Harmen van der Wilt explains the ICC’s and the Rome Statute’s ‘design selectivity’, i.e., the ICC’s legal, structural and political limitations and well as its inherent selectivity when selecting ‘situations’ and ‘cases’. He analyzes how the problem of selectivity in international criminal law, i.e., the systematical exemption of entire categories of perpetrators from accountability, creates tensions with traditional theories of punishment. In emphasizing the shift from punishment to trial, he argues that international criminal law’s inherent selectivity can best be processed by expressivism. However, contemporary international criminal law, he concludes, conveys the ‘perverse message’ that ‘criminal responsibility depends on the party or nation one belongs to and the side on which one fights’. For the future, he calls for an approach of ‘dauntless perseverance’.

Introduction

Criminal responsibility of legal corporations is an inherently contested issue. In a famous contribution on the topic, written in 1957, Gerhard Mueller asserted that, while common law countries had embraced the idea of criminal liability for corporations and the US Model Penal Code contained explicit regulations, the majority of civil law states still adhered to the maxim societas delinquere non potest (Mueller, 1957–1958: 28). The reasons for this reluctance are not hard to grasp. Corporations are abstract entities that cannot ‘act’ or ‘think’ for themselves. Holding them criminally responsible would flout the classic criminal law requirements of actus reus and mens rea. Moreover – and closely related to the previous point – a corporation is insensitive to punishment, because it has ‘no soul to damn and no body to be kicked’.

Meanwhile, in half a century, opinions and legal practice have changed. Nowadays, it is fairly universally acknowledged that corporations can cause widespread mischief by producing disasters, extensive pollution and even by being complicit in war crimes. Borrowing from the solutions advanced in the common law tradition, many civil law systems have gradually introduced legislation on corporate criminal responsibility. They have tried to overcome the conceptual hurdles by identifying corporations with their organs or representatives, by imputing the latter's conduct and intentions to the corporation or by simply holding the ‘corporate culture’ responsible. Such initiatives have been prompted by the considerations that corporations sometimes gain huge profits at the expense of human happiness, that managers are often quite successful in hiding behind the corporate veil and that corporations can be painfully hurt. After all, they have ‘deep pockets’ and can be heavily fined; they are sensitive to loss of reputation; they can be excluded from all kinds of public benefits and tax exemptions; and they can, as a measure of last resort, even be dissolved. At the supra-national level such legislative activities are encouraged or even prescribed.

In spite of these developments, criminal corporate liability is still a problem nagging many people at the back of their minds. An important state like Germany is still adamant to keep corporations out of the grip of criminal law (Weigend, 2008). Moreover, corporate criminal responsibility is absent in all the statutes of the international criminal tribunals, including the Rome Statute.

Although the European Court of Human Rights and the International Criminal Court (‘ICC’) operate within a different legal context and have different functions and goals, these courts definitely share some common ground. Both courts are expected to exercise subsidiary jurisdiction. The ICC's principle of complementarity dictates that a case is only admissible before the Court if a state is ‘unwilling or unable’ to carry out investigations and prosecute itself. In respect of the European Court, the court's subsidiary position comes to the fore in the ‘exhaustion of local remedies’ rule and in the provision that victims should enjoy an effective remedy under national law to have violations of their rights redressed (Article 13 ECHR). The philosophy sustaining the courts’ procedures emphasizes the primary obligations of states to deal adequately with human rights violations and international crimes.

This chapter seeks to explore whether the standards that have been developed by the European Court to expose member states as ‘under-achievers’ in respect of their procedural obligations may equally serve the ICC as useful guidelines in its assessment of ‘unwillingness’. The analysis of the European Court's case law indeed reveals that those standards bear striking resemblance to the Rome Statute's indicators of ‘unwillingness’. Section 4 of the chapter puts the findings and assumptions to a critical test. After all, the distinctive aims of the courts should not be ignored. Whereas the ICC may primarily be interested in the substantive quality of the state's administration of criminal justice, the European Court is likely to stress the fairness of criminal procedures. In spite of these different perspectives, so the chapter concludes, the standards of the European Court on procedural obligations serve the ICC as a highly useful frame of reference in order to find its way in largely uncharted terrain.

The chapters in this book emanated from a shared discomfort amongst contributing authors about a mismatch between the current fashionable focus on individual (criminal) responsibility, exemplified by the mushroom of international criminal tribunals, on the one hand, and the dominant role of larger collective entities in situations of system criminality, on the other. The book has sought to reflect on ways to better address the forms and manifestations of system criminality.

In this final chapter, we will recapitulate the dynamics of system criminality as these have been analysed in this book (section I) and summarize the power and limitations of the various forms of international responsibility in regard to system criminality (section II). We then will reflect on two cross-cutting themes: the relationship between the separate forms of international responsibility (section III) and the objectives that we may realistically ascribe to international responsibility in situations of system criminality (section IV). We conclude with some final observations (section V).

The dynamics of system criminality

The search for a more adequate framework of responsibility in regard to situations of system criminality requires an understanding of the dynamics of system criminality. In the first two chapters of this book Kelman and Punch paint a penetrating and disturbing picture of how organizations may breed mass criminality. Whereas Kelman focuses expressly on mass atrocities which are the main topic of this book, Punch widens the scope by showing that the same mechanisms apply for lawful organizations which engage in more colloquial forms of criminality.

Introduction

The joint criminal enterprise doctrine (hereafter JCE) has made quite an impressive appearance on the stage of the International Criminal Tribunal for the Former Yugoslavia. Raised from the ashes of Nuremberg conspiracy law, the doctrine has been enthusiastically embraced by the Tribunal, which has polished the doctrine in order both to meet the principles of criminal law and to face the complexities of international crimes.

The gist of the doctrine is to nail persons who joined forces for a Common purpose to commit (international) crimes and contributed to this aim, although they did not physically perpetrate those crimes. The doctrine connotes group responsibility. However, mere membership does not suffice to incur criminal responsibility, as the ICTY has emphasized correctly.

In the Tadic case, the Appeals Chamber of the ICTY has tried to refine and diversify the doctrine, identifying no fewer than three versions. Whereas the requirements as to the actus reus are basically the same a plurality of persons, membership of this group and an unarticulated ‘contribution’ they differ in the mens rea. The first, relatively straightforward and unproblematic form (JCE (I)) implies that all group members share the common intent to commit certain crimes which actually materialize. The second form (JCE (II)), which has been called the ‘systemic variant’, covers participation in a repressive system in the context of which multiple crimes are committed on a structural basis and has been applied in the so-called ‘concentration camp’ cases.