Following an analysis of key colonial accusers, Chapter six focuses attention on the target of Alberta’s performances at theatres of accusation: criminally accused individuals. It reveals a politics through which accused subjects were formed at police-guided accusatory theatres – including information gathering, arrest, and examination. These theatres required targeted subjects to perform roles, under the threat of force, as law’s accused persons. Referring to three paradigmatic examples, the discussion centres on how colonial law recognized criminally culpable individuals. Underscoring individually based accusations, this law moulded accused personas through at least two key techniques. First, its justices transcribed what could be legally ‘heard’ and translated complex relations into idioms of law – thereby attributing degrees of culpability for crimes to accused individuals and deflecting attention away from conflict-generating social structures. Secondly, the theatres managed avowals of legal truth, thus subtly promoting obedience to colonial law and thence settler social order.

Akenroye and Clarke discuss the difficulties of fitting the moral ambiguities of violent conflict into the neat victim/perpetrator binaries of international criminal law. At center stage in this chapter is a discussion of the trial of Dominic Ongwen in the International Criminal Court in The Hague. The trial centered on the culpability of a man whose horrific acts of violence in the Ugandan civil war of the early 2000s led the ICC to issue 70 counts of war crimes and crimes against humanity against him. The ambiguities of the case and the reference point of the trial’s arguments center on Ongwen’s recruitment as a child soldier under the notorious Lord’s Resistance Army headman, Joseph Kony. At what point does a child’s transition into adulthood change the conditions of their responsibility for crime? At what point is a child soldier expected to repudiate his or her superiors and escape the scene of atrocity? And if repudiation and escape are called for in this and other cases of this kind, how might this example extend to other forms of aberrant socialization, the “brainwashing,” for example, that can lead an entire nation to accept and act on ideas of the inhumanity and need to eliminate a national minority?

The standard way to distinguish between negligence and recklessness is in terms of the agent’s awareness of the risk he is taking. An agent who knows that there is a risk of harm is reckless, an agent who does not know (leaving aside for now whether the belief is reasonable or not) is negligent. Antony Duff argues that we should amend this slightly – What renders an agent reckless is not caring enough about a risk. Duff’s amendment suggests, very plausibly, that mere lack of awareness is not what really matters morally. What matters, rather, is why an agent is not aware. This is taken for granted in the background conditions for negligence – which, for example, should be distinguished from stupidity. An agent may not be aware of a risk because she is not cognitively capable of such awareness. The background condition for negligence is that an agent could have been aware of the risk, but is not. So if an agent could have been aware of a risk, but is not because she was too lazy to look out the window, or check her calendar, or whatever, if, in other words, the reason that she is not aware of the risk is that she does not care enough, she should count as acting recklessly rather than negligently. I argue that there is something in Duff’s view to be rescued here. The rapist who does not understand or accept sexual refusal is not reckless if he has no awareness at any level of the relevant descriptive and normative facts. However, he should not be seen as negligent either. The structure of the situation is such that his ignorance is systematic, not one off. I argue that it is an important feature of negligence that it is one off, that it is not connected to a system of oppression. This gives us a justification for moralizing the ‘reasonable belief’ requirement in sexual consent cases. Even when a belief is reasonable by epistemic standards, it may be unreasonable by moral standards. The overall point here is that in a society riven by sexism, the essential definition of rape must advert to reasonable moral beliefs rather than reasonable epistemic beliefs.

In explaining why an instance of negligence is a case of culpable wrongdoing, it is natural and common to cite missing features of the agent’s behavior or mental state. “She failed to notice the stop sign,” “He did not check the water temperature before putting the baby in the bath.” In general, it can seem puzzling to ground judgments of wrongdoing and culpability not in the qualities that the agent’s mind and behavior possess but, instead, in the qualities they lack. After all, the class of people lacking the relevant feature is much larger than the class who are guilty of the culpable wrongdoing to which we are responding in cases of negligence. The passenger in the car, as well as the driver, failed to notice the stop sign. The houseguest also did not check the temperature of the baby’s bath. Why are they not guilty of culpable wrongdoing if these respective failures are what supports the charge in the case of the driver and the father? This chapter argues, first, that an account of why cases of negligence are ever cases of culpable wrongdoing must solve this problem by providing an explanation for why some absences are instances of culpable wrongdoing and others are not. Several quick efforts to solve the problem are shown to be inadequate. The chapter then goes on to offer a general theory of culpability that explains why absences – failures to notice or to attend, failures to take precautions – can be instances of culpable wrongdoing, and also why such absences sometimes fail to ground claims of culpable wrongdoing. Along the way, the chapter also draws a distinction between moral and criminal culpability and demonstrates that there can be instances of criminally culpable negligence in the absence of moral culpability.

This chapter defends three ideas. (1) That negligence is essentially a conative failure to exercise due care. The negligent agent doesn’t care enough about a relevant moral aim. (2) Resultantly, the potential cognitive failures of agents, whether they foresee or fail to foresee certain risks of harm, are only incidentally relevant to their negligence. In this way, (3) negligence is conceptually contiguous with recklessness. The hallmark of both reckless and negligence conduct is an insufficient regard for the legitimate interests of others, and what separates them is better understood in terms of conative differences in how each agent disregards those interests, rather than cognitive differences in advertence. I examine these claims in the context of a puzzle regarding negligence and foresight, and consider the implications of my conclusions for negligence culpability in morality and the traditional hierarchy of mens rea in the law.

At this moment, the literature and discourse on command responsibility is incredibly convoluted and controverted. I will show how these knots were produced by an underlying inadvertent contradiction with the culpability principle. The contradiction was created by surface-level doctrinal reasoning that did not adequately consider the deontic dimension. The subsequent twists and turns to deny, obscure, evade, or resolve this contradiction have led to increasingly complex and obscure claims about command responsibility.

The inquiry demonstrates the problems of inadequate attention to deontic limits. It also shows how deontic analysis can help us better understand the trajectory of the command responsibility debate. We can see old controversies in a new light and generate new prescriptions. I argue that command responsibility can be restored to its simple and elegant origins if it is recognized as a mode of accessory liability. As a result, the causal contribution requirement should be respected. This solution is not perfect, but I will show that this is the best reconciliation of the text, precedents, and the culpability principle. By resolving the core contradiction, the myriad complications and mystical evasions about command responsibility become unnecessary.

This chapter introduces the context and objectives of the book. International criminal law is still a relatively new body of criminal law, that was constructed in a rapid transnational conversation. The time is ripe for careful systematic and normative evaluation of this corpus of law. For example, scholars have noted that some doctrines may contradict fundamental principles of justice that the system claims to uphold. The book proceeds in three steps: it explains a problem, it outlines a solution, and then it demonstrates the solution through application.

The first, preliminary, objective of the book is to demonstrate a problem. Namely, the book highlights the need for an additional type of reasoning in criminal law: ‘deontic’ reasoning, which is different from doctrinal or teleological reasoning, and engages directly with principled constraints such as the legality and culpability principles.

Second, the book outlines a method for deontic reasoning, and in particular for identifying fundamental principles. ICL poses several special challenges for identifying the appropriate principles. The book advances a liberal, open-minded, humanistic, and coherentist approach (and explains each of these features).

Third, the book dissects current controversies in command responsibility in order to demonstrate the method, its questions, and the insights it can generate.

In this chapter, I outline how the approach I have can raise new questions, both for ICL and for general criminal law theory.

The study of extreme cases can unsettle and refine our understandings of the principles developed in everyday experience. I will show how studying ICL problems may require us to unpack the roles traditionally played by ‘the State’ in criminal law thinking, and to re-examine many familiar tools of criminal law thought (such as ‘community’, ‘citizenship’ and ‘authority’). The criminal law theory of ICL might draw on ‘cosmopolitanist’ scholarship, which contemplates forms of governance other than the state, and which is therefore particularly challenging for mainstream criminal law thinking.

I will also highlight ‘promising problems’ in ICL. Exploring such problems can help us refine ICL doctrines and also make contributions to mainstream criminal law theory. These include: legality without a legislature; a humanistic account of duress and social roles; and superior orders and state authority. I will then do an even deeper delve into a selected set of controversies in Chapters 6 to 8, in order to demonstrate the method at work and thereby clarify the method, the work it can do, and the themes it raises.

In this chapter, I move on to resulting normative questions about the culpability principle, causal contribution, and command responsibility. I engage in deontic analysis of what type of contribution the culpability principle actually requires, and whether the requirement might be reconceived.

First, I will examine why criminal law requires causal contribution, and the degree of contribution required. I will argue that the requirement in relation to accessories is not onerous; ‘risk aggravation’ satisfies the culpability principle.

Second, I consider ambitious proposals to re-imagine culpability, i.e. to develop a new deontic account that does not require any causal contribution. A theme of this book is that ICL can present us with new questions that can lead us to adjust our basic assumptions from criminal law theory. On this issue, however, although the arguments are intriguing, my conclusion is that on a coherentist all-things-considered judgement, they are as yet far too tentative and undeveloped to provide a convincing basis for criminal sanctions. Accordingly, the current best theory is that accessories must at least elevate the risk of the crimes occurring.

In this chapter, I demonstrate the problem to which the rest of this book proposes a solution: namely, the need for more careful deontic reasoning. I will focus on certain distinctive habits of reasoning that have often recurred in ICL, which have a tendency to undermine compliance with deontic principles.

All legal systems sometimes generate doctrines that appear to conflict with stated principles. However, in national systems, the clash tends to be openly between liberal principles and ‘law and order’ considerations. I argue that ICL discourse often features an additional and interesting dynamic. In ICL, the distortions often result from habits of reasoning that are progressive and appropriate in human rights law and humanitarian law, but which become problematic when transplanted without adequate reflection to a criminal law system. I highlight three kinds of such reasoning: interpretive assumptions, substantive and structural assumptions, and ideological assumptions. These habits of reasoning were more prevalent in the early days of the renaissance of ICL than they are today. It is still valuable to discern and dissect these habits of reasoning, because their legacy continues, because they still recur today, and because they help show the value of attending to reasoning.