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Position:Part 2 - International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Friday, March 26, by its moderator, Claudio Grossman of American University's Washington College of Law, who introduced the panelists: Neha Jain of the Max Planck Institute for Foreign and International Criminal Law; Kimberly N. Trapp of the University of Cambridge; Julie Veroff of the University of Oxford; and Andrew K. Woods of the University of Cambridge.

DEVELOPING A NEW STRUCTURAL FRAMEWORK FOR PARTIES TO AN INTERNATIONAL CRIME: TOWARD A CAPACIOUS CONCEPT OF PRINCIPALSHIP

The tension between the individual and the collective is an enduring feature of international criminal law. However, its greatest challenge and, paradoxically, its most culpable neglect, has been in the realm of norms of liability that can truly reflect our normative intuitions about the nature of individual responsibility for crimes that are by their very nature collective. Current practice of international criminal law shows an uncomfortable oscillation between the doctrines of joint criminal enterprise (JCE) and co-perpetration, as modes of responsibility that ostensibly manage to hold senior leaders who are far removed from the physical commission of the crime responsible as principal perpetrators, without compromising on criminal law's allegiance to the principle of individual culpability. These theories, especially JCE, have come under vigorous criticism for their vagueness, as well their worrisome implications for a liberal doctrine of criminal law. Underlying these superficial inadequacies, however, is the disappointing absence of a conceptual framework in international criminal law for delineating modes of responsibility.

My remarks seek to construct a tentative structural framework for the basis for attribution of individual responsibility in international criminal law by focusing on the concept of the principal as a party to an international crime. I will argue that any theory of responsibility for international crimes must be sensitive to their unique nature, and I will identify the features of international crimes that distinguish them from their domestic counterparts. I rely mainly on English law and German law theory to outline the contours of a new theory of perpetration in international criminal law.

THE NEED FOR A DISTINCTIVE APPROACH TO PERPETRATION IN INTERNATIONAL CRIMINAL LAW

One of the central functions of criminal responsibility is the expression of moral criticism of the conduct of the accused. This expression is not confined to evaluating simply whether the accused is innocent or guilty, but also what exactly he is guilty of. A theory of attribution of responsibility for international crimes must be capable of representing, as accurately as possible, both the nature of the crime in question as well as how the accused is connected to its commission.

The most telling feature of an international crime, as contrasted with its domestic counterpart, is that it is inherently collective in nature. While the perpetrator of a crime such as ethnic cleansing is individually culpable, he invariably commits this crime on behalf of or in furtherance of a collective criminal project, be it that of a state or other authority. Similarly, the victims of international crimes are typically not selected on the basis of their individual characteristics but on the basis of their actual or perceived membership in a collective. International crimes are also collective in the sense that they are committed with the consciousness on the part of the individual perpetrator that he is part of a common project.

The second distinctive aspect of international crimes is that the individual crimes do not deviate from, but rather conform to the prevailing local social norm. In this sense, they are indeed the "crimes of obedience" coined by Kelman: they are acts carded out under explicit instructions from the authorities or makers of official policy, or at least in an environment in which they are sponsored, expected, or tolerated by them, and which are considered illegal or immoral by the larger community. (1) The perpetrator of an international crime usually acts within a moral and cultural universe where his actions correspond to the values of the group to which he belongs.

Finally, any theory of responsibility for international crimes must be sensitive to the number and motivations of the participants in the crime. It must be able to accommodate the fact that these participants will be spatially and temporally dispersed. It is also important to keep in mind that the image of the participant as a soulless bureaucrat who is only "doing his job" so chillingly evoked of Eichmann presents only part of the truth about the reality of mass atrocity. As academics have noted, more often than not, there is a "communal engagement with violence"--atrocity cannot be perpetrated on such a widespread basis unless it is accompanied by vigorous participation by a very large number of ordinary people. While the calculating bureaucrat and the crazed ideological killer represent two extremes perhaps of the kinds of actors in international crimes, most perpetrators will display a combination of various kinds of motives.

These distinctive features of international crimes must be kept in mind while evaluating the possibility of using domestic criminal law principles to construct a theory of perpetration responsibility for international crimes.

A THEORY OF PERPETRATION FOR INTERNATIONAL CRIMES

In order to construct a new theory of perpetration, I have based my analysis on English and German criminal law theory and principles and will present only the conclusions of this work here. I rely mainly on Claus Roxin's influential conception of the perpetrator of a crime as the person who occupies the central position in the course of events constituting an offense. This is because it accords with our moral intuitions to assign perpetrator responsibility in the commission of an offense to a person whose contribution to its occurrence is of the weight and quality that pushes him to the very center of the offense. Similar to Roxin's analysis, however, we must then go on to fill this concept of the Zentralgestalt with content to discover what conditions would qualify for pushing someone to the center of an offense.

Mark Osiel's metaphor of the culpable village watchmaker who constructs a clock, attaches a bomb to it, and then walks away so that detonation occurs much later is oversimplified, but nonetheless instructive in identifying some important features of where the crux of the action lies in mass atrocity. As Osiel notes, by assembling and winding up the clock, the watchmaker sets into motion a process which results in the explosion and the resulting harm. He is responsible for it, even if he does not know the exact identity of the potential victims or the manner in which they are harmed. (2)

For cases of mass atrocity, Osiel's metaphor helps us look for the central figure in their occurrence away from the time and place of the concrete crime, and to the scene where they were orchestrated and the machinery for their operationalization was set up. The central figure in an international crime is the person who sets this entire machinery in motion and uses it in order to achieve the criminal results he intends, knows will occur, or foresees and accepts as a probable consequence of his actions. This role lies at the heart of what commentators on mass atrocity are concerned about: the potential for destruction possessed by the participant and his conscious creation and manipulation of a situation that results in tremendous harm.

Objective/Actus Reus Elements

The objective elements for perpetration responsibility I outline here borrow heavily from the concept of Organisationsherrschaft in German criminal law, (3) but with substantial modifications to suit the specific circumstances of mass atrocity. Following from the rationale that the Zentralgestalt in an international crime is the person who creates and sets into motion or uses the entire process which results in the commission of mass atrocity, I identify the first objective element as the perpetrator's "control over the act" by virtue of his conscious creation, operationalization, or use of the process that results in the international crime.

Some clarification is in order here. First, instead of the direct individual criminal act committed by the physical perpetrator, the "act" here must be taken to mean the entire series of events leading to the fulfillment of the result of the elements of the offense. Second, the "control" of the perpetrator is not based on the law's absolution of the physical perpetrator from criminal liability. Instead, the "control" stems from the perpetrator's creation or manipulation of the apparatus that results in mass atrocity and the intensity of the effect of his conduct over this destructive machinery of violence. Quite often, this will be based on his occupying a position of some authority within the apparatus.

Second, there must exist an operational framework or apparatus which the perpetrator either establishes or uses, through which he can set in motion the chain of events that results in the commission of the crime. It is not necessary that each individual physical perpetrator be part of the apparatus. However, the individual "micro crimes" committed by the immediate and direct perpetrators which comprise the international crime must be related, in more than a de minimis way, to the activities of this operational framework.

The third objective element is the existence of circumstances such that the individual crime conforms to the prevailing local social norm. This element admittedly goes beyond a simple assessment of the responsibility of the individual defendant before the court. However, it is this element that makes international crimes distinct from their domestic counterparts. Moreover, it is this perversion of norms that lends the...

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