Omission Liability at the International Criminal Tribunals—A Case for Reform

Abstract

This chapter will consider the determination at the ad hoc Tribunals that aiding and abetting by omission is a form of responsibility in international criminal law. The elements and history of this form of responsibility will first be examined. The chapter will also consider the challenge made in the Karadzic case to the proper foundation in international law for the existence of this form of omission liability. The failure by the ah hoc Tribunals to articulate adequate evidence of the existence of this form of omission liability serves as an example of declaratory lawmaking, by which the ad hoc Tribunals have at times shown a tendency to assert the existence of a rule of customary international law without satisfying the elementary requirements of this importance process of international lawmaking. In this way, the judicial creativity shown by the ah hoc Tribunals can at times extend beyond the proper limits of a court in applying existing law. The early position at the International Criminal Court (ICC) will also be briefly considered, as will the importance of the Rome Statute's position of omission liability. It will be argued that, unlike command responsibility, aiding and abetting by omission has not been shown to have a foundation in customary international law and it does not have a clear or coherent place in the realm of international criminal law. Command responsibility is, it will be posited, the only true form of omission liability in international criminal law, and the development of aiding and abetting by omission is legally flawed.