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Abstract:
Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter. The traditional explanation of this paradox, which is based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology as the Wells Effect: the puzzling fact that jurors are likely to acquit in a circumstantial case even when they know the objective probability of the defendant's guilt is sufficient to convict.

This Article attempts to explain why jurors find circumstantial evidence so psychologically troubling. It begins by using a variety of psychological research into judgment and decision-making - Kahneman & Tversky's simulation heuristic in particular - to argue that jurors decide whether to acquit in a criminal case not through mechanical probability calculations, but on the basis of their ability to imagine a scenario in which the defendant is factually innocent. The Article then examines the basic epistemological differences between direct and circumstantial evidence and shows how those differences normally make it easier for jurors to imagine a factually exculpatory scenario in a circumstantial case. Finally, the Article concludes by discussing how an ease-of-simulation model of jury decision-making improves our understanding of why false verdicts occur.

circumstantial evidence, direct evidence, false convictions, cognitive psychology, judgment and decision making, jury decision-making, Story Model, relative-plausibility theory

Abstract:
According to the principle of complementarity, the ICC can exercise jurisdiction over a serious international crime only if no State is willing and able to prosecute the crime itself. This principle, which finds its most specific expression in Article 17 of the Rome Statute, is based on two important considerations: the recognition that States have the primary obligation under the Statute to investigate and prosecute serious international crimes; and the practical reality that the Court, as a single institution with limited resources, will never be able to investigate and prosecute more than a small number of such crimes. The Chief Prosecutor of the ICC has thus correctly insisted that, in terms of ending impunity, "the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success."

There is, however, a shadow side of complementarity, one that should temper our enthusiasm for the early obsolescence of the Court: its effect on the likelihood that defendants will receive due process in national proceedings. Although the ICC is a model of due process, guaranteeing defendants all of the procedural protections required by international law, most national criminal-justice systems are far less even-handed - particularly those in States that have experienced atrocities serious enough to draw the Court's interest. Complementarity is thus a double-edged sword. On the one hand, ICC deferrals will reflect the willingness of States to bring the perpetrators of serious international crimes to justice. On the other hand, those deferrals will expose perpetrators to national judicial systems that are biased toward conviction, increasing the likelihood of wrongful convictions.

This essay explores the implications of the shadow side of complementarity. Part I argues that international criminal law scholars have generally failed to recognize the magnitude of the problem, because they believe - almost without exception - that Article 17 makes the absence of due process in a national proceeding a ground for admissibility. Part II demonstrates that this interpretation of Article 17, though seductive, is irreconcilable with the text, context, and drafting history of the Article. Properly understood, Article 17 permits the Court to find a State "unwilling or unable" only if its legal proceedings are designed to make a perpetrator more difficult to convict; if its legal proceedings make the perpetrator easier to convict by denying him due process, the Article requires the Court to defer to the State no matter how unfair those proceedings may be. Part III illustrates the potentially devastating consequences of Article 17's unidirectionality by examining Sudan's recent assertion that its plan to prosecute the Darfur genocidaires in national Specialised Courts divests the ICC of jurisdiction over those cases. Finally, Part IV suggests that, in light of those negative consequences, the Rome Statute should be amended to make the absence of national due process an explicit ground for admissibility.

International Criminal Law, International Criminal Court, ICC, Rome Statute, Complementarity

Abstract:
The International Criminal Court's Special Working Group on the Crime of Aggression (SWG) is currently considering two different proposals for a definition of the crime. Although different in many respects, both proposals agree that aggression is a leadership crime that can be committed only by persons who are in a position effectively to exercise control over or to direct the political or military action of a State . According to the SWG, the control or direct standard is consistent with - and required by - the jurisprudence of the International Military Tribunal, Nuremberg Military Tribunal, and International Military Tribunal for the Far East. In fact, that jurisprudence tells a different story. These three tribunals not only assumed that the crime of aggression could be committed by two categories of individuals who could never satisfy the control or direct requirement - private economic actors such as industrialists, and political or military officials in a state who are complicit in another state's act of aggression - they specifically rejected the control or direct requirement in favour of a much less restrictive shape or influence standard. The SWG's decision to adopt the control or direct requirement thus represents a significant retreat from the Nuremberg principles, not their codification.

Abstract:
The International Criminal Court's jurisdiction over the crime of aggression is contingent upon the Assembly of States Parties adopting a definition of the crime. To that end, the Special Working Group on the Crime of Aggression (SWG) has been considering a number of proposals for a possible definition. Although different in a number of respects, the proposals all agree on one point: that aggression is a leadership crime that can be committed only by persons who are in a position effectively to exercise control over or to direct the political or military action of a State.

No delegation has ever questioned the leadership requirement itself. There have been suggestions, however, that limiting the category of leader to individuals who can control or direct a State's political or military action might unnecessarily restrict the crime's scope. The SWG has consistently rejected those suggestions, insisting that the control or direct standard is consistent with - and required by - the jurisprudence of the International Military Tribunal (IMT), Nuremberg Military Tribunal (NMT), and International Military Tribunal for the Far East (IMTFE).

In fact, that jurisprudence tells a very different story. As this essay demonstrates, the IMT, NMT, and IMTFE not only assumed that the crime of aggression could be committed by two categories of individuals who could rarely if ever satisfy the control or direct requirement - private economic actors such as industrialists, and political or military officials in a State who are complicit in another State's act of aggression - they specifically rejected the control or direct requirement in favor of a much less restrictive shape or influence standard. The SWG's decision to adopt the control or direct requirement thus represents a significant retreat from the Nuremberg principles, not their codification.

crime of aggression, international criminal court, ICC, Nuremberg, international military tribunal, IMT, nuremberg military tribunal, NMT, international military tribunal for the far east, IMTFE, industrialists, international criminal law, special working group, assembly of states parties

Abstract:
The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states -- Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan -- and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq -- the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment.

The OTP has not denied -- nor could it -- that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims.

This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that cause "social alarm" in the international community; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

ICC, International Criminal Court, Rome Statute, international criminal law, international criminal justice, transitional justice, gravity, investigations, Office of the Prosecutor

Abstract:
Actus non facit reum nisi mens sit rea - the act does not make a person guilty unless the mind is also guilty. Few today would disagree with the maxim; the criminal law has long since rejected the idea that causing harm should be criminal regardless of the defendant's subjective culpability. Still, the maxim begs a critical question: can jurors accurately determine whether the defendant acted with the requisite guilty mind?

Given the centrality of mens rea to criminal responsibility, we would expect legal scholars to have provided a persuasive answer to this question. Unfortunately, nothing could be further from the truth. Most scholars simply presume that jurors can mindread accurately. And those scholars that take mindreading seriously have uniformly adopted common sense functionalism, a theory of mental-state attribution that is inconsistent with a vast amount of research into the cognitive psychology of mindreading. Common-sense functionalism assumes that a juror can accurately determine a defendant's mental state by applying commonsense generalizations about how external circumstances, mental states, and physical behavior are causally related. Research indicates, however, that mindreading is actually a simulation-based, not theory-based, process. When a juror perceives the defendant to be similar to himself, he will mindread through projection, attributing to the defendant the mental state that he would have had in the defendant's situation. And when the juror perceives the defendant to be dissimilar to himself, he will mindread through prototyping, inferring the defendant's mental state from the degree of correspondence between the defendant's act and his pre-existing conception of what the typical crime or defense of that type looks like.

This goal of this essay is to provide a comprehensive - though admittedly speculative - explanation of how jurors use projection and prototyping to make mental-state attributions in criminal cases. The first two sections explain why jurors are unlikely to use a functionalist method in a case that focuses on the defendant's mens rea. The next three sections introduce projection and prototyping, describe the evidence that jurors actually use them to make mental-state determinations, and discuss the cognitive mechanism - perceived similarity between juror and defendant - that determines which one a juror will use in a particular case. The final two sections explain why projection and prototyping are likely to result in inaccurate mental-state determinations and discuss debiasing techniques that may make them more accurate.

criminal law, mens rea, cognitive psychology, law and psychology, defenses, prototypes, projection, jurors, decision-making

Abstract:
Scholars and human rights organizations have repeatedly criticized Saddam Hussein's initial trial for violating the basic requirements of international due process. Although those criticisms are justified, they are only half the story. A trial is only as fair as the substantive and procedural law that a court applies; if either - or both - violate due process, a defendant's trial will be unfair no matter how decorously it is conducted. Indeed, in the context of a court like the Iraqi High Tribunal (IHT), which is intended to hear multiple cases over a period of many years, the underlying substantive and procedural law are arguably more important than the fairness of any individual trial: although trial conduct in general can be improved by appointing better judges, substantive and procedural reform requires legislative action, a slow and unpredictable process in the best of circumstances - and one that may be nearly impossible in a political environment as troubled as Iraq's.

In the wake of Saddam's initial trial, then, it is critical to ask whether the IHT's substantive and procedural law satisfies the requirements of international due process. Unfortunately, the answer is no: although it is not without positive aspects, the law applied by the IHT is deficient at every stage of criminal proceedings, from the earliest moments of the investigation to the final confirmation of a death sentence. This essay systematically catalogs those due process violations and suggests ways in which the IHT's substantive and procedural law could be amended to eliminate them.

international criminal law, international due process, IHT, Iraqi High Tribunal, Saddam Hussein, ICCPR, international courts, international tribunals, Iraq

Abstract:
In "Atrocity, Punishment, and International Law" (Cambridge University Press, 2007), Mark Drumbl provides an important and compelling critique of international criminal law's ability to deliver transitional justice in societies that have experienced mass atrocity. In his view, the individualized liberal-legalist criminal trials favored by international criminal law - as exemplified by the ICTY, ICTR, ICC, and the numerous hybrid tribunals - have two basic flaws: they fail to account for the collective nature of mass atrocity, because they cannot reach bystanders, states, and international organizations, all of whom play a necessary role in its perpetration; and their selectivity and relatively lenient sentences deprive them of meaningful retributive or deterrent value. Those limitations do not make such trials superfluous, but they indicate that international criminal law needs to be pluralized in two important ways: vertically, in terms of the allocation of authority between international tribunals and national and local transitional-justice institutions; and horizontally, in terms of the kinds of accountability mechanisms national and local institutions use to address mass atrocity.

This review essay agrees with Drumbl's deconstruction of international criminal law, but argues that his proposed reconstitution of it is likely to be both less effective and less just than he believes. After summarizing Drumbl's argument, the essay identifies three basic problems with his proposals for vertical pluralization: (1) very few national or local transitional-justice institutions will satisfy the requirements for qualified deference; (2) in the wrong hands, Drumbl's requirement that such institutions avoid inflicting great evils on victims or third-parties could easily devolve into little more than a modern-day repugnancy clause, imposing Western values on those who knowingly reject them; and (3) it is not clear why it should never be acceptable to tolerate a great evil in the name of peace. The essay then discusses two basic problems with his proposals for horizontal pluralization, focusing on his support for non-punitive collective sanctions: (1) in order to avoid being retributively unjust, collective sanctions would have to be imposed using the same liberal-legalist procedures that paralyze international criminal trials; and (2) only retributively unjust collective sanctions could effectively deter mass atrocity.

international criminal law, criminal law, transitional justice, human rights, liberalism, collective sanctions, retributivism, deterrence, gacaca, truth and reconciliation commission, amnesties

Abstract:
According to the ICTR, Emmanuel Bagambiki is an innocent man. The Trial Chamber and the Appeals Chamber have each acquitted the former Prefect of Cyangugu of crimes relating to Rwanda's horrific 1994 genocide, the latter unanimously. And on July 19, Bagambiki was reunited with his wife in children in Belgium, having been granted asylum just days earlier.

It is tempting to conclude that justice has been done in Bagambiki's case. That conclusion, however, would be too facile: Bagambiki was acquitted in February, 2006, nearly 18 months before his family reunion. In the interim he lived in a safe-house in Arusha paid for by the United Nations, wanted by Rwanda for trial on related charges and unable to convince Belgium that he posed no danger to its peace and security. Bagambiki, moreover, is one of the lucky ones: the nightmare of being free but having nowhere to go continues for two of his acquitted roommates in the safe-house, Andre Ntagerura and Andre Rwamakuba, Rwanda's minister of transportation and former minister of education respectively.

Bagambiki's ordeal and Rwamakuba and Ntagerura's ongoing plight illustrate one of the basic problems facing international criminal tribunals: what to do with the acquitted. An acquitted defendant normally has two options: return to his country of origin, or find a third country that will grant him asylum. Both options, however, have been problematic for defendants acquitted by the ICTR and are likely to prove equally problematic for defendants who may be acquitted in the future by the ICC. This short essay explains why - and identifies what the international community should do about it.

ICC, ICTR, ICTY, international criminal court, international tribunal, international criminal law, acquitted, innocent, refugee law, immigration law, asylum, ne bis in idem, double jeopardy, Rwanda

Abstract:
The Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international community's most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute's substantive provisions are often confusing, contradictory, and of uncertain application - an "unsystematic conglomeration from a variety of legal traditions," as one scholar has memorably put it.

This draft book chapter attempts to provide a systematic and comparative overview of the substantive criminal law of the Rome Statute. Section I provides an introduction to the Statute: its drafting history, jurisdictional principles, sources of law, and rules of procedure and evidence. Section II discusses the Statute's general part: theories of punishment, liability requirements (acts and omissions, material and mental elements, modes of participation), defenses, and sanctions. Finally, Section III examines the Statute's special part: the conceptual structure of the crimes within the jurisdiction of the Court and the crimes themselves: genocide, crimes against humanity, war crimes, and aggression.

The chapter is aimed primarily at domestic criminal law scholars, particularly those with an interest in comparative criminal law. But it should be of interest to international criminal law scholars, as well.

Rome Statute, international criminal law, ICC, criminal law, comparative law, comparative criminal law, common law, civil law

Abstract:
Article 32(2) of the Rome Statute provides that ‘[a] mistake of law may … be a ground for excluding criminal responsibility if it negates the mental element required by such a crime’. Although this provision has been described as ‘cryptic’, I argue in this essay that it was specifically drafted to recognize what common-law scholars have variously called ‘mistake of mixed fact and law’, ‘mistake of legal fact’, and — most usefully — ‘mistake of legal element’: namely, a mistake regarding the definition of a legal element in a crime. A perpetrator who commits a mistake of legal element (MLE) cannot be said to have acted ‘knowingly’ with regard to that element, and is thus entitled to an acquittal if the element requires knowledge. Although most scholars accept the idea that at least some MLEs are exculpatory under Article 32, they uniformly insist that very few MLE defences will be successful. I disagree, for three reasons. First, nearly every crime in the Rome Statute contains at least one legal element. Second, the methods that the drafters of the Elements of Crimes used to limit MLEs — providing that legal elements only require knowledge of the underlying facts and replacing Article 30's default knowledge requirement with a simple negligence standard — are almost certainly inconsistent with the Rome Statute. Third, all of the mechanisms that scholars have proposed to limit MLEs — such as subjecting them to German criminal law's ‘layman's parallel evaluation’ test — are inconsistent with Article 32's common-law foundations. Properly understood, therefore, Article 32 potentially recognizes a wide variety of exculpatory MLEs. That is a disturbing prospect, because there is no reason why soldiers should not be expected to have at least a reasonable understanding of international humanitarian law. I thus conclude the essay by arguing that MLEs should be eliminated by specifically amending the Rome Statute to apply a negligence standard to legal elements.

Abstract:
Article 32(2) of the Rome Statute provides that "[a] mistake of law may... be a ground for excluding criminal responsibility if it negates the mental element required by such a crime." Although this provision has been described as "cryptic," I argue in this essay that it was specifically drafted to exculpate what common-law scholars have variously called "mistake of mixed fact and law," "mistake of legal fact," and - most usefully - "mistake of legal element": namely, a mistake regarding the definition of a legal element in a crime. A perpetrator who commits a mistake of legal element (MLE) cannot be said to have acted "knowingly" with regard to that element, and is thus entitled to an acquittal if the element requires knowledge. The war crime of attacking a civilian population, for example, requires the perpetrator to know that the population in question qualifies as civilian under international humanitarian law. A perpetrator who honestly but incorrectly believes that a population forfeits its civilian status if soldiers are present within it, therefore, commits an exculpatory MLE.

Most international criminal law scholars accept the idea that at least some MLEs are exculpatory under Article 32. At the same time, however, they insist that few MLE defenses will be successful. I disagree, for three reasons. First, nearly every crime in the Rome Statute contains at least one legal element; the "civilian" element alone, for example, appears in 16 different war crimes. Second, the two methods that the drafters of the Elements of Crimes used to limit MLEs - providing that legal elements only require knowledge of the underlying facts and replacing Article 30's default knowledge requirement with a simple negligence standard - are almost certainly inconsistent with the Rome Statute. Third, all of the mechanisms that scholars have proposed to limit MLEs - such as subjecting them to German criminal law's "layman's parallel evaluation" test or requiring them to be reasonable - are inconsistent with Article 32's common-law principles.

international criminal law, international humanitarian law, Rome Statute, International Criminal Court, ICC, common law, civil law, mistake, substantive criminal law, criminal defenses, mens rea, mental states

Abstract:
Article 8(2)(b)(iv) of the Rome Statute prohibits [i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. As the disjunctive or indicates, the Article is ecocentric, not anthropocentric: a clearly excessive attack is a war crime even if the resulting environmental damage harms only the non-human environment; additional harm to human interests is not required.

Because it is ecocentric, Article 8(2)(b)(iv) represents an important milestone in international law. Prior to the Vietnam War, military attacks that damaged only the non-human environment were an exclusively domestic concern; international law only prohibited environmentally-destructive attacks that directly threatened human survival. Since Vietnam, the international community has adopted a number of agreements that prohibit causing environmental damage during wartime even if that damage affects only the non-human environment, but those agreements either impose nothing more than State responsibility for violations or leave the decision to criminalize environmentally-destructive attacks to the States themselves - something they have proven exceedingly reluctant to do.

Article 8(2)(b)(iv), however, remains a work in progress. As this essay demonstrates, a number of problems substantially limit the Article's ability to punish wartime environmental damage: its actus reus is excessively vague, particularly the requirement that damage be widespread, long-term, and severe; its proportionality standard is heavily weighted against finding an attack disproportionate; its mens rea is purely subjective, making it nearly impossible to find that a perpetrator knew her attack would be disproportionate; and it does not apply to internal armed conflicts.

Article (8)(2)(b)(iv)'s limitations have led one prominent scholar to question whether the ICC is an appropriate mechanism for addressing environmental war crimes. We believe that it is. Although significant revision is necessary, the Article could be re-drafted to provide real protection against the environmental damage that all too often accompanies war. The purpose of our essay is thus constructive as well as critical - not only to identify the limitations of Article 8(2)(b)(iv), but also to suggest ways in which those limitations could be addressed.

war crimes, environmental law, international law, international environmental law, criminal law, mens rea, proportionality, ICC, international criminal court, suppression conventions, wartime environmental damage

Abstract:
This short Comment is a response to Sanford Levinson's Article "Constitutional Norms in a State of Permanent Emergency." In the Article, Professor Levinson confesses that he finds it difficult to criticize President Bush's authoritarian disregard for the Constitution when many of the Presidents he admires, Lincoln foremost among them, also acted extraconstitutionally. The Comment attempts to provide Professor Levinson with the "adequate leverage point" that he seeks, what it calls the "survival rule." Drawn from the work of political theorists as different as Madison, Schmitt, and Clinton Rossiter, the survival rule posits that, insofar as Presidents have the power to act extraconstitutionally, they may do so only when such action is necessary to preserve the constitutional order itself. If that rule is sound, the Comment argues, it is possible to offer a principled distinction between, for example, Bush's authorization of torture and Lincoln's suspension of habeas corpus: Lincoln's extraconstitutional action was necessary to save the Republic, while Bush's authorization of torture clearly wasn't. The Comment then concludes by showing how two prominent constitutional scholars who defend Presidential authority to act extraconstitutionally, Michael Stokes Paulsen and Oren Gross, claim to embrace the survival rule but actually dilute it far beyond what is reasonable.

Constitution, constitutional law, emergency powers, extraconstitutional, war powers, presidental authority, Levinson, Lincoln, Schmitt, Rossiter, Paulsen, Gross

Abstract:
The Appeals Chamber of the ICTR recently held in Prosecutor v. Karemera et al. that the existence of a nationwide campaign of genocide in Rwanda in 1994 is a fact of common knowledge of which Trial Chambers must take judicial notice. This short essay, which is forthcoming in the International Decision section of the American Journal of International Law, critiques that decision from an evidentiary perspective. It begins by arguing that the nationwide campaign is logically irrelevant to the responsibility of a defendant for particular genocidal acts, because proof of the campaign is not a formal element of genocide and viewing the campaign as context for a genocide charge does not make it more likely that the defendant is guilty. It then argues that even if proof of the nationwide campaign does have some probative value, the possibility that a Trial Chamber will infer the defendant's specific intent to commit genocide from that campaign - even in the absence of any other evidence - is so prejudicial that exclusion is still warranted.

ICTR, Appeals Chamber, Trial Chamber, genocide, specific intent, proof of intent, judicial notice, international criminal law

Abstract:
With the exception of the ICC, which is intended to be a permanent institution, all of the past or present international criminal tribunals have either completed their work or are scheduled to complete their work in the relatively near future. In some cases, such as the Nuremberg Military Tribunal, the Office of the Prosecutor (OTP) was intimately involved in planning the final phase of the tribunal’s existence. In others, such as the Special Panels for Serious Crimes in Timor-Leste, the OTP played little or no role in the decision-making process. In every case, though, the decision to close a tribunal has had a significant impact on the OTP’s ability to fulfill its mandate, however defined. This essay - my contribution to a book on the history of the prosecutor in international criminal law, which will be published by Oxford in 2010 - explores that impact. Section 1 describes the various strategies that the tribunals have pursued to complete their work. Section 2 provides a comprehensive analysis of the ways in which those strategies have threatened, and continue to threaten, the legitimacy, independence, and effectiveness of the OTP. Finally, Section 3 discusses the lessons that current and future tribunals can learn from those completion strategies - a kind of 'best practices' guide, albeit one that recognizes that it is impossible to construct a one-size-fits-all completion strategy.