Translating guilt: Identifying leadership liability for mass atrocity crimes

The truism that crimes of mass atrocity are by definition collective may be one of the greater banes of criminal law lawyers attempting to solve the problem of liability. Collective crimes are familiar to all domestic criminal law systems, however the context in which mass atrocity takes place is different in some very important ways. Mass atrocities tend to take place under the ideological leadership of an elite group, who have manipulated the masses into acting out this ideology through extreme violence. In these circumstances individuals have reduced moral and rational agency, particularly if there is a threat that their refusal to participate may render them the next victim. Conversely, leaders maintain their autonomy and exercise control over the collective, thus they carry greater moral responsibility. This study focuses on the question of translating this moral responsibility to criminal liability, and attempts to untangle the debates on modes of liability in international criminal law (ICL) that have become more and more complex over the last 20 years. It does so by undertaking a comparative study of criminal liability in domestic jurisdictions representing the civil and common law traditions. By seeking to understand the policy and legal cultural factors that have informed differing domestic models of leadership liability, the study aims to come to a better understanding of the recent "clash of legal cultures" at the international tribunals, and to form a normative argument for which model is best suited to the specific context of mass atrocity. The central theoretical focus is on the role of policy as an inherent part of the formation of law, as well as the process of patchworking a new international system together based on domestic law notions. A comparative theory of ICL offers tools for improving this otherwise arbitrary and often biased process of developing the law, and is applied throughout this study to answer the question of what system of leadership liability should apply in ICL. The final argument is that a normatively differentiated system of liability is best suited to capture the true role of leaders of mass atrocity