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    Ainley, Kirsten 2015. Evaluating Transitional Justice.


    Hayden, Patrick 2014. Systemic evil and the international political imagination. International Politics, Vol. 51, Issue. S4, p. 424.


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Excesses of Responsibility: The Limits of Law and the Possibilities of Politics

Abstract

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant ‘excesses’ of responsibility for war crimes unaccounted for. When courts do attempt to recognize the collective nature of war crime perpetration, through the doctrines of ‘command responsibility’, ‘joint criminal enterprise’ and ‘state responsibility’, the application of these doctrines has, it is argued, limited or perverse effects. The article suggests that instead of expecting courts to allocate excesses of responsibility, other accountability mechanisms should be used alongside trials to allocate political (rather than legal) responsibility for atrocity. The mechanisms favored here are ‘Responsibility and Truth Commissions’, i.e. well-resourced non-judicial commissions which are mandated to hold to account individual and collective actors rather than simply to provide an account of past violence.

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Tricia D. Olsen , Leigh A. Payne , and Andrew. G. Reiter show that international and domestic trials concerning serious human rights violations have “made a strong and steady increase from the handful of cases in the early 1970s” (Transitional Justice in Balance[Washington, D.C.: United States Institute of Peace Press, 2010], p. 99)

Kirsten Ainley , “Individual Agency and Responsibility for Atrocity,” in Renee Jeffery , ed., Confronting Evil in International Relations (Basingstoke, U.K.: Palgrave Macmillan, 2008), pp. 3760

Hunjoon Kim and Kathryn Sikkink , “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries,” International Studies Quarterly 54 (2010), p. 949

William Laufer , Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability (Chicago: University of Chicago Press, 2006)

Mark Pieth and Radha Ivory , eds., Corporate Criminal Liability: Emergence, Convergence, and Risk (New York: Springer, 2011)

Virginia Held , “Group Responsibility for Ethnic Conflict,” Journal of Ethics 6 (2002), pp. 157–78

Antonio Cassese , “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise,” Journal of International Criminal Justice 5 (2007), pp. 109–33

Wayne Jordash and Penelope Van Tuyl , “Failure to Carry the Burden of Proof,” Journal of International Criminal Justice 8 (2010), pp. 591613

Jens David Ohlin , “Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise,” Journal of International Criminal Justice 5 (2007), pp. 6990

Mark Gibney , “Genocide and State Responsibility,” Human Rights Law Review 7 (2007), pp. 760–73

Jelena Subotic , “Expanding the Scope of Post-Conflict Justice,” Journal of Peace Research 48 (2011), p. 162

Eric Posner , The Perils of Global Legalism (Chicago: University of Chicago Press, 2009)

Margaret L. Popkin and Naomi Roht-Arriaza , “Truth as Justice: Investigatory Commissions in Latin America,” Law & Social Inquiry 20, no. 1 (1995), p. 80

Diane F. Orentlicher , “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100 (1991), pp. 2537–48

Tricia D. Olsen , Leigh A. Payne , and Andrew G. Reiter , “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy,” Human Rights Quarterly 32 (2010), pp. 9801007

M. A. L. Oshana , “Moral Taint,” Metaphilosophy 37 (2006), p. 370

Alison Bisset , “Rethinking the Powers of Truth Commissions in Light of the ICC Statute,” Journal of International Criminal Justice 7 (2009), pp. 963–82

Declan Roche , “Truth Commission Amnesties and the International Criminal Court,” British Journal of Criminology 45 (2005), pp. 565–81

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Ethics & International Affairs
  • ISSN: 0892-6794
  • EISSN: 1747-7093
  • URL: /core/journals/ethics-and-international-affairs
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