Causal Responsibility in International Criminal Law

Abstract

This article clarifies the factual basis for attributing causal responsibility in interpersonal causation scenarios in international criminal law. Such content is obliterated when explaining causal contributions in overdetermined and indeterministic harm scenarios. The resulting gap between individual agency and causal attribution is explained away by reference to values underlying legal liability (‘causal minimalism’). Probabilistic causal models can express causal influences in interpersonal causation scenarios, and explicate the objective basis of causal attribution. International Criminal Courts’ approaches to indirect and joint perpetration, as well as the notion of causal contribution in joint criminal enterprise are discussed in light of the existing approaches to testing causation in law, as well as with regard to Judea Pearl’s notion of causal sustenance. The article concludes that expressing causal contributions in language of probabilities can explain causal intuitions underlying legal liability better than supplanting factual basis of attributing responsibility with normative and policy justifications.