Jens David Ohlin

Assessing the Control-Theory

As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory, is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.

Applying the Death Penalty to Crimes of Genocide

After the Rwandan genocide of 1994, the United Nations Security Council moved quickly to establish an international tribunal to indict the architects of the slaughter. Whether motivated by a sincere desire for international justice or a self-serving desire to assuage international guilt for the lack of significant military intervention, one thing is clear: the Security Council began a program that, when coupled with its establishment of the International Criminal Tribunal for the Former Yugoslavia, represented the most significant return to international criminal justice since the Allied prosecution of German war criminals at Nuremberg. But so much had changed since 1951. Whereas the Nuremberg Tribunal imposed death sentences for the most culpable instigators of the Holocaust, there would be no death sentences for the architects of the Hutu genocidal campaign against the Tutsi. Over the course of forty years, there was a sea shift in attitudes about the legality of the death penalty. When the Allies announced their decision to apply the death penalty at Nuremberg, few objected or suggested that executions would violate international human rights law. Indeed, Churchill was initially suspicious of the plan for a war crimes tribunal, having assumed that what remained of the Nazi leadership would simply be executed on the battlefield. As the proceedings unfolded, there were isolated calls for leniency and clemency, and even complaints of victors’ justice, but certainly no suggestion that executions violated international law as such.

Second-Order Linking Principles: Combining Vertical and Horizontal Modes of Liability

Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that have applied indirect co-perpetration have generally failed to offer this defense and have simply assumed that modes of liability can be combined at will. In an attempt to offer the needed justification, this article starts with the premise that modes of liability are ‘linking principles’ that link defendants with particular actions, and that combining these underlying linking principles requires a second-order linking principle. The most plausible candidate is the personality principle — a basic principle that recognizes the inherently collective nature of leadership-level groups dedicated to committing international crimes. Like Roxin’s theories describing the collective organizations that can be used as a form of indirect perpetration, the personality principle treats the horizontal leadership group as an organization or group agent whose collective nature potentially justifies the attribution of vertical modes of liability to all members of the horizontal group. Although this article does not defend the doctrine of indirect co-perpetration, it does conclude that combined vertical and horizontal modes of liability, whether at the ICTY or ICC, implicitly or covertly rely on something like the personality principle in order to justify collective attribution to the horizontal collective.

Remoteness and Reciprocal Risk

The history of modern weaponry involves the construction of the technological capacity to produce lethal results while exposing the operator to the least amount of risk of death or injury. The most recent examples of this phenomenon are three new weapon categories: remotely piloted vehicles (drones), cyber-weapons, and Autonomous Weapons Systems (AWS). Each of these categories of weapons allows the attacking force to inflict military damage while the operators of the weapon remain safely shielded from the theater of operations. The overall strategy is to create a system that grants the operator total immunity from risk but still inflicts maximum damage to the enemy. This chapter will propose, explain, and critically examine the concept of reciprocal risk. It will seek to determine whether there is, in fact, a historical norm in favor of reciprocal risk in warfare, and how the advent of drones, cyber-weapons, and AWS have impacted this putative norm. After evaluating the alleged and often assumed rupture to reciprocal risk caused by technological innovation in weapons design, this chapter will then examine two familiar objections to these technologies. The first is whether the weapons will, by creating a severe asymmetry in risk, allow states to exercise force cavalierly, and remove an important check on warfare that helps limit the number of jus ad bellum violations across the globe. Having examined that anxiety, the final part of this chapter will ask whether reciprocal risk is an essential ethical component of basic norms of chivalry. This latter analysis will require an examination of legal principles under the Law of Armed Conflict (LOAC) and ethical principles embodied in just war theory.

Nash Equilibrium and International Law

Game theory has been a mainstay in the international relations literature for several decades, but its appearance in the international law literature is of a far more recent vintage. Recent accounts have harnessed alleged lessons learned from game theory in service of a new brand of “realism” about international law. These skeptical accounts conclude that international law loses its normative force because states that “follow” international law are simply participants in a Prisoner’s Dilemma seeking to achieve self-interested outcomes. Such claims are not just vastly exaggerated; they represent a profound misunderstanding about the significance of game theory. Properly conceived, the best way to understand international law is as a Nash Equilibrium - a focal point that states gravitate toward as they make rational decisions regarding strategy in light of strategies selected by other states. In domains where international law has the greatest purchase, the preferred strategy is reciprocal compliance with international norms. This strategy is consistent with the normativity of both law and morality, both of which are characterized by self-interested actors who accept reciprocal constraints on action to generate Nash Equilibria and, ultimately, a stable social contract. These agents - “constrained maximizers” as the philosopher David Gauthier calls them - accept the constraints of a normative system in order to achieve cooperative benefits. This Article concludes by explaining that it is also rational for states to comply with these constraints: agents evaluate competing plans and strategies, select the best course of action, and then stick to their decision, rather than obsessively reevaluating their chosen strategy at each moment in time. A state that defects from international law when the opportunity arises may, in the long run, reduce its overall payoff, as compared to a state that selects and adheres to a strategy of con-strained maximization.

The Morality of Defensive War, edited by Cécile Fabre and Seth Lazar

Readers seeking an entry into the debate over political aggression are advised to start with David Rodin’s chapter ‘The Myth of National Self-Defense’, even though as Chapter Four it anchors the book’s second part instead of leading the volume. Rodin argues that it is unjustified to use military force to stop an outside state from imposing new political leadership in a so-called ‘bloodless invasion’ [88]. If citizen lives are not in jeopardy from the new regime, why use lethal force to stop the imposition of a new political order, even one imposed by an outside state with no credible claim to legitimate political rule? Rodin views a defensive war as akin to using force to protect Cadbury from a hostile corporate takeover by Kraft [77]. In both instances, he says, the existence of a unique culture is insufficient to justify the use of deadly force. Rodin’s views are provocative, though of uncertain application. First, he defends this rule for situations where no citizens will be killed if they comply with the wishes of the outside invaders. But this is close to a null set, although the recent case of Crimea might qualify. In most cases of political rule, the raw power to rule peacefully is also the power to rule viciously, and one can never guarantee in advance whether the outside invader will refrain from abusing or killing the local population. In ‘National Defense, Self-Defense, and the Problem of Political Aggression’, Seth Lazar focuses on conditional threats: if you resist the invasion then you will be killed. Both Lazar and Rodin conclude that the future threat cannot justify resisting the invasion today. Are cosmopolitan connections morally significant enough that an infringement upon them triggers a right of physical resistance? Rodin thinks not; Lazar is uncertain. But if this is the case, then it seems unlikely that a parent could be entitled to use lethal force to stop a kidnapper who forcibly takes a child to raise as his own. True, state authorities should be the first to remediate this aggression, but in the absence of state authority the right falls to the individual parent to vindicate. The conditional threat is irrelevant here; more deeply, we should ask whether the family connection is deserving of moral and legal respect — and why the same would not be true for the nation-state. C ecile Fabre answers some of these questions in her chapter on ‘Cosmopolitanism and Wars of Self-Defence’, and she concludes that military force is justified to stop political aggression that will result in ‘dehumanizing rights-violations’ [114]. Christopher Kutz argues that a community is defensible because of its collective agency [231]. The most compelling answer is a neo-Republican conception of non-domination defended by Margaret Moore, who regards it as a relational principle of justice instead of a theory of freedom [195].