Individual Responsibility for Mass Atrocity: In Search of a Concept of Perpetration

45 Pages Posted: 23 Aug 2013

See all articles by Neha Jain

Neha Jain

University of Minnesota - Twin Cities - School of Law

Date Written: August 22, 2013

Abstract

International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. In this paper, I draw on the insights of comparative law and methodology to propose a new doctrine of perpetration that reflects the role and function of high level participants in mass atrocity while simultaneously situating them within the political and social climate which renders these crimes possible. This new doctrine is developed through a novel approach which combines and restructures divergent theoretical perspectives on attribution of responsibility in the English and German domestic criminal law systems as major representatives of the common law and civil law systems. At the same time, it harnesses social science literature to identify and capture, in doctrinal terms, the unique circumstances in which mass atrocity occurs.

Keywords: international criminal law, co-perpetration, indirect perpetration, responsibility, commission, JCE, ICC, Organisationsherrschaft

Suggested Citation

Jain, Neha, Individual Responsibility for Mass Atrocity: In Search of a Concept of Perpetration (August 22, 2013). American Journal of Comparative Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2314330

Neha Jain (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

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