Terje Einarsen and Terje Joseph Rikhof Joseph Publication Series No. 37 (2018): Authors of this volume: A Theory of Punishable Participation in Universal Crimes Dr. Terje Einarsen is Professor at the Uni- versity of Bergen and Senior Research As- Terje Einarsen and Joseph Rikhof sociate at the University of London. He has been a judge at the Gulating Court of Ap- This study is the second in a four-part series entitled “Rethinking the Essentials of peals, and head of the Human Rights Com- International Criminal Law and Transitional Justice”. The fi rst volume – The Concept of mittee of the Norwegian Judges’ Association. Universal Crimes in International Law – explored the parameters and theories related He is the founder of the Universal Crimes to crimes under international law. This volume examines the notion of punishable Project. participation in such crimes. It presents a general theory of personal criminal liability and provides a comprehensive overview of all forms of criminal participation in inter- Dr. Joseph Rikhof is Adjunct Professor at The Torkel Opsahl Academic EPublisher national law. The authors examine numerous primary materials in international and Theory Crimes of Punishable Participation in Universal A the Faculty of Common Law of the Universi- (TOAEP) furthers the objective of excellence transnational criminal law, both historical and current, relating to both international ty of Ottawa, where he teaches international in research, scholarship and education by pub- and domestic case law. They also analyse academic literature that attempts to explain criminal law. He served for many years as Se- lishing worldwide in print and through the and bring consistency to the jurisprudence, as well as other sources such as reports of nior Counsel at the Crimes against Human- Internet. As a non-profi t publisher, it is fi rmly ity and War Section of the Canadian Depart- committed to open access publishing. the International Law Commission. This rich tapestry is then used to test and further develop an overarching conceptual theory and matrix that provides a better under- ment of Justice. TOAEP is named after late Professor standing of the boundaries of personal criminal liability lex lata and lex ferenda, and of the Torkel Opsahl (1931–1993), a leading interna- tional and constitutional law expert in Europe relationship between the various forms of punishable participation in universal crimes. in the period from the mid-1960s until his Like the fi rst volume, this book makes an important contribution to a more untimely passing in 1993. He was one of the coherent and practical understanding of international criminal law. The authors are early pillars of the human rights systems of the recognised experts in the fi eld, with many years of experience from academic, gov- United Nations and the Council of Europe. ernment and judicial service. ISBNs: 978-82-8348-127-3 (print) and 978-82-8348-128-0 (e-book). A Theory of Punishable Participation Above: Painting of Professor Torkel Opsahl by Front cover: View from Andøya on the North- the Italian artist Roberto Caruso. in Universal Crimes Atlantic coast of Norway. The authors live in Can- ada and Norway. Back cover: Cobblestones rounded by sea Terje Einarsen and Joseph Rikhof waves on a shingle beach in Varanger on the Photograph: © Trym Ivar Bergsmo 2018. North-Atlantic coast of Norway. Photograph: © CILRAP 2018. The dust jacket is designed by LIAO Wan-Ting. Torkel Opsahl Academic EPublisher E-mail: [email protected] URL: www.toaep.org A Theory of Punishable Participation in Universal Crimes Terje Einarsen and Joseph Rikhof 2018 Torkel Opsahl Academic EPublisher Brussels Front cover: View from Andøya on the North-Atlantic coast of Norway. The authors live in Canada and Norway. Photograph: © Trym Ivar Bergsmo, 2018. Back cover: Cobblestones rounded by sea waves on a shingle beach in Varanger on the North-Atlantic coast of Norway. Photograph: © Trym Ivar Bergsmo, 2018. This and other publications in TOAEP’s Publication Series may be openly accessed and downloaded through the web site www.toaep.org, which uses Persistent URLs for all publications it makes available (such PURLs will not be changed). This publi- cation was first published on 7 December 2018. © Torkel Opsahl Academic EPublisher, 2018 All rights are reserved. You may read, print or download this publication or any part of it from www.toaep.org/ for personal use, but you may not in any way charge for its use by others, directly or by reproducing it, storing it in a retrieval system, transmit- ting it, or utilising it in any form or by any means, electronic, mechanical, photo- copying, recording, or otherwise, in whole or in part, without the prior permission in writing of the copyright holder. Enquiries concerning reproduction outside the scope of the above should be sent to the copyright holder. You must not circulate this publi- cation in any other cover and you must impose the same condition on any acquirer. You must not make this publication or any part of it available on the Internet by any other URL than that on www.toaep.org, without permission of the publisher. ISBNs: 978-82-8348-127-3 (print) and 978-82-8348-128-0 (e-book). To Aria and Torstein. For the sake of present and future generations who will strive to prevent universal crimes and provide justice for “children, women and men [who] have been victims of unimaginable atrocities that deeply shock the conscience of humanity” (Preamble, Rome Statute) The basic assumption must be that in international law as much as in national systems, the foundation of criminal re- sponsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa). International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, in the Tadić case (1999) If it be thought for even a moment that the part played by Rudolf Brandt was relatively unimportant when compared with the enormity of the charges proved by the evidence, let it be said that every Himmler must have his Brandt else the plans of a master criminal would never be put into execution. Nuernberg Military Tribunals in the Medical case (1947) PREFACE Despite the ambiguities of international law in general and international criminal law (‘ICL’) in particular, serious crimes committed, organised, or tolerated by representatives of different kinds of power structures are now of concern to the world community. These crimes may occur in the con- text of war or form part of a larger pattern of aggressive behaviour by powerful actors within a society. They are often directly linked to abuse of political or military systems or to an absence of effective state institutions. Such ‘international crimes’, which might also be referred to as ‘universal crimes’ because of their inherent gravity and violation of universal values and interests, are also attacks on the rule of law. We are still living in an age of uncertainty regarding which specific types of crimes are punishable directly under international law and might also be prosecuted on a regular basis before international courts. In addi- tion, the scope of personal criminal liability for alleged punishable partic- ipation in recognised universal crimes has been contested in ICL theory and practice on a number of points. This situation has even prompted calls for a comprehensive theory of personal criminal liability applicable to this particular field of law. In response, this book is an attempt to establish and test a general theory of personal liability that would strengthen our ability to understand, explain, and predict the outcomes of the legal issues in- volved in ICL and universal crimes cases. The book is the second in a four-part series on universal crimes en- titled “Rethinking the Essentials of International Criminal Law and Tran- sitional Justice”. While the first book in the series concentrated on the concept of universal crimes and the general issues involved in classifying certain offences, this second volume discusses personal liability for dif- ferent kinds of participation in universal crimes. The forthcoming third and fourth volumes will shift attention to the legal consequences of al- leged participation in universal crimes: book three focuses on alternative forms of accountability and jurisdiction as important aspects of universal crimes, while the fourth and final book in the series is about fair trial in universal crimes cases. The basic research idea underlying the universal crimes project was developed by Terje Einarsen, author of the first book in the series, The Concept of Universal Crimes in International Law (TOAEP, Oslo, 2012). The particular ideas and research design of the pre- i sent volume have been further developed in close co-operation with Jo- seph Rikhof. This book is the result of an extensive joint enterprise be- tween the two co-authors, in which the workload was shared equally and collaboration on the development of concepts and analysis of data was fully reciprocal. Thus, both authors are jointly responsible for any mistake or unwarranted omission in the analysis and empirical surveys undertaken. Finally, as the title of this volume suggests, the emphasis of the book is on punishable participation only, not on possible defences like justifications or excuses for involvement in criminal activities. That aspect of accounta- bility will be covered by the next volume. This work, which is current as of 17 July 2018, is addressed to all with an interest in ICL and related disciplines like human rights, humani- tarian law, transitional justice, and transnational criminal law. We hope it will contribute to a more coherent and practical understanding of crimi- nalisation and attribution of personal liability within the field of ICL.