Responsibility for Collective Atrocities: Fair Labeling and Approaches to Commission in International Criminal Law

Abstract

A major theoretical challenge for international criminal law is how to account for and adequately label the responsibility of the highest ranking leaders, often far removed from actual killings carried out through an organization or movement. This challenge is also coupled with a problem of labeling. We commonly distinguish between the person who directly committed a crime (the perpetrator/principal) and a person who assisted in the commission of the crime less directly (an accessory). On this approach leaders may seem ‘mere’ accessories. Nonetheless, given the perceived truth-telling function of international criminal trials, judges seemingly feel compelled to label leaders as direct perpetrators who have committed the crime itself and not as accessories who have ordered or incited or failed to prevent it. This requires an expanded concept of commission, a project that immediately raises questions of theory, black letter scholarship and fairness. Once we uncouple commission from the direct physical perpetrator, where do the boundaries of commission fall? A too diffuse theory of commission may inappropriately stigmatize ‘small fish’, labeling them as being equally as culpable as high-ranking leaders. This article critically reviews the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) on commission in collective responsibility cases. The conclusion reached is that the preferable view is that leaders are accessories who can nonetheless be more culpable than principals, because they are aggregators of responsibility. What we need are not new tools, but different ways of understanding existing concepts.

Keywords: international criminal law, commission, responsibility