Abstract
Collective agency is resurfacing within International Criminal Law (ICL) discourse; its genealogical traces can be found in socio-legal contexts like in systemic theories of liability, victimization-centered approaches and criminal policy models transforming traditional criminal law provisions into “combat norms”. At the intersection between moral theories and law discourse, one can also trace as similar traits the discussions on the relations between corporations’ and purely collective patterns of imputation, whereby selflessness is the main normative characteristic of the wrongdoer. At the level of criminal law, theorizing collective guilt can be made thematic through the methodological turn towards collectivism, the promotion of an aggregate knowledge model as appropriate liability form and the normative orientation towards the criterion of concerted action as individually imputable collective wrong. The qualified forms of co-perpetration within ICL discourse (like the “Joint Criminal Enterprise”, the “Organized Structures of Power” or the “Joint Control of Crime”) are then considered as slippery and ethnocentric hermeneutic tools for translating collective imputation into legal linguistics. Thereby recent developments in the jurisdiction of the International Criminal Court as well as in this of the newer internationalized courts are accordingly analyzed.
Highlights
Collective agency is gaining ground since the end of last century in the framework of criminal law discourse
Before coming to terms with the spirit of the developments inherent in the International Criminal Law (ICL) doctrine, taken as an autonomous epistemic field itself, I first refer back to the wider and more fundamental discursive environment; out of this can emerge the contours of a type of genealogy of an ICL-related collective agency
1) Systemic theories of liability: especially concerning criminal law, discussions turn from classical personal culpability towards failures or wrongs in accomplishing social “roles”
Summary
Collective agency is resurfacing within International Criminal Law (ICL) discourse; its genealogical traces can be found in socio-legal contexts like in systemic theories of liability, victimization-centered approaches and criminal policy models transforming traditional criminal law provisions into “combat norms”. At the intersection between moral theories and law discourse, one can trace as similar traits the discussions on the relations between corporations’ and purely collective patterns of imputation, whereby selflessness is the main normative characteristic of the wrongdoer. At the level of criminal law, theorizing collective guilt can be made thematic through the methodological turn towards collectivism, the promotion of an aggregate knowledge model as appropriate liability form and the normative orientation towards the criterion of concerted action as individually imputable collective wrong.
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