Translating Guilt: Applying the language of functional perpetration to international criminal law
07 / 2008 - 07 / 2014
Crimes of mass atrocity are inherently collective. Genocide, crimes against humanity and most war crimes are by definition not committed by an individual, but rather by groups of people as members of a State army, an international armed force, or rebel groups and other non-State actors. Paradoxically, criminal law deals fundamentally with individual criminal responsibility and not with collective guilt or responsibility. The constant challenge in International Criminal Law (ICL) is therefore to answer the problem of individual criminal liability for collective crimes, by pinpointing the persons most responsible, whilst grounding these modes of liability in recognised sources of ICL. The central question of my PhD thesis is: can a mode of functional individual responsibility be discovered in domestic legal systems and translated to international law, to solve the problem of individual liability for international crimes of a collective nature? Firstly an comparison is made of the modes of individual responsibility currently applied in ICL, considering the problems both of grounding them in sources of international law and of applying them to the fact situations. Secondly, in order to try and answer some of these problems, and in accordance with the a theory that the normative content of ICL is developed by way of comparative law in action, a deeper comparative study is made of domestic modes of individual responsibility for collective crimes. Various jurisdictions sharing common law and civil law traditions are compared, with the search ebign for a mode of responsibility which fulfils a broad definition of functional perpetration. If enough similar modes of responsibility can be found, the argument will be made that this is the correct solution for the problem in ICL, specifically where civilian leaders are concerned.