Excesses of Responsibility: The Limits of Law and the Possibilities of Politics

Abstract

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant ‘excesses’ of responsibility for war crimes unaccounted for. When courts do attempt to recognize the collective nature of war crime perpetration, through the doctrines of ‘command responsibility’, ‘joint criminal enterprise’ and ‘state responsibility’, the application of these doctrines has, it is argued, limited or perverse effects. The article suggests that instead of expecting courts to allocate excesses of responsibility, other accountability mechanisms should be used alongside trials to allocate political (rather than legal) responsibility for atrocity. The mechanisms favored here are ‘Responsibility and Truth Commissions’, i.e. well-resourced non-judicial commissions which are mandated to hold to account individual and collective actors rather than simply to provide an account of past violence.