Legal anthropology and the construction of complex liabilities

There is something common among international trials that have involved the use of command responsibility, in that the boundaries of fault in some cases were not at all clear. Here, I distinguish between material fault and liability. Material fault is impossible in the absence of a preexisting criminal conduct, which in turn gives rise to liability. This liability may further be distinguished twofold: first, in terms of satisfying the mental and factual elements of the offense in question (which may be termed legal fault), and second, in terms of categorizing the perpetrator’s overall participation in the crime (i.e., as principal, accessory, co-perpetrator, or other). Thus, it follows that fault is circumscribed and dependent on the particular forms of liability pertinent to each offense. By way of illustration, liability for unlawful homicide lies with the direct perpetrator, as well as possible accessories. Quite clearly, fault and liability are ascribed to the same actors. This pattern is pretty much consistent in domestic criminal laws, no doubt because domestic crimes in their majority do not involve complex organizations and multiple victims. In international law, the aforementioned fault-liability paradigm has been severed not only because of the obvious complexity underlying international crimes such as genocide and crimes against humanity, but more importantly because it is recognized that the concept of legal and material fault is incapable of fully encompassing the complexities of justice lato sensu. The liability associated with the responsibility of persons in authority and effective control over others seems at first glance to satisfy the dictates of justice. However, as the authors writing on command responsibility in this volume have rightly identified (see the foregoing chapters by Sandesh Sivakumaran, Harmen van der Wilt, and Réne Provost), as well as those writing before them, when one departs from the fault-liability paradigm, one has to justify this expansion of fault. If this is not done convincingly it will lack legitimacy and will therefore undo the very justice it was originally set up to serve.