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Chapter 6 explores the different facets of the relationship between individual criminal responsibility and State responsibility in the terrorism context. In particular, it assesses the way in which determinations of individual criminal responsibility for acts of terrorism can catalyze the invocation, implementation and acceptance of State responsibility. Chapter 6 also explores the potential intersection of individual criminal responsibility and State responsibility in the form of satisfaction by considering the extent to which a State's responsibility for terrorist conduct can be discharged through prosecution of the terrorist actors. Finally, Chapter 6 considers the ICJ's willingness to engage with determinations by international criminal tribunals and explores the potential role of criminal convictions before the ICC (for terrorism as the crime of aggression or a crime against humanity) in implementing State responsibility for international terrorism.

This chapter looks at the development of aiding and abetting by omission as a form of individual criminal responsibility by the ad hoc Tribunals. In a critical analysis of the existing case law, it argues that there is no basis for this form of individual liability in customary international law. It identifies specific instances in which the reasoning of both the Yugoslav and Rwanda Tribunals has been left wanting on this question. Particularly concerning in this regard is the inconsistent methodology that has been utilized in the identification of customary international norms. Taking the recent challenge to the customary foundations of omission liability in the Karadžić case, the chapter concludes that this form of liability has not been coherently and convincingly established in international law.

This chapter looks at the judicial development of the doctrine of command responsibility before the ad hoc Tribunals. It demonstrates that despite command responsibility having a firm basis as a form of individual liability within the constituent statutes of both the Yugoslav and Rwanda Tribunals, its substantive development has nonetheless been dependent on creative judicial interpretation. In examining one particular limb of the doctrine, the chapter deconstructs the reasoning of majority and minority opinions in the Hadžihasanović and Oric cases showing not only the tensions between individual members of the bench but also the obvious reluctance to engage in what may be viewed as excessive judicial creativity.

This chapter begins with a discussion of the concept of individual criminal responsibility covering developments in municipal criminal law and international criminal responsibility. It then discusses system criminality, Colonel Murray C. Bernays' collective criminality theory, and subsequent proceedings. The concept of individual criminal responsibility in international law is modelled on criminal responsibility in national law. While it is premised on the principle of individual fault it has gained collective traits enabling liability for the acts and omissions of others. In that, it follows trends and developments in national criminal law. Liability for international crimes does, however, have specific features.

This chapter is concerned with individual criminal responsibility under international law. The notion that individuals may be criminally responsible for certain acts which constitute crimes under international law, regardless of the law of their state, is an accepted and recognized aspect of international law. The chapter also discusses the relationship between state criminal responsibility and individual criminal responsibility in terms of certain criteria used to determine criminal acts.

National criminal law has been an important source for drafting provisions of individual criminal responsibility in international law. Notions that we know from national criminal law, such as aiding/abetting, conspiracy and instigation, are used to refer to modalities of criminal responsibility. To gain a better insight into the modalities of participating in international crime as codified in international statutes, they need to be analyzed in light of national criminal law. This chapter discusses five models of participation in crime and international models of participation.

This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint criminal enterprise and co-perpetratorship, and considers that neither form of criminal liability can claim the status of customary international law. The chapter looks at the mental element required for the third category of joint criminal enterprise, which can be problematic in the context of specific intent crimes. It justifies the ad hoc Tribunals' reliance on the creativity of the bench, whereby new law is fashioned on the basis of the policy of the law as can be extracted from its roots. It argues that judicial creativity can be used if there is a gap in the law which would prevent a court from dispensing justice under its constituent instrument.

This chapter describes the efforts to create a code of international criminal law of universal application. The lessons of Nuremberg informed subsequent efforts to advance international criminal law. This meant an emphasis on individual criminal responsibility until in 1976 the International Law Commission resurrected the early interest in the notion of state criminal responsibility.

No one seriously disputes that the individual is a subject of international criminal law. But it is much less certain whether international crimes a priori entail individual responsibility, which would be in line with the ‘individualistic’ conception of international legal personality, or whether the responsibility arises a posteriori consistent with the Kelsenian approach. Following a brief account of some historical antecedents, Chapter6 provides a detailed examination of the pivotal post-Second World War trials and the subsequent development of individual responsibility for international crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Moreover, the chapter shows that the common practice of categorizing criminal courts as either international, internationalized, or domestic according to the ‘involvement of the international community’ ultimately rests on the orthodox ‘States-only’ conception of international legal personality.

The conclusion of agreements between the parties to a conflict (special agreements) has assumed an important quantitative dimension since the end of the Cold War. The content of these agreements makes it likely that international criminal tribunals employ these documents either in order to establish their jurisdiction or for evidentiary purposes. This chapter examines the way in which the ICTY has employed the special agreements in its case law and highlights the legal issues that this case law gives rise to, mainly with respect to the determination of the legal nature of the agreements. It then discusses the way in which the ICC may employ the special agreements in light of the lessons drawn from the ICTY experience.

This concluding chapter summarises the key findings made in the book, highlighting the various efforts made at prohibiting propaganda for war throughout the past century, and its unusual location in the field of international law. While identifying the central elements of the prohibition, it refutes the various arguments made by states opposed to the prohibition, while also warning of means by which the prohibition can be abused should it be continued to be overlooked by the international community of lawyers and human rights activists. Laying the emphasis on the Human Rights Committee to engage with a provision of the Covenant which to date has been to all extents ignored, as well as the signatories to the Rome Statute on the question of incitement to aggression, it is suggested that there is significant potential dormant in the pursuit of the prohibition of propaganda for war.

Prosecuting international humanitarian law violations is a critical component in the compliance mosaic. Military commanders are and must remain the focal point for this accountability process; a focal point that is logically aligned with the unique authority of commanders to train, direct, and oversee the conduct of subordinates armed with immense lethal capability. While this may all be unremarkable, and perhaps even axiomatic, it also produces an increasing complex process of criminal application of an operational regulatory regime. Cases involving complex battlefield decision-making highlight important questions over the intersection of battlefield regulation and doctrines of criminal responsibility, and how such prosecutions will produce credible and reliable outcomes. This chapter argues that improving the synchronization between the regulatory and accountability domains of IHL will inevitably enhance the efficacy of the law in both domains, and contribute to the overall credibility of prosecutorial outcomes.

This chapter examines the cooperation between Serbia and the International Criminal tribunal for Former Yugoslavia (ICTY) though reconstruction of how the OTP obtained records of the Supreme Defence Council (SDC), a collective Commander-in-Chief of the Yugoslav Army (VJ: Vojska Jugoslavije) from 1992 to 2003. Recent experience in the former Yugoslavia, in particular with Serbia, shows that the leading political elites will rarely be open and will do everything possible to control and limit post-conflict narratives. This proposition will be illustrated by analysing the way the de facto and de jure powers of Slobodan Milošević as president of Serbia (1990-1998) and of the FRY (1998-2000) would have been revealed through the SDC collection of documents generated by the highest state bodies in charge of commanding the armed forces during the Croatian, BiH, and Kosovo indictment periods that were incompletely and grudgingly produced by Serbia to the ICTY for its use.