The Attribution of Responsibility and Modes of Liability in International Criminal Law

Abstract

In 2012, James Stewart published an article in the Leiden Journal of International Law. The piece – ‘The End of “Modes of Liability” for International Crimes’ – argued for the abolition of accomplice liability in international criminal law and the adoption of a unitary model of principal-ship. This article argues that Stewart’s argument is flawed. As a matter of moral responsibility, the distinction between principals and accomplices follows from the recognition of individuals as moral agents. Turning to ordinary criminal responsibility, neither practical benefits nor expressive benefits nor the mitigating effects of the distinctive institution of criminal sentencing justify the abolition of the distinction between principals and accomplices. Moreover, despite the collective nature of many international crimes, international criminal law ought to strive to accurately differentiate, in the attribution of responsibility, among participants. Only a differentiated model of participation can accurately and defensibly capture the different ways that individuals contribute to wrongdoing.

Keywords: Modes of Liability, Complicity, Aiding and Abetting

JEL Classification: K33