Journal of International Criminal Justice Advance Access originally published online on July 4, 2005
Journal of International Criminal Justice 2005 3(3):539-561; doi:10.1093/jicj/mqi049
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Reclaiming Fundamental Principles of Criminal Law in the Darfur Case
* Cardozo Professor of Jurisprudence, Columbia University Law School; member of the Journal 's Board of Editors; fletch{at}law.columbia.edu. ** Ph.D., Columbia University; J.D., Columbia University Law School; jdo18{at}columbia.edu.
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 and genocidal intent, as well as that of joint criminal enterprise. The second is exposed by drawing attention to the uncertainties and ambiguities surrounding such notions as recklessness and dolus eventualis, and in addition to the frequent reliance in both international case law and the legal literature on customary international law and loose concepts such as proportionality. The authors finally point out that if the ICC tries to operate as a real criminal court under the rule of law and shows sensitivity to the rights and interests of the accused, US fears of politicized prosecution will diminish.
1 See Rome Statute of the International Criminal Court, preamble (‘Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’).
2 At least since Fuller, it cannot be denied that laws must be general, public, prospective, clear and consistent. See L.L. Fuller, The Morality of Law (New Haven and London: Yale University Press, 1964). H.L.A. Hart offers a similar account of the rule of law in The Concept of Law (Oxford: Clarendon Press, 1961). These criteria of the ‘inner morality of law’ apply equally, whether or not the rule of law is established by international institutions or domestic penal systems.
3 The court's jurisdiction is explicitly limited to ‘natural persons’. See Art. 25(1) Rome Statute.
4 See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, at 41–44 (discussing Sudanese responsibilities under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Racial Discrimination).
5 According to Art. 22(2) Rome Statute, ‘The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted’.
6 There are, of course, well travelled academic debates about what kinds of groups can be the object of genocide. The 1948 Genocide Convention defined genocide as applying to national, ethnic, racial or religious groups, although several commentators have noted that this list excludes some obvious candidates, such as political groups and tribes. The restrictive reading of genocide by the convention posed some obvious difficulties during the Rwandan prosecutions at the ICTR, given the uncertain ethnic differences between the Hutu and Tutsi populations. But we need not resolve such questions here.
7 See Report of the International Commission, at 130–131 (concluding that while objective elements of the offence of genocide were present in Sudan, the subjective element was missing).
9 See G.P. Fletcher, ‘Liberals and Romantics at War: The Problem of Collective Guilt’, 111 Yale Law Journal (2002), at 1526–1527.
10 See Judgment, Tadi
(IT-94–1-A), Appeals Chamber, 15 July 1999, 
189.
11 Article 25(3)(d) Rome Statute establishes criminal liability for intentional actions that contribute ‘to the commission or attempted commission of such a crime by a group of persons acting with a common purpose’. The action must also meet one of two criteria: ‘[b]e made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court’; or ‘[b]e made in the knowledge of the intention of the group to commit the crime’.
13 See United States v. Falcone, 109 F.2d 579 (2d Cir. 1940), affirmed 311 United States Reports (US) 215 (1940); United States v. Blakenship, 970 F.2d 283 (7th Cir. 1992).
15 Judgment of the German Supreme Court, 11 March 1927, 61 RGSt. 242. An English translation of the case can be found in G.P. Fletcher and S. Sheppard, American Law in a Global Perspective: The Basics (New York: OUP, 2005), 42–49.
16 Compare Model Penal Code, 2.02(2)(c) with A. Ashworth, Principles of Criminal Law (3rd edn, Oxford: OUP, 1999), 183–191.
17 See A. Cassese, International Criminal Law (Oxford: OUP, 2003), 168.
18 On the meaning of dolus eventualis in the continental literature, see G.P. Fletcher, Rethinking Criminal Law (1978) (New York: OUP, 2000), 445–449.
19 See, e.g. United States v. Wallace, 40 F.Supp. 2d 131 (EDNY 1999).
20 See O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 182.
21 These rules of customary international law appear to be drawn from the 1977 Protocol to the Geneva Convention, Art. 57.
22 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 124–125.
23 General Orders Number 100. Lieber uses the word ‘custom’ precisely once in a non-legal proposition, Art. 115 (‘It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them’).
24 United States v. Quirin, 317 US 1 (1942).
25 Judgment, Furund
ija (IT-95–17-A), Appeals Chamber, 21 July 2000.
26 See the comparative analysis of these principles in Rethinking Criminal Law, supra note 18.
27 That this is the meaning is suggested by the later statement that the subjective standard ‘must be applied in good faith’ ( 160).
28 See Commentary, supra note 20, at 197 (superficial discussion of Art. 8(2)(b)(iv)).
29 See Cassese, supra note 17. Article 8(2)(b)(iv) is mentioned on pages 60 and 165 but there is no discussion of proportionality in either place. The index does not contain any apparent reference to the concept.
30 This doctrine is widely discussed in the philosophical literature. See, e.g. M. Walzer, Just and Unjust Wars (3rd edn, New York: Basic Books, 2000), 152–159.
31 These various standards are discussed in the forthcoming book by G.P. Fletcher, Justice in the Face of Enemy Fire (New York: OUP, 2006).
32 See G. Werle, Völkerstrafrecht (Tübingen: Mohr Siebeck, 2003), n. 996, at 377 (‘the attack is permissible only if the civilian collateral damage is not disproportionately high [nicht unagemessen hoch] relative to the gain achieved by the military attack’).