With the establishment of a permanent International Criminal Court (ICC) and its subsequent emerging jurisprudence, international criminal law has been elevated to a new level, especially with regard to core concepts such as general principles and modes of liability. While the Rome Statute entered into force more than a decade ago, the Court has only recently begun concluding cases and delivering judgments, which sheds new light on how the innovations of its Statute will play out in practice. One of the innovations is, in contrast to its predecessors, a sophisticated provision on modes of liability. With the works of ad hoc international criminal tribunals drawing to a close, the reflection of current international criminal law trends in the Rome Statute urges scholars and experts to rethink and reshape concepts such as, inter alia, perpetrator liability.
In this context, Neha Jain joins the ranks of experts who with their critical and constructive approach towards core concepts might just help propel international criminal law in the right direction. Jain offers a convincing justification of the need for her endeavour, pithily summarising in her introduction the characteristics that set international crimes apart – notably that an international crime “when contrasted with their domestic counterpart, is inherently collective in nature” (p. 2), that in such cases “the individual crimes do not deviate from, but conform to, the prevailing social norm” (p. 3), and that there is “widespread participation in their commission by different levels of participants acting on different motives” (p. 6).
Jain's book is invaluable in two ways. Firstly, the author amasses a wealth of resources, ranging from international case law to eminent domestic criminal law theorists. Therefore, her work serves as an excellent companion for an introduction to the subject, both for the newly initiated as well as for the expert in international criminal law, providing a lot of sources to follow up on. Secondly, its importance lies no less in the way Jain engages with the material, carefully selecting points of convergence as areas on which she can build. The author claims, in her own words, to “take up the challenge of constructing a theoretical framework for distinguishing between parties to an international crime, which yields modes of perpetration and accessorial responsibility that account for the collective nature of these crimes” (p. 9). As becomes evident early on, though, Jain is concerned mainly with high-level participants in international crimes. This of course is a prudent approach and probably the most interesting one in the context of international criminal law, since it allows concerns about the peculiar nature of these crimes – as collective and systematic atrocities in a context of widespread reversion of norms – to unfold and be examined with precision and clarity. This is precisely what Jain does throughout her work, and this is perhaps the strongest point of this book: she tackles head on the peculiarities of international crimes instead of shying away into convenient perspectives that have already been tested in the domestic criminal law level. Instead of adopting a wholly international law or exclusively criminal law approach, she opts for a combining perspective that starts more or less ex nihilo, turning to the highly theorised domestic criminal law as a source of ideas and concepts, not as a source of law, as she herself puts it (p. 11). This approach shows a deep understanding of the uniqueness of her field and is certainly worth attention both in terms of her ideas and in terms of her methodology.
As far as the latter is concerned, her methodological choice to turn to domestic criminal law could be regarded by some as natural, by others as bold, but in both cases as praiseworthy. Jain explains that this was a very careful and conscious choice. Since international criminal law has evolved in a way unique and unprecedented with respect to criminal law teachings, mirroring much more the way international law develops, scholars such as Jain are beginning to turn to the rich domestic criminal law traditions which have been extensively articulated over centuries. This choice is particularly sensible since these traditions provide a wealth of elaboration upon concepts that are bound to come up in the international criminal law context – such as, in this case, the concept of perpetrator and the distinction between principal and accessory – and therefore readily provide safeguards that address criminal law concerns with the respect they deserve on the international plane.
The author chooses English and German criminal law theory as guides in order to navigate and present the common law and civil law tradition respectively. Her choice of these two legal systems is commendable, since they are indeed the most elaborated representatives of the two systems of thought and stand far apart enough to constitute the two extremes of the spectrum of Western criminal law theory. Furthermore, as the author herself points out, during the development of international criminal law, “existing modes of responsibility have borrowed heavily from these legal systems” (p. 11). It might be on account of the limited space that the reader is sometimes left with the sense that the author presents at some points an account of domestic criminal law theories somewhat simpler than she would like to – and certainly than she is capable of, given the extensive research that is evident she has conducted. That said, the author succinctly summarises in the second and third part of the book the relevant aspects of both systems, in a diligent way that will appeal to an audience of either background.
Jain starts off with an account of the development of Joint Criminal Responsibility (JCE) in the international criminal tribunals, paying particular attention, naturally, to the Tadić judgment of the ICTY (International Criminal Tribunal for the former Yugoslavia) that is unanimously recognised as the milestone judgment for the articulation of the three categories of JCE. She then goes on to examine its constituent elements in ICTY case law as well as its treatment in other international tribunals, notably the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. She briefly touches upon potentially developing forms of commission in ICTY and ICTR jurisprudence, such as co-perpetration and indirect perpetration, before closing with a concise account of perpetration in the ICC Statute and case law.
In the second part, Jain turns to national criminal law theory in order to delineate a theory of perpetration for international crimes. She gives an account of principal liability in both English and German criminal law theory. In Chapter 8, she draws from criminal law concepts and their elaboration by theorists in order to devise a variant of the Organisationsherrschaft theory. Jain underlines the usefulness of the emphasis on the concept of “control” rather than on “causation” that she discerns in German Criminal Law theory on perpetration. The concept that she finds most appealing is the Organisationsherrschaft, which she describes as “recognis[ing] that individuals in leadership positions may be held responsible as perpetrators of crimes that are committed by a very large number of anonymous and exchangeable physical perpetrators” (p. 139). Her version situates the high-level perpetrator as the Zentralgestalt (central figure) in the steering position of an apparatus that enables the commission of mass atrocities, which they have the power to set in motion (p. 144). She pinpoints the focus on the control over the “widespread and systematic planned attacks that characterise international crimes”, rather than the individual acts – control over which naturally rests with the physical perpetrator (pp. 141–42). Thus, she grounds the criminal liability of high-level perpetrators not in the wrong of each individual crime, but rather in the wrongfulness of this system (“organisational unlawfulness”, p. 140).
She describes in a sophisticated fashion her version of ascribing criminal liability, construing the actus reus as “the creation or manipulation of the apparatus that results in the realisation of the elements of a crime” and the mens rea as a version of the (familiar in criminal law theory) “double intent” – intent with respect to the offence (or, as Jain puts it, “the elements of the offence”, which invites the question which factual elements exactly she regards as crucial enough to constitute “elements of the offence”, given the generally vague wording of most international crimes), as well as with respect to the elements that enable them to exercise control over the act. These are explained in detail and qualified by clarifications and restrictions which demonstrate both diligence regarding safeguards and a concern to accommodate the unique attributes of international crimes.
Jain closes her work by drawing a comparison between her modified version of Organisationsherrschaft and JCE I, concluding that there is scope for the application of its ameliorated version, fused with her theory, as a mode of principal liability, namely co-perpetration. Having rejected JCE II and III as forms of principal liability, in the third and final chapter, she examines whether these can be salvaged as forms of accessorial liability. She again turns to English and German criminal law theory to examine how they treat the accessory and what is the basis of secondary liability under them. She then utilises these conclusions in order to draw the limits on how an amended version of JCE II should be adopted in international tribunals, specifically under the ICC Statute, while she explains why JCE III would be better abandoned entirely (pp. 207–08).
Throughout the book, Jain engages in dialogue with the concept of JCE. She counterposes her theory to JCE to seek points of convergence, or to examine how her theory could fortify or dismiss aspects of JCE as a mode of principal liability. This is evident already in the first part of the book, which is intended to provide a comprehensive review “of the development of forms of perpetration or principal responsibility in international criminal law” (p. 10). However, it centres firmly on the concept of JCE as a mode of perpetration. In that sense, the title of the book is somewhat misleading, since it focuses less on perpetrator and accessory forms of liability in general, and more on drawing from this distinction to articulate a theory that largely seeks to challenge and ameliorate JCE – while it does an excellent job of presenting the distinction in a domestic criminal law theory context. Coupled with the aforementioned focus of Jain's book on high-level perpetrators, the reader looking for a more rounded account of the various modes of liability of different levels of perpetrators for international crimes (including e.g. instigating, aiding, etc.) or of the distinction between principal and accessory in the Tribunals and the ICC might be better advised to consult further sources as well.
To conclude, in a few more than 200 pages, Jain presents an abundance of information while venturing a critical approach that leads her to present her own theory. The undisputed value of the book lies in the fact that, whether or not we ultimately espouse Jain's proposals, it is infused with interesting and cautiously articulated ideas that invite us to think critically about its core concepts – perpetration, principal-accessory distinction, the basis for high-level perpetrator liability, and the peculiarities of international crimes that have to be accommodated in a truly international criminal law.
