OUVRAGE : C. Steer, Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes

Cassandra STEER

This book seeks to understand how and why we should hold leaders responsible for the collective mass atrocities that are committed in times of conflict. It attempts to untangle the debates on modes of liability in international criminal law (ICL) that have become truly complex over the last twenty years, and to provide a way to identify the most appropriate model for leadership liability. A unique comparative theory of ICL is offered, which clarifies the way in which ICL develops as a patchwork of different domestic criminal law notions. This theory forms the basis for the comparison of some influential domestic criminal law systems, with a view to understanding the policy and cultural reasons for their differences. There is a particular focus on the background of the German law which has influenced the International Criminal Court so much recently. This helps to understand, and seek a solution to, the current impasses in the debates on which model of liability should be applied.

An entire chapter of the book is devoted to considering why leaders should be held responsible for crimes committed by their subordinates, from legal, moral and pragmatic perspectives. The moral responsibility of leaders is translated into criminal liability, and the different domestic models of liability are translated to the international context, in such a way as to appeal to advanced students of ICL, academics, and practitioners who want to understand the complexities of leadership liability in international criminal law today and identify the best way to approach it.

TABLE OF CONTENTS

1. The Problem of Liability in International Criminal Law

References
Cases

Part I. LAYING THE FOUNDATIONS 

2. Leadership Liability for Collective Crimes

2.1. Translating from the Collective to the Individual
2.2. Individual Versus Collective Guilt
2.3. Individual Versus Collective Agency
2.4. Deliberative Structures and Those Most Responsible
2.5. Why the Leaders?
References

3. Putting the Leaders of Mass Atrocity on Trial

3.1. Efficacy and Symbolism: The Aspirations of International Criminal Law
3.2. Fairness and Justice: The Requirements of International Criminal Law
3.2.1. Fairness and the Principle of Legality
3.3. Designing a System of Liability in International Criminal Law
References
Cases

4. A Comparative Theory of International Criminal Law

4.1. International Criminal Law as Translation: From the Domestic to the International
4.2. International Criminal Law as Process
4.3. International Criminal Law as Policy
4.4. The Problem of Ambiguity
4.5. A Comparative Law Approach to Resolving the Search for Modes of Leadership Liability References
Cases

5. Applying the Tools

5.1. Functionalism
5.2. Selection of Jurisdictions
5.3. Terminology: The Problems of Translation
References
Cases

Part II. LEADERSHIP LIABILITY THROUGH A COMPARATIVE LENS

6. Subjectivity Reflected in the Common Law Tradition

6.1. The Common Law Tradition: A Context
6.2. The Old Common Law Modes of Liability
6.3. United States of America—Liability for the Acts of Others
6.4. Canada—Moral Blameworthiness and the Importance of Stigma
6.5. Legal Culture and Policy Choices in the Common Law Tradition
References
Cases

7. Objectivity Reflected in the Civil Law Tradition

7.1. The Civil Law Tradition: A Context
7.2. A Normative Theory of Culpability
7.3. Germany: Responsibility for Control over the Act and Control over an Organisation
7.4. Argentina: The German Theory Applied to Leaders of Organised Mass Atrocity
7.5. Legal Culture and Policy Choices in the Civil Law Tradition
References
Cases

8. Shifting Trends in International Tribunals

8.1. Which Tradition? The Context of ICL
8.2. Conspiracy-Complicity: Prevalence of the Subjective Approach
8.3. Command and Superior Responsibility: Leadership Liability as Omission
8.4. Planning, Instigating and Ordering: Forms of Encouragement
8.5. Aiding and Abetting: Hidden Controversies
8.6. Joint Criminal Enterprise: Extended and Constructive Liability
8.7. Co-perpetration: Towards an Objective Approach
8.8. Indirect Perpetration/Perpetration by Means: A Normative Differentiation
8.9. Indirect Co-perpetration by Means of an Organisation: Extended Liability
8.10. The Question of Differentiation Between Parties to a Crime
8.11. Legal Culture and Policy Choices in the International Tribunals
References
Cases

Part III. PATCHWORKING A SOLUTION TO LEADERSHIP LIABILITY

9. Applying a Comparative Theory: Beyond Legal Transplants, Toward Legal Patchworking

9.1. Observing the Patchworking Process
9.2. Strengthening the Patchworking Process
9.3. Reversing the Traditional Doctrine of Sources: How the Subsidiary Sources Have Become Primary
9.4. Are Modes of Liability in International Criminal Law Sui Generis ?
References
Cases

10. Translating the Guilt of Leaders of Mass Atrocity

10.1. Layers of Translation
10.2. In Defense of a Normatively Differentiated System of Liability
10.3. Sentencing or Qualification: Should Modes of Liability Do the Work of Differentiation?
10.4. Fair Labelling
10.5. Who Would You Rather Dine With? The Mastermind or the Executioner
References
Cases

Appendix A. Full Texts of Articles on Liability
Index

Cassandra STEER, Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes, Berlin, Springer, 2017 (399 pp.)

Cassandra Steer is Executive Director of Women in International Security Canada, and Junior Wainwright Fellow at McGill University, Canada. She holds a Ph.D. in Law from the University of Amsterdam, The Netherlands.