For those of you interested in international criminal law, I direct your attention to an online symposium at Opinio Juris about the future of modes of liability. The debate centers around James Stewart’s new article, “The End of Modes of Liability,” published in the most recent issue of the Leiden Journal of International Law.
Stewart argues in his essay that all modes of liability should be replaced with a unitary theory that dispenses with the distinction between principals and accessories in favor of a unitary scheme based on the defendant’s causal contribution to the crime. Stewart argues that this unitary theory will correct the often overlooked excesses of complicity as a mode of liability.
Critical responses are provided by Thomas Weigend, Darryl Robinson, and myself, with responses from Stewart here, here, and here.
My response in particular focuses on the normative basis for maintaining a distinction between principals and accessories, and the inadequacy of punting these determinations of relative culpability to the sentencing decision.
The issue of modes of liability is of particular concern to me, and I have recently posted a draft essay on indirect co-perpetration. Although indirect co-perpetration is relatively unknown to criminal lawyers in the United States, it is of immense importance to ICL as I predict it will become the dominant mode of liability used at the ICC. Comments and suggestions are welcome.