Bruce Ackerman et al. (eds.), Visions of Justice, Essays in Honor of Professor Mirjan Damaška (Duncker & Humblot, Berlin, 2016)
A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participation in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. This Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favour of a unitary variant. Curiously, the same problems Norway, Denmark, Italy, Austria and Brazil sought to solve in dispensing with differentiated systems of blame attribution are prominent in international criminal justice today. The eerie sense of déjà vu that arises from reading these histories suggests that the unitary theory may have real potential as a way through many of the key points of conceptual impasse that presently characterize this aspect of the field. In this respect, the Article seeks to contribute an historical perspective to a burgeoning dialogue about forms of blame attribution internationally by again questioning whether the great struggle with “modes of liability” is worth continuing.
For reactions to and criticisms of this paper, see:
- Judge Sir David Baragwanath, Judge at the Special Tribunal for Lebanon, A Unitary Theory of Perpetration? New Zealand and a Touch of the International
- Professor Carlos Eduardo A. Japiassú, Theories of Blame Attribution in Brazilian Law
- Professor Iryna Marchuk, The Unitary Form of Participation in Danish Criminal Law (and its Potential Use in International Criminal Law)
- Professor Jørn Jacobsen, Norway: Three Codes, Three (Somewhat Different) Solutions
- Filippo De Minicis, Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia, A Unitary Theory is Both Viable and Preferable
- Professor Albin Eser, formerly Judge International Criminal Tribunal for the former Yugoslavia, Questions from the Unconvinced
- James G Stewart, An Open Invitation to Further Debate (Instead of an Amicus Brief)
This Article is a sequel to an earlier theoretical defense of the unitary theory of perpetration. For this earlier work, see: