WHAT is the legal and moral responsibility of a head of government for a pogrom staged on his watch? He is, of course, accountable to the legislature. That means little. His party is in a majority there. The media is there; but sections of it will defend the head of government be he the Prime Minister of the country or the Chief Minister of a State. It is international responsibility which matters.
The author is an Associate Professor at the University of Minnesota Law School. She got her doctorate at Oxford where she was a Rhodes Scholar. Among her many qualifications is her internship at the office of the Prosecutor at the Extraordinary Chambers in the Courts of Cambodia and with the Legal and Treaties Division of the Ministry of External Affairs.
This scholarly work is a classic of its kind. Neha Jain has drawn on cases in the United Kingdom, Germany, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the International Criminal Court, Special Panels for Serious Crimes, Special Court for Sierra Leone, extraordinary Chambers in the Courts of Cambodia, and post-Second World War Military Trials. Relevant international instruments are cited. No pains have been spared to make this a truly definitive work on the law on the subject.
“Mass atrocity has been an unfortunately persistent occurrence throughout human history; the phenomenon of holding individuals criminally responsible for its commission is, in contrast, a relatively recent development. Crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The author remarks that this ringing pronouncement by the International Military Tribunal at Nuremberg has become a talisman for international criminal lawyers ever since the historic trials conducted after the Second World War. “Banishment of the spectre of collective guilt has been sought with repeated incantations of the principle of individual responsibility in constitutive documents of international tribunals, judgments and scholarly writing.”
Neha Jain defines the distinctive features of international crimes and traces the origins of individual responsibility for collective crimes in international criminal law. Domestic criminal law on “the accessory to crime” sheds much light. When can the head of government be said to aid, abet, and instigate a pogrom? The nexus between the principal party and the secondary party is of crucial importance. The mens rea, the guilty mind or the intention, even knowledge of the crimes on his watch, suffice to fix the head of government with responsibility in international criminal law for the crimes committed during the pogrom.
International criminal law is of recent birth. “This study represents a new approach to the challenge presented by assigning individual responsibility for crimes that are collective by their very nature. The modified accounts of perpetration and accessional responsibility proposed here engage with domestic criminal law principles, while simultaneously capturing the unique features of international crimes. The study assumes that principles of criminal responsibility developed in the domestic criminal law context are salient for international crimes. In this sense, there is no attempt to, as it were, reinvent the wheel; I take for granted the set of doctrinal justifications that have guided the ascription of responsibility in these systems, and make no claims to developing any alternative account of the theatrical foundations of criminal responsibility. At the same time, rather than making an indiscriminate commitment to any particular domestic conceptualisation of criminal responsibility, I use these divergent justifications in the form of guide posts to develop an account of modes of participation that are suited to the collective dimension of international crimes.”
Neha Jain does not stretch the law but she seeks to evolve the existing law by the tried methods of sound jurisprudence in order to fix responsibility where it should properly lie.
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