James Stewart has posted a new essay that sheds renewed light on an often overlooked problem in international criminal law. Called "Overdetermined Atrocities," the essay was written for a special issue of the Journal of International Criminal Justice that is dedicated to its late founder, Judge and Professor Antonio Cassese.
In the essay, Stewart argues that the field has yet to confront a simple but profoundly disturbing paradox: since atrocities are committed by multiple individuals, the contribution rendered by any particular defendant is rarely a sine qua non of the crime's occurrence. Rather, it is almost always the case that the crime would have occurred anyway without the defendant's contribution, because others involved in the event would have fulfilled the tasks carried out by the defendant. Consequently, the defendant is not a "but-for" cause of the crime.
The philosophical literature has long battled this dilemma, which is referred to as the problem of overdetermination. The classic thought experiment involves a firing squad with 10 members who all perform an execution by shooting at the prisoner. Since the killing would have occurred anyway even if Person A had not participated in the execution, it is unclear whether Person A is an essential contributor to the event. In fact, this is precisely the reason why firing squads were designed in this matter; it was thought that it would alleviate the guilt of the executioners by making each feel that they were not truly responsible for the result.
Of course, this results in a paradox. If Person A is not responsible, then none of the others are responsible either because their situation is the same. Hence no one is responsible for the event. How can this be the case?
I urge readers to read Stewart's essay to evaluate his own preferred solution to the problem. Here I want to concentrate on one element of the issue as it pertains to current doctrine at the ICC. The doctrines of indirect perpetration and indirect co-perpetration require that the defendant make an essential contribution to the collective crime in order for liability to attach to the defendant. As many scholars have noted, this yields a problem about the level of description. If the defendant had not participated, a resulting crime would no doubt have occurred, but it would be slightly different from the crime that had occurred with the defendant's participation. Should we call this the same crime or a different crime? What is the line between the same crime and a "new" crime? And does this exercise in description have normative significance for criminal responsibility? It would be strange to think that responsibility should track this linguistic exercise.
The ICC might eventually revisit this issue. For now, I would simply note that the Office of the Prosecutor has argued to the court that the "essential contribution" standard for indirect perpetration liability should be dropped in favor of a "substantial contribution" standard. This would avoid the "sine qua non" problem of description that I have just elucidated, but the question is whether the substantial contribution requirement is strict enough. Is simply removing the standard of the "essential contribution"and appropriate way of resolving ambiguities about how it should be applied?