Justice in Extreme Cases : Criminal Law Theory Meets International Criminal Law

Présentation de l'éditeur : "In Justice in Extreme Cases, Darryl Robinson argues that the encounter between criminal law theory and international criminal law (ICL) can be illuminating in two directions: criminal law theory can challenge and improve ICL, and conversely, ICL's novel puzzles can challenge and improve mainstream criminal law theory. Robinson recommends a 'coherentist' method for discussions of principles, justice and justification. Coherentism recognizes that prevailing understandings are fallible, contingent human constructs. This book will be a valuable resource to scholars and jurists in ICL, as well as scholars of criminal law theory and legal philosophy." Cover 1 Half-title page 3 Title page 5 Copyright page 6 Contents 7 Acknowledgements 10 Cases, Statutes, and Other Authorities 12 List of Abbreviations 19 Part I Introduction and Problem 23 1 Introduction 25 Overview 25 1.1 Context: Why Principles Matter 26 1.2 Objectives 32 1.3 The Scope of This Work 38 2 The Identity Crisis of International Criminal Law 42 Overview 42 2.1 Context and Argument 42 2.2 Interpretive Assumptions 49 2.3 Substantive and Structural Conflation 61 2.4 Ideological Assumptions (Sovereignty and Progress) 67 2.5 After the Identity Crisis: The Deontic Turn 74 2.6 Implications 76 Part II Proposed Solution: A Humanist, Coherentist, Deontic Account 79 3 The Humanity of Criminal Justice 81 Overview 81 3.1 Context and Argument 82 3.2 Why Engage with Constraints: A Human Commitment 87 3.3 Absorbing Common Criticisms: A Humanistic Account 96 3.4 Implications 106 4 Fundamentals without Foundations 107 Overview 107 4.1 Terms: Fundamentals and Foundations 108 4.2 Where Can We Find Fundamental Principles? 108 4.3 Fundamentals without Foundations: Mid-level Principles and Coherentism 118 4.4 Justice: A Coherentist Conversation 135 5 Criminal Law Theory in Extremis 141 Overview 141 5.1 New Challenges for Criminal Law Theory 141 5.2 Promising Problems 149 5.3 Conclusion 159 Part III Illustration through Application 161 6 An Unresolved Contradiction 165 Overview 165 6.1 Argument and Resulting Insights 165 6.2 The Novel Reach of Command Responsibility 169 6.3 The Culpability Contradiction 171 6.4 The Stakes 177 6.5 First Strategy: Doctrinal Arguments to Sidestep the Contribution Requirement 181 6.6 Second Strategy: Characterization as a Separate Offence 185 6.7 Other Responses (and the Increasing Mystification of Command Responsibility) 191 6.8 Implications 195 7 The Outer Limits of Culpability 199 Overview 199 7.1 What Are the Parameters of “Contribution”? 199 7.2 Culpability without Contribution? 207 7.3 Implications 212 8 The Genius of Command Responsibility 216 Overview 216 8.1 Problem, Objective, and Themes 216 8.2 The Allergy to Negligence 221 8.3 A Proposed Justification of Command Responsibility 228 8.4 Implications 240 8.5 Conclusion 244 9 Horizons: The Future of the Justice Conversation 246 Overview 246 9.1 Mid-level Principles and Coherentism at Work 246 9.2 Major and Minor Themes 251 9.3 Further Questions 253 Annex 1 After the Identity Crisis: Responses and Clarifications 259 Annex 2 The Rise of Joint Criminal Enterprise: Lessons for Reasoning 271 Annex 3 Bemba: ICC Engagement with Deontic Analysis 279 Annex 4 The Pendulum Swing? Possible Questions from the Bemba Appeal Judgment 294 Glossary of Selected Terms 304 Bibliography 306 Index 325 "This book is about the encounter between criminal law theory and international criminal law (ICL). I argue that the encounter can be illuminating in both directions. Criminal law theory can challenge and improve ICL, and in turn ICL can challenge and improve criminal law theory. In order to manage the scope of the inquiry, I focus on one subset of criminal law theory: exploring the deontic constraints of a system of justice, such as the fundamental principles of culpability and legality. ICL often addresses extraordinary circumstances and mass atrocities, which can pose special difficulties for this type of inquiry; however, these difficulties also present opportunities for insight. I urge a 'mid-level principles' and 'coherentist' approach to identifying and delineating deontic principles. This approach differs from some common academic instincts:"-- ECIP introduction Présentation de l'éditeur : "In Justice in Extreme Cases, Darryl Robinson argues that the encounter between criminal law theory and international criminal law (ICL) can be illuminating in two directions: criminal law theory can challenge and improve ICL, and conversely, ICL's novel puzzles can challenge and improve mainstream criminal law theory. Robinson recommends a 'coherentist' method for discussions of principles, justice and justification. Coherentism recognizes that prevailing understandings are fallible, contingent human constructs. This book will be a valuable resource to scholars and jurists in ICL, as well as scholars of criminal law theory and legal philosophy."