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INTENT TO DO RIGHT? INTERPRETATION
OF LAWFULNESS OF ACTION IN CRIMES AGAINST
HUMANITY
——o—
JAVID GADIROV'
Crimes against humanity are not organized crime writ large. Using examples of a
Nazi official, a communist judge, and a Taliban executioner, this essay shows that
such crimes entail a ‘pro’ attitude of perpetrators towards a parochial conception
of law and right, and shared social reinterpretation of rightness and lawfulness of
their acts. International criminal law dismisses relevance of such reinterpretation
and focuses on shared intentions and joint plans of perpetrators. However, there
are limits on in what sense an intention or plan may be shared, and disregard
of these limits overstretches boundaries of individual liability and may put into
question legitimacy of trials. This essay concludes with emphasizing the need for
courts to instead engage in social reinterpretation of what is law.
INTRODUCTION
Interpretation by a perpetrator of the rightfulness and lawfulness of intended
acts is a primary feature of crimes against humanity. International criminal law
downplays the issue of whether perpetrators of crimes against humanity have
an “intent to do wrong” and replaces it with the focus on the shared character of
such intention. I argue that perpetrators of such crimes confabulate or interpret
their acts as being right or lawful in a special sense, and that such interpretation
is among primary motives for commission of crimes against humanity.
While the perpetrator’s interpretation of his or her acts as being the right thing
to do is associated with the mens rea of crimes against humanity and is a social
activity in a broader sense of this word, it does not amount to a shared intention
and cannot replace individual foresight. Whereas international criminal law
emphasizes shared intent or mutual awareness and commitment of co-perpetrators
to account for their multitude and organized commission of such crimes, intention
understood as foresight, cannot be shared after being attributed to an agent.
' Assistant Professor of Law, School of Public and International Affairs, ADA University.
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