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

Description

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 Half-title page Title page Copyright page Contents Acknowledgements Cases, Statutes, and Other Authorities List of Abbreviations Part I Introduction and Problem 1 Introduction Overview 1.1 Context: Why Principles Matter 1.2 Objectives 1.3 The Scope of This Work 2 The Identity Crisis of International Criminal Law Overview 2.1 Context and Argument 2.2 Interpretive Assumptions 2.3 Substantive and Structural Conflation 2.4 Ideological Assumptions (Sovereignty and Progress) 2.5 After the Identity Crisis: The Deontic Turn 2.6 Implications Part II Proposed Solution: A Humanist, Coherentist, Deontic Account 3 The Humanity of Criminal Justice Overview 3.1 Context and Argument 3.2 Why Engage with Constraints: A Human Commitment 3.3 Absorbing Common Criticisms: A Humanistic Account 3.4 Implications 4 Fundamentals without Foundations Overview 4.1 Terms: Fundamentals and Foundations 4.2 Where Can We Find Fundamental Principles? 4.3 Fundamentals without Foundations: Mid-level Principles and Coherentism 4.4 Justice: A Coherentist Conversation 5 Criminal Law Theory in Extremis Overview 5.1 New Challenges for Criminal Law Theory 5.2 Promising Problems 5.3 Conclusion Part III Illustration through Application 6 An Unresolved Contradiction Overview 6.1 Argument and Resulting Insights 6.2 The Novel Reach of Command Responsibility 6.3 The Culpability Contradiction 6.4 The Stakes 6.5 First Strategy: Doctrinal Arguments to Sidestep the Contribution Requirement 6.6 Second Strategy: Characterization as a Separate Offence 6.7 Other Responses (and the Increasing Mystification of Command Responsibility) 6.8 Implications 7 The Outer Limits of Culpability Overview 7.1 What Are the Parameters of “Contribution”? 7.2 Culpability without Contribution? 7.3 Implications 8 The Genius of Command Responsibility Overview 8.1 Problem, Objective, and Themes 8.2 The Allergy to Negligence 8.3 A Proposed Justification of Command Responsibility 8.4 Implications 8.5 Conclusion 9 Horizons: The Future of the Justice Conversation Overview 9.1 Mid-level Principles and Coherentism at Work 9.2 Major and Minor Themes 9.3 Further Questions Annex 1 After the Identity Crisis: Responses and Clarifications Annex 2 The Rise of Joint Criminal Enterprise: Lessons for Reasoning Annex 3 Bemba: ICC Engagement with Deontic Analysis Annex 4 The Pendulum Swing? Possible Questions from the Bemba Appeal Judgment Glossary of Selected Terms Bibliography Index