In a significant decision handed down on December 16, the International Criminal Court (ICC) cited two articles written by Professor Jens Ohlin and adopted his position on individual responsibility for collective crimes.
The case concerned the situation in the Democratic Republic of Congo, and the defendant was a rebel leader accused of individual responsibility for war crimes and crimes against humanity. The ICC Prosecutor based in The Hague requested an indictment of the accused under Article 25(3)(d) of the Rome Statute, the treaty that established the international court in 1998. The provision in question makes it illegal for an individual to contribute or assist a group of persons who are committing atrocities.
This was the court’s first major interpretation of this key provision, and the court cited two law review articles by Professor Ohlin (available here and here) that analyzed what type of contribution is sufficient to make an individual criminally responsible for the actions of others. In these articles, Professor Ohlin concludes that countless individuals could be said to “contribute” commodity services, such as selling food or gas, to a criminal gang knowing of the gang’s criminal nature, but such contributions are not significant enough to generate legal responsibility for the collective crime.
Ohlin, who teaches international and criminal law, is an expert on the philosophical and legal foundations of criminal liability for collective crimes. In addition to having authored numerous articles on the subject, he also blogs at LieberCode.org.
The court’s opinion in Prosecutor v. Callixte Mbarushimana can be found here.