multistakeholder initiatives (MSIs) such as the Fair Labor Association (FLA) and the Voluntary Principles on Security and Human Rights.

After that, the ill-fated UN Norms were drafted. By 2006, human rights policies, MSI’s, shareholder activism, and public scrutiny of companies were all part of the global mix. A range of activities had evolved to try to hold companies accountable. Then, the UN approved the new mandate for the Special Representative on Business and Human Rights.

One area that has consistently lagged behind all of the others has been the enforceable legal framework and specifically, legal accountability for corporate complicity in abuses. In 2006, there was no regulation for businesses although some had been proposed. For example, US congressional representative Chris Smith had drafted the Global Online Freedom Act to regulate internet companies so that they would have to protect freedom of expression and privacy online. GOFA was a response to scandalous disclosures that major internet providers were self-censoring in China and that one of them had turned over private account information on activists to Chinese authorities who were later imprisoned for their efforts to promote human rights online. But the bill has not become law.

Nor had the courts held companies liable under the US ATS. Some companies had reached confidential settlements with plaintiffs, but no company had been found liable for human rights violations under the ATS, so the regulatory effect of such suits are not yet realized. And recent rulings by the US Supreme Court make that possibility even more remote.

Modest regulation has continued to evolve. In 2010, the regulatory environment slowly began to change, beginning with the passage of the US Dodd-Frank financial reforms law that had two human rights-friendly provisions: section 1502 that required publicly listed companies to disclose whether they sourced conflict minerals from the Democratic Republic of Congo; and section 1504 that required public extractives companies to disclose their payments to foreign governments. These laws represented some of the first attempts to regulate companies on human rights grounds. Even though they were relatively modest—only requiring companies to disclose information—they have been hotly contested by the industry and section 1504 has yet to go into force.

The next year, the UN Guiding Principles on Business and Human Rights were approved. And building on the precedent of Dodd-Frank, governments like Canada, the UK, and the members of the European Union have all drafted their own extractives disclosure legislation. Other rules are in effect or developing, for example, the US has human rights disclosure rules for investments above US$500,000 in Burma. New social reporting rules are proliferating in Europe and as far afield as India.

New disclosure rules are a promising development, but they are not a substitute for full accountability. In our view, the best, but still imperfect, legal model may be one that mirrors anti-corruption laws. Those laws, such as the US Foreign Corrupt Practices Act (FCPA), have extraterritorial reach, require companies to put systems in place to identify and prevent bribery and hold companies accountable when bribes are paid. Human rights rules could do the same thing: apply extraterritorially, require companies to put policies and procedures in place to identify and prevent abuses, face civil and criminal liability if abuses occur, and to regularly report on their efforts to protect human rights in their operations.

Laws like a human rights FCPA will not easily pass and will undoubtedly face resistance from industry and the governments sympathetic to them. But structurally, they offer the best chance to cover the largest swath of companies. The growing number of disclosure laws may be the first step towards comprehensive rules. And there is some evidence that change is coming. The proposed UN treaty on transnational corporations and human rights, for example, is a sign of movement. While it is controversial (Human Rights Watch has expressed reservations about it), it does signify a desire to move beyond the status quo. But it would be premature and naïve to think that real accountability will come easily or is inevitable.

Any move towards accountability at the national or international level will be a challenge and will take time. In that context, Professor Stewart’s proposal may be a way to fill in the missing pieces of the accountability puzzle. Like many current developments, it is indirect inasmuch as it is not regulation, but the hope of de facto regulation through potential liability. It is not a panacea for abuses or a substitute for clear and explicit laws that define the human rights responsibilities of companies, but is a part of the mix of efforts that are slowly and surely trying to ensure accountability for business-related abuses.