Page 75 [75]
INTENT TO DO RIGHT?
It is primarily about acknowledging that something more is involved in crimes
against humanity than mere joint action, namely the adoption of a pro attitude"
towards obeying a parochial understanding of law.
Finally, the disagreement or reinterpretation of lawfulness of action does not
constitute a mistake about what law says, of a sort mentioned in the Rome Statute,
that is a mistake “as to whether a particular type of conduct is a crime".? Such an
approach does not address the possibility of a deeper disagreement as to what is
‘law’, or as Dworkin puts it, amounts to a “plain-fact view of law”. According to
such view “law is only a matter of what legal institutions, like legislatures and city
councils and courts, have decided in the past” and “questions of law can always
be answered by looking in the books where the records of institutional decisions
are kept”.*° A communist judge, Nazi official or Taliban executioner may well be
aware that according to criminal codes of their respective countries what they do
is an intentional homicide. Rather they really disagree about what ‘real’ or ‘right’
law is, and about what it should be.
EXPLODING LIMITS OF CRIMINAL TRIAL?
Some conclusions may be made from foregoing observations. Firstly,
reinterpretation of lawfulness of action by perpetrators should not be dismissed
by international criminal law, at least because of the role such reinterpretation
may have in making it easier for perpetrators to commit crimes against humanity.
It may well be easier for an ordinary person to become a part of ‘right’ or ‘lawful’
(albeit in a distorted sense) project, than of an openly criminal endeavor. There
is no reason to underestimate innate propensity of human beings to justify their
actions.
Another conclusion is that reductionism of a sort exposed here, puts unusual
burdens on limits of individual liability. For one, it could end up in imposing
liability without blame, akin to vicarious one.*! Substitution of causal agency
with ‘legal’ attribution“ would then be achieved by overstretching individual
responsibility based on non-factual shared intentionality.
Trials of crimes against humanity should not shun away from interpretation of
what constitutes ‘law’. Hart H.L.A. argues that a “frankly retrospective law” would
39 Article 32.2 of the Rome Statute of the International Criminal Court.
1 Dworkin, Law’s Empire, 6-7.
1 See e.g., p. 326, Decision on the confirmation of charges, Lubanga, ICC-01/04-01/06-803,
PTC I, ICC, 29 January 2007.
Marjolein Cupido, Causation in International Crimes Cases: (Re)Conceptualizing the
Causal Linkage, 2020, https://ssrn.com/abstract=3641283.
42
«736