Criminal Law Commons^™

Targeting And The Concept Of Intent, Jens David Ohlin

Jens David Ohlin

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively …

Joint Intentions To Commit International Crimes, Jens David Ohlin

Jens David Ohlin

The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the ICTY and the co-perpetration doctrine applied by the ICC, which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls …

Searching For The Hinterman: In Praise Of Subjective Theories Of Imputation, Jens David Ohlin

Jens David Ohlin

How should international courts distinguish between principals and accessories? The ICC answered this question with Roxin’s Control Theory of Perpetration; defendants should be convicted as principals if they control the crime individually, jointly with a co-perpetrator, indirectly via an organized apparatus of power, or as indirect co-perpetrators (via a combination of the previous doctrines). As the ICC adopted the control requirement, however, some of its decisions have allowed lower mental states such as recklessness or dolus eventualis to meet the standard for principal perpetration under the Control Theory. Other decisions have asserted that intent or knowledge is required though their …

Second-Order Linking Principles: Combining Vertical And Horizontal Modes Of Liability, Jens David Ohlin

Jens David Ohlin

Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that …

Joint Criminal Confusion, Jens David Ohlin

Jens David Ohlin

Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 …

Assessing The Control-Theory, Jens David Ohlin, Elies Van Sliedregt, Thomas Weigend

Jens David Ohlin

As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory, is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the …

The Torture Lawyers, Jens David Ohlin

Jens David Ohlin

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

Reclaiming Fundamental Principles Of Criminal Law In The Darfur Case, George P. Fletcher, Jens David Ohlin

Jens David Ohlin

According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide …

Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin

Jens David Ohlin

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …

International Law And Prosecutorial Discretion, Jens David Ohlin

Jens David Ohlin

No abstract provided.

The Bounds Of Necessity, Jens David Ohlin

Jens David Ohlin

The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to …

The Co-Perpetrator Model Of Joint Criminal Enterprise, Jens David Ohlin

Jens David Ohlin

No abstract provided.

The One Or The Many, Jens David Ohlin

Jens David Ohlin

The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral …

Meta-Theory Of International Criminal Procedure: Vindicating The Rule Of Law, Jens David Ohlin

Jens David Ohlin

International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence …

Three Conceptual Problems With The Doctrine Of Joint Criminal Enterprise, Jens David Ohlin

Jens David Ohlin

This article dissects the Tadic court’s argument for finding the doctrine of joint criminal enterprise in the ICTY Statute. The key arguments are identified and each are found to be either problematic or insufficient to deduce the doctrine from the statute: the object and purpose of the statute to punish major war criminals, the inherently collective nature of war crimes and genocide and the conviction of war criminals for joint enterprises in World War II cases. The author criticizes this overreliance on international case law and the insufficient attention to the language of criminal statutes when interpreting conspiracy doctrines. The …

Widening Our Lens: Incorporating Essential Perspectives In The Fight Against Human Trafficking, Jonathan Todres

Jonathan Todres

In 2000, the international community formally launched the modern movement to combat human trafficking with the United Nations' adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol). With the Trafficking Protocol, the international community created a new cornerstone upon which to build a global initiative to combat this modem form of slavery. As the first major international treaty on human trafficking in half a century, the Trafficking Protocol represented a significant step forward. One hundred forty-seven countries are now party to the …

The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams

Ryan T. Williams

Universal Criminal Jurisdiction, Douglass Cassel

Douglass Cassel

No abstract provided.

Pretrial And Preventative Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel

Douglass Cassel

This article analyzes the grounds, procedures and conditions required by International Human Rights Law and International Humanitarian Law for pretrial detention of suspected terrorists for purposes of criminal law enforcement, and for their preventive detention for security and intelligence purposes. Recognizing the difficulties in securing sufficient admissible evidence to prosecute terrorists within the tight time limits imposed by international law, the Article nonetheless suggests that indefinite detention, solely or primarily for purposes of intelligence interrogation, is probably not lawful under U.S. or international law. Preventive detention for security purposes, on the other hand, is generally permitted by international law, provided …

"T.I.A" - This Is Africa - So Why The Icc?, Fletcher Miles

Fletcher V Miles Mr

Since its creation the International Criminal Court (“ICC”) has been under scrutiny and repeatedly criticised for judicial failure and imperial arrogance. At the heart of this criticism is the simple fact that the ICC prosecution list is made up exclusively of African states, which demonstrates a clear bias towards the African continent.

This paper addresses the key factors causing perceptions of bias while considering the extreme difficulties faced by the ICC in operating a judicial body within a politically driven international community. Fundamental issues introduce the background of the bias such as funding distribution, the skew of ICC jurisdiction, colonialism …

Racking Up The Money: A Solution To The Ongoing Battle Between Rico And The Revenue Rule, Kye C. Handy

Kye C Handy

The Revenue Rule, a common law rule from British court systems, prevents foreign countries from bringing claims in the United States to enforce or adjudicate tax claims that did not happen in the United States. The Supreme Court in Pasquantino v. United States held that Canada’s right to collect imported liquor taxes was not barred by the Revenue Rule. However, the Second Circuit in European Community v. RJR Nabisco Inc., ruled the European Union and Colombia could not recover lost tax money or enforcement costs from cigarette smuggling under RICO because of the Revenue Rule. The European Community petitioned the …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch

Michael L Perlin

Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those …

“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Michael L Perlin

The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."

Humiliation and shaming, …

Prisoner Disenfranchisement In The Uk Vs. The Us: Whom Does It Affect?, Rosi Lehr

Rosi Lehr

Prisoner disenfranchisement is the denial of a prisoner's right to vote. The UK and US both recognize and apply prisoner disenfranchisement in their countries. Both countries are viewed as the biggest advocates of disenfranchisement. The right to vote is viewed as a privilege by both, which may be revoked for antisocial behavior and for violating the laws of the land. There are some differences though between the two countries. The actual extent of the disenfranchisement, where it originates, who it affects, and how it is governed are just a few differences. We will first examine how the UK handles a …