Vol. 25 No. 4 (April 2015) pp. 62-67
PERPETRATORS AND ACCESSORIES IN INTERNATIONAL CRIMINAL LAW: INDIVIDUAL MODES OF RESPONSIBILITY FOR COLLECTIVE CRIMES by Neha Jain. Oxford and Portland, OR: Hart Publishing Ltd. 2014. 230 pp. Cloth $120.00. ISBN: 9781849464550.
Reviewed by Roger A. Shiner, Department of Philosophy, University of British Columbia Okanagan and Okanagan College. E-mail: email@example.com or firstname.lastname@example.org.
On September 11th 2001, just short of three thousand people were killed in four simultaneous and coordinated incidents of international terrorism. We know how to deal with such a case with respect to the norms and procedures of criminal law, even though the death toll far surpassed the 77 killed by Anders Breivik in 2011 in Norway. We know those who directly caused the deaths, including their own: we know who was the principal agent directing the killings to take place, and we would have had no difficulty obtaining a conviction in court had things gone that way. An estimated 500,000 to 1,000,000 people died in Rwanda in 1994 at the hands of Hutu aggressors. An estimated 1,700,000 to 2,300,000 died at the hands of the Khmer Rouge in Cambodia between 1975 and 1979. An estimated 8,000 Bosniaks were murdered in Srebrenica in 1995, and 20,000 to 30,000 more forcibly relocated in an ethnic cleansing rife with violent rape and torture. We struggle to deal with these cases. We set up international criminal tribunals, but convictions do not come easily if at all. Repressive political leaders seem to be able to eliminate whom they choose while the international community stands helplessly by.
Jain’s fine, densely argued book attributes this regrettable state of affairs in part to the lack of a normatively adequate legal framework for determining the criminal culpability of the masterminds behind such large-scale atrocities. Her goal in the book is to develop such a framework. Methodologically, the book is not a rational reconstruction of existing positive law, but rather of Jain’s own fundamental intuitions about who deserves what and when criminal culpability is properly assigned. She is not afraid to prioritize her normative intuitions over the provisions of positive criminal law, both international and domestic. The theory that results (as her title accurately states) is a complex assessment of individual modes of responsibility for collective crimes, consisting in a normative story about how properly to identify the perpetrators of and accessories to collective crimes.
In her analysis, Jain takes domestic criminal law as the paradigm, in this sense. We assume that the norms of criminal law are liable to assessment in terms of background political morality: modes of criminalization — definitions of offences, criteria of responsibility, rules of criminal procedure, substantive rights of defendants, etc etc — should conform in some way to norms of background political morality about social justice and the proper treatment of persons. Domestic criminal law in the preferred jurisdictions (Jain focuses on Germany and the U.K. as representatives of the civil law and the common law worlds) sufficiently meets this test. Thus we have a baseline for the assessment of whether existing institutions and norms of international criminal law are acceptable in terms of background political morality, and if not in what directions we should look for appropriate change.[*62]
Such an approach, however, immediately faces a major challenge. Domestic criminal law is all about the individual directly doing a legally prohibited wrong in a suitably culpable state of mind. Familiarly, domestic criminal law sanctions a wide range of other cases that are perceived to have sufficient normative similarity to the paradigm case — endangerments or attempts, where there is as yet no actual wrong done; forms of assisting in the commission of offences; wrongs that occur through a failure to avoid rather than an intention to commit; and so on. Nonetheless, it all begins with Able intentionally punching Baker in the face. While there is no doubt that wrongdoings of this kind occur within the jurisdiction of international criminal law — ethnic cleansings include one-on-one assaults, tortures, murders and the like — the most important actors that international criminal law wants to prosecute and convict are not the individuals guilty of such direct wrongdoings, but rather those who are the ultimate organizers of large-scale programs of wrongdoing such as ethnic cleansing, concentration camps, genocide and the like (see here Jain’s introductory Chapter 1).
How then should we go about extending the (assumed to be sound) principles of domestic criminal law to apply mutatis mutandis to create an equally sound set of principles of international criminal law that will ensure this class of offenders receive their just deserts? That question constitutes the problematic of Jain’s book.
The argument of the book is in three parts. Part I of the book is an extraordinarily thorough and detailed analysis of the decided cases, both in the International Criminal Court itself and in the ad hoc Tribunals set up to respond to atrocities in the former Yugoslavia, Rwanda, Sierra Leone and elsewhere. Jain first discusses the doctrine of Joint Criminal Enterprise, developed most fully by the Tribunal for the former Yugoslavia in the Tadi case (ICTY 1999). JCE liability can take three forms (see p. 15ff.: my account greatly oversimplifies), all focused on a plurality of persons, a common plan and participation of the accused as constituting the actus reus, but differing in the required mens rea. For JCE I, the accused must share the intent to commit the crime; for JCE II the accused must know of a system of ill-treatment and intend to further it; for JCE III must intend to participate in and further the criminal purpose of the group, but may also be liable for crimes that were foreseeable consequences of the plan and the accused willingly took the risk of their occurrence. Jain’s analysis asserts the legacy of Tadić and its account of JCE to be “muddled” (p. 41 ff.) in that it blurs the normatively crucial distinction between principal and accessorial liability, and she argues in Chapters 3 and 4 that in later cases of the ICTY and in other ad hoc tribunals things only get worse: concepts and criteria are introduced on the fly, as it were, with scant attention either to internal doctrinal consistency or compatibility with acceptable normative standards of criminal guilt.
The ICCC itself, however, whose founding postdates Tadi, approached responsibility in a different way. Article 25(3) of the Rome Statute establishing the Court gives a “detailed provision on modes of criminal responsibility” (p. 81). Paragraph (a) of the article defines the perpetrator of a crime in a way that includes co-perpetration and indirect perpetration (p. 85 ff.). Jain argues that, while there are important differences between the JCE approach and the approach of Article 25(3), the Court’s actual deployment and development of the doctrine of perpetrator liability has “loopholes and contradictions” (p. 98). She urges a fresh [*63] start, one that builds on “domestic theories of parties to a crime” (p. 99). Accordingly, in Part II Jain turns to domestic criminal law.
Chapter 6 discusses the concept of the principal in English criminal law theory. She finds the main contribution of English law to international criminal law to lie in the area of secondary liability, rather than principal liability, although use may be made of the way that English criminal law treats innocent agency. In Chapter 7 Jain turns to German criminal law, and here she finds a more fertile ground, in that it “presents a complicated and minutely theorised account of the principal party to a crime” (p. 116). Jain’s discussion extracts four main ideas from her German source, revolving around committing a crime through another: Hintermann, the indirect perpetrator; Vordermann, the direct perpetrator used or manipulated by the Hintermann; Zentralgestalt, the key figure in a series of events; and Organisationsherrschaft, signifying cases where the Hintermann “has an organized power apparatus at his disposal through which he can accomplish the offences at which he aims” (p. 125). In particular Jain favours the account of Organisationsherrschaft given by the German theorist Claus Roxin in terms of “(a) the existence of a vertical hierarchically structured power apparatus; (b) the direct executor’s fungibility within the apparatus; and (c) the apparatus’s detachedness from the law” (p. 129), indifference to and operating without regard to positive law and its embedded values — an idea Jain finds particularly apt for “the social climate in which international crimes take place” (p. 137), and an idea she will make full use of in her own account.
Jain presents in Chapter 8 her own theory of perpetration for international crimes. The general approach is to focus on the person who is at the centre of some “widespread and systematic planned attack”. It is not strictly accurate to think of that person controlling events because of the “spontaneity, initiative and arbitrariness displayed by mid- and low-level participants”. What matters is “control over the unleashing of a destructive potential” (all quotes p. 141). The Zentralgestalt or key figure is the person who sets the destructive “machinery” in motion and utilizes it. Specifically, Jain now goes on to spell out both the objective/actus reus elements and the subjective/mens rea elements of perpetration with respect to the kind of mass atrocity that constitutes international crimes.
The actus reus elements, which Jain believes can be accommodated within Art. 25(3) of the Rome Statute, are (in my summary of pp. 142-5):
a) The perpetrator’s control over the act by virtue of his conscious creation, operationalization or utilization of the framework conditions of the process that results in the realization of the international crime. “Control” is over the sequence of events leading to the results of the elements of the events. The physical perpetrator(s) may or may not be criminally liable. There must be a high degree of certainty that the intended effects will occur, to distinguish the perpetrator from the instigator.
b) There exists an operational framework or apparatus which the perpetrator either establishes or uses, through which he can set in motion the events that result in the commission of the crime. The [*64] perpetrator must occupy a position within or in relation to this apparatus that enables him to harness its potential to achieve the criminal result. The apparatus need not be rigidly structured either vertically or horizontally, nor need each individual physical perpetrator be part of the apparatus. However, the individual micro-crimes must be related in a more than de minimis way to the activities of the operational framework.
c) There must exist circumstances such that the individual crime conforms to the prevailing social norm. The court would be required to ascertain the veracity of complicated historical, social and political facts. The perversion of norms is exactly what lends the high-level perpetrator his destructive potential. This element though does not entail that the relevant positive law must endorse the crimes, nor that the condoning of the crimes must come only from the government or the state.
The mens rea elements are more straightforward: a) a double intent, with respect to the elements of the offence and to the elements that enable the perpetrator to establish control over the act, and b) an awareness of the circumstances that enable the perpetrator to create and utilize the framework conditions within an organizational apparatus that result in the commission of the crimes. E.g., the perpetrator must have knowledge of his position or authority that allows him to harness the apparatus for his ends, and of the atmosphere of moral permissibility for the crimes he wants.
The words “create and utilize” (p. 145, my emphasis) puzzle me. In defining the actus reus elements, on p. 144, Jain says “either establishes or uses” (my emphasis). The disjunction makes intuitive sense. Tyrannus I sets up the whole criminal apparatus, but before the final end is achieved he dies, and Tyrannus II, who hitherto has played no part in the nasty business, takes over and sees the crime through to the end. Surely we do not want Tyrannus II to escape justice merely because he did not create the apparatus. But then why would the same argument not also apply to the mens rea elements? While “establish or use” with respect to the actus reus would include Tyrannus II, “create and use” with respect to the mens rea would exclude him: Tyrannus II cannot have the requisite intent towards the creation of the apparatus since ex hypothesi he did not create it. And it is a well understood principle of criminal law that, to be guilty of an offence, a defendant has satisfy beyond reasonable doubt every element of an offence, actus reus and mens rea. So Tyrannus II could not be convicted under the “create and utilize” wording — or so it seems to me: not a desirable result. Maybe this wording is a slip of the pen that has eluded author, copy-editor and proof-reader. Maybe I am interpreting the problematic wording too literally. Maybe Jain is collapsing together two forms of liability — creator-and-user liability and user-but-not-creator liability. Or maybe I have just missed something myself.
In the remainder of Chapter 8 Jain ties up some loose ends. It follows from this account of perpetration that the pure instigator can at best be guilty of accessorial responsibility. The account is compatible with there being co-perpetrators. The [*65] account differs from the existing doctrine of Joint Criminal Enterprise I in that mutual understanding among co-perpetrators is not required: the structure of the operational framework matters more in Jain’s account, a fact she thinks better reflects the realities of mass atrocities. Jain also believes that her account avoids the unsatisfactorily low mens rea requirements of JCE II and III.
Part III is a discussion of accessorial responsibility, following the same format — discussion of English criminal law, then German criminal law, and then a comparison with the JCE doctrine. The main connecting theme is that of causation — Jain sees as common ground to all three a diluted version of causation that does not require sine qua non status. Should JCE II and III be retained as distinct modes of liability for International crimes? JCE II: yes, if suitably modified. JCE III — no: its normative and empirical foundations are too weak.
Because the argument is so detailed and the scholarship so sophisticated, the primary audience for this extraordinary book is clearly other legal scholars in the field of international criminal law. Nonetheless, any person with a broader analytic or conceptual interest in criminal law theory will find the book interesting in virtue of Jain’s approach of comparing and contrasting international and domestic criminal law. Anyone with a broader interest in human rights and global justice will find much to admire in the humane sensibility that motivates the argument and conclusions of the book. However, LPBR is a review of law and politics. What implications are there for that context? I think this is a difficult issue for her.
Jain is unapologetic as to the method of the book: on the final page of text (p. 210), she urges that the academy can play a vital role in the resolution of her first-order, practical problematic. The common-law approach of developing a stock of precedents and norms incrementally and case by case is of no avail for international criminal law. Rather, she believes, we need a civil law style Dogmatik of international criminal law, and the academic scholar is well-placed to make crucial contributions to this project. Jain thus sides herself with the conventional analytic or conceptual approach to criminal law theory, although with this civil law twist that brings analysis closer to practice.
The subjection of the global order to the rule of law rather than the rule of men is an attractive and worthy aspirational goal, and perhaps no more so than when it is aimed at calling to account before an international criminal court the organizers and implementers of campaigns of mass atrocity. However, such a goal and the self-image of law’s impartiality that goes with it have been continually challenged in the last hundred years or so by realism in both political and legal theory. That, though, is too grand and external a dispute to be meaningfully addressed, let alone settled, in a book review. I want to interrogate Jain’s project from a political perspective on its own terms. Consider the third of her objective or actus reus elements: the conformity of the defendant to the prevailing social norms and the requirement that courts “ascertain the veracity of complicated historical, social and political facts.” It seems hard to deny that to accept these elements as established courts will have to engage in political reasoning and make political judgments. In a domestic context, a judge operating as fact finder might have to determine whether the scientific evidence presented amounts to a proof beyond reasonable doubt that the bullet taken from the victim’s body was fired from a gun taken from the defendant at the scene of the crime. [*66] One might say: so then the judge has to make a scientific judgment, and is not that just like a post-Jain court looking at evidence assembled by social scientists and deciding that the individual crime conforms to the prevailing social norm other than that the latter is a judgment of social, not physical, science. I don’t think so. Deep questions about the social perspective that the court itself brings to such determinations, and about whether this perspective is truly an impartial perspective and not a politically charged perspective, are bound to arise, and are integral to the kind of judgment this actus reus element requires the court to make. If that is true, the presupposed impartiality of Jain’s elements as part of the rule of law is clearly threatened. On the other hand, perhaps all my argument shows is that Jain’s project is unequivocally committed to there being a-political, non-partisan norms of international criminality, and that may be a commitment she embraces with equanimity. Not everyone will agree with her.
I don’t want to end on a negative note. Jain has written a wonderful book — articulate. clear, exhaustively researched, challenging, timely, and above all with great potential for practical importance. Thoroughly recommended.
ICTY 1999: International Criminal Tribunal for the former Yugoslavia, Prosecutor v Tadi, No IT-94-1-A, Appeals Chamber Judgment (15 July 1999)
Copyright 2015 by the author, Roger A. Shiner.