Causation in International Crimes Cases: (Re)Concenptualizing the Causal Linkage

Abstract

This article evaluates and (re)conceptualizes the notion of causation in international criminal law by using insights from legal theory and domestic criminal law. The article draws a distinction between empirical and normative causality and shows that in international case law emphasis has thus far been on empirical causality, whilst the meaning normative causality remains rather undefined and elusive. This is unfortunate, since normative causality is particularly important in international crimes cases, where the empirical linkage with the crimes is often remote and therefore uncertain. In an attempt to outline was normative causality means in relation to international crimes, the article draws upon legal theory and domestic criminal law to identify several factors that can be used to establish normative causation, in particular taking into account the specific nature of international crimes (as system criminality that is committed by groups), and the remote involvement of accused in such crimes.