The Problem of Liability in International Criminal Law

Abstract

This chapter outlines the purpose and structure of the book. In the last twenty-five years, debates have become more and more complex as to the correct modes of liability to apply to leaders implicated in mass atrocity crimes. Should the focus be on widening the net of liability and treating all those involved in mass atrocities equally liable—a unitary approach—or should it rather be on differentiating between principals and assistants, and therefore applying different modes of liability—a differentiated approach? There appears to be a policy trend to focus on ‘those most responsible’, however the question remains who is most responsible, and what form of liability should attach. In order to untangle the the debate, this book proposes that international criminal law is in fact a continuing process of comparative law in action, whereby domestic criminal law notions are translated to the international plane. There is no single correct approach to liability, rather the functional question must be posed: which approach will reflect the collective nature of mass atrocity crimes and fulfill the aims of ICL in the best way possible?