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In 2007, the International Court of Justice (ICJ) upheld the notion that the Genocide Convention provides for state as well as individual responsibility for genocide, referring to the ‘duality of responsibility’ under international law. According to the ICJ, the obligation on states extends to complicity in genocide. In the meantime, the ICTY considered the relationship between ‘complicity in genocide’ and ‘aiding and abetting genocide’ within the terms of its Statute, and essentially settled the law on aiding and abetting genocide. The analysis of both the ICJ and the ICTY illustrates how problematic the legal definition of complicity in genocide has proved to be both for individual and state responsibility. This chapter examines the ‘duality of responsibility’ with specific reference to complicity in genocide, exploring the extent to which the issues faced by the ICJ are analogues of issues the ICTY and the ICTR grappled with but left partially unresolved.

The two archetypal doctrines of complicity in international criminal law are instigation and aiding and abetting. This chapter assesses the doctrines of instigation and aiding and abetting within the analytical framework built in Chapter 2 and critiques the structure of individual responsibility in international criminal law on the basis of the normative claim of the work. In content, the rules are marked by the breadth of the conduct they prohibit, a standard of knowledge in the fault element, and an explicit but underdeveloped substantiality criterion in assessing the relationship between the accomplice’s actions and the principal’s crime. Structurally, despite doctrinal differentiation among participants in wrongdoing, there is no differentiation in the attribution of responsibility. This chapter also considers the controversy around complicity in genocide at the ad hoc tribunals and the possible inclusion of specific direction as an element of the actus reus at the ICTY.

This chapter addresses complicity liability. Complicity doctrine is notoriously difficult, both doctrinally and conceptually, in part because its underlying principles are themselves in tension. The pull of judgements about culpability must be reconciled with the demands of criminalization, and with the need protect the public. Frequently, the approach of the courts has been to focus on the defendant’s culpability. The better approach, it is argued, is to distinguish matters of culpability from those of ascriptive responsibility, and to focus also on the latter. Once this is done, it becomes easier to see the centrality of mens rea in ascribing responsibility for another’s acts. Quite apart from helping to show culpability, mens rea requirements can also mediate the constraints of criminalization, helping to balance the ex ante liberties of the accessory against the rights and interests of others; and ensuring those who do otherwise innocent actions have sufficient notice that their conduct is potentially criminal. The chapter closes by distinguishing between two major categories of participation: aiding and abetting, and joint criminal enterprise.

This chapter addresses two ways in which omissions might give rise to individual criminal responsibility in international law. First, it shows that, following Mrkšiš, it is now clear that an omission might fulfil the conduct element of aiding and abetting liability. The key issue, discussed in this chapter, is the existence of a duty to act on the alleged accomplice. Difficult questions arise as to which duties should count for international criminal liability; this chapter proposes a solution drawn from municipal criminal law. Second, this chapter shows how international criminal law sets out a special mode of inculpation for complicit omission in the doctrine of command responsibility.

When the UN Security Council (UNSC) created the International Tribunals for the former Yugoslavia (ICTY) in 1993, and Rwanda (ICTR) in 1994, it had in mind that the Tribunals were ad hoc and should have a brief life, enough only to bring to justice those responsible for serious violations of international humanitarian law in those countries. In 2010, as a part of the Completion Strategy, the UNSC established the Mechanism for International Criminal Tribunals as a new ad hoc body, with the purpose of making sure that the Tribunals conclude their missions timely and successfully. The ICTR was officially closed on 31 December 2015. The ICTY will finish its work at the end of 2017. In this article is the analysis of the cases decided by the ICTY in 2015, providing the relevant facts of each case, the reasoning and the decision issued.

I offer here a scale of moral responsibility applicable to members of the Nazi Reich during the Final Solution: (1) oblivious: totally unaware, simply out to lunch or mentally impaired concerning the Nazi attempted genocide of the Jews, invincibly ignorant and without bad faith; (2) bystanding: aware but mute and passive, perhaps in bad faith or denial, concerning the Nazi attempted genocide of the Jews; (3) complicit: aware and publicly and privately supportive of the Nazi attempted genocide of the Jews, but primarily verbally or symbolically; (4) aiding and abetting: aware and more than verbally supportive, actively assisting and participating in the Nazi attempted genocide of the Jews, but short of pulling the trigger or dropping the gas pellets or ordering the same; and (5) directly murderous unto abomination: actually pulling the trigger or dropping the gas pellets or ordering the same, so as knowingly to aim at destroying the Jews as a race and Judaism as a moral and religious creed; in the extreme, also to aim at destroying one’s own conscience.

Despite the enormity of the financial losses flowing from the 2008 financial crisis and the outrageousness of the conduct that led up to it, almost no individual involved has been prosecuted for criminal conduct, much less actually gone to prison. This chapter argues that the failure to punish those in management for their role in this misconduct stems from a misunderstanding of the need to prove that they personally knew of this wrongdoing and harbored an intent to defraud. Not only would negligence be a sufficient legal and moral basis for imposing terms of imprisonment in these cases, mere causal responsibility would also be enough, for causal responsibility has embedded in it all we need to find those causally responsible morally responsible too, and once some basis for moral responsibility is established, the imposition of terms of imprisonment is both legally possible and morally just.