Cornell International Law Journal


Mark J. Osiel


Justice, State Role, International Law, article, Participation, Atrocities, Criminal liability (International law)


In this essay in the Symposium on Milosevic & Hussein on Trial, the author addresses the choice between "command responsibility" & "participation in a joint criminal enterprise" in mass atrocity to argue that the International Criminal Tribunal on the former Yugoslavia (ICTY) makes liability under command responsibility too difficult to prosecute. Analysis of the incentives of prosecutors & the limitations of the binary character of liability delineates the difficulties of linking perpetrators & accessories. The US posture toward enterprise participation is discussed in terms of national versus international prosecutors & superior responsibility. A discussion of the domestic politics of international justice, modes of criminal participation, complicity, & amnesty supports the concluding argument that national prosecution should be limited to top chieftains to avoid the creation of incentives, & the obstruction of political transition. J. Harwell

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