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The contribution comprises of excerpts from a dialogue conducted face to face and by correspondence during 2019 between George P. Fletcher (GPF) and Shachar Eldar (SE) about the evolution of Israeli criminal law, with emphasis on its distinctive history and idiosyncratic terminology.

This chapter examines the concept of complicity. The basic question is whether complicity is a crime in and of itself or a way of assisting another person to commit a crime. On the whole, the idea of complicity in the actions of another has become a standard part of modern legal and moral thought. One no longer thinks of individuals acting solely on their own account but of groups of people interacting in order to produce a crime of shared responsibility. This is particularly true in the crimes of genocide, aggression, and crimes against humanity. As for holding individual actors accountable, as Article 25 of the Rome Statute attempts to do, it would make sense to hold each liable for their causal role in the crime. That is, complicity should be seen not as a crime in itself but as a contribution to the crime of another.

This chapter discusses the distinction between accidents and mistakes. Much of the law of torts centers on negligent accidents—whether with cars, airplanes, guns, or simply walking on a slippery floor. The important feature of torts, as opposed to crime, is that there is no liability absent harm to the plaintiff. For example, there is no liability for merely attempting or risking harm. In domestic criminal law, accidents become relevant only in what can be called the pattern of harmful consequences, that is, where there is a causal chain between the action and the harm. Meanwhile, according to Article 31(1) of the Rome Statute, a mistake of fact is relevant only if it negates the mental element required for the crime.

This chapter addresses the distinction between offenses and defenses in criminal cases. The Rome Statute draws a clear line between the four crimes subject to the jurisdiction of the Court and the grounds for excluding criminal responsibility in Article 31. The significance of the distinction between these offenses and defenses should not be underestimated. For example, the principle of nullum crimen sine lege, which applies to the former but not the latter, as evidenced by Article 31(3) permits the recognition of new defenses at trial. The four classic defenses of insanity, intoxication, self-defense, and duress spelled out in Article 31 are subject to controversy. Among the major legal systems of the world, there is considerable divergence in approaching these issues. Meanwhile, there are two reasons for the nullum crimen principle. One is to warn defendants of their possible liability. The other is to control the discretion of judges.

This book is an invitation to readers interested in the future of international cooperation to master the 12 basic dichotomies of international criminal law. The book foresees a growing interest in international order and cooperation following the current preoccupation, in Europe as well as the United States, with national self-interest. By emphasizing basic dichotomies, for example, acts vs. omissions and causation vs. background conditions, the book reinforces the jurisprudential foundations of international criminal law and also provides an easy way to master the details of the field.

This chapter examines the problem of causation. An intelligent approach to drafting a criminal code deliberately avoids certain problematic philosophical issues. Among these are the nature of human action; the purposes of punishment; and, most importantly, the problem of causation. The problem of causation runs through the crimes defined by the Rome Statute. The issue is implicit, even if the drafter wisely declined to define the concept. It is obvious that a concern for impunidad and the fate of victims presuppose the harm that has occurred to a defined victim, which implies that the harm must have been caused by the crimes defined by the Rome Statute. The chapter then considers the notion of causal energy, which explains the rise of comparative negligence in tort law.

This chapter explores the role of mental state in criminal cases, considering the concept of negligence. Lawyers trained in the common law tradition are familiar with the concept of mens rea and the maxim actus non facit reus nisi mens sit rea. Literally this means that there is no criminal (or guilty) act without a criminal (or guilty) mind. The problem is that there are both descriptive and normative interpretations of mens rea and of the maxim. The normative or moral interpretation of mens rea holds that the term equivalent to a guilty mind, for example, a basis for blaming the actor for their conduct, is something not possible in the face of the defenses considered in the last chapter. Meanwhile, negligence is based, as in the classic definition from the law of torts, on the conduct of “a reasonable person under the circumstances.” The important point is that negligence is based on the fault of not knowing.

This chapter focuses on the law of war and its many distinctions. The supreme distinction in this book is between lawful and unlawful. However, in the law of war, the distinctions multiply beyond control. Whether troops fighting abroad constitutes war is itself a disputed question; there has been a tendency in recent years to use “armed conflict” or “police action.” For the purposes of analyzing the Rome Statute and, in particular, Article 8 on war crimes, one has to assume an international perspective. Most countries in the international legal order are not democracies, and the internal allocation of power is not relevant to whether they violate Article 8. The complexity of Article 8 challenges the mind, with at least 50 distinct offenses. The chapter then elaborates on the perspectives necessary to grasp the general structure of war crimes in the international legal order.

This chapter assesses the role of victims and offenders in criminal cases. The victim is invisible in the definition of crime but omnipresent in the prosecution and sentencing of offenders. In the international legal order, in particular, the victim is front and center, both in the International Criminal Court (ICC) and in lawsuits under the Alien Torts Claim Act. Crime is typically defined by the actions of the offender, and the victim is an incidental consequence. There are many victimless crimes, such as those in the sexual and reproductive arena, which in the United States at least are no longer subject to prosecution on constitutional grounds. The argument for decriminalization is the privacy of the offender, but privacy of the victim can, paradoxically, become an argument for criminalization under the right to a private life codified in the European Convention on Human Rights. The chapter also looks at the duality of victimhood.

This chapter focuses on tort liability. In the international legal order, the tort regime is of particular importance. As we shall see, the Alien Tort Claims Act has a vital role to play either as a backup to a failed attempt at criminal prosecution or the inability to get jurisdiction over a defendant in hiding. Thus, the international regime of tort liability responds to the same concerns of “impunidad” as one finds in the Preamble of the Rome Statute. The chapter then looks at the concept of punishment. Punishment is the domain of criminal law. Liability in tort cases is not officially punishment. In fact, punitive damages imposed by an American jury can have more severe consequences than a brief period in jail. Yet the line between crime and tort is maintained strictly in American jurisprudence.

This concluding chapter looks at the concepts of law and justice. There are two concepts of law: law as principle and law as rule or regularity. The former is normative, while the latter is descriptive. The chapter then considers the concept of justice. In the philosophical theory of justice, one must distinguish among relevant areas of private and criminal law. Retributive justice applies in criminal law, corrective justice in torts, and distributive justice in property law. In all of these areas, the claims of justice face challenges from utilitarian and economic considerations and based on efficiency, for example, deterrence in criminal law, searching for the cheapest cost avoider in tort law, and stability in property law.

This introductory chapter provides an overview of the basic concepts of international criminal law. To understand the international legal order in the field of criminal law, one needs to ask three elementary questions. What is international law? What is criminal law? And what happens to these two fields when they are joined together? International law is about the legal obligations that arise between and among states. Meanwhile, the concepts of crime and criminal law are more complex than meets the eye. The chapter then considers the Dogmatik of international criminal law and the relevance of the law of war. The most significant contribution of the Dogmatik for criminal law was the invention of the tripartite system, namely the three levels of analysis that determine the structure of every criminal offense.

This chapter discusses the procedure for prosecuting international crime. Being guilty of an international crime is one thing; being prosecuted and convicted is quite another. Being guilty in principle requires the following: first, an identification of a norm under which the suspect would be guilty if the norm applied to them; second, the application of the norm to the offender to conclude that the particular person is guilty. Initially, this two-stage procedure might take place in the minds of observers, and then, in the minds of people capable of bringing to bear the procedures of the International Criminal Court (ICC) or other international-national tribunals in order to effectuate a conviction. In either case, the notion of liability or guilt requires reasoning in a syllogism. The major premise is the substantive law, and the minor premise consists of the facts that appear to be provable at trial.

This chapter determines the difference between subject and object. The distinction between subject and object pervades the substantive law of war and, in general, the distinction between common law and civil law modes of criminal procedure and their relative influences on the procedures of the International Criminal Court (ICC). Criminal trials presuppose human subjects, agency, and judgment. The players in every trial take on different functions in common law and civil law trials. The notion of the accused’s guilt or innocence as an object of investigation takes on a stronger significance in civilian trials. The chapter then explores the ideal types of common law and civil law criminal procedure: one stressing the subjects as the determinative element and the other emphasizing the object of investigation.

This chapter assesses whether the codification of criminal attempts in a statutory regime that emphasizes completed crimes with consequences to personal or property interests is appropriate. A quick look at the four crimes within the jurisdiction of the International Criminal Court (ICC), as described by the Rome Statute, reveals that they are about concrete harming: killing, torture, rape, and invasion. Some of the sub-crimes within these categories address completed actions even though the harm is less tangible. However, attempts are one form of inchoate offense, that is, offenses that fall short of causing the harm or engendering the victimhood that would come with the completed offense. The problem is always how much the actor must do on the spectrum—from thought through the various stages of action to the final result of causing harm or instantiating the required “consequence” of the completed offenses.

My readers have done me a great honor. They have read the first volume in the treatise I hope to complete on The Grammar of Criminal Law: American, Comparative, and International and they have stimulated me to see complexities in the argument that I previously did not detect. Their encomiums aside, the true respect for scholarly work is to read it seriously and to advance the learning of our profession by offering arguments and inviting me to reply. I Jeff McMahan and Jan Van Dijk I find it useful to group some of the essays together for they emphasize different sides of the same problem. Let me begin with the papers by McMahan and Van Dijk. McMahan has untiringly criticized my tendency to accentuate the collective dimensions of war and war crime. In conferences where we meet on the same panel and in this written collection, I can expect a critique from what I call the liberal individualist in the law of war. The liberal individualist holds that all soldiers act as individuals, which in turn generates serious problems explaining why soldiers are not liable for violent actions committed in the course of ordinary warfare. I will not address problems inherent in McMahan's work, for it is I who should be on the defensive here, not his individualist view. The thrust of McMahan's critique in these pages is that I exaggerate the possibilities of mitigation for collective guilt. One of the three factors I introduce--here and in other books and articles--is the possibility of mitigating the guilt of an individual, say, Eichmann, on the ground that an entire nation bears guilt for the Holocaust. Herbert Morris has already written a serious critique of this view and therefore I am not sure how much of this concern is still tenable. The second mitigating factor is the inverse doctrine of complicity, used once by the German courts in the Stashchynsky case. Lawyers sought to mitigate the guilt of the person who executes the crimes as an accessory relative to the commanding officer, the latter of whom must be seen as the principal directing the crime. This view was endorsed in an old German case, subsequently changed by legislation; so again I am not too sure of the viability of Stashchynsky doctrine. The third argument examines the responsibilities of commanders who oversaw mass atrocities, such as Sabra and Shatilla in the 1980 Israeli occupation of Lebanon, and ascribes to them less than full responsibility because other groups, namely the Phalangists, carried out the killing. The argument for mitigation typically holds that the commander is not responsible for the actions of intervening forces that actually carry out the bloody attacks on prisoners of war or a civilian population. I concede that McMahan has mounted this critique of mitigation effectively but it is not clear what remains of his thesis or even if he is strongly committed to the view that war consists always in a collection of individual actions and never in collective action. The debate is far from over, though the lines are clearly drawn. We are still looking for powerful arguments to defend either the collectivist vision of war or the liberal individualist view that every soldier fights with moral responsibility for his actions. The thrust of McMahan's argument in favor of liberal individualism minimizes the possibilities of mitigation by national guilt, by theories of complicity or by intervening causes. One consequence of his view is that whoever is responsible, the responsibility must be complete and unmitigated (or at least not mitigated by any of the arguments I have offered). In this respect I find a convergence between his critique and the thrust of the article by Jan Van Dijk on the role of victims in criminal trials. The encounter with Van Dijk was surely one of the most surprising of my professional life. Working independently and thousands of miles apart, we both discovered one of the most original linguistic features of modern criminal law in countries influenced by Abrahamic religions (Judaism, Christianity, and Islam). …

The Thirteenth Amendment, ratified by 27 states by December 1865, represents the b ginning of a new constitutional order in the United States. The ostensive purpose of the Amendment was to abol ish slavery and thus to eliminate, both symbolically and practically, the cause of the Civil War and threat to the stability of the Union. Although President Abraham Lincoln believed at the beginning of the war that preserving the union was a sufficient rationale for the fighting, by the time of the Gettysburg Address in November 1863, he was obviously of the opposite opinion that the postbellum legal order could not tolerate slavery. He reasoned that the phrase "all men are created equal" in the Declaration of Independence must be read to imply the injustice of subordinating one race to another. The new constitutional order was expressed not only in the guar antee of equality under the law but in the grant of legislative power under Section 2 of the Thirteenth Amendment, which enabled Con gress "to enforce this article by appropriate legislation." This enhance ment of the powers defined by Article I, Section 8 of the Constitution was replicated in the other Reconstruction amendments, namely the Fourteenth and Fifteenth, which together provided Congress with the apparent ability to restructure all racial relations in the United States. The result was a series of controversial Civil Rights statutes in 1866 and 1875 and numerous hotly contested court cases about whether the Thirteenth and Fourteenth Amendments merely had the objective of abolishing chattel slavery or the broader goal of insuring equality among all persons in the United States in every aspect of their social and political lives. The revolutionary aspect of the Thirteenth Amendment was ex pressed as well in the new conception of the Constitution that it firmly established. The defenders of slavery argued that there was no way to abolish the institution without unanimous consent of the states. They argued that slavery was "entrenched"-as the use of French is now en trenched in the Canadian constitution-so that a simple amendment, supported by three-fourths of states, would not be sufficient. The universal acceptance of the Thirteenth Amendment by a vote of three fourths of the states demonstrated that there were no entrenched, un amendable provisions in the Constitution. Though we say that the Thirteenth Amendment abolished slavery in the United States, this is not entirely correct. By the early 1800s white slavery had already disappeared without explicit abolition. And various other legal measures-including the Emancipation Proclama tion of January i, 1863 and postbellum state legal reforms?had ef fectively abolished slavery everywhere except the border states of Mis souri, Kentucky and Delaware, and the areas occupied by Union troops on January 1,1863. Nonetheless, the Thirteenth Amendment has enormous symbolic significance as an official declaration that one major cause for fight ing the war was gone forever. In the judicial reception of the Amend ment, the passive wording of the amendment has become more important than the framers might have anticipated. Unlike the Four teenth Amendment, which requires "state action" in order to establish a claim under the due process or equal protection clauses, the Thir teenth encompasses private as well as public action. Another feature of the Amendment is that it cannot in the long run be limited just to protecting black slaves. A good example of the contemporary under standing of the Amendment is the case of Lemrick Nelson, convicted of murdering an orthodox Jew on the streets of Brooklyn, with an ap peal to the United States Court of Appeals for the Second Circuit in 2002. In an elaborate opinion by Judge Guido Calabresi, the Court concluded that the Thirteenth Amendmenf s concept of slavery was sufficiently broad to include discriminatory action against orthodox Jews, whether they were conceived of as a racial group or not. They upheld on the basis of Thirteenth Amendment, therefore, a provision of the 1866 Civil Rights Act, which essentially made it a federal crime for any private person to commit an assault against another motivated by racial or religious bias.

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers—Jeff McMahan as an outstanding example—ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law but they seem not to be interested, and so it goes. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on the field.

As the concept of terrorism fulfils multiple functions, the better way to think of terrorism is not as a crime but as a different dimension of crime, a higher, more dangerous version of crime, a kind of super-crime incorporating some of the characteristics of warfare. There are at least eight primary factors that bear on terrorism: the factor of violence; the required intention; the nature of the victims; the connection of the offender to the state; the justice and motive of their cause; the level of organization; the element of theatre; and the absence of guilt. However, one cannot draw from these variables a simple (or indeed even a complex) definition of terrorism. The reason is that not all the factors apply all the time. Any proposed definition produces counterexamples. The way to think about terrorism is, therefore, to become aware of all the relevant factors but not to expect that they will all be fulfilled in any particular case. The specific cases of terrorism are related the way the members of a family are related. Most, but not all, might have the same eye shape. Others might have hair colour or the shape of their nose in common; still others might be tall or short. One should try to picture a series of overlapping sets in which no set intersects with all the others. That is the way our intuitions of terrorism operate.

In the Hamdan decision, Judge Stevens, writing for the majority, addressed the boundaries of the law of war and specifically whether the conspiracy charge lodged against Hamdan constituted a violation of this body of customary international law. The Supreme Court persuasively held that conspiracy does not constitute a war crime.

The authors consider the recent operation of the International Criminal Court (ICC), its system of funding and the jurisdictional challenges facing the Court's Prosecutor. These challenges require an in-depth analysis of the Rome Statute's funding scheme and its provisions on complementarity. A close reading of the Statute indicates that both of these areas operate in an entirely different manner when a case is referred to the Court by the Security Council, and even suggests the startling possibility that these referrals relieve the Court of the usual constraints of complementary jurisdiction. The authors therefore conclude that the ICC is best viewed as two separate courts: an independent criminal court enacted by the parties of the Rome Statute but, in the case of referrals by the Security Council under Article 13(b) of the Statute, an organ for restoring collective peace and security that transcends the classic goals of criminal law to adjudicate individual guilt.

Criminal punishment has traditionally been the most elementary and obvious expression of the state's sovereign power. As evidenced by the ready appeal to punishment in the international community as well as in the European Union, the institution of punishment also provides an important medium for expressing the majesty of new super-entities as well as of traditional states. One would expect, therefore, that the theory of punishment and of criminal law would be high on the agendas of those interested in the philosophical foundations of the state. Yet in contemporary writing on political theory, particularly in English, neither criminal law nor criminal procedure receives much attention. (1) The converse is also true: those writing on criminal theory rarely see the connection between their internal disputes--say, about victims' rights and impossible attempts--and the broader issues, not only of political but of moral philosophy. In this essay I assess the way in which certain basic positions about the nature of state and society work themselves out in criminal law. In the absence of a developed literature on political and criminal theory, most of these arguments will be novel attempts to lay the groundwork for further discussion. I begin by projecting implications for criminal law from specific theories, known by the conventional labels of libertarian, liberal, communitarian, and perfectionist approaches to using criminal sanctions. Then I turn to the problem of legitimacy in both domestic and international criminal law. The distinction between political and moral theory is critical to the argument. Some writers today use the term "moral" so broadly that their usage obfuscates the important distinction between the state's acting legitimately and individuals acting morally. (2) The political addresses the power and prerogatives of state officials--that is, of human beings cast into a particular role of enforcing criminal prohibitions. The moral focuses primarily on the lives of individuals, both in their personal flourishing and in their relationships with other individuals. An example of the kind of the argument I seek to avoid is the conventional claim about desert. The argument goes like this. Some people--really bad people like Adolph Eichmann or Slobodan Milosevic--deserve to be punished. Because they deserve a certain consequence, it follows that the state is justified in delivering it. This is a non sequitur. An extreme version of the non sequitur is found in the retributive theory of Michael Moore who argued that because individuals feel guilty, they should be punished according to their guilt. (3) Missing are the critical premises first that it is the business of the state rather than of God (or the victim or the victim's family) to punish the offender, and second that the offender's feelings of guilt are a reliable indicator of that which should be punished and of the appropriate degree of punishment. (4) The popular language of "just deserts" reveals the depth of our confusion. Just because the offender might deserve punishment, it does not follow--without an appropriate theory of state power--that the state should assess the degree of deserved punishment and use its power to impose it on the offender. The quick assumption that the state is entitled to punish offenders who "deserve" it is one of the unfortunate banalities of criminal law in our time. The logical gap between the offender's desert and someone's or some entity's authority is well understood in Jewish law and in other religious legal systems. Genesis 9:6 tells us that "whoever sheds the blood of man, by man shall his blood be shed." This is comparable to claims about desert. The killer may deserve to die but it does not follow that the state is entitled to kill him. We should think about this conceptual divide as the distinction between moral and political theory. The moral specifies what people deserve. …

The Military Commissions Act 2006 seems to have a much broader application than the 2003 Military Commission Instruction Number 2, or MCI2. None of the 28 specific crimes listed in § 950v(b) of the 2006 Act mentions a nexus with armed conflict. This Act raises a number of questions. In particular three issues are relevant: (i) Congress intended to act under its constitutional power ‘to define offenses against the law of nations.’ In so far as some of these offences are not violations of the law of nations, they fall outside the field of legislative competence; (ii) the Military Commissions are given excessive discretion in the field of sentencing. There are no terms of imprisonment provided. In many cases the death penalty is allowed. Otherwise the Commissions may impose any sentence they wish. This degree of discretion arguably violates the Eighth Amendment against ‘cruel and unusual punishment’; (iii) there might be a violation of the principle of equal protection: is it constitutional to impose a special regime on suspects simply because they are ‘aliens’?