Rethinking Criminal Law Theory

Hart Publishing has just released Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law.  The book was edited by François Tanguay-Renaud and James Stribopoulos, both of Osgoode Hall Law School (York University). 

Here is the table of contents:

PART I Rethinking the Philosophical Foundations of Substantive Domestic Criminal Law
 
A. The Legitimate Scope of Criminal Law and the Methodology of Criminal Law Theory

1. Two Conceptions of Equality before the (Criminal) Law, by Malcolm Thorburn
2. Individual Emergencies and the Rule of Criminal Law, by François Tanguay-Renaud
3. The Wrong, the Bad and the Wayward: Liberalism’s Mala, by Alan Brudner
4. Obscenity without Borders, by Leslie Green
 

B. New Perspectives on Exculpation
 
5. Understanding the Voluntary Act Principle, by Andrew Botterell
6. Mental Disorder and the Instability of Blame in Criminal Law, by Benjamin L Berger
7. Responsibility, Self-respect and the Ethics of Self-pathologization, by Annalise Acorn
8. Excuses and Excusing Conditions, by Dennis Klimchuk
 

PART II Rethinking the Philosophical Foundations of the Domestic Criminal Process
 
9. The Law of Evidence and the Protection of Rights, by Hamish Stewart
10. Packer’s Blind Spot: Low Visibility Encounters and the Limits of Due Process versus Crime Control, by James Stribopoulos
11. Social Deprivation and Criminal Justice, by Kimberley Brownlee
 

PART III Rethinking International Criminal Law and its Specificities
 

12. Universal Jurisdiction and the Duty to Govern, by Michael Giudice and Matthew Schaeffer
13. International Criminal Law: Between Utopian Dreams and Political Realities, by Margaret Martin
14. Joint Intentions, by Jens David Ohlin
15. Theorizing Duress and Necessity in International Criminal Law, by Dwight Newman

  

Special Issue on Aggression

The Journal of International Criminal Justice has just published a special issue on the Crime of Aggression after Kampala.  The issue marks the 10th Anniversary of the Journal, whose former editor-in-chief is the late Judge Cassese.

The issue is highly recommended, in part because the Kampala compromise was very complicated -- both in terms of its negotiating history as well as the actual text of the final amendments.  

Thomas Weigend has an excellent article on Nuremberg and the ex post facto principle, which views the Kampala compromise as an important moment in the resolution of that problem. Kevin Jon Heller has a nice piece on the legal status of the "understandings" that were adopted along with the compromise -- an issue that until now has been woefully under-analyzed, and brings to my mind the uncertain legal status of the Elements of Crimes, and why they weren't simply formally included in the Rome Statute.  Marko Milanovic has an impressive article about legality and custom in the amendments, which builds on the analysis from his previous article about the Rome Statute and whether its provisions are substantive or merely jurisdictional.

Other contributions were written by Kirsten Sellars, Erin Creegan, Alexander Wills, Leonie von Braun and Annelen Micus, Beth Van Schaack, Mary Ellen O’Connell and Mirakmal Niyazmatov, Andreas Zimmermann, Friedrich Rosenfeld, and Mauro Politi.

The special issue is edited by Claus Kreß and Philippa Webb.

Targeting and Functional Membership

Readers might be interested in the following essay by Gabor Rona on targeting decisions.  Rona offers a critique of a speech this week by Jeh Johnson, chief counsel of the U.S. Department of Defense, delivered at Yale Law School.

Here is what Johnson said during his speech:

Should the legal assessment of targeting a single identifiable military objective be any different in 2012 than it was in 1943, when the U.S. Navy targeted and shot down over the Pacific the aircraft flying Admiral Yamamoto, the commander of the Japanese navy during World War Two, with the specific intent of killing him?  Should we take a dimmer view of the legality of lethal force directed against individual members of the enemy, because modern technology makes our weapons more precise?  As Harold [Koh] stated two years ago, the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the law of war on the use of technologically advanced weapons systems in armed conflict, so long as they are employed in conformity with the law of war.  Advanced technology can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

On occasion, I read or hear a commentator loosely refer to lethal force against a valid military objective with the pejorative term “assassination.”  Like any American shaped by national events in 1963 and 1968, the term is to me one of the most repugnant in our vocabulary, and it should be rejected in this context.  Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an “assassination.”

Now, here’s Rona’s assessment of the speech:

Rather than a successful defense of targeted killing policy, Johnson's speech is an admission that US practice is beyond the scope of international humanitarian law — the body of law that governs war, or armed conflict. As such, US practice is also necessarily beyond what international human rights law would permit outside of war, since the international law rules for killing in peacetime require a higher threshold of imminent harm than the rules applicable to war.

In particular, Rona claims that: “In armed conflicts against non-state armed groups who do not wear uniforms and are often difficult to distinguish from the civilian population, targeting determinations rightfully require a higher threshold of imminent harm.”

What I find curious about Rona’s conclusion is his claim that U.S. targeting decisions violate both International Human Rights Law (IHRL) and International Humanitarian Law (IHL).  Rona’s claim that the U.S. is violating IHRL is not surprising, since Rona has already forcefully argued that IHRL and IHL ought to be co-applied in certain contexts (a position that I expressed some doubts about in a previous exchange).  If IHRL applies in a given context, then Rona concludes that there is a threshold requirement of imminent harm before lethal force can be used.  (In IHL there is no threshold requirement of imminent harm.).

However, in the present essay, Rona goes further and concludes that the targeting theory defended by Johnson violates IHL as well, which is a much stronger claim. 

If I understand correctly, Rona’s claim is that in a non-international armed conflict (NIAC), the targeting of non-uniformed individuals is only permissible if they are civilians directly participating in hostilities (DPH) or exercising a continuous combat function (CCF); the latter category is strongly associated with the International Committee on the Red Cross.  Rona claims that U.S. targeting decisions are based on “mere membership.”

If by “mere membership,” Rona means that the U.S. is targeting some individuals who are members of these groups but who are not exercising a continuous combat function, then I think there is a missing piece of the argument.  In short, I think it depends on what type of non-state armed group one is talking about.

Some non-state armed groups have dual functions.  They have a military wing that plans and engages in violent attacks, but they also provide civilian services to local populations.  Hamas and Hezbollah might be plausible examples of this type of non-state actor.  Many have aspirations to govern a particular territory through the political process.  In such situations, given the dual civilian/military nature of the organization, Rona is correct that “mere membership” in the group would be insufficient evidence that the targeted individual is exercising a continuous combat function.

However, some non-state armed groups are more united in their focus around military operations.  Some of these groups are exclusively dedicated to attacking their enemies and do not provide civilian services to local populations.  They are, so to speak, quintessentially military endeavors, wherein it is plausible that all “members” of the organization are exercising a continuous combat function.

Of course, in this analysis, membership would need to be determined based on functional – not formal – criteria.  Such criteria would include the individual’s placement within the chain of command, i.e. his giving or taking orders within the organization’s hierarchy regarding the preparation or delivery of attacks against the United States or its allies.  A functional criterion for membership is required because in many instances there are no uniforms, membership cards, or paychecks to signify the individual’s membership.  And the functional notion of membership will closely track the CCF standard.  Moreover, I do not think it is correct to denigrate the notion of functional membership as a mere “status”-based concept.  It is, more specifically, a hybrid status-conduct concept.

(For more on the concept of functional membership, see my chapter in the forthcoming Targeted Killings volume, forthcoming from Oxford University Press).

If this is correct, then the real issue is whether a particular non-state organization with which the United State is engaged in an armed conflict, whether al-Qaeda or some associated force, is a non-state military organization to its core, or whether it is a hybrid organization engaged in dual military operations and civilian services.  If the former, it seems to me that functional membership gets to the heart of the CCF standard and satisfies the IHL obligation.

More on Saif Gaddafi

For readers interested in the fate of Saif Gaddafi, and whether he will be tried in Libya or at the ICC in The Hague, Dapo Akande has an important follow-up post at EJIL Talk.  Dapo brings us up to date on the latest filings at the ICC, including the fact that Libya has not filed an admissibility challenge before the ICC.  The delay is rather inexplicable, although perhaps the National Transitional Council is busy fulfilling their obligations trying to pull Libya together and restoring domestic security.  Perhaps it is impressive that they managed to send a letter to the ICC.

In any event, Dapo extends the discussion with an important analysis of Articles 94 and 95 (and their relationship to each other) of the ICC Statute.  

To remind readers, Dapo and I both argued that Libya may keep Saif in domestic custody pending the outcome of its admissibility challenge at the ICC (if one becomes necessary), while Kevin Heller argued at OJ that Libya has to send Saif to The Hague first and then request his return if it loses its admissibility challenge.

Previous installments of this debate can be found here, here, here, and here.  Is that enough admissibility for you?

Conspiracy and the New Hamdan Argument

Cross-posted at Opinio Juris.

I have written before about the Government’s new position in the Hamdan case.  As you will recall, Hamdan was convicted by a military commission for providing material support, sentenced to five and a half years, and released for time served.  He is now appealing his conviction.

The latest government brief before the D.C. Circuit represents a significant change in theory regarding the justification for military commissions.  In the past, it was widely assumed that Congressional enactment of the Military Commissions Act was based on their constitutional power to define and punish violations against the law of nations.  Now the administration is adding an additional basis: the power to punish offenses traditionally tried before military commissions pursuant the U.S. common law of war.  This power stems from the penumbra of Congress’ war-making powers in Article I.

There are a lot of implications to the new analysis, not all of which I have fully digested yet.  Under the Define and Punish Clause, Congress is assumed to be tying itself to an evolving body of law – international law – whose content is increasingly complex, sophisticated, and refined.  In contrast, the new penumbral argument ties the Congressional power to a largely static body of law – military commission law – because for the most part the United States didn’t use military commissions between the end of World War II and 9/11.  Furthermore, many of the World War II military commission cases like Quirin predate the Geneva Convention, Common Article 3, and all of the great advancements of international criminal law.  So the new theory feels a lot like getting into a time machine and emerging with the law of war as it exists in 1945 (or even during the Civil War), not as it exists today.

Aside from the exact status of this “U.S. common law of war” – a term that I am a bit skeptical about -- I want to raise another issue here, and that’s the status of conspiracy as an inchoate offence under this new theory.

In the original Hamdan case, a four-justice plurality concluded that conspiracy was not a violation of the law of nations and therefore could not be prosecuted before a military commission.  Kennedy joined the plurality as to the final outcome of the case but did not join the conspiracy section of the opinion.  This left the status of conspiracy in some question, especially given the recent changes in the Supreme Court’s composition.

However, if the D.C. Circuit or the Supreme Court were to adopt the government’s new theory of military commissions, I think the crime of conspiracy would definitely withstand judicial scrutiny.  In fact, it would be a much easier argument.  Under the government’s proposed structure, the question is whether there is significant precedent under U.S. law for punishing certain crimes before a military commission during wartime.  In contrast, the problem with conspiracy according to the Hamdan four-justice plurality was that it had been largely rejected at Nuremberg and subsequent international conventions and tribunals (with the exception of conspiracy to commit genocide).  Under the new scheme, however, the international angle would be completely off the table.  Conspiracy’s status as a distinctively common law criminal concept would no longer be fatal to its application at a military commission.  In fact, conspiracy’s deep roots in the common law might even be an asset under the new analysis. 

Unfortunately, the D.C. Circuit Hamdan case won’t deal with conspiracy directly, since he was acquitted of that charge and it is therefore not on appeal.  But I would think that another case down the pipeline will certainly address this question.

Syria and the Overlapping Consensus

Cross-posted at Opinio Juris.

David Rieff has an interesting – and somewhat polemical – article in the latest Foreign Policy.  Rieff, you will recall, was an early supporter of intervention, a policy position no doubt influenced by his time spent in Bosnia which culminated in Slaughterhouse: Bosnia and the Failure of the West.

Although initially hawkish on intervention, and willing to support liberal interventionism in Iraq, Rieff had a change of heart after the Iraq war failed to achieve any liberal goals.  Not only did Rieff renounce the Iraq war, but he also went further and started renouncing the liberal interventionism that he once championed.

These debates are always about historical comparisons and parallels. Which ones are correct and which ones are wrong?  Was Iraq more like Vietnam (intervention not OK) or more like World War II (intervention permitted or even required)?  Was Libya more like Kosovo or Iraq?  And is Syria more like Kosovo or Iraq?

Rieff does a number of things in this article.  First, he points out the lack of concrete and impartial information on the ground in Syria.  He is also particularly concerned about the possibility of Islamic extremists and terrorists among the rebels; on this score he is channeling the recently departed Christopher Hitchens.  Finally, he wants to throw a cautionary wrench into the interventionist assumption that unilateral interventions will make matters better, not worse:

During the Bush administration, Democrats often boasted that -- unlike the president and his aides, who were consumed by millenarian dreams of remaking the Middle East in the image of American democracy -- they were part of the "reality-based community." In fact, the neoconservatives were paragons of modesty compared with the liberal interventionists and R2P supporters who saw in Libya and now see in Syria the chance to move one step closer to remaking the world in the image of the human rights movement. Infatuated by their own good intentions -- and persuaded that their interventionist views incarnate a higher morality -- those who view Libya as a triumph and Syria as an opportunity to cement the practice of humanitarian intervention are in full crusading mode. If the looming victory of the Taliban in Afghanistan, the failure of the democratic project in Iraq, and the fact that the most significant political outcomes of the Arab Spring in Egypt, Yemen, and Libya have been instability and the victory of political Islam have not chastened them -- and clearly they haven't -- nothing will. Welcome to the second decade in a row of humanitarian war.

I don’t necessarily agree with what Rieff is saying, but I do worry about the possibility of an overlapping consensus supporting intervention.  On the one hand, some people support foreign interventions because they are necessary to stop extremism – think of Hitchens on Iraq or Afghanistan.  Liberals, on the other hand, support intervention under R2P or just a general belief that innocent victims ought to be protected, as they were in Kosovo, or as they should have been (but weren’t) in Rwanda.

The danger, of course, is that such an overlapping consensus is rather thin, i.e. it doesn’t go very deep, and disagreements about the conduct of the war will then be exposed.  That’s one reading of what happened with Iraq.  Neo-conservatives supported the war, as did some prominent liberal interventionists on the theory that what we really needed to do was protect the Kurds and other ethnic groups from Saddam’s rule.  But when it became clear that we were failing to significantly protect the civilian population and provide adequate security, that liberal support started to vanish.  But at that point it was too late.

Syria, Intervention, and Recognition

Cross-posted at Opinio Juris.

It is becoming increasingly likely that Russia and China are going to block just about any resolution on Syria coming out of the Security Council, regardless of whether it is meaningful or not.  They aren’t going to support a resolution that seriously denounces the regime, nor are they going to support an ICC referral, I believe.  And they definitely will veto any resolution that authorizes military action in Syria.

Consequently, people are starting to talk about recognizing the rebels in Syria as the legitimate government of Syria.  That’s something that also happened during the Libyan conflict, although the move was only of marginal significance to the legal argument.  The Security Council voted to authorize military action in Libya pursuant to its Chapter VII authority, so Libya wasn’t really a case of unilateral humanitarian intervention.  True, Russia and China complained that NATO far exceeded its Security Council mandate to protect the civilian population and pursued regime change ultra vires.  But that complaint aside, which strikes me as a bit of posturing, the infringement of Libya’s sovereignty was authorized by the Security Council.

Since the Security Council is not likely to pass a similar resolution regarding Syria, the recognition strategy is more pressing.  If the rebels have some political structure, and that structure can be recognized as the legitimate government of the Syria people, then any outside military support would be by invitation only, and therefore not an infringement of Syrian sovereignty.  Under this view, there would be no violation of Article 2 of the U.N. Charter, so it would not need to be justified by either Article 51 or a Security Council Chapter VII authorization.

There are two options to this strategy.  Under option one, recognition is combined with a secession claim, and the rebels are deemed to be the rulers of some newly sovereign sub-set of the Syrian territory.  Under option two, recognition is the only claim and the new government is considered the legitimate rulers of Syria proper.

What interests me is if this does indeed happen in Syria, will it set the stage for a general strategy to solve the humanitarian intervention quandary?  In other words, can the recognition strategy be universalized?  Isn’t it the case that in most situations one can find some council, committee, or “parliament” – or any collective group at all -- and anoint them as legitimate rulers?  Could someone justify military action against China by recognizing the ROC in Taiwan as the true leaders of China?  (The ROC once ruled mainland China too but lost a civil war to the PRC).

Of course, it would be an exaggeration to suggest that there is no law that could serve as a limiting principle here.  There is the Effective Control test, the Montevideo Convention, the EC principles, the Declaratory View, etc., all of which purport to establish criteria for when a country exists and who its government might be.  With regard to the Effective Control test, it might be said that neither the rebels nor the Assad government have effective control over the territory at the moment (or put another way, they both have effective control at the same time if such a thing is possible).  But I think the take-away from the Kosovo decision at the ICJ is that there is less positive law in this area than one might hope (one reason for the court interpreting that case so narrowly).

That being said, the interesting question about the recognition strategy is whether it’s an impermissible workaround of the Charter scheme. If it can be universalized, does that suggest that it is a reductio ad absurdum?

Targeting and the Concept of "Intent"

Cross-posted at Opinio Juris.

I read with interest the debate between Kevin Heller and Bob Chesney on allegations that recent drone attacks have caused civilian casualties under disturbing circumstances.

My views are too extensive for the comments section, so I am taking the liberty of outlining them here — guest-blogger’s prerogative.  Essentially, I think the issue boils down to intent — which the discussion in the comments section eventually worked its way around to – which is far more complex and thorny than some commentators realize.  Suppose that the object of the attack is a combatant (or DPHer or CCFer), but that the attacker realizes that civilians might be killed as well.

It’s black-letter ICL that it is a war crime to intentionally direct an attack against civilians.  Incidental killing of civilians is permissible if the civilian casualties are not “excessive in relation to the concrete and direct military advantage anticipated” in the words of the Additional Protocol, or “clearly excessive” in the language of the Rome Statute – i.e. a proportionality analysis.

The problem is the deep ambiguity over what is meant here by the concept of intent.  The tension is compounded by the fact that the ambiguity stretches along two axes: across legal cultures and across bodies of law.  Let me explain.

First, not every jurisdiction understands intent in the same way in its criminal law.  The word is notoriously vague and can capture situations where the defendant desires a particular outcome as well as situations where the defendant is aware of the practical certainty of the outcome but is indifferent to the result.  This is precisely why, for instance, the Model Penal Code abandoned the ambiguous language of intent in favor of the more precise categories of purpose and knowledge to capture these differences.  (Dolus directus and dolus indirectus cover the same conceptual territory).  So far, this is all U.S. Criminal Law 101. 

On top of this ambiguity, there is the further issue of whether dolus eventualis qualifies as a form of intent.  To a criminal lawyer trained in a civil law jurisdiction that uses dolus eventualis, it is fairly uncontroversial to consider dolus eventualis as a subcategory of intent.  It is, after all, a form of dolus.  But to a U.S. criminal lawyer, the idea that dolus eventualis is a form of “intent” is rather nonsensical.  There are two positions on what dolus eventualis means.  Either it accords with the common law concept of recklessness, or it is a distinct mental state that resides above recklessness (but below knowledge or dolus indirectus).  If it is the former, it can’t be a form of intent, because acting recklessly is not the same thing as acting intentionally.  If it is the latter, then it is an utter mystery because there’s no analogous U.S. criminal law concept that matches its exact contours. 

It’s therefore no surprise that there’s substantial disagreement in both the case law and the scholarly literature over whether dolus eventualis is covered by Article 30 of the Rome Statute and its default rule on mens rea. 

Now here’s the added complication.  In addition to asking and answering these questions, a satisfactory theory of “intentionally attacking civilians” must also contend with the origins of this norm in International Humanitarian Law, in particular the Additional Protocol and the relevant customary norms.  International criminal law borrows the norm from IHL and then adds an additional aspect: individual criminal responsibility for violations of the norm.  But the norm itself comes from IHL. 

So the relevant question is how the concept of intent, or the idea of “directing an attack” against civilians, is understood by IHL lawyers, and in particular how the concept was understood by the negotiators of the Additional Protocol and any other relevant treaty or convention.  More specifically, were there differences between common law and civil law trained lawyers involved in these negotiations?  This is a complicated question, especially since the preceding analysis, if it teaches us anything, teaches us that one cannot assume that each reference to the term “intent” – or any similar term – means the same thing.  Different people mean different things when they talk the language of intent. 

Ironically, comparative analysis because more difficult, not less difficult, when the participants are using the same terms.  When they are using different terms, one can safely assume that they are referring to different concepts.  But when they are using the same terms, one is often lulled into assuming that they are referring to the same concepts.  Not so. 

One might object that the reference to IHL is misplaced and irrelevant, because whatever the contours of the IHL norm, the Rome Statute drafters changed the norm when they crafted the relevant provisions of the Rome Statute.  I think this is an unsatisfactory response.  First, IHL remains an applicable body of law, and whatever the Rome Statute did, I do not think it changed IHL per se – it simply criminalized it.  Second, it is fine if the contours of the ICL norm and the IHL norm diverge, but the usual pattern is for the ICL crime to be narrower, on the assumption that the prosecutor should meet additional requirements before  punishment is warranted.  In other words, its fine if ICL exculpates individuals whose conduct violates the norm as it exists in another body of law.  But the opposite result would be curious.  If ICL inculpates individuals who did not violate the norm as it exists in IHL, this would be an odd and uncomfortable result indeed. 

I’ve tried to scrupulously avoid taking a stand on the final issue here.  Rather, my point is to set the guideposts that a successful analysis should cover.  It’s a daunting task in my view.

Cambodia Tribunal Increases Duch Sentence to Life

Cross-posted at Opinio Juris.

On Friday, the Supreme Court Chamber of the ECCC increased the sentence of Kaing Guek Eav (Duch) to life in prison.  The Trial Chamber had sentenced Duch to 35 years in prison for crimes against humanity and grave breaches of the Geneva Conventions, but then reduced the sentence by five years in recognition of Duch’s illegal detention by a Cambodian military court from 1999 to 2007.

The Supreme Court Chamber’s Appeals Decision reversed the Trial Chamber on both points, finding that the 35 year sentence was too lenient, and also that the five-year reduction in sentence was a mistake.  The Chamber found that 12,272 victims were killed at the S-21 prison under Duch’s leadership.

Although the full decision has not been published yet, a detailed summary (in English) is available from the ECCC website here.

Relying on just the summary, the first half of the argument strikes me as correct.  The Chamber noted that both deterrence and retribution required increasing the sentence above what the Trial Chamber had recommended:

The Supreme Court Chamber is of the view that retributive and deterrent purposes of punishment are particularly relevant to this case in light of the gravity of KAING Guek Eav’s crimes. The penalty must be sufficiently harsh to respond to the crimes committed and prevent the recurrence of similar crimes. The crimes committed by KAING Guek Eav were undoubtedly among the worst in recorded human history. They deserve the highest penalty available to provide a fair and adequate response to the outrage these crimes invoked in victims, their families and relatives, the Cambodian people, and all human beings.

More specifically, the Supreme Court Chamber concluded that Duch’s sentence should not be reduced simply because there were other leaders in the Khmer Rouge regime who out-ranked Duch:

39. As to aggravating factors, KAING Guek Eav held a central leadership role at S-21, which he abused by training, ordering, and supervising staff in the systematic torture and execution of prisoners deemed to be enemies of the DK, and showed “dedication to refining the operations of S-21.” The fact that he was not on the top of the command chain in the DK regime does not justify a lighter sentence. Indeed, there is no rule that dictates reserving the highest penalty for perpetrators at the top of the chain of command. KAING Guek Eav’s sentence must be proportionate to the crimes he committed, regardless of whether others may have committed more serious offenses.

I am particularly pleased to see this last point, as it is something that I have pushed in a series of articles on international criminal sentencing (available here and here).  In those articles I identified two different kinds of proportionality, offence-gravity proportionality and defendant-relative proportionality, which a court might seek to maximize when handing down a sentence.  The principle of offence-gravity proportionality demands that the punishment be proportional to the moral gravity of the offence, whereas defendant-relative proportionality demands that like defendants be treated in like manner and that more or less culpable defendants receive more or less punishment.

The problem in international criminal justice is that these two forms of proportionality come into conflict at the margins.  When dealing with extreme crimes like the present case (12,272 victims), it would seem as if only a life sentence would be proportional to the gravity of the offence.  However, there were others in the Khmer Rouge regime, higher in the chain of command, who might bear greater responsibility for these crimes.  If they receive a life sentence as well, then defendant-relative proportionality would appear to demand that Duch’s sentence be “scaled down” to something less than life in prison, in order to leave room at the top of the scale for the worst offenders.

I have argued in the past that this inclination is a mistake, because such reductions might violate offence-gravity proportionality, i.e. at a certain point the reduced sentences no longer reflect the inherent moral gravity of the offence.  The correct result, I argued, is to prioritize offence-gravity proportionality as normatively superior, even if that means sacrificing some degree of defendant-relative proportionality. 

It appears that the ECCC agreed with this approach in Duch’s case.  Although his life sentence might fail to distinguish him from Khmer Rouge officials above him in the chain of command, this is the better result rather than formalistically giving him a reduction.

Given the age of the defendant, some of these disputes might not have a tangible result.  But the results of this theoretical inquiry matter, for two reasons.  First, future cases might involve younger defendants where the difference between 20 years and life in prison is the difference between getting out of prison with some life left and never getting out of prison.  Second, even in cases where the defendant is too old to substantially benefit from a sentence reduction, the principle still matters because punishment for international crimes has an irreducibly symbolic value that extends beyond the particularities of one defendant’s incarceration.

As a final point, the Supreme Court Chamber also eliminated the sentence reduction for Duch’s illegal pre-trial detention, which is logically inconsistent with a life sentence anyway because it requires a fixed-term sentence against which the reduction would be applied.  The Chamber concluded that Duch’s illegal detention was not attributable to the ECCC (but rather the domestic authorities) and that there was no abuse of process that required a remedy from the ECCC.

Remembering Nino

The latest issue of Accountability is now available.  Accountability is the newsletter of the American Society of International Law Interest Group on International Criminal Law.  This issue is dedicated to Antonio Cassese, who died in October, and the newsletter includes a brief dedication that highlights just a few of Cassese's important contributions to the field.  

Here is an excerpt from the final two paragraphs of the dedication:

Perhaps his longest academic legacy, apart from the entire generation of young scholars who trained under him, will come from his creation of the Journal of International Criminal Justice, the peer-reviewed journal published by Oxford University Press.  Under Cassese’s leadership, the journal prided itself on sparking vigorous and heated academic debate, thus removing any misguided assumption that developments in international criminal justice ought to be celebrated but never criticized.  Cassese understood well that the discipline had to move forward rather than stand still.  When he won the Erasmus Prize in 2009, he used the proceeds to endow a fund to help younger scholars publish their dissertations.

Cassese was known by many names: students called him Professor; litigants called him Judge; friends called him Nino; Louise Arbour, in her forward to his collected papers, called him l’inaccessible étoile – the unreachable star.  In its obituary, the New York Times referred to him as the “chief architect of modern international criminal justice.”  But to many others, he was simply the Maestro, perhaps because he had faith that the law could help us find some beauty and solace in this dark, dark world.

Kenya and the Network

The recent ICC decisions regarding Kenya (confirming charges against four out of six defendants) highlight the centrality and significance of collective criminal action.

In particular, what’s striking about the decisions is the specific organizations that the Pre-Trial Chamber concentrated on, and the recurring legal significance that the court attached to these organizations.

For example, Prosecutor v. Muthaura, Kenyatta, and Hussein Ali, concentrates on the Mungiki organization, and that organization anchors the court’s analysis of the substantive offense as well as the mode of liability in the case.  Here’s how the court does it:

First, the PTC found that the Mungiki was an organization within the meaning of the Rome Statute’s definition of crimes against humanity, which requires that the attack be widespread and systematic and pursuant to a state or organizational plan or policy.  There is a longstanding academic and judicial dispute over the meaning of “organizational” in this context, and a few scholars and judges have concluded that state involvement is required here.  Included in this group are Bill Schabas and the dissenting judge in this case, Judge Kaul.  I think it is fair to say that the majority view (whether correct or not) is that at least some non-governmental organizations (or sub-state organizations) might qualify under this standard, though whether the Mungiki organization meets the criteria is a more specific inquiry.

What interests me is that the exact same analysis appears in the section on modes of liability, when the PTC finds that the defendants (whose charges were confirmed) are potentially indirect co-perpetrators because they controlled an organized apparatus of power – the Mungiki – whose members carried out the attacks.

There is some tension, though, between the picture of the Mungiki painted in the crimes against humanity section of the opinion and the section on indirect co-perpetration.  For example, when discussing the organizational plan or policy, the PTC concludes that a third individual not charged in the case, Maina Njenga, “possessed exclusive control over the Mungiki organization.”  However, when the PTC discusses indirect co-perpetration, the PTC concludes that the confirmed defendants had joint control over it.  How is this possible?  According to the court, the control was “transferred” from Njenga to the confirmed defendants.  But did both of the confirmed defendants have control or just one of them?  Did the physical perpetrators really report to both of them?  I suspect this will be an issue at trial.

The second case, Prosecutor v. Ruto, Kosgey, and Sang, does not deal with the Mungiki.  Having no such organization to anchor its analysis of crimes against humanity, the PTC concludes that there was a “Network” of perpetrators who constituted an organization with a plan or policy to carry out the attacks.  This Network sounds rather ad hoc, closer to a conspiracy or a Joint Criminal Enterprise than a state-based organization of the kind that Schabas favors or even the kind of identifiable organization like the Mungiki.  It is, I suspect, an importation of the collective concepts one finds on the mode of liability side of the analysis – a JCE or an organized apparatus of power.  But I question whether the type of ad hoc collective one finds on the mode of liability side is the same type of collective appropriate for the "plan or policy" requirement.

Obviously, this importation is going to be hotly debated.  On the one hand, I’m not sure that an organization needs to have a formal name in order to meet the crimes against humanity standard – that would be far too formalistic.  On the other hand, though, if a “network” of perpetrators is allowed to constitute an organization for purposes of crimes against humanity, it will clearly represent a significant expansion of the concept from its origins in the Nuremberg era.