A Battle of Ideas: Modes of Liability and Mass Atrocities

Abstract

International criminal law (ICL) is premised upon the principle of individual criminal responsibility-the idea that individual persons, rather than states or other entities, bear criminal responsibility for mass atrocities. This principle has been operationalized in practice through the development of various legal theories, technically known as “modes of liability,” that delineate individual contributions to collective forms of violence. However, the modes of liability have been interpreted and applied differently across international courts and tribunals. Crucially, the International Criminal Court has construed those modes in a significantly more restrained manner than previous international tribunals, essentially limiting the set of situations in which a person could be found guilty of an international crime. This article contributes to the interdisciplinary literature on international criminal justice by exploring the social construction of different conceptualizations of the modes of liability in ICL and their transformations over time. Specifically, the framework focuses on the promotion and contestation of ideas among various actors participating in the international criminal justice field and the power dynamics that govern the field. This is a key issue for ICL and global justice because it demarcates the legal boundaries of “guilt” and “accountability” for international crimes.