The End of 'Modes of Liability' for International Crimes
James G. Stewart
UBC Faculty of Law; NYU Law School
November 2, 2011
Leiden Journal of International Law, 2012
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 socio-political 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 (and all other modes of liability) disintegrates 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.
Number of Pages in PDF File: 74
Keywords: Complicity, aiding and abetting, unitary theory of perpetration, modes of liability, superior responsibility, joint criminal enterprise, JCE, theory of criminal law, international criminal justiceAccepted Paper Series
Date posted: November 3, 2011 ; Last revised: October 12, 2012
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