New York University Public Law and Legal Theory Working Papers

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An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, none of the soldiers is responsible for the death — none made, either directly or through others, an essential contribution to its occurrence. In many respects, this dilemma is the leitmotif for individual responsibility in a globalized world, where criminal harm is so frequently occasioned by collectives. In order to assess the various solutions offered for the overdetermination problem in criminal theory, this paper uses examples from international criminal justice as illustrations, namely, the responsibility of Allied Pilots for the firebombing of Dresden, corporations in Apartheid South Africa, the notorious arms vendor Viktor Bout and Thomas Lubanga, the first indictee before the International Criminal Court. By exploring these examples, the paper reconsiders arguments for and against requiring causation in criminal responsibility, competing theoretical accounts of causation and the various unsatisfactory explanations for overdetermination presently on offer. It concludes that overdetermination is a central moral problem of our time, and points to a range of significant consequences for the theory and practice of international criminal law.

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causation, causal, overdetermination, international criminal justice, international criminal law, atrocity