Modes of Participation in Mass Atrocity

Source: (2005) Cornell International Law Journal 38:793.

In my remarks today, I am going to focus on the question of how to hold the
“big fish” responsible for the misconduct of the “small fry.” It is equally
relevant to the trials of Slobodan Milosevic and Saddam Hussein. The question is
especially hard when there is no direct evidence of criminal orders from top
superiors to subordinates in the field. It is also hard when the subordinates
are not part of any formal chain of command, as with paramilitaries. n1 And it
is especially difficult when heads of state act through civilian leaders, such
as the leadership of the Bosnian Serbs, who again are not within any formal
chain of command. n2
The basic legal choice is between “command responsibility” and “participation
in a joint criminal enterprise.” n3 To cut to my conclusions: I think [*794]
the International Criminal Tribunal for the former Yugoslavia (ICTY) is making
it too hard to find people liable under command responsibility, but too easy to
hold them liable as participants in a joint criminal enterprise. If we could
find a way to relax the requirements for classifying a defendant as an
irresponsible commander, then we would not have to rely so heavily on the notion
of participation in criminal enterprise, a notion that is dangerously illiberal
and trusts too much in prosecutorial self-restraint. (excerpt)