Causal Responsibility in International Criminal Law

Abstract

The purpose of this paper is to clarify the factual basis for attributing causal responsibility in interpersonal causation scenarios in international criminal law. The factual content of causal responsibility is sometimes obliterated when explaining causal contributions in overdetermined and indeterministic harm scenarios, and the resulting gap between individual agency and causal attribution is explained away by reference to values underlying legal liability (‘causal minimalism’). This paper argues that probabilistic causal models can express causal influences in interpersonal causation scenarios and help in explicating the objective basis of causal attribution. International Criminal Court’s approaches to indirect and joint perpetration, as well as the notion of causal contribution in Joint Criminal Enterprise are discussed in light of the existing approaches to testing causation in law, as well as with regard to Pearl’s notion of causal sustenance. It is concluded that expressing causal contributions in language of probabilities can explain causal intuitions underlying legal liability better than supplanting factual basis of attributing responsibility with normative and policy justifications.

Keywords: individual criminal responsibility, causal responsibility, probabilities, control over crime, joint criminal enterprise, international criminal law