A New Concept of Perpetrator Responsibility for International Crimes

International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to adequately capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, tribunals have struggled to understand 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. While the ad hoc tribunals have developed doctrines such as joint criminal enterprise, and extended forms of commission (in cases such as Seromba) to classify high-level accused as perpetrators, the theoretical foundations of these doctrines remain contested. The ICC, in contrast, has interpreted commission responsibility under Article 25(3)(a) in light of accepted modes of participation in German criminal law, in particular the concepts of co-perpetration and Organisationsherrschaft (organizational hegemony). However, with the recent Concurring Opinion of Judge Wyngaert in Ngudjolo, the status of indirect and co-perpetration at the ICC has been called into question. Having never been on a firm footing to begin with, a meaningful account of perpetration responsibility for international crimes seems more precarious than ever.

In my article, Individual Responsibility for Mass Atrocity: In Search of a Concept of Perpetration, I take up the challenge of constructing a theory of perpetration that reflects the concerns at the core of responsibility doctrines in highly theorized domestic criminal law systems, and which is simultaneously attuned to the unique features of international crimes. I do so by first identifying elements that distinguish international crimes from their domestic counterparts. I then examine doctrines of principal responsibility in English criminal law, German criminal law, and the jurisprudence of the ICC, to assess whether one can build a case for a more capacious concept of principalship for international crimes by drawing on these doctrines.

I choose to focus on English and German criminal law for several reasons. First, in the field of domestic criminal laws, these legal systems constitute two of the most sophisticated and influential systems representing the common law and civil law worlds respectively. Second, existing modes of responsibility in international criminal law have borrowed heavily from these systems in their jurisprudence. Third, my task is not to advocate the wholesale adoption of any doctrine in any particular legal system, but rather to restructure and combine divergent theoretical perspectives on perpetration responsibility in order to develop a suitable account of the criminal responsibility of senior and mid-level participants in mass atrocity. The attempt, therefore, is to engage fully with domestic criminal law principles while simultaneously capturing the unique features of international crimes.