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Introduction
Each individual and state has a moral and legal obligation to protect its population against war crimes and crimes against humanity. Understanding this obligation requires a deeper understanding of what such responsibility entails. Often issues have arisen as to whether war crimes and crimes against humanity committed while in office can be treated as individual or publicly committed crimes (Cryer et al., 2007). As some people have put it, should such crimes be attached to the office an individual was holding on commission or attached to the holder of the office? As a minimum requirement the state or a state office holder should ensure that citizens under its jurisdiction are not subjected to acts amounting to crimes against humanity or war crimes, put in place appropriate and effective measures to ensures such dont happen, and when they happen, ensure that those responsible for the atrocities are held accountable. State and state office holders should therefore be organized in a manner ensuring that they are able to live up to this obligation. Government apparatus and structures through which public power is exercised should facilitate the minimum thresholds required to ensure that the aforementioned crimes and tensions which may lead to the same do not occur. These should include facilitation of peaceful solution mechanism where possible.
Authoritarian/totalitarian systems often lack these structures. They generally lack structures and mechanism which could facilitate peaceful resolution to conflicts. Additionally, such regimes have often been associated with practices which infringe on the right of citizens. This often results into commission of crimes against humanity. Likewise during wars, people often loose moral and legal restrains and end up committing war crimes (Cryer et al., 2007). Basic rules that govern combat operations and behaviors offer guidelines of engagement during military/armed conflicts. These rules focus on ensuring that the opposing forces to engage in acts which may result into unjustified casualties. Additionally, it protects against operations which pose a danger to the civilian population. Such may include operations carried out against dams, nuclear sites, and other facilities which facilitate civilian life or pose a threat to the same. However, this paper does not focus on the level of commission of such crimes. The paper rather recognizes that a major obligation of occupying powers is that it must restore and maintain, as far as possible, public order and safety.
An occupying power must also respect the fundamental human rights of the countrys inhabitants, including refugees and other non-citizens. One duty under the concept of public safety is the fundamental duty of an Occupying Power to ensure the life, health and safety of the civilian population under its control. When the individual fails to do this, the fundamental question is whether the individual or the office is accountable and to what levels (Cryer et al., 2007). This paper will evaluate how trails for crimes against humanity and war crimes have endeavored to as this question. To achieve this, the paper will compare how different trials involving war crimes and crimes against humanity have solved the problem of separating personal responsibility from collective responsibility
The essay will begin by providing working definitions of personal and collective responsibility. This will be done with the help of scholarly articles touching on the issue. This will include explaining Immanuel Kants categorical imperative, a central concept in modern deontological ethics which is an approach to ethics that judges the morality of an action based on the actions adherence to a rule or rules. These explanations are important in writing about responsibility.
Background information
Collective responsibility, just like personal and shared responsibility refers to moral agents causal responsibility for harm and consequently the attributed blameworthiness. Both public and moral responsibilities draw from moral and legal rather than causal responsibility. Collective responsibility attaches no blame or responsibility to individuals. Instead, it associates causal and moral responsibility to the duties assigned to the office holder by virtue of being in office.
Theoretical background for personal responsibility
Formerly, only the state/organizations were subjected to international law for crimes against humanity and war crimes. In the modern day jurisprudence both the position of individuals, organizations and state are considered in relation to the crimes committed. This is a shift from the earlier notion that only the state/organizations are responsible for atrocities committed by its officials (Janna, 2002). The expansion of international laws has been able to successfully incorporate the new principles of individual responsibility alongside public responsibility. The Genocide Convention for instance is based on the principle of dual responsibility where both the state and the individual are held accountable. It ensures trial and appropriate punishment of individuals who engage in acts intended to destroy either in whole or in part, a national, ethnical, and racial or religious group (The Geneva Conventions Today, 2009:Art. II). However, it still recognizes that the acts may implicate state responsibility and as such should be referred to the ICJ (Rome Statute, Art. IX).
In pursuant of deterrence and punishment of crimes against humanity/war crime, the international law requires that persons charged with listed offenses, be brought before a competent tribunal preferably within the state of commission (Art. VI). However, the convention also envisages trial of the involved persons before an international penal tribunal with respect to conflicting parties having accepted its jurisdiction (Janna, 2002). Forty years after the Convention came into force; the international criminal tribunal was put in place by the international community with respect to cases from the former Yugoslavia. The ICTY was the first of the International Criminal Courts to have jurisdiction over persons accused of atrocities committed (Cryer et al., 2007). The role of the International Criminal Tribunal has been further broadened by the formation of the Rome treaty which allowed formation of international Criminal Court (ICC)
Unlike the ICC, whose effect is yet to be felt, ICTY has already tried a dozen cases against persons charged with crimes against humanity and war crimes. Likewise has the International Criminal Tribunal for Rwanda, has dealt with cases against persons charged with crimes against humanity related to Rwanda genocide. It is important to note that most of these persons have bore the responsibility individually rather than from public perspective (Janna, 2002). It is therefore possible to mention article VIs intent is to envisage holding of individual responsible before the trying tribunals rather than the office they held.
As a value preference, it is worth noting that future trends in international law will opt to affix and punish individuals for crimes against humanity and war crimes and hence diminish the concept of collective responsibility. Implementation of such is however expected to have far reaching implications and hence demand a closer and in-depth examination (Cryer et al., 2007). However, its acknowledgement that it is truthful that crimes against institutions are committed by individuals and not the offices they hold. Even in instances where such individual purports to have acted on behalf of the state, they seldom engage the whole population/office holders in commission of the same.
Generally acceptable jurisprudence and war customs provide for holding to account of state political leaders, armed forces commanders, senior officers and soldiers. In recent trials, focus has shifted to political and military leaders who order illegal acts and the responsibility they bear to such. This approach has been founded on the basic rule that superior orders cannot be used as a defense for against crimes committed (Janna, 2002). This is applicable to all regardless of rank and position with hierarchy. As various reports have indicated many individual military personnel have deliberately issued orders targeting both civilians and medical suppliers. Such orders have out-rightly sanctioned torture of persons, use of unacceptable weapons and deliberate target of humanitarian facilities (Janna, 2002). Additionally, such orders have obstructed supply of humanitarian aid and facilitated destruction of property wantonly. Although individual perpetrators are liable for capture, trial and punishment, the law is less evident regarding holding of the state accountable for crimes committed. To such extent, the concept of collective responsibility is not due for retirement as it is an important tool in deterrence of state sanctioned atrocities.
Theoretical background on collective responsibility
Various scholars argue that Collective responsibility is morally a more suspect notion compared to individual responsibility (Tannsjo, 1989). It affixes responsibility to an entire population i.e. the nation. Despite its civil consequences, the population bears the reparation costs and its presumption of collective responsibility put to question it fairness. To an extent, it distorts moral responsibility topography lumping to the population crime committed by their leaders purportedly on their behalf.
Arguably, collective responsibility dates back to the Grotain age too, where individual were considered as chattels of state and injury to such a person was considered an injury to the respective state. Based on this, it logically followed that crimes committed by such persons would also be considered as crimes by the respective state (Tannsjo, 1989). The latest changes in international law have however disregarded this notion as a bygone act of past era. It currently recognizes that there is nothing like collective commission of crime rather it is individuals who commit the crime.
International law commissions draft article on collective responsibility fort wrongful was adopted in by the international commission and accepted by submitted to the United Nations general assembly in 2001 (Tannsjo, 2007). The draft seeks to establish applicable norms in determination of responsibility to state constituting a breach of obligation. As per article 8, individuals committed for crimes against humanity and war crimes shall be deemed to have acted on behalf of the state if proof exists such that the person acted under direct instructions or state control (Tannsjo, 2007). Further, article 9 adds that a persons conduct is considered an act of the state if the person was exercising the powers of the office and no default whatsoever of the official authority was committed. Collective responsibility act therefore makes it clear that acts committed by individuals empowered by their office are also attributable to that office.
While no recourse is specified to any given tribunal, juridical attribution of responsibilities to given states is pursued by the ICC in instances where it has jurisdiction (Tannsjo, 2007). The articles generally stipulate that its text must not be understood to derogate individual responsibility by persons acting on behalf of the state. Generally, the legal principals guiding jurisprudence of collective and personal responsibility are based on moral values that guide both the state/organization and individuals to act in the manner they act. Immanuel Kant explores the concept of morality in-depthly.
Immanuel Kants categorical imperative
Morality
Philosophers have often engaged in discussion of existence of right and wrong. Study of human conduct focuses on moral values and making ethical decisions (Van den, 2002). Many theorists have attempted to the question as to the existence of morality. A critical review and analysis of Kants meta-ethics view offers critical information as to acceptance of moral views from a practical point (Kant, 1989).
Morality exists when the subjects believe in conforming to acts that are universally acceptable as right. Ethics on the other hand define situations where moral decision making is employed. Morality begins with identification of what is good and what is wrong, and hence making reasonable judgments on what to and what not to do (Kant, 1989). It is however important to note that most people use the two terms interchangeably.
According to Kant, central morality radix deals with what one has to or ought not to do. There is a conditional obligation that for one thing to happen; one has to perform another action. Conditional ought defines morality in context of performing a given act for another to occur while unconditional ought requires that one performs an act without merit consideration. Kant defines morality on basis of the unconditional ought (Kant, 1989). It makes no reference to associated rewards and merits. The general assertion here is that moral acts do not take into consideration the expected benefits/disbenefits.
Categorical imperative
Kant proposes an approach to determination of morally right and wrong things. He cites that moral justification is a product of categorical imperative. Further, he classifies imperative as either hypothetical or categorical (Kant, 1989). When an action is a means to something, it is hypothetical while if the idea is conceived out of good intentions and not benefits expected, then it is categorical. He sets condition which qualifies an act as categorical imperative including that it must conform to acceptable society norms and conform to rational reasoning (Kant, 1989). Categorical imperative questions whether or not actions can be universalized. He caps it by mentioning that an individuals act can only be considered as categorical imperative if the individual performing the act would reasonable with that it becomes a universal law. A generalized definition according to Kant is that a categorical imperative commands one to do an action X in as much as it is intrinsically right aside from any other considerations and hence no ifs or strings are attached to the decision (Kant, 1989).
The Trial of Adolf Eichmann
Adolf Eichmann served in several of the Einsatzgruppen ( task force ) units that arrested and sometimes executed Jews in German-occupied Europe. Later he became the commandant of Auschwitz. He survived the war and was arrested, ultimately standing trial in Israel in 1961 (Goldhagen, 1996). This is a sample from the prosecutions opening statement at his trial.
In an event that has come to known as the Holocaust, approximately 6,000,000 Jews were systematically exterminated by the Nazis. Upon knowledge of the crimes magnitude, it became imperative to bring as many as possible of its perpetrators to justice. But in the ensuing post-war confusion, identifying the criminals was a rather complex process and most did not account for their actions. One of the most prominent was Germanys Minister of Death, Adolf Eichmann, who eluded capture for years (Arendt 1964). How he was tracked down and brought to justice is this segments compelling story. In 1960, Adolf Eichmann was surreptitiously kidnapped by Israeli agents and transported to Jerusalem. It is in Jerusalem where he was subjected to trials for crimes against humanity and war crimes (Arendt 1964).
The trial became a tool to generate a grand narrative of what happened, when it happened, and how it happened. Despite Israeli having prior knowledge of what had happened, Eichmann answered the other half that had remained covered over time. Eichmanns grand theories attributed guilt to all Germans rather than individuals. The interests of Ben Gurions professed objectives, in the interests of truth, a significant portion of testimony recounted survivor stories that, if connected to Eichmann at all, were at best only marginally associated with him: sick children, thrown out of the childrens ward on the fifth floor. Babies, ripped apart like a rag in front of their mothers eye and many more (Arendt 1964:249). Old priests forced to play horseback-riding matches on each others backs. Old women made to scrub a square clean with toothbrushes. Orchestras playing dance music, while thousands of naked families are being executed. Dogs being given sugar cubes for having bitten flesh out of a girl. Meadows covered with skulls and bones. Naked people in winter, covered with water and frozen (Arendt 1964). A man, who has to choose between his wife and his mother; if not, both will be executed. This mythical scenario describes the crimes that Eichmann was associated with. Attempting to attribute all these crimes did not auger well with the jury. Such level of atrocities could only be committed if the person involved had a will to do so.
Not only did this myth predate the trial but admittance of the testimony served as a pedagogical function envisioned by the Israelites. It largely consecrated Eichmanns myth. The Appeals Court bought into the concept of individual responsibility, asserting (against the wisdom of the District Court judges) that the appellant had received no superior orders at all. He was his own superior, and he gave all orders in matters that concerned Jewish affairs; he had, moreover, eclipsed in importance all his superiors, including Muller (Arendt 1964:216). In rejecting Eichmanns appeal and sealing his fate, the judges maintained that the idea of the Final Solution would never have assumed the infernal forms of the flayed skin and tortured flesh of millions of Jews without the fanatical zeal and the unquenchable blood thirst of the appellant and his accomplices (Arendt 1964: 249).
The Trial of Slobodan Milosevic
Milosevic was indicted for a dozen of crimes including genocide, murder, political, racial, and religious persecutions as well as other inhumane acts considered crimes against humanity. His actions were considered to have been done unlawfully and wantonly without consideration of the moral principles which ought to have guided his decision making.
The initial indictment against Slobodan Milosevic concerning crimes committed in Kosovo was made public on 27 May 1999. 29 October 2001, the Prosecution filed a second amended indictment. On 5 September 2002, the Trial Chamber separated the proceedings against Slobodan Milosevic from proceedings against the other accused (Berkeley, 2002). The operative indictment alleged that between 1 January 1999 and 20 June 1999, Slobodan Milosevic participated in a joint criminal enterprise (JCE) together with a number of other individuals. During this period, the forces of the Federal Republic of Yugoslavia (FRY) and Serbia, acting at the direction, with the encouragement, or with the support of the JCE, executed a campaign of terror and violence directed at Kosovo Albanian civilians (Berkeley, 2002). It was held that pursuant to Article 7(1) of the Statute of the Tribunal, Milosevic was personally responsible for the alleged crimes and likewise crimes of omission by sub-ordinates as stated in Article 7(1) (Berkeley, 2002). According to the indictment, during the relevant period, Slobodan Milosevic was the President of FRY, President of the Supreme Defense Council of the FRY and the Supreme Commander of the Yugoslav Army (VJ).
Pursuant to his position, he exercised command authority over the VJ and the police forces subordinated to the VJ. Other than the de jure powers he enjoyed, Milosevic also exercised extensive de fact power of control over organizations which facilitated commission of the alleged crimes. An estimated 800,000 Kosovo Albanians were exorcised through forceful removal and subsequently their homes were looted. In the ensuing disorder, many persons died or had their property looted (Berkeley, 2002). The same was upheld for other crimes he had committed in his official capacity. These included indictments in Croatia, where after the take-over, the Serb forces, in cooperation with the local Serb authorities, established a regime of persecutions designed to drive the Croat and other non-Serb civilian population from these territories, Bosnia and Herzegovina
The initial indictment against Slobodan Milosevic concerning crimes committed in Bosnia and Herzegovina was confirmed on 22 November 2001 and made public on 23 November 2001. On 22 November 2002, the Prosecution filed an amended version of the indictment. On 21 April 2004, this version of the indictment became the operative one. The indictment alleged that Milosevic participated in a JCE, which came into existence by 1 August 1991 and continued until at least 31 December 1995. The individuals participating in the JCE included Radovan Karad~i, Mom
ilo Krajianik, and Biljana Plavai, Ratko Mladi, Borisav Jovi, Branko Kosti, Veljko Kadijevi, Blagoje Ad~i, Milan Marti, Jovica Staniai, Franko Simatovi (also known as Frenki ), Vojislav `eaelj, Radovan Stoji
i (also known as Bad~a ), }eljko Ra~natovi Arkan and other known and unknown participants. The purpose of the JCE was the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of Bosnia and Herzegovina (Berkeley, 2002). It was alleged that, from on or about 1 March 1992 until 31 December 1995, Slobodan Miloaevi, acting alone or in concert with other members of the JCE, planned, instigated, ordered, committed or otherwise
As a co-perpetrator in the JCE, Miloaevi was also held responsible for the extermination or murder and forcible transfer and deportation of thousands of Bosnian Muslim, Bosnian Croat and other non-Serb civilians. The charges also included numbers of acts of intentional and wanton destruction of homes, other public and private property belonging to Bosnian Muslims and Bosnian Croats, their cultural and religious institutions, historical monuments and other sacred sites and the appropriation and plunder of property belonging to Bosnian Muslim, Bosnian Croat and other non-Serb civilians. Slobodan Milosevic was charged on the basis of individual criminal responsibility (Article 7(1) of the Statute of the Tribunal), and on the basis of superior criminal responsibility (Rome Statute, 7(3).
Conclusion
It is important to critically revisit the issue of responsibility of the state for the wrongful acts of its citizens. According to the two cases analyzed, both individuals were held individually responsible for the acts committed while in public services. They assert that acts committed by person and lack moral justification and constitute abuse of powers bestowed by the office held, are not vicarious responsibility of the empowering institution. In the context of the international jurisdiction of the cases, collective responsibility can not be claimed for someone who fails to act universal moral obligation or as Kant would put it, acts that are categorical imperative.
The evaluation notes that collective responsibility for unauthorized acts of officials have a near true vicarious liability. Implicitly, it acknowledges that state officials acts falling within the authorized provision of the position occupied are directly attributable to the empowering body. It is assumed that it is the state that authorized the actions and hence must be held accountable. However, modern law as prescribed by the trends in the two cases takes into consideration morality and ethical decision making. While the state has a legal obligation to restrain commission of crime by its officials, the officials are expected to be individually responsible for wrongful judgments they make and end in commission of war crimes and crimes against humanity.
Modern international laws differentiate between personal criminal acts of persons holding office and the publicly committed crimes by those persons. It must be stressed though that much emphasis has in the recent past shifted to individual responsibility as deterrence. In Eichmanns case for instance, the court took into consideration his claim that he was acting on orders and found no reasonable justification to the claim noting that his rank allowed him to take appropriate decisions and additionally the crimes were beyond the powers mandated by the office. In cases involving war crimes and crimes against humanity, the individual is n violation of the provisions of international law while the state is liable for failing to prevent and punish commission of the crimes mentioned.
Elaboration of international crimes must whenever possible, enunciate moral policy. This refers to the moral mandate of the law which questions the fairness of making the whole population suffer alongside those who committed crimes against humanity and war crimes. However, based on the discussed cases, the international law sufficiently creates a distinction noting that state and individual guilt are not based on the same malfeasance. For instance while an individual is personal responsible for killings, rapes among other acts considered war crimes or crimes against humanity, the state is considered guilty of not only facilitating but also tolerating and failing to deter and reprimand the acts committed. The legal provisions recognize that in the age of expanded communication and enlarged democratic space, it is highly unlikely that people committing crimes lack awareness of the implications of their actions. It is therefore fair that persons who used their positions to the detriment or had the power but failed to act in deterrence are held accountable for their doings or misdoings.
In general, it is a good amoral policy for the state to inform persons that they cannot escape responsibility for crimes resulting from ostensible acts and failure to act in the name of the office they hold unless they have both moral and legal justification to dissociate themselves from the actions committed. By ensuring that collective responsibility is not overtaken by the development of personal responsibility for crimes against humanity and war crimes, citizens and the modern political participants are alerted that they ought to act to hold those responsible accountable. Generally, though, the modern law notes that individuals make decisions on behalf of the state. The individuals thus begin by acting from individual capacity and hence are liable for any crimes resulting from their proposals. It is their obligation to ensure that decisions emanating from the offices they hold are morally and legally acceptable by the international society. The concept of vicarious liability does not bear the burden of an individual for crimes committed.
References
Arendt, H. (1964). Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin Books.
Berkeley, B. (2002). Road to a Genocide. in the New Killing Fields: Massacre and the Politics of Intervention. New York: Basic Books, 103-116.
Cryer, R. et al. (2007). An Introduction to International Criminal Law and Procedure. London: Cambridge University Press.
Goldhagen, D. (1996). Hitlers Willing Executioners: Ordinary Germans and the Holocaust. New York: Vintage Books.
Janna, T. (2002). Taking Responsibility for the Past: Reparations and Historical Injustice, Cambridge: Cambridge University Press.
Kant, l. (1989). Good Will, Duty, and the Categorical Imperative: Ethics and Social Concern. New York: Paragon House Publishers, 1989, p. 29.
Rome Statute of the International Criminal Court (U.N. Doc. A/CONF.183/9*).
Tannsjo, T. (1989). The Morality of Collective Actions, Philosophical Quarterly, 39: 221228.
, (2007). The Myth of Innocence: On Collective Responsibility and Collective Punishment , Philosophical Papers, 36: 295314.
The Geneva Conventions Today (2009) . International Laws. Web.
Van den, B. (2002). Can Collective Responsibility For Perpetrated Evil Persist Over Generations? Ethical Theory and Moral Practice, 5(2): 1812000.
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