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JAVID GADIROV
First, I will discuss whether an interpretation of lawfulness and rightness of actions
by perpetrators is a variety of shared intent used in imposing individual liability
by international criminal law. I will then address in what sense such interpretation
could be considered as a conception of law. In doing so, I will also consider how
such interpretation is not private, and how ít is not a simple mistake of law either.
IN WHAT SENSE INTENTION IS SHARED?
Crimes against humanity are rarely, if ever, committed by individuals acting alone.
While criminal law typically accounts for organized activities, in the cases of
crimes against humanity collective or joint action is paradigmatic. Liability tests
acknowledge this by requiring that individual perpetrators are “mutually aware
and mutually accept”! common objectives or share common intent.! But what
is meant by notions of shared or joint intentions that are part of the mens rea
requirements of the crimes in question?
Intention itself is one of the most puzzling notions — as Anscombe notes, “we
are in fact pretty much in the dark about it”. In ordinary language, it may refer
to foresight, knowledge, reason for action, belief, desire, action, consciousness of
action, plan, decision, being embarked on intentional action etc. As Duff observes,
we can assume neither that the notion of intention has an agreed use in ordinary
language, nor that for purposes of criminal liability it should have the same
meaning as in ordinary language.”
Regarding collective criminality, there is additionally a question whether
there is an irreducible shared or collective intention, and what role it could play
in assigning individual criminal responsibility. There are various non-summative
accounts of collective intentions, including Bratman (shared intentions),
Gilbert (plural subjects),° Kutz (participatory intentions),!° Searle (“simple,
Prosecutor v. Thomas Lubanga Dyilo (14 March 2012), International Criminal Court,
Judgment pursuant to Article 74 (Trial Judgment), ICC-01/04-01/06-2842, para. 1008.
Prosecutor v. Dusko Tadié (15 July 1999), International Criminal Tribunal for the Former
Yugoslavia, Appeals Chamber Judgment, IT-94-1-A, para 228.
2 G.E.M. Anscombe, Intention, Cambridge, MA, Harvard University Press, 2000, 1.
B Antony R. Duff, Intention, Agency and Criminal Liability, Oxford, Basil Blackwell, 1990,
32-33.
4 Michael E. Bratman, Shared Intention, Ethics 104 (1993), 97-113.
Margaret Gilbert, Reconsidering the “Actual Contract” Theory of Political Obligation,
Ethics 109 (1999), 242.
16 Christopher Kutz, Complicity: Ethics and Law for a Collective Age, Cambridge, CUP, 2000, 81.
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