Law on a Slanted Globe
| Author | Christiane Wilke |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | http://doi.org/10.1177/0964663914565847 |
| Subject Matter | Articles |
Article
Law on a Slanted Globe:
Traveling Models of
Criminal Responsibility
for State Violence
Christiane Wilke
Carleton University, Canada
Abstract
How do legal norms travel, spread, and change along the way? This article investigates
the travels of one model of criminal responsibility for state violence as part of the global
project of transitional justice. Claus Roxin’s model was first published in West Germany
1963 in order to address impunity for Nazi crimes, was not applied in its intended
context, made its judicial debut in Argentina in 1985, had a comeback in Germany in
1994, traveled throughout Latin America, and was taken up at the International Criminal
Court. This case study leads to three conclusions about the travel of legal concepts. First,
the appeal of theoretical concepts has much to do with the context in which they are
used. Second, traveling keeps concepts alive and changes them. Third, transitional justice
and responsibility practices have become global and transnationalized in ways that
highlight broader global inequalities and transnational hierarchies.
Keywords
Transitional Justice, Responsibility, Criminal Trials, Claus Roxin, Germany, Argentina,
International Criminal Court
You can travel with some baggage, but, given the restrictions on what you can carry, the
baggage will change along the way.
You can keep traveling, or return home, whenever you feel the need. But, as travellers
know, after this trip you will never be the same again. Nor will ‘home’.
(Bal, 2002: 323)
Corresponding author:
Christiane Wilke, Carleton University, C473 Loeb, 1125 Colonel By Drive, Ottawa, ON K1S5B6, Canada.
Email: christiane.wilke@carleton.ca
Social & Legal Studies
2015, Vol. 24(4) 555–576
ªThe Author(s) 2015
Reprints and permission:
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DOI: 10.1177/0964663914565847
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Introduction
How do legal norms travel, spread, and change along the way? How do stories of the
norms’ origins affect their authority? Who gets credit for developing norms? Which
work do well-traveled concepts do in courts around the world? This article examines the
travels of legal norms and concepts by tracing the paths of one particular concept, that is,
criminal responsibility for violence in an organized system of power, first articulated by
Roxin (1963). Since the trials for war crimes, genocide, and crimes against humanity at
the International Criminal Tribunals in Tokyo and Nuremberg, courts in a variety of
legal systems have grappled with the task of ascribing responsibility for state violence.
They have resorted to different models of criminal responsibility for organized violence,
most prominently Joint Criminal Enterprise, command responsibility, and indirect per-
petration through an organized apparatus of power (Danner and Martinez, 2005; Osiel,
2009). In recent years, the International Criminal Court (ICC) has increasingly relied on
the concept of indirect perpetration that is traced back to writings by Claus Roxin, a
German scholar of criminal law (ICC, 2007, 2008, 2009, 2012a, 2012b). This concept
was first published in West Germany in 1963 but not applied by German courts at the
time; it made its judicial debut in Argentina in 1985, had a sudden resurgence in Ger-
many in the 1990s, experienced wider resonance in Latin America starting in 2005,
1
and
made its way to the ICC in 2007. The ICC’s conceptualization of individual responsibil-
ity for organized violence through the lens of indirect perpetration differs significantly
from the ways in which the International Criminal Tribunals for Rwanda (ICTR) and the
former Yugoslavia (ICTY) had ascribed criminal responsibility since the 1990s, as a
form of Joint Criminal Enterprise (JCE) (see Ohlin, 2012; Osiel, 2009; Manacorda and
Meloni, 2011: 161). While much of the literature on this subject compares these two
approaches (Ohlin, 2012; Manacorda and Meloni, 2011), some scholars offer an account
of the history of these different models before the ICC and the ICTR/ICTY (see Osiel,
2009). These histories are strikingly linear; they pass over the roadblocks and detours in
the travels of Roxin’s concept (Ohlin, 2012: 777; Osiel, 2009: 93–117). Yet we stand to
learn much more about the travels of legal norms on this uneven global landscape if we
appreciate these nonlinear travels, periods of silence, and rejections that are part of this
history. The question here is not whether the ICC made a good choice in selecting a
specific theory for attributing responsibility; rather, I am interested in tracing how this
theory or concept was taken up in different contexts and the effects it had. This article
follows Roxin’s concept through the three main contexts in which it has been applied –
Argentina, Germany, and the ICC – referencing but not closely analyzing the Peruvian
cases that others have analyzed separately (Ambos, 2011; Mun
˜oz Conde and Ola´solo,
2011: 127–129).
The travel of Roxin’s concept yields three conclusions about the mobility of legal
concepts. First, the appeal of legal concepts depends significantly on interpretations of
their histories and the original contexts in which they were developed. Judicial and polit-
ical actors adopt concepts that resonate with their institutional goals, values, and con-
cerns and that allow them to fashion stories and judgments they deem appropriate.
When the concept does not fit the actors’ needs, assessments, and beliefs, they are more
likely to cite its ‘foreign’ origins as a justification for rejecting it (see Merry, 2006). In
556 Social & Legal Studies 24(4)
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