Those Most Responsible: A Plea for Distinguishing Between Participants in Mass Atrocity Crimes
Martes 27 de Noviembre, 17.10h.
Crimes of mass atrocity are by definition collective crimes, and the determination of individual guilt before international tribunals, or modes of liability, is one area of international criminal law (ICL) that has been left to the judges to determine. International tribunals have drawn from domestic criminal law traditions to answer this question. Typically common law jurisdictions make no distinction between participants in a collective crime, whereas 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. In ICL, tribunals have answered this question in both ways, leading to a legal “clash of legal cultures” and a great deal of uncertainty.This paper asserts that the specific systemic nature of international crimes of mass atrocity requires us to draw a normative distinction between those higher up in the policy-making echelons, and those who acted as part of the machinery, lower down in a formal or informal hierarchy. Such a distinction should not be based on the influence of one domestic legal tradition over another, but rather on the fact that ICL has a sui generis nature both in terms of the facts it deals with and in terms of its own developing doctrine. For reasons both moral and pragmatic, the focus in ICL needs to be upon “those most responsible” for international crimes, following the policy of the International Criminal Court. It will be asserted that in cases of systemic crimes of mass atrocity, those most responsible are the leaders, the intellectual authors. In order to answer why this is so, three perspectives will be given here: that of moral ethics, that of comparative law, and that of criminal law theory.
- Cassandra Steer ( B.A., mr, LL.M.), Lecturer and PhD Candidate, Department of Criminal Law, Universiteit van Amsterdam
La presentación se dictará en inglés sin traducción.