James G. Stewart

The End of 'Modes of Liability' for International Crimes

Modes of liability, such as ordering, instigation, superior responsibility and joint criminal liability, are arguably the most discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider socio-political objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms entirely, even though it too fails the tests international criminal lawyers use as benchmarks in the deconstruction of other modes. Moreover, the source of complicity’s departures from basic principles is not international as previously suggested - it stems from international criminal law’s emulation of objectionable domestic criminal doctrine. If, instead of inheriting the dark sides of domestic criminal law, we apply international scholars’ criticisms across all modes of liability, complicity (and all other modes of liability) disintegrates into a broader notion of perpetration. A unitary theory could also attach to all prosecutions for international crimes, both international and domestic, transcending the long-endured fixation on modes of liability within the discipline.

A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity

Corporate criminal liability is a controversial beast. To a large extent, the controversies surround three core questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given coexistent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers. In this paper, I use examples from the frontiers of international criminal justice to criticize all sides of these debates. In particular, I harness the latent possibility of prosecuting corporate actors for the pillage of natural resources and for complicity through the supply of weapons, to highlight the shortcomings of corporate criminal theory to date. Throughout, I draw on principles derived from philosophical and legal pragmatism to reveal a set of recurring analytical flaws in this literature. These include: a tendency to presuppose a perfect single jurisdiction that overlooks globalization, the blind projection of local theories of corporate criminal responsibility onto global corporate practices; and a perspective that sometimes seems insensitive to the plight of the many who have fallen victim to corporate crime in the developing world. To begin anew, we need to embrace a pragmatic theory of corporate criminal liability that is forced upon us in a world as complex, unequal, and dysfunctional as that we presently inhabit.