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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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1 The term “war crimes,” which I use interchangeably with “atrocity” in the text, is commonly used to describe the four categories of crime prosecuted by the ICC: genocide, crimes against humanity, war crimes, and aggression. In fact, war crimes as defined in the Rome Statute are more limited and specific as offenses than the other crimes listed, and are consequently somewhat less problematic when it comes to ascribing individual responsibility for their perpetration, and the argument thus applies more fully to genocide, crimes against humanity, and aggression.

2 See www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf and www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf. Olsen Tricia D., Payne Leigh A., and Reiter Andrew. G. 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).

3 France et al. v. Goering et al. (1946), 22 IMT 203, p. 466.

4 Kofi Annan, “Statement of Secretary-General Kofi Annan to the International Bar Association in New York,” June 11, 1997.

5 Kofi Annan, “Address to the Preparatory Commission for the ICC in New York,” April 19, 2002; www.unis.unvienna.org/unis/pressrels/2002/l3003.html.

6 Vinjamuri Leslie, “Deterrence, Democracy, and the Pursuit of International Justice,” Ethics & International Affairs 24, no. 2 (2010), p. 198.

7 See, e.g., Traynor Ian, “Radovan Karadzic Delivers ‘Dissident’ View of Bosnian War,” Guardian, March 1, 2010; www.guardian.co.uk/world/2010/mar/01/radovan-karadzic-dissident-bosnian-war; “Radovan Karadzic,” New York Times, March 1, 2010; www.nytimes.com/info/radovan-karadzic/?scp=1-spot&sq=karadzic&st=cse; and David Charter, “Radovan Karadzic Defends ‘Just and Holy’ War against Muslims,” Times of London, March 2, 2010; www.timesonline.co.uk/tol/news/world/europe/article7045059.ece.

8 I alternate “responsibility” and “accountability” to avoid excessive repetition. There are fine distinctions between the terms, but I use both here to indicate the processes by which those agents involved in particular outcomes are identified and made to answer for their contributory actions or inactions.

9 For more detailed discussion of the individualization and legalization of responsibility, see Ainley Kirsten, “Individual Agency and Responsibility for Atrocity,” in Jeffery Renee, ed., Confronting Evil in International Relations (Basingstoke, U.K.: Palgrave Macmillan, 2008), pp. 3760; Bass Gary J., Stay the Hand of Vengeance (Princeton, N.J.: Princeton University Press, 2000); Drumbl Mark, “Pluralizing International Criminal Justice,” Michigan Law Review 103 (2005), p. 128; George Fletcher, “The Storrs Lectures: Liberals and Romantics at War,” Yale Law Journal 111, pp. 1538–39; Shklar Judith, Legalism (Cambridge, Mass.: Harvard University Press, 1964); and Simpson Gerry, Law, War & Crime (Cambridge: Polity Press, 2007).

10 Address of Antonio Cassese, President of the ICTY, to the UN General Assembly, November 14, 1994.

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

12 Human Rights Watch, “Selling Justice Short,” July 7, 2009, makes a strong case for the benefits of postconflict justice mechanisms.

13 Prosecutor v. Dusko Tadic, ICTY (Appeals Chamber), judgment of July 15, 1999, para. 191. Domestic criminal jurisdictions, of course, also confront the complications of collective responsibility. Cases concerning corporate criminal liability are common in many domestic systems, and there has been a marked increase in corporate crime law (for instance, the 2007 U.K. Corporate Manslaughter and Corporate Homicide Act). Inspiration for the doctrine of JCE can be found not just in the criminal organizations charge at Nuremberg but also in the 1970 Racketeer Influenced and Corrupt Organizations Act in the United States, which was designed to assist in prosecutions of members of the mafia and others involved in organized crime. There is a rich literature on corporate criminal liability in domestic systems; see, e.g., Laufer William, Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability (Chicago: University of Chicago Press, 2006); Gobert James and Pascal Ana-Maria, eds., European Developments in Corporate Criminal Liability (Abingdon, U.K.: Routledge, 2011); and Pieth Mark and Ivory Radha, eds., Corporate Criminal Liability: Emergence, Convergence, and Risk (New York: Springer, 2011).

14 Drumbl Mark, Atrocity, Punishment and International Law (Cambridge: Cambridge University Press, 2007), p. 172. There is considerable debate within the literature on conflict and atrocity as to whether violence in general—and atrocity in particular—can be explained at a purely individual (and, implicitly, rational) level. My argument here is that responsibility for this violence is collective, in part because of the mass nature of atrocity crimes. These crimes involve a large number of actors who play different roles in the larger group or system that inspires, encourages, and coordinates crimes. State structures are particularly important in facilitating atrocity to be committed at sufficient scale to qualify as a crime against humanity. See Held Virginia, “Group Responsibility for Ethnic Conflict,” Journal of Ethics 6 (2002), pp. 157–78; Keen David J., Complex Emergencies (Cambridge: Polity Press, 2008); and Lang Anthony F., “Crime and Punishment: Holding States Accountable,” Ethics & International Affairs 21, no. 2 (2007), pp. 239–57.

15 Eisikovits Nir, “Transitional Justice,” Stanford Encyclopaedia of Philosophy (2009); plato.stanford.edu/entries/justice-transitional/.

16 Darcy Shane, “Imputed Criminal Liability and the Goals of International Justice,” Leiden Journal of International Law 20 (2007), p. 380.

17 Noted in Parks William H., “Command Responsibility for War Crimes,” Military Law Review 62 (1973), pp. 130–38.

18 Trial of General Tomoyuki Yamashita, US Military Commission, 1945, Case No. 21, IV Law Reports of Trials of War Criminals, pp. 3–4.

19 Moloto Bakone Justice, “Command Responsibility in International Criminal Tribunals,” Berkeley Journal of International Law Publicist 3, no. 1 (2009), pp. 1225.

20 Ibid. See also Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgment, July 29, 2004, para. 217, and Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, March 24, 2000.

21 Darcy, “Imputed Criminal Liability”; and John Laughland, “Conspiracy, Joint Criminal Enterprise, and Command Responsibility in International Criminal Law” (Lecture to the International Law Defence Conference, The Hague, November 14, 2009); www.heritagetpirdefense.org/papers/John_laughland_Conspiracy_joint_criminal_enterprise_and_command_responsibility.pdf.

22 Eisikovits, “Transitional Justice,” p. 13.

23 Osiel Mark, Making Sense of Mass Atrocity (Cambridge: Cambridge University Press, 2009), p. 48. Osiel argues for a significant extension of the doctrine of command, or superior, responsibility to encompass the control that superiors can exert through their position in organizations and informal networks as well as in formal chains of command (Osiel, Making Sense of Mass Atrocity, chap. 6).

24 Darcy, “Imputed Criminal Liability,” p. 399.

25 Prosecutor v. Dusko Tadic, para. 204.

26 Ibid., para. 190. See Cassese Antonio, “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise,” Journal of International Criminal Justice 5 (2007), pp. 109–33, for a rebuttal of the charge of judicial creativity in the Tadić appeal.

27 Laughland John, Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice (London: Pluto Press, 2006), chap. 6.

28 Definitions paraphrased from Prosecutor v. Dusko Tadic, para. 220.

29 Schabas William, “Mens Rea and the ICTY,” New England School of Law Journal 37 (2002–03), p. 1032.

30 Definitions paraphrased from Prosecutor v. Dusko Tadic, para. 227. See also Laughland, “Conspiracy,” fn. 17.

31 Karadžić case, 3rd Amended Indictment, February 27, 2009; www.icty.org/x/cases/karadzic/ind/en/090227.pdf. In addition to these charges, the OTP is also seeking to prove Karadžić's criminal liability for planning, instigating, ordering, and/or aiding and abetting the crimes charged and to establish his command responsibility for the same crimes.

32 On Serbian views of the ICTY, see Sullivan Kevin and Finn Peter, “Karadžić Case Offers Court a Chance to Repair Its Image,” Washington Post, July 24, 2008; www.washingtonpost.com/wp-dyn/content/article/2008/07/23/AR2008072300557.html.

33 Opinion of Justice Shireen Avis Fisher, Judgment, Sesay, Kallon and Gbao (SCSL-04-15-1-1321), Appeals Chamber, October 26, 2009. See also Jordash Wayne and Tuyl Penelope Van, “Failure to Carry the Burden of Proof,” Journal of International Criminal Justice 8 (2010), pp. 591613; and Easterday Jennifer, “Obscuring Joint Criminal Enterprise Liability: The Conviction of Augustine Gbao by the Special Court of Sierra Leone,” Berkeley Journal of International Law Publicist 3 (2009), pp. 3646. In a rebuke to the ICTY, the ECCC has held that JCE III did not exist in customary international law in 1975 to 1979, so cannot be used to establish liability in the Khmer Rouge genocide trials.

34 Co-perpetration is based on the idea that co-perpetrators share control over a crime, and requires both that each co-perpetrator played an essential part in the common plan (such that each had the power to “frustrate the commission of the crime by not performing their tasks”), and that each were aware that they had such control. Much will turn on the definitions of “essential,” “control,” and “awareness,” but at least some form of mens rea and actus reus requirements appear in the doctrine. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, paras. 347, 332, 344 ii, and 345. See Ohlin Jens David, “Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise,” Journal of International Criminal Justice 5 (2007), pp. 6990, for a critique of co-perpetration.

35 UN General Assembly Resolution 56/83 (December 12, 2001).

36 Vienna Convention on the Law of Treaties, 1969, art. 53, United Nations Treaty Series, vol. 1155, p. 331.

37 Simpson, Law, War & Crime, chap. 3, documents the ongoing tensions between state, collective, and individual responsibility in international law.

38 “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)”; www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f4&case=91&code=bhy&p3=4.

39 The ICJ rejected the ICTY's standard of “overall control” (used in the Tadic Appeal Decision) to characterize the relationship between Belgrade and the Bosnian Serb armed forces and militias, in favor of its own, more stringent, standard of “effective control” derived in its 1986 Nicaragua decision. See Groome Dermot, “Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?Fordham International Law Journal 31 (2008), pp. 911–89; and Gibney Mark, “Genocide and State Responsibility,” Human Rights Law Review 7 (2007), pp. 760–73, for detailed analyses of the case.

40 Ruth Wedgwood, “Bad Day for International Justice,” New York Times, March 8, 2007; www.nytimes.com/2007/03/08/opinion/08iht-edwedge.4844290.html?_r=1.

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

42 The ICJ advisory opinion on Kosovo's Declaration of Independence, delivered in July 2010, illustrated well the court's reluctance to venture into difficult areas. It ruled that the declaration was not a violation of international law, but gave no indication as to whether Kosovo is now to be regarded as a state, or whether other states are in breach of international law by recognizing Kosovo's independence.

43 Simpson, Law, War & Crime, p. 66.

44 Posner Eric, The Perils of Global Legalism (Chicago: University of Chicago Press, 2009), describes this kind of excess as “legalism” (the “view that law and institutions can keep order and solve policy disputes,” p. 21) or, at the international level, “global legalism” (“an excessive faith in the efficacy of international law,” p. xii).

45 Kim & Sikkink, “Explaining the Deterrence Effect,” p. 951.

46 Drumbl, Atrocity, Punishment and International Law, chap. 6, examines the retributive, deterrent, and expressive functions of international trials, but concludes that such trials fail to fulfill any of these functions adequately.

47 Drumbl, “Pluralizing International Criminal Justice,” p. 128.

48 Osiel, Making Sense of Mass Atrocity, is more optimistic about the possibilities of reforming international criminal law to better deal with collective responsibility; see footnote 23.

49 Jaspers Karl, The Question of German Guilt (New York: Fordham University Press, 2000 [1947]), pp. 2526.

50 Iris Marion Young, “Guilt versus Responsibility: A Reading and Partial Critique of Hannah Arendt” (paper prepared for the American Political Science Association, Washington, D.C., September 2005); research.allacademic.com/meta/p_mla_apa_research_citation/0/3/9/9/9/p39990_index.html. It is worth noting that while actors external to the state, such as the UN, foreign states, multinational corporations operating in a state but headquartered elsewhere, and so on, do not have an obvious place in Jaspers's schema, they could be captured under Young's second category.

51 Gerry Simpson, “War Crimes Trials, Solemnity and the Problem of Evil” (unpublished paper, 2010).

52 See ictj.org/our-work/transitional-justice-issues/truth-and-memory.

53 Popkin and Roht-Arriaza found that early truth commissions have four main goals: “to creat[e] an authoritative record of what happened; provid[e] a platform for the victims to tell their stories and obtain some form of redress; recommend . . . legislative, structural or other changes to avoid repetition of past abuses; and establish . . . who was responsible and provid[e] a measure of accountability for the perpetrators.” Popkin Margaret L. and Roht-Arriaza Naomi, “Truth as Justice: Investigatory Commissions in Latin America,” Law & Social Inquiry 20, no. 1 (1995), p. 80.

54 No Peace without Justice, “Closing the Gap: The Role of Non-Judicial Mechanisms in Addressing Impunity,” 2010, chap. V.

56 Chilcot Terms of Reference, www.iraqinquiry.org.uk/about.aspx.

57 Aukerman Miriam J., “Extraordinary Evil, Ordinary Crime,” Harvard Human Rights Journal 15 (2002), p. 40. See also Orentlicher Diane F., “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100 (1991), pp. 2537–48.

58 Olsen, Payne, and Reiter, Transitional Justice in Balance; Olsen Tricia D., Payne Leigh A., and Reiter Andrew G., “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy,” Human Rights Quarterly 32 (2010), pp. 9801007; and Hayner Priscilla B., Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2011), pp. 285–86. International inquiries or international independent investigations may also be appropriate if the state involved is unwilling to establish robust domestic mechanisms, or in order to assess the accountability of external actors. Domestic mechanisms are the focus here because political responsibility is best established using more local political processes.

59 Linfield Susie, “Trading Truth for Justice?: Reflections on South Africa's Truth and Reconciliation Commission,” Boston Review (Summer 2000).

60 Young, “Guilt versus Responsibility,” p. 16.

61 Osiel, Making Sense of Mass Atrocity, chap. 10, sets out an innovative proposal to impose collective financial sanctions on the officer corps of militaries, to incentivize militaries that are in a position to prevent atrocity to do so in the future.

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

63 Hayner, Unspeakable Truths, pp. 31, 193; Popkin and Roht-Arriaza, “Truth as Justice,” p. 114.

64 Brody Reed, “Justice: The First Casualty of Truth?Nation, April 30, 2001.

65 Bisset Alison, “Rethinking the Powers of Truth Commissions in Light of the ICC Statute,” Journal of International Criminal Justice 7 (2009), pp. 963–82; Roche Declan, “Truth Commission Amnesties and the International Criminal Court,” British Journal of Criminology 45 (2005), pp. 565–81; and Totten Christopher D., “The International Criminal Court and Truth Commissions,” Northwestern Journal of Human Rights 7 (2009), pp. 133.

* I am grateful to Joe Hoover, David Karp, Paul Kirby, George Lawson, and the editors and reviewers of Ethics & International Affairs for their generous and constructive feedback on earlier versions of this article.

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