Abstract
One of the greatest challenges in International Criminal Law (ICL) is to make the conceptual link between individuals and the collective actions which lead to crimes of mass atrocity. The question arises how to hold an individual criminally liable for collective actions, and whether to distinguish between multiple participants according to their role within the collective.
This paper aims firstly to clarify a theory of individual agency for collective actions, and secondly to answer the question whether there are different types of individual agency which would lead to a normative distinction between participants. Modes of liability are one area of ICL that has been left to the judges to determine, and international tribunals have drawn from domestic criminal law traditions to answer this question. However, typically jurisdictions with a common law tradition draw no distinction between participants in a collective crime, predicated on a subjective approach to culpability. On the other hand, jurisdictions with a civil law tradition typically allot a higher degree of culpability to those who contribute in some essential way to the realization of the crime, and a lower degree of culpability to the ‘mere accessory’. This is predicated on an objective approach. In ICL, tribunals have answered this question in both ways, leading to a ‘clash of legal cultures’ and a great deal of uncertainty.
In the end it will be argued that an objective approach, and a differentiation between participants in mass atrocity crimes is more appropriate in the specific context of ICL, but not because of the influence of one domestic legal tradition over another, but rather because ICL has a sui generis nature both in terms of the facts it deals with and in terms of its own developing doctrine.
This paper aims firstly to clarify a theory of individual agency for collective actions, and secondly to answer the question whether there are different types of individual agency which would lead to a normative distinction between participants. Modes of liability are one area of ICL that has been left to the judges to determine, and international tribunals have drawn from domestic criminal law traditions to answer this question. However, typically jurisdictions with a common law tradition draw no distinction between participants in a collective crime, predicated on a subjective approach to culpability. On the other hand, jurisdictions with a civil law tradition typically allot a higher degree of culpability to those who contribute in some essential way to the realization of the crime, and a lower degree of culpability to the ‘mere accessory’. This is predicated on an objective approach. In ICL, tribunals have answered this question in both ways, leading to a ‘clash of legal cultures’ and a great deal of uncertainty.
In the end it will be argued that an objective approach, and a differentiation between participants in mass atrocity crimes is more appropriate in the specific context of ICL, but not because of the influence of one domestic legal tradition over another, but rather because ICL has a sui generis nature both in terms of the facts it deals with and in terms of its own developing doctrine.
| Original language | English |
|---|---|
| Title of host publication | Dialectiek van Nationaal en Internationaal Strafrecht |
| Editors | Denis Abels, Menno M. Dolman, Koen C. J. Vriend |
| Place of Publication | Den Haag |
| Publisher | Boom Juridische uitgevers |
| Chapter | 5 |
| Pages | 155-186 |
| ISBN (Print) | 9789089748355 |
| Publication status | Published - 2013 |