The attribution of international criminal responsibility for serious violations of human rights and international humanitarian law to senior leaders
Prosecuting international crimes : a multidisciplinary approach
Leiden ; Boston : Brill Nijhoff, 2016
Senior political and military leaders rarely execute crimes on their own. They often plan and organize international crimes, instigate actual perpetrators to commit the crimes, order them or aid and abet them. Nevertheless, international law allows to assign individual violations of international human rights law (IHRL) and international humanitarian law (IHL) to those who have not committed international crimes directly, and even to those who were not present at the place of commission of such crimes. This chapter explores the reasons for the criminalization of violations of international law committed by senior leaders. It also addresses the legal basis for attribution to senior leaders of serious violations of IHRL and IHL, and the conditions for such attribution. The author argues that there is a lack of clear rules on attribution in general criminal law, which lead international tribunals to refer to national law and practice, thus entailing freedom of interpretation of these rules and practice. The attribution of a violation is so fundamental to international criminal responsibility that it should be more clearly defined by international law.