Leiden Journal of International Law

INTERNATIONAL CRIMINAL COURT AND TRIBUNALS

The End of ‘Modes of Liability’ for International Crimes

JAMES G. STEWART*

Abstract

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 sociopolitical 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 disintegrates (as do all other modes of liability) 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.

Key words

  • command responsibility;
  • complicity;
  • joint criminal enterprise;
  • modes of liability;
  • superior responsibility;
  • unitary theory of perpetration

Footnotes

* Assistant Professor, University of British Columbia; Fellow, Open Society Institute [stewart@law.ubc.ca]. Formerly Appeals Counsel, Office of the Prosecutor, International Criminal Tribunal for the former Yugoslavia. This project was partly undertaken while a Visiting Fellow at Oxford's Centre for Criminology. My kind thanks to Larry Alexander, José Alvarez, Nicole Barrett, Roger Clark, Markus Dubber, Thomas Weigend, Kevin Jon Heller, Johannes Keiler, Darryl Robinson, Elies van Sliedregt, Stefano Manacorda, Jenny Martinez, Frédéric Mégret, Jens Ohlin, Bettina Weißer, and Harmen van der Wilt for their very helpful criticisms. Errors are mine alone.