Group Participation in Mass Atrocity: An Integrated Economic Approach

The many challenges that criminal law confronts in coping with mass atrocity trace ultimately to a single dilemma. Available evidence and law permit liability far beyond the few individuals who can practically be prosecuted. Even these few, however, can often be convicted only through theories of ("vicarious") responsibility blaming them for wrongs beyond their control or contemplation. The reach of the law is thus at once too timid and too ambitious, over- and under-inclusive vis-a-vis the actual distribution of responsibility. Hence the cloud of illegitimacy always hovering over such trials. International and domestic courts are developing the applicable law, but prosecutors face divergent incentives in each, driving doctrine in into contradiction. In the Hague, prosecutors strive to construct the emergent field of "international criminal law" within which they hope to make their professional lives. Their self-interest lies in maximizing convictions of multiple defendants on the most grievous charges, leading them to allege "participation in a joint criminal enterprise." The national prosecutor in a newly democratic state, by contrast, has strong incentives to placate executives - on whom he yet remains dependent - wishing to minimize prosecution of all but high-ranking past leadership, in the interests of social reconciliation and regime consolidation. To this end, prosecutors employ the law of "command responsibility" since it severely restricts the acts and actors susceptible to serious punishment. The unfortunate upshot is that national and international courts are employing disparate legal methods to characterize offenders similarly situated. The threat this poses to international law's coherence increases as national courts assume primary enforcement responsibilities under the International Criminal Court's "complementarity" doctrine. The problem dissolves once "command responsibility" is properly understood to require not that superiors possess total control over the inferior actor, but only the capacity to bring about the wrongful act, whether through the particular subordinate or another substituted in his place. This interpretation, endorsed in postwar German jurisprudence, eliminates the high risk of acquittal that command responsibility now presents international prosecutors, while enabling them and national counterparts to win convictions within the limits of defendants' culpability. It thereby reduces incentives for international prosecutors to rely too heavily on enterprise participation, which is irreducibly imprecise and dangerously illiberal. Enterprise participation should be employed primarily to impose collective (monetary) sanctions on pertinent subdivisions of the officer corps. In its organizational structure and professional culture, such a military elite is well suited both to monitor prospective wrongdoers ex ante and to redistribute ex post costs, initially inflicted upon it as a whole, to individual members actually culpable, thus largely averting "collective responsibility." Perpetrators below the highest ranks should be provisionally amnestied to induce them to leave power. These potential "spoilers" will accept the bargain because they gamble that retributive passions will subside over time; in their calculations, middle-run promises of impunity thus outweigh long-term risks of amnesty's reversal. In analyzing at once the incentives faced by prosecutors, perpetrators and acquiescent bystanders, the present article proposes an integral economic model of, and solution to the above dilemma.