Cassandra Steer

Objectivity Reflected in the Civil Law Tradition

This chapter undertakes the second part of the comparative study in this book, focusing on collective and leadership liability in the civil law tradition. Systemic consistency is prioritized over individual balance of fairness, and the role of scholars in defining and developing a coherent system is highly influential. These factors influence the way in which liability has developed as a more technical, hierarchically ordered system. This is is one of the reasons why a normatively differentiated system has typically emerged in the civil law tradition. As a corollary of this, there is a heavy emphasis on objectivity , or the exact contribution of a party to a crime to its fulfilment, as an expression of his or her blameworthiness. Illustrative of this are the comparisons made between the systems of liability in Germany and Argentina. In Germany, objectivity has developed over time from a pure objective approach to an approach where control over the act is the paramount test. The theory of control over a crime by way of control over an organisation, developed by Claus Roxin, is given particular attention due to its recent impact in ICL. In Argentina, the German model has been developed further in specific response to domestic crimes of mass atrocity during the ’Dirty War’ of the 1970 s and 1980s. There are lessons to be learned from both these jurisdictions in terms of leadership liability for mass atrocity, especially when comparing the specific policy reasons behind the development of domestic modes of liability.

Subjectivity Reflected in the Common Law Tradition

This chapter undertakes the first part of the comparative study in this book, focusing on collective and leadership liability in the common law tradition. First a historical picture is painted of the horizontal approach to legal and political authority in this tradition, and why this tends towards a criminal trial that has lay decision makers and judges whose task it is to act as umpires between two competing versions of the truth. These factors influence the way in which liability has developed as a simplified system, which accessible to those lay juries, and which preferences a just policy outcome in each individual case over systemic consistency. This is one of the reasons why a functionally unitary system has typically emerged in the common law tradition. As a corollary of this, there is a heavy emphasis on subjectivity, or the shared will of those implicated in collective crimes, rather than on the actual contribution made by any individual. Illustrative of this are the comparisons made between the systems of liability in the USA and Canada. In the US, this subjectivity is particulary evident in the unique development of conspiracy as a mode of liability, with far-reaching consequences for extended liability, where a member of a collective commits crimes that go beyond the original agreement. In Canada, no such mode of liability exists, and there is rather a trend to limit extended or constructed liability, due to the notion of ‘fundamental principles of justice’ in the Charter of Rights and Freedoms. There are lessons to be learned from both these jurisdictions in terms of leadership liability for mass atrocity, especially when comparing the policy reasons behind the development of modes of liability.

Applying a Comparative Theory: Beyond Legal Transplants, Toward Legal Patchworking

This chapter takes stock of Part II, analysing what can be learned from the comparative study of four domestic jurisdictions and the trends at the international tribunals. In the first place, this comparative study can demonstrate the patchworking process that is now inherent to the development if ICL. In this sense, the comparative theory of ICL is descriptive. In the second place, the comparative theory has a normative purpose, to offer some tools to improve and strengthen the patchworking process. Given the inevitability of this process, the most prudent question to ask is not how to change it, but rather how to improve it. The ‘rules of the game’ of comparative law methodology should be applied when answering a normative question of law, requiring a careful selection of jurisdictions to be compared, justification of that selection, a functional formulation of the question at hand, and a consideration of the policies underlying the choices available. This chapter then discusses the impact of the patchworking process on the traditional doctrine of sources , in particular the primary role of case law and the opinions of scholars. Finally the nature of international modes of liability as sui generis is considered.

The Problem of Liability in International Criminal Law

This chapter outlines the purpose and structure of the book. In the last twenty-five years, debates have become more and more complex as to the correct modes of liability to apply to leaders implicated in mass atrocity crimes. Should the focus be on widening the net of liability and treating all those involved in mass atrocities equally liable—a unitary approach—or should it rather be on differentiating between principals and assistants, and therefore applying different modes of liability—a differentiated approach? There appears to be a policy trend to focus on ‘those most responsible’, however the question remains who is most responsible, and what form of liability should attach. In order to untangle the the debate, this book proposes that international criminal law is in fact a continuing process of comparative law in action, whereby domestic criminal law notions are translated to the international plane. There is no single correct approach to liability, rather the functional question must be posed: which approach will reflect the collective nature of mass atrocity crimes and fulfill the aims of ICL in the best way possible?

Leadership Liability for Collective Crimes

This chapter deals with the challenge of translating guilt for collective crimes from the group to the individual, and asks how a leader should be held responsible in both a moral and legal sense. In conflict situations the moral universe has shifted, and ordinary people who would not normally commit acts of violence become capable of heinous acts on a grand scale. Such crimes are characterised by the use of State (or State-like) apparatuses by government or military officials and superiors, but the distance between these superiors and the crimes committed by the hands of others makes it difficult to untangle questions of responsibility. The greatest challenge is how to accurately reflect the collective nature of these crimes, and at the same time identify who is truly to blame for them. The notion of overlapping agency is posited as a useful tool, and it is argued that the deliberative structures within a collective can help to identify who has more agency and therefore more responsibility. In such a way, translation from the collective to the individual can be justified, and leadership liability can be identified.

Translating the Guilt of Leaders of Mass Atrocity

This chapter concludes the study by highlighting the many layers of translation that take place in the search for the most appropriate modes of liability for mass atrocity. There is a translation from the collective to the individual; from the notion of ‘every day’ collective criminality to the circumstances of mass atrocity; from the domestic to the international; and translations of criminal law terminology from languages including German, French and Spanish to English, and between English-language jurisdictions which have different understandings of terminology such as responsibility, liability, and culpability. International criminal lawyers must become more sophisticated comparativists to deal with these multiple layers of translation . They must also be aware of the policy underlying the domestic models which they depend on, and the policy choice they are making at the international level. A defence of the normatively differentiated system of liability is laid out, emphasising the goals of ICL, the reasons why an objective approach is a better fit for ICL, why a normative theory of culpability should apply, and how this all relates to the deliberative decision-making structures in collective crime. An argument is made the modes of liability are the best way to express these differences, rather than leaving it to sentencing . Finally it is argued that fair labelling also requires us to distinguish between the intellectual authors of a crime and those on the mere periphery.

Putting the Leaders of Mass Atrocity on Trial

There are multiple competing demands made of the international criminal justice project. It must be at once effective, just in terms of outcome, and fair towards defendants. Two sets of tensions created by these demands are discussed in this chapter. The first is the tension between efficacy and symbolism; the desire for an efficient system of prosecutions requires a clarity of goals, yet there are numerous and competing goals asserted by those with different interests, including victims, defendants, and transitional justice advocates. An overarching central goal of ‘increasing the public sense of accountability for mass atrocity’ is identified, coupled with the symbolic function of ICL as norm expression and history writing. Identifying leaders as independent actors in relation to mass atrocity crimes is more effective both with respect to the central goal and with respect to the expressive function of trials. The second set of tensions has to do with balancing fairness and justice, two core requirements of any criminal law system. The outcome of a trial must be fair to the defendant and just with respect to the victims’ interests and the crimes committed. Linked to these two notions are the limiting principles of legality and culpability. Their application lead to the conclusion that no-one should be held liable for actions over which they have no control, and that those with more control should be held to a higher standard of responsibility. Thus in ICL, focusing upon the leaders of mass atrocity as especially responsible is both warranted and necessary.

Applying the Tools

The process of legal patchworking (drawing on multiple domestic criminal law notions as a direct source of ICL) is a dynamic process involving judges, practitioner lawyers and scholars. However this patchworking process has rarely taken place with attention to methodology, rather it has been arbitrary, depending upon which participants are most influential in a given forum, and what their preference is for specific domestic systems of liability. What has emerged is a lack of clarity and a clash of legal cultures, undermining both the predictability required for defendants as well as the consistency required for a stable and functioning body of criminal law. In this chapter comparative law tools are offered as a method for understanding the process, and for undertaking an analysis of the different domestic modes of liability from which international tribunals draw. A consistent comparative method can help temper the arbitrariness and clash of legal cultures. In this chapter the terminology applied throughout the comparative study in Part II is also laid out, including formalism, complicity , unitary and differentiated systems, objectivity and subjectivity , guilt and responsibility.

Shifting Trends in International Tribunals

In this chapter a historical perspective is taken on the process by which the modes of responsibility have been created and recognised in international and internationalised courts and tribunals in the last seventy years, with an eye to whether a more objective or subjective approach appears to prevail in the design and application of each one. Attention will be paid to the discussions which led to the inclusion of each mode of responsibility, and it will be considered whether there are distinguishable factors which may have determined their inclusion in a given statute, or their selection in judgments. The background legal training of participants at the various tribunals is highlighted, since this influences their perspective in the controversies and debates surrounding each mode of liability. It is demonstrated that these participants have done more than interpret and re-interpret the law, they have also been active in creating and developing the law, illustrating the nature of ICL as a patchworking process.

A Comparative Theory of International Criminal Law

A traditional understanding of the sources of international law according to Article 38 of the Statute of the International Court of Justice denotes States as the predominant law-makers, and considers domestic case law to be merely a subsidiary source of law. This is a static view of the law, which does not take into account the actual processes by which certain branches of international law are formed. A more dynamic view is therefore proposed in this chapter. Law is understood not just as a reflection of policy, but as a process of interaction between various participants and policy-makers, such as judges, lawyers, scholars as well as formal law-makers. This dynamic view captures the way in which international law in general, and ICL in particular, is constantly being developed. It also allows a realistic view of the role of domestic law as it is translated to the international plane, which is necessary if we are to understand the ways in which modes of liability are developed and debated. ICL is conceived of as comparative law in action, whereby domestic criminal law notions are patchworked together to form a new body of law. A dynamic comparative theory of ICL is offered both as a methodology for understanding the process by which ICL develops, and as a method for analysing the question which model of liability is most appropriate for ICL. A comparative perspective on this patchworking can alleviate the current clash of legal cultures observable in the debates on liability, and can aid in making a selection from among all the possible translations from domestic criminal law.