Introduction

Violations of international humanitarian law connote what Rling called ‘system criminality’. Indeed, almost by nature, genocide, crimes against humanity, and war crimes occur on a mass scale or in the context of systemic violence. System criminality very often concerns a plurality of offenders, particularly in carrying out the crimes. It further presupposes an auctor intellectualis pulling the strings. This can be one person, but also a group of people gathered together in a political or military structure.

The concept of individual criminal responsibility in international criminal law comes with a certain ‘flavour’. System criminality engenders system responsibility. System responsibility borders on collective responsibility. This is evidenced by Bernays’ collective criminality theory applied in Nuremberg. System criminality can put pressure on the principle of individual criminal responsibility and can make it expand beyond the limit of personal culpability.

In this chapter I will argue that the way the ICTY has dealt with system criminality is unsatisfactory from a conceptual and legality point of view. My focus will be on two legal concepts, or modes of liability, superior responsibility and joint criminal enterprise. Describing the development of these two concepts in the case law of the ad hoc Tribunals, it becomes clear that the concepts are not the most obvious basis of liability for those in the higher echelons of government. This has lead to expanding the limit of, or reconceptualizing these modes of liability.