Towards a Unique Theory of International Criminal Sentencing

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment for international crimes, specific to criminals responsible for genocide, crimes against humanity, and war crimes. Many of the familiar theories of punishment in the municipal context - rehabilitation, deterrence, and the like - are ill-suited for the international context. Consequently, the procedural vortex in sentencing can only be filled once a sui generis theory of punishment is adopted by international criminal law that gives appropriate weight to retributive considerations. The paper concludes by suggesting the following procedural changes: return the sentencing phase in international trials, create an international sentencing commission, and draft non-binding international sentencing guidelines

Targeting and the Concept of Intent

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent. This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage

Joint Criminal Confusion

Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 with an amendment that replaces Article 25(3)(d) with a clear provision specifically incorporating some joint liability doctrine, albeit a version that excludes the worst excesses of the doctrine known as joint criminal enterprise

The Changing Market for Criminal Law Casebooks

In the following Review, I analyze the leading criminal law casebooks on the market and describe the ways in which they do — and do not — respond to the needs of criminal law teachers. At least part of the issue is the changing nature of law teaching — what actually happens in the classroom has changed in the last three decades. Moreover, there may be less uniformity in classroom practice than in the past; in other words, what works in one law school might not work in another, due in part to the changing profile of law students, as well as the great diversity of intellectual perspectives that law teachers bring to the lectern. I then lay out a vision for a new casebook in criminal law that responds to some of these desiderata with a fresh yet flexible approach

The Changing Market for Criminal Law Casebooks

In the following Review, I analyze the leading criminal law casebooks on the market and describe the ways in which they do — and do not — respond to the needs of criminal law teachers. At least part of the issue is the changing nature of law teaching — what actually happens in the classroom has changed in the last three decades. Moreover, there may be less uniformity in classroom practice than in the past; in other words, what works in one law school might not work in another, due in part to the changing profile of law students, as well as the great diversity of intellectual perspectives that law teachers bring to the lectern. I then lay out a vision for a new casebook in criminal law that responds to some of these desiderata with a fresh yet flexible approach

The Combatant\u27s Stance: Autonomous Weapons on the Battlefield

Do Autonomous Weapon Systems (AWS) qualify as moral or rational agents? This paper argues that combatants on the battlefield are required by the demands of behavior interpretation to approach a sophisticated AWS with the “Combatant’s Stance” — the ascription of mental states required to understand the system’s strategic behavior on the battlefield. However, the fact that an AWS must be engaged with the combatant’s stance does not entail that other persons are relieved of criminal or moral responsibility for war crimes committed by autonomous weapons. This article argues that military commanders can and should be held responsible for perpetrating war crimes through an AWS regardless of the moral status of the AWS as a culpable or non-culpable agent. In other words, a military commander can be liable for the acts of the machine independent of what conclusions we draw from the fact that combatants — even artificial ones — must approach each other with the combatant’s stance. The basic framework for this liability was established at Nuremberg and subsequent tribunals — both of which focused on how a criminal defendant can be responsible for allowing a metaphorical “machine” — such as a concentration camp — to commit an international crime. The novelty in this technological development is that the law must shift from dealing with the metaphor of the “cog in the machine” to a literal machine. Nonetheless, this article also concludes that there is one area where international criminal law is ill suited to dealing with a military commander’s responsibility for unleashing an AWS that commits a war crime. Many of these cases will be based on the commander’s recklessness and unfortunately international criminal law has struggled to develop a coherent theoretical and practical program for prosecuting crimes of recklessness

Did Russian Cyber Interference in the 2016 Election Violate International Law?

When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps shocking) interference in the American political process—an intervention that non-lawyers would not hesitate to label a “violation of sovereignty” as that term is used in political or diplomatic discourse. The problem arises when one attempts to translate that common-sense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons. The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously applies to the facts in question. That being said, it would be a mistake to hastily reject our common-sense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another state’s sovereignty is simply an indication that the notions of “sovereignty” and “intervention”—though mainstays of contemporary public international law doctrine—are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements and their future destiny