Fifteen Eighty Four

Ever since the establishment of the Nuremberg tribunal following the end of the Second World War, the trials against alleged perpetrators of mass atrocities have captured the imagination of the global public. This is not surprising – international trials concern ‘unimaginable’ crimes that ‘deeply shock the conscience of humanity’, including genocide, crimes against humanity and war crimes, committed by persons described as the ‘enemies of mankind’. It is similarly unsurprising that the aspect of international trials which has triggered most popular attention has been the final verdict: ‘guilty’ or ‘not guilty’. Convictions have been celebrated by human rights advocates and representatives of the victim communities as a rare opportunity to see justice being served for the harm done. By contrast, acquittals have often been lamented for perpetuating the culture of impunity for mass atrocities.

But to demarcate the boundary between guilt and innocence in cases concerning such crimes presents a contentious issue. Indeed, this is something international criminal lawyers are well familiar with. International crimes, often described as ‘system criminality’, involve mass participation. The fact that the masterminds behind the crimes – the persons who order, incite, or otherwise aid their commission – are generally removed from the scene of the crime further complicates the decision which individuals to hold criminally responsible in such circumstances. To address that conundrum, over the years legal experts have developed a range of theories, known technically as ‘modes of liability’, which seek to delineate individual contributions to collective forms of violence. Those theories have varied across time and space in the international criminal justice field: from the ‘conspiracy’ charge used at Nuremberg, to the ‘joint criminal enterprise’ doctrine introduced by the UN tribunal for the former Yugoslavia (ICTY) and, most recently, the ‘control-over-the-crime’ theory adopted at the International Criminal Court (ICC). All those theories have come under scrutiny by legal academics, and none has escaped criticism for failing to comply with the principles of criminal law, and specifically, with the principle of personal culpability (a person is liable only for their own conducts and cannot be held criminally responsible based on a mere association with the wrongdoer). Depending on their understanding of the requirements posed by criminal law principles, such as that of personal culpability, legal scholars have proposed different ideas of what the modes of liability in international criminal law should be.

In Responsibility on Trial,Ipresent a new approach to exploring the construction of the boundaries of liability in international criminal law. I employ a perspective that is ‘external’ to the international criminal justice field and instead of asking which mode of liability appears most legally convincing, I ask the question: What does ‘legally convincing’ mean in the international criminal justice field? Furthermore, are there alternative visions of legality? If so, what makes one vision more authoritative than another? How is a particular vision of legality constructed, promoted, and contested? And what types of actors participate in those processes? The goal is to depart from the truism that ‘law matters’ in international trials and to explore the social perceptions of what constitutes law and how it matters when it comes to the assessment of criminal responsibility at international legal bodies.

To achieve that goal, I borrow insights from the field of practice studies and approach the concept of ‘legal norms’ as a socially bounded intersubjective phenomenon, rather than as a set of objective rules. That approach allows us to trace the competition of ideas about the appropriate scope of modes of liability, which takes place within the international criminal justice epistemic community comprised of lawyers, judges, scholars, non-governmental organisations, and states. Starting with an overview of the debates around the articulation of modes of liability at the international military tribunals for Nuremberg and Tokyo and the UN tribunals for the former Yugoslavia and for Rwanda, the analysis then focuses on the permanent ICC. The book explores the drafting, interpretation, and use in cases of the modes of liability listed in the Rome Statute of the ICC. The analysis of formal legal documents and legal scholarship is accompanied by a discussion of more candid accounts, such as interviews, memoires, and minutes.

This new approach to the study of modes of liability elucidates intriguing aspects the construction of the concept of guilt in international criminal law. The ICC has often employed stricter liability standards compared its predecessors (which appears to have contributed to a few high-profile acquittals, such as those in Bemba and Gbagbo and Blé Goudé). This has often been explained with the fact that the Rome Statute was intentionally designed that way by states which wanted to shield their government and military officials from future convictions at the ICC. While this is a relevant argument, an exploration of the normative dynamics behind both the drafting of the Rome Statute’s liability provisions and their interpretation by the ICC judges provides new important insights.

First, the drafting records show that it was, in fact, very difficult for states to reach a consensus on the appropriate modes of liability to be included in the Rome Statute, with some states, in fact, having proposed very low liability standards. An analysis of legal scholarship further suggests that it was often academics and lawyers who proposed stricter liability standard at the ICC, which could be explained in part with their professional background understandings and in part – with their understanding of the ICC as a model criminal court which, as such, should exhibit the greatest respect for criminal law principles.

Second, a closer look at the Rome Statute suggests that despite the unprecedented degree of detail in which the modes of liability were drafted, the ICC judges nevertheless enjoyed significant leeway in interpreting them. The fact that many of the judges decided to interpret the Statute’s liability standards in a very restrained manner, possibly going beyond the intentions of the drafters, might seem puzzling at first – after all, this makes obtaining convictions for mass atrocities more difficult. However, once the normative underpinnings of that decision are taken into account it appears less surprising. Many ICC judges, supported by a number of legal scholars outside the Court, have defended the view that the success of the international criminal justice system depends on a restrained interpretation of the principles of criminal law, even at the cost of ‘the acquittal of some people who may actually be guilty’.

Finally, one important caveat to the approach I employ to explore the construction of modes of liability should be mentioned. From the perspective of an ‘external’ observer, who does not take sides to the normative debates between international criminal lawyers, the difference between the assessment of criminal responsibility at earlier tribunals and at the ICC should not be interpreted as a sign that this process has become more ‘legal’ and less ‘political’ as the discipline matures. Because I approach the concept of ‘legal norms’ as a socially bounded phenomenon, and not as an objective standard against which the ICC scores better compared to previous tribunals, the findings of the book does not suggest that earlier tribunals have not followed the law, while the ICC has. Rather, those tribunals have followed different normative visions of what the notion of ‘guilt’ entails in international trials. Thus, I hope to provide a way to acknowledge the influence of politics and ideology on the construction of international legal norms, without denying the latter’s normativity. It is precisely because international legal norms develop through contestation and remain objects to revision that they are recognised as legitimate rules by the epistemic community of international lawyers.