MEA CULPA, SUA CULPA, TUA MAXIMA CULPA: COLLECTIVE RESPONSIBILITY AND LEGAL JUDGMENT

Abstract

Ascertaining litigation for crimes reaching the dimensions of crimes against humanity remains an elusive quest. This is despite the precedents set by post-WWII trials in international criminal law and post-conflict justice. Ranging from the contribution of Nuremberg to the substantive development of international criminal law, to the philosophical evaluation of legalism in post-conflict systems of justice, the persistent significance of the Nuremberg legacy is indeed worthy of attention. In this article, the Nuremberg legacy is reexamined from the perspective of collective responsibility for mass crimes. The Nuremberg Judgment is counted as the benchmark in international law for the definition and adjudication of individual accountability for war crimes and crimes against humanity and redefined the nature of legal responsibility. However, concurring with Karl Jaspers, I argue that for such crimes, the judgment cannot emanate from the courtroom alone. In this vein, the paper revisits theories of collective responsibility and culpability. Due to the extensive the nature of harm involved in historic injustices, I posit that individual responsibility argument waged against historic justice claims carries forward a great deficit. Historic injustices and the harms they generate are best understood as collective harms. The response to such harms must have a collective component as well, and the remedies offered are only meaningful in a social and political context. One common form of such harm, constitutive harm, significantly differs from the aggregative accounts of harm generally used by standard individual criminal litigation processes. It is the type of harm that people suffer as members of historically wronged groups and communities and often in the hands of the state that was poised to protect them. Therefore, historic injustice cases require a different account of responsibility, one that cannot be harnessed solely based on individual responsibility argumentation within the context of domestic or international criminal justice jurisprudence. The article urges that we make room for considerations pertaining to collective responsibility as a moral obligation, thus providing a context within which legal judgment for egregious crimes could be firmly situated and historicized.