International law informs, and is informed by, concerns for global justice. Yet the two fields that engage most with prescribing the normative structure of the world order – international law and the philosophy of global justice – have tended to work on parallel tracks. Many international lawyers, with their commitment to formal sources, regard considerations of substantive (and not merely procedural) justice as ultra vires for much of their work. Philosophers of global justice, in turn, tend to explore the moral commitments of international actors without grappling with the international legal doctrine or institutions. In recent years, however, both disciplines have begun to engage with one another more. This discussion among international lawyers and philosophers addresses the promises of and challenges to interdisciplinary approaches to global justice. The contributors consider the added value of philosophical inquiry to issues facing international law practitioners or scholars, the salience of of international law for political philosophy, and the methodological distinctions between the two fields. The contributors also identify promising lines and examples of interdisciplinary scholarship.

This chapter discusses the crime of deportation, casting is as a legal history that will inform upcoming land grabbing cases against businesses, for example before the International Criminal Court. The term ‘land grabbing’ denotes the illegal forcible eviction of local populations in order to make way for mining, logging, agricultural plantations, infrastructure projects, and other commercial ventures. The phenomenon is a widespread and rapidly growing problem globally, often involving the collusion of political leaders, local businesspeople, representatives of multinational enterprises and financial institutions. There is a growing interest in employing international criminal justice as a response to these practices, but land grabbing itself is not an international crime, meaning that prosecutors would likely seek to charge displacement-type offenses for corporate implication in these practices. Therefore, a jurisprudential history of displacement crimes in international criminal law is an important point of departure in assessing the potential and pitfalls of the new weight to be placed on these crimes, either as a basis for expanding international courts’ jurisdiction over atrocities or for addressing some of the underling commercial interests that provide both the means and motivation for them.

Leora Bilsky has written an impressive book entitled The Holocaust, Corporations, and the Law: Unfinished Business. The book addresses corporate responsibility for human rights violations, focusing on so-called ‘transitional Holocaust litigation’, which consists of two proceedings: a Swiss case and a German case.1 Nudged by an American court, the Swiss case was settled for 1.25 billion USD based on the discovery that Swiss banks deliberately failed to return assets of victims of the Holocaust and there remained at least 36,000 unpaid accounts linked to the Holocaust. The plaintiffs relied on the US Alien Tort Statue and the common law doctrine of restitution to seek both the return of unjustly taken property and disgorgement of unjust profit.2 The German case was settled for 10 billion DM, without any court’s consent, on the understanding that the United States would seek the dismissal of any future Holocaust-related litigation against German industry.3 The compensation was principally for the use by Nazi Germany of forced and slave labour during the Second World War.4 Both the Swiss and German cases were constituted by two processes: first, a claim making and negotiation stage which resulted in a settlement agreement; secondly, a post-settlement and distribution stage.5 The settlements in both cases provided an opportunity for concerned jurisdictions and non-defendant corporations to participate in the process. However, while the German case used diplomatic/bureaucratic means — including through engagement with American diplomats, the Government of Germany, the German Foundation, Jewish organizations, and states with large populations of former forced labourers — to achieve justice, the Swiss settlement used a court to adopt individualized and corrective modes of justice.6 Consequently, Bilsky identifies that the most important contribution of transitional Holocaust litigation is the innovative ways that the North American class action procedure was employed to enable victims to hold organizations accountable.7 She also notes that the legal features of transitional Holocaust litigation played a crucial role in facilitating production of historical research as incentives were provided for parties to collaborate and non-legal actors to partake in research activity.8 The discovery and transparency requirements of American litigation, lack of legal pronouncement on guilt, different roles of judges and historians, and subsequent settlement encouraged parties to enable access to previously hidden historical documents, culminating in critical and complex analysis of the Holocaust.9

Article 28A(1)(13) of the Protocol to the Statute of the African Court of Justice and Human Rights lists ‘Illicit exploitation of natural resources’ as a criminal offence within the Court’s jurisdiction. In conjunction with the new mandate of the African Court, which includes the exercise of jurisdiction over corporations for the first time in an international treaty, the prohibition of ‘illicit exploitation of natural resources’ creates an offence with especially sharp teeth, for businesspeople, their corporations, military actors and politicians. The crime constitutes an important innovation in international law, since it offers a distinct legal basis for prosecution of a wider array of acts covered by the war crime of pillage. Nonetheless, it also comes with a set of major limitations, not the least of which is its great vagueness. This chapter offers a critical doctrinal overview of the seven sub-offences that fall within the wider banner of this new crime of Illicit Exploitation, simultaneously pointing to a range of interpretative possibilities that might accord with recent thinking about the relationship between law and resource predation.

A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, this Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. Curiously, as things transpire, the reasons Norway, Denmark, Italy, Austria and Brazil dispensed with the types of differentiated system currently in force in international criminal law are strangely familiar to those working in international criminal justice today. The eerie sense of déjà vu that arises from reading these histories suggests that, potentially, the unitary theory may have real potential as a way through many of the key points of conceptual impasse that presently characterize this aspect of the field. In this respect, the Article seeks to contribute an historical perspective to a burgeoning dialogue about forms of blame attribution internationally by again questioning whether the great struggle with “modes of liability” is worth continuing.

International criminal law (ICL) is legally plural, and not a single, unified body of norms. Trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of "legal pluralism." To our minds, these scholars omit a piece of the puzzle that has major implications for their theory-the law's history. Neglecting the historical context of the international and national criminal laws that have informed and continue to inform ICL leads to the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural, and political values. This is often a false equation that results in important normative distortions, with major implications for the field's self-image, function, and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an "unsuccessful" legal transplant. In this Article, we revisit a cross-section of this missing history to contribute to both legal pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about legal pluralism, and that in some instances, a shift from its descriptive origins to a more normative managerialism risks condoning illegitimate law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating, at least in certain circumstances, a universal ICL that is actually more plural in terms of values and interests than doctrinal pluralism. At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal history they have inherited.

The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

These remarks, delivered on April 9, 2015 at the American Society of International Law’s Annual Conference, address the context of complicity discussions in public international law generally then their significance and scope in Business and Human Rights in particular. The Panel on which I delivered this talk was one of the first to discuss the topic of complicity across different fields, including International Criminal Law, the Alien Tort Statute, Business and Human Rights and the Public International Law of State Responsibility. In my comments, I offer five initial points contextualizing these discussions for the field of public international law writ large, then five more about their significance for Business and Human Rights as a discourse. In the first part I suggest that a robust discussion about complicity is vital if we are to lead decent ethical lives in a world that is at once increasingly interconnected and very dysfunctional. In the second, I problematize the use of international criminal law to supply the standards for complicity Business and Human Rights should employ. I suggest that negligence, not normally sufficient for criminal responsibility, should ground the standard for accomplice liability in the human rights context. Overall, I posit the idea of a tiered wall of complicity standards that are attuned to the conceptual pre-commitments of the fields they operate in, not a monolithic system that takes international criminal law as the sole determinant of the concept. Nevertheless, even if a coherent system of complicity along these lines never emerges across international law as a whole, the mere fact that we are discussing the topic improves our chances of leading ethically decent lives in our very imperfect world.

In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel v. Royal Dutch Petroleum Co. that allegations like these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. Since then, the American fiction that corporations are people for the purposes of criminal law has taken hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case.

Corporate criminal liability is a controversial beast. To a large extent, the controversies surround three core questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers. This article criticizes all sides of these debates, using examples from the frontiers of international criminal justice. In particular, it highlights the shortcomings of corporate criminal theory to date by examining the latent possibility of prosecuting corporate actors for the pillage of natural resources and for complicity through the supply of weapons. Throughout, the article draws on principles derived from philosophical and legal pragmatism to reveal a set of recurring analytical flaws in this literature. These include: a tendency to presuppose a perfect single jurisdiction that overlooks globalization, the blind projection of local theories of corporate criminal responsibility onto global corporate practices, and a perspective that sometimes seems insensitive to the plight of the many who have fallen victim to corporate crime in the developing world. To begin anew, we need to embrace a pragmatic theory of corporate criminal liability that is forced upon us in a world as complex, unequal, and dysfunctional as that we presently inhabit.

AbstractModes of liability, such as ordering, instigation, superior responsibility, and joint criminal liability, are arguably the most-discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider sociopolitical objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms entirely, even though it, too, fails the tests international criminal lawyers use as benchmarks in the deconstruction of other modes. Moreover, the source of complicity's departures from basic principles is not international as previously suggested – it stems from international criminal law's emulation of objectionable domestic criminal doctrine. If, instead of inheriting the dark sides of domestic criminal law, we apply international scholars’ criticisms across all modes of liability, complicity disintegrates (as do all other modes of liability) into a broader notion of perpetration. A unitary theory could also attach to all prosecutions for international crimes, both international and domestic, transcending the long-endured fixation on modes of liability within the discipline.

The English version of this paper can be found at http://ssrn.com/abstract=1875053 Pillage signifie le vol pendant la guerre. Bien que l’interdiction du pillage date de l’Empire romain, piller est un crime des guerres modernes qui peut être poursuivi devant des juridictions pénales internationales et nationales. A la suite de la Seconde Guerre Mondiale, plusieurs hommes d’affaires furent reconnus coupables du pillage commercial de ressources naturelles. Et bien que le pillage ait été poursuivi au cours des dernières années, les acteurs commerciaux sont rarement tenus pour responsables de leur role dans l’alimentation du conflit. Ranimer la responsabilité des sociétés en cas de pillage de ressources naturelles ne consiste pas seulement à protéger les droits de propriété durant un conflit, mais peut aussi jouer un roˆle important dans la prévention d’atrocités. Depuis la fin de la guerre froide, l’exploitation illicite de ressources naturelles est devenue un moyen répandu de financer le conflit. Dans des pays, comprenant l’Angola, la République démocratique du Congo, le Timor oriental, l’Irak, le Libéria, le Myanmar et la Sierra Leone, le commerce illicite de ressources naturelles dans les zones de conflits n’a pas seulement créé des incitations à la violence, il a aussi fourni aux parties belligérantes les finances nécessaires pour soutenir les hostilités les plus brutales de l’histoire récente. Pillage means theft during war. Although the prohibition against pillage dates to antiquity, pillaging is a modern war crime that can be enforced before international and domestic criminal courts. Following World War II, several businessmen were convicted for the pillage of natural resources. And yet modern commercial actors are seldom held accountable for their role in the illegal exploitation of natural resources from modern conflict zones, even though pillage is prosecuted as a matter of course in other contexts. This book offers a doctrinal road-map of the law governing pillage as applied to the illegal exploitation of natural resources by corporations and their officers. The text traces the evolution of the prohibition against pillage from its earliest forms through the Nuremberg trials to today’s national laws, international treaties and case law from international courts. In doing so, it provides a long-awaited blueprint for prosecuting corporate plunder of resource wealth during war. This also holds great relevance as a response to conflict financing. Since the end of the Cold War, the illegal exploitation of natural resources has become a prevalent means of financing conflict. In countries including Angola, the Democratic Republic of the Congo, East Timor, Iraq, Liberia, Myanmar, and Sierra Leone, the illicit trade in natural resources has not only created incentives for violence, but has also furnished warring parties with the finances necessary to sustain some of the most brutal hostilities in recent history. This text marks the beginnings of a coherent legal response.

Corporate criminal liability is a controversial beast. To a large extent, the controversies surround three core questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given coexistent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers. In this paper, I use examples from the frontiers of international criminal justice to criticize all sides of these debates. In particular, I harness the latent possibility of prosecuting corporate actors for the pillage of natural resources and for complicity through the supply of weapons, to highlight the shortcomings of corporate criminal theory to date. Throughout, I draw on principles derived from philosophical and legal pragmatism to reveal a set of recurring analytical flaws in this literature. These include: a tendency to presuppose a perfect single jurisdiction that overlooks globalization, the blind projection of local theories of corporate criminal responsibility onto global corporate practices; and a perspective that sometimes seems insensitive to the plight of the many who have fallen victim to corporate crime in the developing world. To begin anew, we need to embrace a pragmatic theory of corporate criminal liability that is forced upon us in a world as complex, unequal, and dysfunctional as that we presently inhabit.

An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that, I didn't really make a difference; it would have happened without me.' The difficulty is, if we are only responsible for making a difference to harm occurring in the world, none of the soldiers is responsibile for the murder none made, either directly or through others, an essential contribution to the death. In many respects, this dilemma is the leitmotif for individual responsibility in a globalized world, where criminal harm is so frequently occasioned by collectives. In order to assess the various solutions offered for the overdetermination problem in criminal theory, this article reconsiders arguments for and against requiring causation in criminal responsibility, competing theoretical accounts of causation and the various unsatisfactory explanations for overdetermination presently on offer. While the article's purpose is to begin a conversation rather than offer definitive solutions, a range of doctrinal and theoretical implications directly follow from this initial treatment. Perhaps most importantly, overdetermination emerges as a central moral problem of our time that implicates us all, not some particular feature of international criminal justice that necessarily demands non-criminal responses to atrocity.

Grave breaches of the Geneva Conventions are one type of war crime. In this Article, I argue that the grave breaches regime has three possible futures. In the first, the regime remains segregated from other categories of war crimes in deference to the historical development of these crimes. This future, however, is one that will see a relatively dramatic decline in the use of grave breaches in practice, primarily because other offences cover the same acts more efficiently. In the second possible future, the grave breaches are entirely abandoned, but this eventuality seems both improbable and undesirable. Even though judicial pragmatism has diminished aspects of the grave breaches regime that were once unique, grave breaches still offer important features over and above all alternatives. The grave breaches regime is therefore unlikely to disappear entirely. A third possible future involves assimilating the grave breaches with other categories of war crimes, ideally through the promulgation of a more coherent treaty regime. In the short term, this proposition appears politically untenable, leaving judges to unify the stark disparities between grave breaches and other war crimes. A future that continues to adopt this course will nonetheless pose serious problems for the discipline in the years to come. Over the longer term, a treaty creating a more comprehensive code governing all war crimes is therefore inevitable.

Although criticism of US-led detention at Guantánamo Bay has been extensive, little attention has been placed on evaluating the implications of international humanitarian law standards as applied in international criminal law. This paper concludes that there is a striking resemblance between allegations made of Guantánamo and many of the scenarios that have given rise to individual criminal responsibility for unlawful confinement as a grave breach of the Geneva Conventions in other contexts. In this regard, arguments that individuals who do not enjoy prisoner-of-war status fall into a legal vacuum or that international humanitarian law has somehow been rendered obsolete by the ‘War on Terror’ ignore the fact that international criminal precedents unambiguously disagree. If nothing else, an analysis of international criminal law's treatment of unlawful confinement highlights the urgent need to rethink the legal basis for detention at Guantánamo and the risks of individual criminal responsibility for purporting to develop international humanitarian law through unilateral changes in policy rather than formal international law-making processes.

The English version of this paper can be found at http://ssrn.com/abstract=1946414В зависимости от характера вооруженного конфликта – международного или внутреннего – применяются различные нормы международного гуманитарного права. По мнению авторов работ на эту тему, такое различие «произвольное», «нежелательное», которое «трудно обосновать» и которое «сводит на нет гуманитарную цель права войны в большинстве случаев происходящих сейчас войн». Это не новая точка зрения. В 1948 г. Международный Комитет Красного Креста (МККК) представил доклад, где рекомендовал применять в полном объеме международное гуманитарное право в соответствии с Женевскими конвенциями «во всех случаях вооруженных конфликтов, которые не носят международного характера, особенно в случаях гражданской войны, колониальных конфликтов или религиозных войн, которые могут происходить на территории одной или нескольких Высоких Договаривающихся Сторон».The strict division of international humanitarian law into rules applicable in international armed conflict and those relevant to armed conflicts not of an international nature is almost universally criticized. Even though attempts to abandon the distinction were made at every stage of negotiation of the Geneva Conventions and their Protocols, calls for a single body of international humanitarian law have since died out. This article revives those calls by highlighting the inadequacies of the current dichotomy’s treatment of internationalized armed conflicts, namely, armed conflicts that involve internal and international elements.It concludes that the law developed to determine this “internationalization” has created convoluted tests that in practice are near impossible to apply. Even once internationalized, it is difficult to determine the applicable law as relationships and military presences change. Moreover, the international/non-international dichotomy in international humanitarian law has proved susceptible to incredible political manipulation, often at the expense of humanitarian protection. Further considerations of substantive aspects of a single law of armed conflict will be essential in the development of greater humanitarian protection during internationalized armed conflict.