By Martin Sicilian (PO ’17)
After World War 2 (WW2), the international community reevaluated many key tenets of international law. Specifically, “reliance on the doctrine of state responsibility” was decided to be insufficient to protect people against abuses by the state in which they claimed citizenship. The victors of WW2 thus set up an international regime (the United Nations) that had the power to prosecute individuals who committed serious crimes, even if those individuals only took action against the nationals of their own state. International criminal law has developed into a field that imposes criminal responsibility on individuals, groups, and non-state actors for certain conduct that violates human dignity. These criminal acts include those covered under international human rights law and international humanitarian law, such as crimes against peace, war crimes, and crimes against humanity.
International criminal law holds individuals responsible only for acts that they participated in or performed. Direct performance of said criminal act, however, is not required for responsibility. Command responsibility, which exists when a superior either intentionally orders a criminal act to be committed, or through recklessness or negligence allows that act to be committed by a subordinate, counts as responsibility under international criminal law. Thus, leaders who do not actually commit criminal acts with their own hands may still be held responsible for the acts of their subordinates. Conversely, it is not an accepted defense that a defendant was simply following orders in committing criminal acts.
There are two ways in which individuals may be held accountable under international criminal law: domestic fora for justice and international fora for justice. Domestic courts carry some advantages, like having “the closest relationship to the event, victims, defendants, evidence, and witnesses.” However, they also carry many disadvantages. These courts can lack the proper resources for the investigations and prosecutions which are required, they can be used improperly as a weapon by a corrupt executive, or they might act in a way that is counterproductive to the achievement of justice due to fear of those in power in their state.
Two of the main international fora for holding individual offenders responsible for their crimes against humanity are the International Criminal Court (ICC) and country-event-specific tribunals set up by the United Nations Security Council under Chapter VII of the UN Charter. Both have limitations, however.
The ICC can only hope to be successful in achieving justice when it has jurisdiction over the criminal acts in question. Many ICC cases involve legal battles and appeals over jurisdiction. Legally, the Court has jurisdiction if the offender is a national of a state that is party to the ICC or if the acts were committed within the territory of such a state. Further, the ICC may have justification if the Security Council of the UN refers the case to the ICC through Chapter VII. The ICC is liable to be ineffective in achieving justice regarding any crime committed by leaders of the United States, for example, since the United States is not a party to the ICC and because the United States would veto any Security Council referral.
International tribunals have been generally successful in holding individuals accountable under international law, though there is not very much data from which to draw conclusions. Two prominent examples of international fora for justice were the Nuremberg trials, where 24 Nazis (including Hitler’s second-in-command) were tried for war crimes, and the tribunal set up after the Yugoslavian conflict.
Ultimately, means of holding individuals accountable under international law will be successful or unsuccessful depending on the political and practical context as well as the legal context. Though prosecution certainly must be lawful, even circumstances in which an individual is clearly legally at fault will probably not lead to prosecution if that individual is still in power. International fora for international law can provide a means to prosecute individuals who are still influential in their home state, and domestic courts can provide such a means when those individuals are no longer in power. In either case, international law is becoming more and more effective in prosecuting war criminals and other types of criminals with every passing century.
 Dunoff, Ratner, and Wippman, International Law: Norms, Actors, Process, 340
 Murphy, Principles of International Law, 471.