Post-Conflict Justice: Extending International Criminal Responsibility to Non-State Entities

Abstract

With the proliferation of non-international armed conflicts, transitional justice has gained increased relevance as a range of judicial mechanisms aimed at punishing the wrongdoers while also aiming to reconcile nations torn by civil wars. In the aftermath of hostilities between States and non-state armed groups or between two or more non-state actors (NSAs), international law obliges the former to prosecute participants in hostilities who have committed war crimes, crimes against humanity, and genocide. As far as conventional wisdom goes, criminal responsibility is only attendant to individual perpetrators, but a recent pronouncement by the Special Tribunal of Lebanon (STL), along with developments in national laws targeting entities, other than States, might be changing this paradigm. Building on arguments proffered in other chapters that NSAs have obligations under international law, this chapter argues that in addition to trying individual perpetrators, international criminal jurisdiction should also extend to non-state armed groups, political parties and other collectives that have orchestrated, directed or executed atrocities through their agents. The chapter first analyses, along the lines of the STL, whether liability of collective entities has become a general principle of international law. It then argues that operationalizing international criminal responsibility of NSAs might serve several important transitional justice objectives. First, through the expressivist function of criminal prosecutions, trials of entities could communicate an important symbolic message to the society that crimes in the name of political goals or religious tenets will not be tolerated. Secondly, the attachment of opprobrium through declaratory judgments might help to address moral and political guilt of individuals who joined collectives exhibiting violent tendencies, preventing their resurgence. Thirdly, following the Nuremberg model, the imposition of individual administrative sanction in the form of lustration might ensure a greater reach of criminal justice and help disarticulate nefarious networks. As a consequence, extending prosecutions beyond individuals might offer more justice and recognition to victims of atrocities in post-conflict contexts.