Documentos de Académico
Documentos de Profesional
Documentos de Cultura
DOI 10.1007/s10609-005-4728-3
Springer 2006
Book Review
CARL-FRIEDRICH STUCKENBERG*
Reviewing:
Olaoluwa Olusanya, Double Jeopardy Without Parameters. Recharacterisation in International Criminal Law, AntwerpOxford:
Intersentia, 2004, 278 pp.
The problem of concursus delictorum seems to be an incurable birth
defect of crimes under international law. Since the beginnings at
Nuremberg, almost every international criminal trial involves multiple charges and multiple convictions based on the same set of facts.
The reason is obvious: war crimes, crimes against humanity, and
genocide have more denitional elements in common than not, and
this family resemblance is barely a surprise in light of their genesis.
Concursus delictorum has two legal dimensions. The substantive
dimension concerns sentencing: Should a conviction be entered for all
nominally applicable oenses, and if so, should the total amount of
punishment be increased, and how? The procedural dimension relates to
pleading and double jeopardy: Are multiple charges admissible? How
does concursus delictorum aect the scope of res iudicata: Are repeated
trials possible for the same facts by way of dierent legal qualications?
Finally, in both dimensions, an apparently trivial question has to be
solved which turns out to be a philosophical puzzle of the rst order1 in
* Senior Research Fellow, Institute for Criminal Law, University of Bonn, Germany; rst state exam (1990), LL.M. (Harvard, 1992), second state exam (1997),
Dr. iur. (Bonn, 1997). My thanks to Professor Claus Kre (University of Cologne)
for helpful comments on an earlier draft.
1
See generally Donald Davidson, The Individuation of Events, in ESSAYS ON ACTIONS
AND EVENTS 163 ss. (2nd ed. 2001); MICHAEL MOORE, ACT AND CRIME (1993); also
ROBIN VALLACHER & DANIEL WEGNER, A THEORY OF ACTION IDENTIFICATION (1985).
362
CARL-FRIEDRICH STUCKENBERG
legal guise: when are facts the same and when are oenses dierent?
How to deal with multiplicity of oenses is a question that has plagued
national criminal laws for 2,000 years,2 and a plethora of answers, ranging
from confused neglect via straightforward pragmatism to arcane complexity, is available. In international criminal law, tribunals have
repeatedly addressed the problem and the scholarly literature is growing,
yet without a generally accepted and satisfactory solution being in sight.
So far, the aforementioned questions also seem less pressing in international than in national criminal law. There is no clear evidence that
multiple convictions for the same facts have led to stier sentences, and
repeated trials before international tribunals for the same facts have not
been a concern. However, there is still a third dimension. The incidence of
concursus delictorum and the techniques for its resolution are indicators
for the internal consistency, sophistication and over-all rationality of a
given criminal law. This is not a mere aesthetic or theoretical matter, since
lack of internal rationality may cause annoyance, judicial error, and
injustice.
The book under review boldly sets out to resolve all these actual or
potential concerns and oers two radical proposals aimed at completely eliminating the occurrence of concursus delictorum in international criminal law.
The work is divided into ve chapters. Chapter 1 is an introduction to the problem eld that the author will henceforth call
re-characterisation (dened as multiple characterisation of the same
facts under dierent headings, p. 5),3 with an overview of the relevant literature and the structure of the book.
Chapter 2 traces the history of the emergence of re-characterisation in international criminal law. After brief remarks on the history
of double jeopardy in general, the author analyzes the factors that
shaped the concepts of war crimes and crimes against humanity in the
Nuremberg trials (pp. 3366). Both concepts are employed to
penalize violations of humanitarian law originating in the Hague
Regulations of 1907 and should, in the authors view, therefore be
regarded as identical (p. 50). The purported dierence between them,
i.e., protection of diering groups of persons, is rejected in light of the
2
For a historical survey see WILHELM HoPFNER, 1 EINHEIT UND MEHRHEIT DER
VERBRECHEN 7100 (1901).
3
In hindsight, this terminological choice is somewhat unfortunate because it could
be confused with the procedural device now provided for in Regulation 55
(Authority of the Court to modify the legal characterisation of facts), Regulations
of the Court (ICC), Adopted on 26 May 2004, ICC-BD/01-01-04.
363
The national laws of the Allied Powers are counted as a fourth factor (p. 71) but
the point is not elaborated (compare pp. 3233).
364
CARL-FRIEDRICH STUCKENBERG
365
366
CARL-FRIEDRICH STUCKENBERG
unwise though certain aspects like motive may prove useful (p. 253).
The nal outlook supposes that the best option is to rationalize
international crimes by abolishing the current genocide/crimes
against humanity distinction and grave breaches/other violations of
war distinction and have only two crimes (genocide and war crimes)
instead (p. 254).
Undeniably, this is a thought-provoking book which gets to the
root of the problem. It also provokes a host of questions and
comments, only a few of which can be discussed here. Hence, I will
focus on the two proposals to eliminate re-characterization altogether.
One of the books merits is to openly address many fundamental
methodological issues, thereby making often tacit preconceptions
explicit and subject to debate. The authors most fundamental
methodological proposition is what he calls the purist approach to
re-characterisation, meaning that it utilizes international human
rights law rules to resolve what is essentially an international human
rights law dilemma, which is said to represent a departure from the
current methods which try to press international human rights norms
into the strait-jacket of criminal law (p. 239), also expressed in the
two ideas on p. 253 cited before. Here I respectfully but categorically
disagree. The alleged contrast between international human rights
law and criminal law is either an overstatement or reects a misconception. It is unquestionably correct that national criminal law
concepts must not be imposed on international crimes without
translation. Nonetheless, international criminal law is a species of
criminal law and thus shares the structural features and problems
that are the subject of criminal law theory everywhere. The formal
characteristics of criminal oenses, their ingredients like actus reus,
mens rea, the mechanics of defenses like justication or excuse, and
also the mechanics of concursus delictorum, are wholly independent of
the contents, whether the aim is to punish war crimes, environmental
pollution or petty theft. Hence it is no contradiction that a legal rule
may formally belong to criminal law and thematically be part of
human rights or humanitarian law. Of course, form follows function
here too: Substance and purpose of a prohibition inuence its
structural properties and behaviour. But history and comparative law
indicate that the number of the major structural problems and
solutions in criminal law tends to be nite although they may come in
manifold dresses. It is therefore unlikely that international criminal
law poses structural problems entirely outside the logical universe of
367
368
CARL-FRIEDRICH STUCKENBERG
369
One so-called coarse-grained view holds that one and the same action can
come under several descriptions, see ANSCOMBE, supra note 6, 23 ss., 26; Donald
Davidson, Agency, in ESSAYS ON ACTIONS AND EVENTS 5859 (2nd ed. 2001) (confusion between a feature of the description of an event and a feature of the event
itself.), whereas the opposite ne-grained view counts as many actions as there are
descriptions. See generally IRVING THALBERG, PERCEPTION, EMOTION AND ACTION 85
ss. (1977); KARL PFEIFER, ACTIONS AND OTHER EVENTS. THE UNIFIER-MULTIPLIER
CONTROVERSY (1989).
13
A concursus of motives could then be resolved in a similar manner as proposed
in the books solution, i.e. by establishing a hierarchy of gravity, e.g., genocidal or
discriminatory motives could take priority over war crime-motives. This could
probably be reconciled with the authors approach in Olusanya, Do Crimes Against
Humanity Deserve a Higher Sentence than War Crimes?, 4 INTL CRIM. L.REV. 431,
442 et seq., 472 (2004).
14
See e.g. KATRIN GIERHAKE, BEGRuNDUNG DES VoLKERSTRAFRECHTS AUF DER
GRUNDLAGE DER KANTISCHEN RECHTSLEHRE (2005); Michael Kohler, Zum Begri
des Volkerstrafrechts, 11 JAHRBUCH FuR RECHT UND ETHIK 435467 (2003); Ralph
Henham, The Philosophical Foundations of International Sentencing, 1 J. INTL CRIM.
JUST. 6485 (2003).
370
CARL-FRIEDRICH STUCKENBERG
exceptions, motives are relevant only at the sentencing stage. Promoting motive to a denitional mental element which has to be
proven at trial of war crimes and crimes against humanity is barely
feasible de lege lata and unrealistic de lege ferenda. If, on the other
hand, motive is not an element of the mens rea of war crimes and
crimes against humanity other than persecution and thus is legally
irrelevant to build a case as with many national crimes15 , one
wonders why it should be relevant in a concursus situation? The only
remaining answer seems to be that motive is the criterion of choice
simply because it works, i.e., hinders concursus delictorum which it
probably does not for the reasons set out above.
Lastly, the rejection of intent as a criterion seems to suppose that
the intent requirement does not cover the contextual elements in the
chapeau, e.g., of article 18 of the 1996 Draft Code (p. 224), although
case law and probably the prevailing scholarly opinion hold the
opposite,16 as well as article 7(1) of the Rome Statute which requires
knowledge of the attack.
The second way to deal with concursus delictorum proceeds on the
premise that several oenses are nominally applicable and then tries
to sort out which ones are denitely applicable and which consequences remaining collisions shall have. The logical possibilities for
these situations and solutions are limited in any legal order and it
cannot be otherwise in international criminal law.17 Which rule of
15
371
372
CARL-FRIEDRICH STUCKENBERG
about the core of the concept.23 Instead, it would have been necessary
to show that none of the many alternatives of this class of oenses
fullls the criteria of customary law. Concerning violations of the
laws and customs of war, one might wonder why they are classied as
protocol norms without even discussing the customary law status of
those customs. Finally, it is not clear to me how this hierarchy could
be applied to the Rome Statute (pp. 220221), notably because all
oenses contained therein at least are treaty law on an equal footing
and because article 78(3) of the Rome Statute explicitly, if rudimentarily, provides for re-characterisation and thus presupposes
that no such hierarchy exists among the Statutes oenses.
These questions and remarks cannot hide the fact that I am
whole-heartedly sympathetic to the authors project to mold international criminal law rules into a system (p. 178). One need not
always agree with every detail of the authors analyses and proposals to acknowledge that the book makes out a powerful case for
systematical organization and coherence. The author touches on
one of the sorest points of contemporary international criminal
justice and demonstrates excellent judgment by the choice of subsidiarity as principal remedy. When two oenses do not stand in the
logical relationship of inclusion (lex generalislex specialis stricto
sensu) so that only one is applicable for logical reasons, the
occurrence of concursus delictorum in situations of norm interference could be largely reduced if a hierarchical scheme of norm
application were accepted, unless it is felt that multiple convictions
are needed to adequately describe what the accused did. This requires courageous re-interpretation of international crimes in light
of their history, and here, the author has led the way. Although I
am skeptical that his solution is the nal word on the vexed issue of
concursus delictorum in international criminal law, his innovative
proposals doubtlessly enliven and enrich the discussion and supply a
much-needed broader perspective.
23