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

The twentieth century saw the unprecedented individualization, legalization, and criminalization of responsibility in international relations. At the start of the century, if any agent was held responsible in the international sphere for harm resulting from conflict or war, it was the state, and states were held politically (rather than legally, for the most part) responsible for their acts by other states. By the end of the century individuals were held legally (often criminally) responsible for such harm, now defined as "war crimes" or "atrocities." (1) Individuals were increasingly held responsible by international or hybrid tribunals set up under the auspices of the most powerful international institution in the post-1945 system, the UN Security Council, and with significant financial support from the world's most powerful states, foremost being the United States. Only a few years into the twenty-first century, trials of individuals were under way at an independent International Criminal Court (ICC). Our first reaction when we see news reports of war or civil conflict is frequently to ask which individuals are responsible and how they are to be punished. The drive toward individual accountability can be seen in, for instance, the 2009 report by the Goldstone Commission into alleged war crimes committed in Gaza, which led to subsequent calls for the ICC to take up the case; the 2011 report by the Panel of Experts set up by the UN secretary-general to advise on accountability in Sri Lanka; and the swift referral of the situation in Libya to the ICC in February 2011. (2) However, this shift of focus from collective-political to individual-criminal responsibility in international relations has not been without problems. While international criminal proceedings today against Radovan Karadzic, Charles Taylor, the alleged architects of the genocide in Cambodia, and so on seem to follow the twentieth-century trend toward holding individuals responsible for directly planning, commissioning, or executing international crimes, close examination of the trials tells a different story. The defendants are in fact being tried for inherently collective actions--that is, they are charged with being part of "joint criminal enterprises." In addition, there is substantial interest in using existing (but until now rarely utilized) international law on state responsibility to hold states accountable for atrocities. For example, both Bosnia-Herzegovina and Croatia have sought to hold Serbia responsible for genocide at the International Court of Justice (ICJ). This signals that there are what I call "excesses of responsibility" involved in atrocity that legal practices of assigning individual criminal responsibility cannot capture. Attempts to do so via the doctrine of joint criminal enterprise, devised by the Appeals Chamber at the International Criminal Tribunal for the former Yugoslavia (ICTY); the Articles of State Responsibility accepted by the UN General Assembly in 2001; and (though to a lesser extent) the long-standing doctrine of command responsibility are deeply problematic.