Finding a Proper Role for Command Responsibility

This article examines the role that command responsibility currentlyplays in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) and the International CriminalTribunal for Rwanda (ICTR). The ad hoc tribunals rely in principleon a broad concept of command responsibility – which canbe applied to all superiors, including political and civilianones. However, in practice, accused persons have only rarelybeen successfully charged under this form of liability. Indeed,recent case law has gradually adopted a rigorous approach withrespect to the legal requirements of command responsibility.This has made it more difficult to establish criminal liabilityof superiors who have not directly participated in the commissionof international offences. The ad hoc tribunals have expressedan explicit preference for forms of ‘direct’ liabilitywhere the accused can be convicted both under ‘direct’and command responsibility. While the ICTY and ICTR have progressivelyinterpreted other international legal concepts to deal effectivelywith collective crimes committed by leaders of organized groups,they seem to have confined command responsibility to internationalcrimes perpetrated in typical military-like contexts.     

The Problem with Entrapment

In R v Looseley; Attorney General’s Reference (No. 3 of2000) the House of Lords articulated a legal framework to govern‘entrapment’ in criminal cases. Their Lordshipsregarded the need for judicial intervention to assist entrappeddefendants as uncontroversial. This article argues that thedoctrine they set out, in fact, necessitates substantial, andlargely unarticulated, departures from principles the courtsordinarily stress as fundamental to the criminal law. In particular,entrapment doctrine determines liability for criminal acts byreference to the kind of environment inhabited by their perpetrators,a perspective the law ordinarily attempts to exclude. This articlesuggests that the anomalous treatment of entrapment can be understoodas a device to prevent the police from relocating the temptationto commit crime to environments in which they are not ordinarilyconfronted and to ensure that those from backgrounds in whichserious criminality is not usually a plausible option will escapepunishment if tempted to commit crime by the police.     

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

Gaining confidence in the law of confidence

Legal context. The recent case of EPI v Symphony has left theUK law of confidentiality in an uncertain state: the extentto which recipients of confidential information may be permittedto ‘use’ mixtures of such information with publiclyavailable material remains unclear. The Court of Appeal in EPIfelt that it was hard to reconcile the principle that any claimin confidence must fail if the material in question is in thepublic domain with the ‘springboard’ doctrine; butis the distinction illusory? Key points. Issues raised in this case include considerationof what precisely is ‘use’ of confidential information,when mixed with public information, and whether a confider shoulddo more than rely on confidentiality obligations to protectthe fruits of his/her disclosures. This article asks how confidentialityobligations may be aligned with the control of statutory intellectualproperty rights. It considers whether the Court of Appeal inMarkem v Zipher has confused the issue and speculates as tohow far the general law of contract can assist the confider. Practical significance. Finally, this article discusses whichlegal tools will best assist the confider seeking to protectits intellectual property.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe

The recent case of Bosphorus Airlines v Ireland provided theEuropean Court of Human Rights (ECtHR) with an opportunity torefine further its relationship with the EU. In particular,the ECtHR was called upon to clarify when States could be heldresponsible for actions taken under the banner of the EU. Thisarticle examines the status quo prior to the Bosphorus judgment,and then scrutinises the judgment itself, focusing particularlyon the use and scope of the doctrine of ‘equivalent protection’to determine State responsibility. The doctrine as outlinedin Bosphorus is applied to some likely scenarios involving EUaction and its relative merits and disadvantages are discussed.The article also briefly addresses the further global implicationsof the judgment, namely for the legal accountability of theUN Security Council and the ongoing issue of responsibilityof international organisations under international law.     

The Requirement of an 'Express Agreement' for Joint Criminal Enterprise Liability: A Critique of Brdanin

The mode of liability known as joint criminal enterprise (JCE)has emerged in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) as a means of assigning criminalliability to individuals for activities carried out by a collective.As a result, the doctrine must be carefully defined so as notto allow it to extend a defendant's liability beyond the appropriatelimits of individual criminal responsibility. In this regard,a recent ICTY Trial Chamber decision in Branin held that, wherea defendant is not alleged to have participated in the physicalperpetration of the crimes charged but to have contributed insome other way to the commission of the crimes by a group, theprosecution must demonstrate that the defendant entered intoan express agreement with the physical perpetrators to committhe crimes charged. The author argues that this ‘expressagreement requirement’ is both conceptually unsound andpractically unhelpful. Conceptually, it would be inconsistentwith core principles of JCE liability to require an expressagreement between a defendant and the physical perpetratorsof crimes, at least in circumstances in which it is allegedthat there existed a structure of two or more overlapping JCEs.Moreover, because this structure allows the accused and thephysical perpetrators to be operating in two separate JCEs,they need not even share a common criminal purpose. On a practicallevel, arguably in a ‘system-criminality’ contextsuch as the one that developed in the former Yugoslavia duringthe time period in question, the organizers of criminal activityare unlikely to enter into express criminal agreements withthose who physically carry out crimes, because existing organizedhierarchies provide much more efficient mechanisms by whichleaders are able to ensure the realization of their criminalplans.     

Toward a General Margin of Appreciation Doctrine in International Law?

Three recent International Court of Justice decisions –Oil Platforms, Avena and Wall in the Occupied Palestinian Territory– highlight the uncertain status of the margin of appreciationdoctrine in the Court’s jurisprudence. The purpose ofthis article is to evaluate, in the light of contemporary practiceof other courts, the current status under international lawof the margin of appreciation doctrine, which encourages internationalcourts to exercise restraint and flexibility when reviewingthe decisions of national authorities, and to offer preliminaryguidelines for future application. The article also discussesa variety of policy arguments concerning the legitimacy andeffectiveness of international courts, which can be raised insupport of the development of a general margin of appreciationdoctrine with relation to some categories of international lawnorms governing state conduct, and it examines potential criticism.Eventually, it argues that the same considerations which haveled to the creation of ‘margin of appreciation type’doctrines in the domestic law of many states and in the contextof specific international regimes (for instance, the EuropeanConvention on Human Rights) also support the introduction ofthe doctrine into general international law. The position ofthe ICJ towards the application of the doctrine therefore meritsreconsideration.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

Remarks on the General Part of International Criminal Law

After decades of little reflection on the General Part of InternationalCriminal Law (‘ICL’), the practice of the Ad HocTribunals and Part III of the ICC Statute both offer a uniqueopportunity and create a necessity to give more thought to therules of attribution for international crimes. Indeed, the aimof further research must be to develop a more refined systemof attribution. This is especially important in ICL, since itis primarily concerned with high level perpetrators who rarelycommit the crimes themselves but use mid- or low-level perpetratorsto execute their criminal plans. While ICL ‘in action’is recognized today as primarily criminal law, the rules ofattribution are still underdeveloped. Some rules developed bythe case law even violate, when applied in their extreme form,fundamental principles of criminal law. Identifying and applyingthese principles, specifically the principles of legality andculpability, will be the first step in constructing a more legitimatesystem of attribution.     

An Intentionally Unfair Trial

Numerous flaws made the Dujail trial a violation of the internationallyprotected human right to a fair trial. The United States andthe Iraqi authorities conducted an unfair trial knowing thatboth the Third and Fourth Geneva Convention describe ‘wilfullydepriving’ a person ‘of the rights of fair and regulartrial’ as a war crime. Even if Saddam Hussein was notto be regarded as a prisoner of war, that is, merely as a civilian,in any case his right to fair trial was protected by internationallaw. According to the author, both the relevant states and theindividuals involved in the unfair Dujail trial bear responsibilityfor breaches of international law.     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.     

Is Terrorism a Crime or an Aggravating Factor in Sentencing?

Common law systems, in criminal cases, distinguish between theguilt/innocence proceedings and the sentencing stage. This isnot the case in civil law systems where criminal trial consistsof a single phase, combining the inquiry into guilt with sentencing.Under common law practice many facts relevant for sentencingare considered irrelevant at the stage of finding guilt forthe commission of the crime. Aggravating elements, therefore,address a fundamental distinction of substantive criminal lawbetween guilt and dangerousness: guilt is a determination ofresponsibility for a prior wrongdoing; dangerousness is a speculativefuture determination. The intensification of terrorist activityin the past few years has made terrorism one of today's mostpressing problems. But is terrorism a crime or an aggravatingfactor in sentencing? In this article, the author challengesconventional wisdom regarding the meaning of ‘terroristcrimes’, by providing a conceptual understanding of ‘terrorism’,as well as articulating a theory of guilt. Terrorists seldomexpress ‘guilt’. The word ‘terrorism’describes, instead, an overriding motivation, a way of acting,rather than the objective circumstances of acting. Terrorismis nothing but common crimes although committed with an overridingmotivation of imposing extreme fear on the nation as such. Theauthor presents the conceptual grounds of the phenomenon ofterrorism as it has evolved through history, before enquiringinto the meaning of ‘terrorist crimes’: the overridingmotivation associated with the concept of terrorism constitutesthe degree of cognate dangerousness of terrorist crimes.     

Civilized Squatting

This article seeks to trace the origins of the requirement thata squatter must have an intention to possess (animus possidendi)in order to establish title by adverse possession. The requirementhas been confirmed by the House of Lords in the recent caseof Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Its origins canreadily be traced back to the decision of the Court of Appealin Littledale v Liverpool College [1900] 1 Ch 19, but thereis little evidence of any need for intention before that case,and no convincing authority is cited for it. Possible explanationsfor the source of this requirement are considered by the article(for instance cases on re-entry by landlords and the so-called‘found chattel’ cases), but these are ultimatelyrejected. The article goes on to suggest that the reason forthis is that the intention requirement was ‘imported’into English law from German Pandectist writers of the nineteenthcentury. It suggests that Littledale was the case in which thishappened. It seeks to support this hypothesis by reference tobiographical details of Lindley MR, who gave the leading judgmentin Littledale, and who not only trained in part in Germany butalso took an active interest in German scholarship of the time.A brief survey of the relevant German sources is undertaken,focusing primarily on the work of Savigny, but also consideringthe rival theory of Jhering. Finally, it tracks the developmentand refinement of the content of animus possidendi, first by19th century legal scholars and then by 20th century judges,to make it ‘fit’ with English property law. It seeksto address the question of whether the animus possidendi requirementis a free-standing element (the ‘strong’ will theory),or whether it is simply implied from the acts of the squatter(the ‘weak’ will theory), and suggests a solutionby reference to the German sources and later English cases.Finally, it considers how the House of Lords decision in Pyereflects the logical culmination of the acceptance of this ‘legaltransplant’ into the common law.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

Fighting Organized Crime, with Particular Reference to Mafia Crimes in Italy

The special legal regulation of mafia crimes in Italy operatesat very different levels: at that of investigations, of criminalproceedings, of sentencing and of imprisonment. This legal regimeis based on a double track treatment, which generally speaking,is very harsh, but may turn especially lenient whenever a personopts out of a criminal group and decides to cooperate with theprosecution. In the daily fight against mafia crimes as wellas criminal offences perpetrated by other criminal organizationsor ‘associations’, the role of ‘cooperatingwitnesses’ has proven to be of pivotal importance. Anotheruseful prosecutorial tool developed by the Italian courts isthe notion of ‘external support to mafia associations’,although this now needs to be laid down in legislation. It is,in this writer's experience, the coordination of investigationsthat is critical to the prosecution and punishment of mafiacrimes, and to the dismantlement of mafia associations.     

The Personal Nature of Individual Criminal Responsibility and the ICC Statute

By affirming criminal responsibility of the individual, theICC Statute recognizes a distinction from the internationalresponsibility of states, which is the basis of modern internationalcriminal law. The importance of the principle is evident notonly in the breadth and analytical nature of the provision dealingwith it, i.e. Article 25 of the Statute, but by its being placedin the part of the Statute devoted to the ‘General Principlesof Criminal Law’. After an introductory considerationof the context of the Article and of its general implications,this article analyses the contents of the regulation and thetype of responsibility outlined in it. The principle that emergescould be called the ‘personal nature’ of internationalcriminal responsibility. Although the general principles setout in the ICC Statute are rather rudimentary in comparisonwith what is to be found in the ‘General Part’ ofmost national criminal laws, the principle of personal responsibilityemerging from the Statute is nevertheless in the best traditionsof criminal law. It serves both as the foundation and as thelimitation of international criminal responsibility, so helpingto ensure that modern international criminal law is not a toolfor oppression but rather an instrument of justice.     

Cyber-trespass and 'Unauthorized Access' as Legal Mechanisms of Access Control: Lessons from the US Experience

The common law doctrine of trespass to chattels has recentlybeen revived and applied by courts in the United States (US)to cover intrusions (in the form of electronic signals) to computersystems connected to the Internet. These cases represent judicialrecognition of the need to protect certain unwanted intrusionsin cyberspace, though the principles developed therewith areremarkably expansive. As such, they overlap with the conceptof ‘unauthorized access’ under computer misuse legislationin the US and elsewhere. This overlap has yet to be judiciallyacknowledged. Since the US, the United Kingdom and other commonlaw countries not only share a common law ancestry but also‘unauthorized access’ principles as the primarytrigger for computer misuse, this paper seeks to examine theconsequences of developing a broad cyber-trespass doctrine beyondthe US, and its corresponding implications for judicial interpretationsof ‘unauthorized access’ in the common law world.     

All the best things come to those who wait

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. In 1966, Professor Benjamin Kaplan gave the Carpentier Lecturesat Columbia University. His subject was copyright law and eachof his three lectures examined a different aspect of that subject.The first looked at the ‘First Three Hundred and FiftyYears’, the second at ‘Plagiarism Reexamined’,and the final at ‘Proposals and Prospects’. Theselectures were     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.