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Did Russian Cyber Interference In The 2016 Election Violate International Law?, Jens David Ohlin Nov 2017

Did Russian Cyber Interference In The 2016 Election Violate International Law?, Jens David Ohlin

Jens David Ohlin

When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To …


The Changing Market For Criminal Law Casebooks, Jens David Ohlin Aug 2016

The Changing Market For Criminal Law Casebooks, Jens David Ohlin

Jens David Ohlin

In the following Review, I analyze the leading criminal law casebooks on the market and describe the ways in which they do — and do not — respond to the needs of criminal law teachers. At least part of the issue is the changing nature of law teaching — what actually happens in the classroom has changed in the last three decades. Moreover, there may be less uniformity in classroom practice than in the past; in other words, what works in one law school might not work in another, due in part to the changing profile of law students, as …


The Combatant's Stance: Autonomous Weapons On The Battlefield, Jens David Ohlin Aug 2016

The Combatant's Stance: Autonomous Weapons On The Battlefield, Jens David Ohlin

Jens David Ohlin

Do Autonomous Weapon Systems (AWS) qualify as moral or rational agents? This paper argues that combatants on the battlefield are required by the demands of behavior interpretation to approach a sophisticated AWS with the “Combatant’s Stance” — the ascription of mental states required to understand the system’s strategic behavior on the battlefield. However, the fact that an AWS must be engaged with the combatant’s stance does not entail that other persons are relieved of criminal or moral responsibility for war crimes committed by autonomous weapons. This article argues that military commanders can and should be held responsible for perpetrating war …


The Changing Market For Criminal Law Casebooks, Jens David Ohlin Aug 2016

The Changing Market For Criminal Law Casebooks, Jens David Ohlin

Jens David Ohlin

In the following Review, I analyze the leading criminal law casebooks on the market and describe the ways in which they do — and do not — respond to the needs of criminal law teachers. At least part of the issue is the changing nature of law teaching — what actually happens in the classroom has changed in the last three decades. Moreover, there may be less uniformity in classroom practice than in the past; in other words, what works in one law school might not work in another, due in part to the changing profile of law students, as …


Targeting Co-Belligerents, Jens David Ohlin Dec 2014

Targeting Co-Belligerents, Jens David Ohlin

Jens David Ohlin

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that …


Targeting And The Concept Of Intent, Jens David Ohlin Dec 2014

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 …


Applying The Death Penalty To Crimes Of Genocide, Jens David Ohlin Dec 2014

Applying The Death Penalty To Crimes Of Genocide, Jens David Ohlin

Jens David Ohlin

No abstract provided.


Joint Intentions To Commit International Crimes, Jens David Ohlin Dec 2014

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 Dec 2014

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 …


Is Jus In Bello In Crisis?, Jens Ohlin Dec 2014

Is Jus In Bello In Crisis?, Jens Ohlin

Jens David Ohlin

It is a truism that new technologies are remaking the tactical and legal landscape of armed conflict. While such statements are undoubtedly true, it is important to separate genuine trends from scholarly exaggeration. The following essay, an introduction to the Drone Wars symposium of the Journal, catalogues today’s most pressing disputes regarding international humanitarian law (IHL) and their consequences for criminal responsibility. These include: (i) the triggering and classification of armed conflicts with non-state actors; (ii) the relative scope of IHL and international human rights law in asymmetrical conflicts; (iii) the targeting of suspected terrorists under concept- or status-based classifications …


Second-Order Linking Principles: Combining Vertical And Horizontal Modes Of Liability, Jens David Ohlin Dec 2014

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 Dec 2014

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 Dec 2014

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 Dec 2014

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 Dec 2014

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 …


Attempt, Conspiracy, And Incitement To Commit Genocide, Jens Ohlin Dec 2014

Attempt, Conspiracy, And Incitement To Commit Genocide, Jens Ohlin

Jens David Ohlin

In these brief commentaries to the U.N. Genocide Convention, I explore three criminal law modes of liability as they apply to the international crime of genocide. Part I analyzes attempt to commit genocide and uncovers a basic tension over whether attempt refers to the genocide itself (the chapeau) or the underlying offense (such as killing). Part I concludes that the tension stems from the fact that the crime of genocide itself is already inchoate in nature, since the legal requirements for the crime do not require an actual, completed genocide, in the common-sense understanding of the term, but only a …


Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin Dec 2014

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 Dec 2014

International Law And Prosecutorial Discretion, Jens David Ohlin

Jens David Ohlin

No abstract provided.


On The Very Idea Of Transitional Justice, Jens Ohlin Dec 2014

On The Very Idea Of Transitional Justice, Jens Ohlin

Jens David Ohlin

The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. …


The Bounds Of Necessity, Jens David Ohlin Dec 2014

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 Dec 2014

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

Jens David Ohlin

No abstract provided.


The Duty To Capture, Jens David Ohlin Dec 2014

The Duty To Capture, Jens David Ohlin

Jens David Ohlin

The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following Article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and …


The One Or The Many, Jens David Ohlin Dec 2014

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 …


Group Think: The Law Of Conspiracy And Collective Reason, Jens David Ohlin Dec 2014

Group Think: The Law Of Conspiracy And Collective Reason, Jens David Ohlin

Jens David Ohlin

Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspirator can be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorial group to commit the crime. Unfortunately, misplaced skepticism about the notion of a "group will" has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that …


Is The Concept Of The Person Necessary For Human Rights?, Jens David Ohlin Dec 2014

Is The Concept Of The Person Necessary For Human Rights?, Jens David Ohlin

Jens David Ohlin

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note analyzes the evidence and argues that personhood is a cluster concept with distinct components: the biological concept of the human being, the notion of a rational agent, and unity of consciousness. This suggests that it is …


Meta-Theory Of International Criminal Procedure: Vindicating The Rule Of Law, Jens David Ohlin Dec 2014

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 Dec 2014

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 …