Fabricated Legality

Abstract

In the wake of the increased regulation of armed conflicts, legal interpretation by government lawyers has become crucial in shaping state policies, particularly during times of war. This article explores the scenarios where state policies that have been positively sanctioned by legal professionals potentially amount to international crimes, raising questions of accountability. By examining historical and contemporary instances, the article explores if and to what extent government legal advisers may be considered accomplices in such crimes. It suggests that their responsibility could be framed within the mode of liability of aiding and abetting, as outlined in Article 25(3)(c) of the Rome Statute. Additionally, the article addresses alternative modes of liability specified under Article 25(3)(a) and 25(3)(d). It finally expands to the further consequences of legal advice on the liability of the principal perpetrator, questioning whether the latter may invoke a defence of mistake of law or a breach of the principle of legality. In an attempt to embrace the revolutionary potential of international criminal law, this article aims to make legal interpretation itself the object of scrutiny, through the lenses of international criminal responsibility.