Saturday, February 19, 2011
Javid Gadirov (Central European University) has posted Collective Intentions and Individual Criminal Responsibility on SSRN. Here is the abstract:
This article focuses on the treatment of collective intentions in individual criminal responsibility for crimes against humanity and war crimes, at the example of the emerging International Criminal Court's (ICC) jurisprudence. It is argued that collective ('joint' and 'indirect') perpetration accounts of ICC ought to provide first of all a coherent conception of collective intentions and actions to identify individuals involved in cooperative harm doing, to attribute harm to causally responsible individuals, and to provide grounds for formulating a 'decision method' necessary for distributiveness of moral blame. Secondly causal responsibility test for harm brought about in accordance with such intentions should (a) rely on strong sufficiency rather than normative attribution standart (real rather than hypothetical attribution); (b) specify that irreducible collective intention is a 'NESS' condition for attributing harm to liable individuals; (c) distinguish principals by formulating a stronger collective intention threshold that requires 'meshing' of individual participatory intentions. Finally allocation of moral blame for harm brought about collectively should (a) explain how moral blame is distributive among participants of collective actions, in order to avoid its blending into metaphysical shame or 'guilt by association'; (b) rely on collective intentions as a 'decision method' of harm-doing that distributes moral blame; (c) consider that 'strong' formulations of such 'decision method' blame superiors, and vice versa a weak 'decision method' would increase morally responsibility of final perpetrators.
Whereas it has been argued in the literature that criminal prosecutions for human rights atrocities are at odds with liberal premises of human rights law including individual culpability, it is the purpose of this work to argue for such grounds and that ICC can address collective complicities based on respect for individual autonomy and without degenerating into collective guilt theories that disregard free will and moral responsibility.