Ten Reasons for Adopting a Universal Concept of Participation in Atrocity

The legal doctrine that assign blame for international crimes are numerous, unclear, ever-changing and often conceptually problematic. In this Essay, I question the prudence of retaining the radical doctrinal heterogeneity that, in large part, produces this state of disarray. Instead of tolerating different standards of participation across customary international law, the ICC statute and national systems of criminal law, I argue for a universal concept of participation that would apply whenever an international crime is charged, regardless of the jurisdiction hearing the case. Although I have argued elsewhere that a unitary theory of perpetration should serve this role, I here attempt to remain agnostic about the content of the universal system for which I advocate. In so doing, I isolate the question of universality from the theory of responsibility that would fill it, querying why so much energy is invested in generating treaties to harmonize definitions of international crimes, when no comparable initiative exists for the modes of participation these crimes couple with. I conclude this call for a universal notion of participation in atrocity by suggesting that the current disarray in this domain is more a challenge for academics and states than litigators and judges

The Strangely Familiar History of the Unitary Theory of Perpetration

A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating 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. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, 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 favor of a unitary variant. Curiously, as things transpire, the reasons Norway, Denmark, Italy, Austria and Brazil dispensed with the types of differentiated system currently in force in international criminal law are strangely familiar to those working in international criminal justice today. The eerie sense of déjà vu that arises from reading these histories suggests that, potentially, 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

The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute

In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel v. Royal Dutch Petroleum Co. that allegations like these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. Since then, the American fiction that corporations are people for the purposes of criminal law has taken hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case. In this paper, I argue that coupling corporate criminal liability with international crimes in national systems, as in this new Swiss case, is the next obvious “discovery” in corporate responsibility. In addition, at least one international court has now adopted corporate criminal liability for international crimes. These moves promise to transcend several of the doctrinal and conceptual problems that plagued the ATS. First, this reframing will move this field beyond polarized debates about the scope of complicity within ATS litigation, which did not fully capture the nuanced meaning of accomplice liability in the criminal law. Second, it will bypass the cumbersome debate about corporate responsibility for international crimes as a matter of international law, which would not arise in criminal trials. Third, while trading the private right to sue under the ATS for prosecutorial discretion in a criminal context is certainly a massive loss, prosecutorial discretion also has its upsides, which we should now explore in greater depth. Finally, reframing ATS cases in international criminal law (principally enforced in national courts) offers corporate guilt and retribution as a justification for accountability, thereby answering many of the criticisms scholars leveled against the ATS process. Corporate criminal liability (in conjunction with individual criminal responsibility of corporate officers for international crimes) always had certain competitive advantages over the ATS, that the Swiss investigation confirms as legally plausible. So, regardless of whether this particular investigation ever results in a trial or conviction, it announces an uncharted set of relationships between commerce, atrocity and international criminal law waiting to be mapped. As I show, by simultaneously mimicking and transcending the ATS, corporate criminal liability for international crimes offers human rights advocates a fresh platform for justice, while also contributing very new perspectives to scholarly debates about the propriety and efficacy of ATS litigation. All in all, the rise of corporate criminal liability for international crimes offers new ideas about the importance of corporate accountability globally, which understandably, never figured within the relatively narrow framing required for the ATS or the business and human rights discourse more broadly

Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict

The strict division of international humanitarian law into rules applicable in international armed conflict and those relevant to armed conflicts not of an international nature is almost universally criticized. Even though attempts to abandon the distinction were made at every stage of negotiation of the Geneva Conventions and their Protocols, calls for a single body of international humanitarian law have since died out. This article revives those calls by highlighting the inadequacies of the current dichotomy’s treatment of internationalized armed conflicts, namely, armed conflicts that involve internal and international elements. It concludes that the law developed to determine this “internationalization” has created convoluted tests that in practice are near impossible to apply. Even once internationalized, it is difficult to determine the applicable law as relationships and military presences change. Moreover, the international/non-international dichotomy in international humanitarian law has proved susceptible to incredible political manipulation, often at the expense of humanitarian protection. Further considerations of substantive aspects of a single law of armed conflict will be essential in the development of greater humanitarian protection during internationalized armed conflict

The End of \u27Modes of Liability\u27 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

Complicity

Complicity is responsibility for helping. This essay provides a comparative overview of the criminal law and theory pertaining to complicity. Instead of taking a strong prescriptive position on the best way to construct accomplice liability, it charts a series of recurrent normative problems in this area and points to various solutions these problems have generated in practice. The essay begins by considering structural questions that inform the shape accomplice liability is given in different criminal systems, then discusses the conduct required to establish accomplice liability, before plotting the various static and dynamic mental elements that are frequently allocated to the concept. Overall, the essay suggests that a comparative approach is very helpful in shedding light on blind spots in various schools of thought about complicity, including whether it deserves an autonomous existence separate from perpetration. I conclude that the subject deserves our ongoing intellectual engagement, since it goes to the heart of our attempts to live decently, in this our very imperfect world

Complicity in Business and Human Rights

These remarks, delivered on April 9, 2015 at the American Society of International Law’s Annual Conference, address the context of complicity discussions in public international law generally then their significance and scope in Business and Human Rights in particular. The Panel on which I delivered this talk was one of the first to discuss the topic of complicity across different fields, including International Criminal Law, the Alien Tort Statute, Business and Human Rights and the Public International Law of State Responsibility. In my comments, I offer five initial points contextualizing these discussions for the field of public international law writ large, then five more about their significance for Business and Human Rights as a discourse. In the first part I suggest that a robust discussion about complicity is vital if we are to lead decent ethical lives in a world that is at once increasingly interconnected and very dysfunctional. In the second, I problematize the use of international criminal law to supply the standards for complicity Business and Human Rights should employ. I suggest that negligence, not normally sufficient for criminal responsibility, should ground the standard for accomplice liability in the human rights context. Overall, I posit the idea of a tiered wall of complicity standards that are attuned to the conceptual pre-commitments of the fields they operate in, not a monolithic system that takes international criminal law as the sole determinant of the concept. Nevertheless, even if a coherent system of complicity along these lines never emerges across international law as a whole, the mere fact that we are discussing the topic improves our chances of leading ethically decent lives in our very imperfect world

Taking Youth Suicide Seriously: Disclosure of Information between School, Family and Health Professionals in New Zealand

This paper investigates the law’s impact on disclosures of information between family, school and health professional in curbing the tragedy of youth suicide in New Zealand. The application of general privacy and confidentiality law is considered within the context of the recommended best practice espoused by the state lead New Zealand Youth Suicide Prevention Strategy. The paper concludes that the complexity and at times incoherence of current law has failed to define standards upon which disclosure decisions could be based. As such, the legal obligations of privacy and confidentiality have not been adequately married with the need for cohesion between family, school and health professional or indeed, with the best interests of the suicidal adolescent. Instead the article suggests a separate privacy and confidentiality regime that addresses the particular challenges faced by parties dealing with suicidal young people. The suggestions are based on information obtained from a national survey of secondary school principals in New Zealand.&nbsp