Réka Varga: Collective responsibility for war crimes? Nr. 2013/04.

One of the greatest achievements in 20th century international law is the establishment of individual criminal responsibility for the most serious international crimes. However, discussions on collective responsibility for such crimes rise again and again. The present article seeks to examine the notion and rationale of collective responsibility solely from the viewpoint of war crimes. It first examines whether wars are collective in nature and whether there is a collective element required for war crimes. The article demonstrates through a case study that weighing the legality of acts committed during an armed conflict based on the collective feature of wars instead of relying on the terms of international humanitarian law and examining actions individually is a wrong approach. The article then demonstrates that proving what the will of the collective is and whether an individual committed acts under the pressure or will of the collective raises serious doubts. It further argues that although discussions on collective responsibility do have their places in the moral, sociological or philosophical sense, the acceptance of diminishing the individual’s criminal responsibility by the responsibility of the collective is counter-effective in that it inevitably leads to a weakening of individual criminal responsibility, stigmatization of nations, groups or collectives and consequently makes no contribution to the prevention or repression of war crimes.

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