Chapter 7 explores the application of the individual criminal responsibility rules to the facts of individual cases at the International Criminal Court (ICC). It looks at the facts and evidence presented by the prosecutor, as well as the conclusions of the judges at the pre-trial and trial stages of proceedings, to ask whether the requirements of the Rome Statute’s modes of liability are met. In view of the practices of the UN tribunals, many members of the international criminal justice community expected that the ICC judges would apply the Rome Statute in a manner that would render convictions easier. Instead, this chapter argues that the assessment of criminal responsibility at the Court has followed a different line of legal reasoning: applying the modes of liability in a restrained manner, regardless of the trial outcome. At the ICC the quality of the process has been cherished as the ultimate prerequisite for ‘ending impunity’ for those crimes. While this vision of international criminal law has been contested by some members of the international criminal justice field, such as human rights advocates, it has continued to dominate the ICC approach to assessing criminal responsibility.

Chapter 3 explores the structure of the international criminal justice field. Specifically, the chapter argues that the community of international criminal law practice, which includes judges, lawyers, academics, non-governmental organizations, and state diplomats, is bound by two core norms, or shared understandings: firstly, that the perpetrators of mass atrocities deserve to be punished (the ‘anti-impunity’ norm), and secondly, that punishment should follow a fair criminal process (the ‘legalism’ norm). Next, Chapter 3 turns to the debates taking place inside the international criminal justice field in relation to questions of individual criminal responsibility. The analysis reveals a variety of competing views on the meaning of criminal responsibility rules, on the requirements of a ‘fair process’, and on the mechanisms for ending impunity for mass atrocities. These clashes of ideas result not only from differences in the professional backgrounds of the persons engaging in international criminal law practice, but also from the lack of agreement on the nature of personal culpability for atrocity crimes and on the function of criminal law in the international society.

Chapter 2 positions the book within the interdisciplinary literature on international law and develops its theoretical framework and the concept of intersubjective legalism, borrowing insights from ‘practice’ studies. The research framework builds upon the works of Kratochwil, Brunnée and Toope, and Johnstone, situating the meaning of legal rules within the ‘community of practice’ of international law, which enforces a set of shared understandings about what constitutes sound legal reasoning. Next, Chapter 2 integrates insights from critical legal studies and sociological studies of the juridical field to elucidate the power inequalities shaping interactions inside the community of legal practice. The centrality of expert knowledge as a source of power inside the juridical field suggests a reordering of the traditional perception of international politics: Inside the community of international legal practice states lose their central position, and actors such as judges, legal scholars, and non-governmental organizations gain leverage. The framework presented in Chapter 2 enables the investigation of the politics of the legal field, which take the form of competition over the authority to determine the meaning of legal rules. Finally, this chapter discusses the methods of analysis, namely discourse analysis and interviews.

Chapter 6 argues that the competition for delivering an authoritative interpretation of the criminal responsibility provisions in Article 25(3), Article 28, and Article 30 Rome Statute continued when the International Criminal Court (ICC) began operation. This chapter shows that the interpretation of Article 25(3) should be understood not only as an indication of the growing influence of civil law norms, as has been often suggested in the legal literature, but also with respect to other important overlapping factors, namely the growing dissatisfaction with joint criminal enterprise and the novel institutional environment of the ICC. Next, Chapter 6 observes that the ICC judges have interpreted in a very restrained manner Article 28 and Article 30, perhaps going beyond the intentions of the Rome Statute drafters. This chapter provides a comprehensive analysis of the (re)construction of criminal responsibility rules at the ICC over a period of 15 years, including recent developments, which took place in 2020–2021 in the Yekatom and Ngaïssona, Abd-Al-Rahman and Said cases, thus highlighting the dynamic nature of international criminal law norms.

Chapter 1 situates Responsibility on Trial within the existing interdisciplinary literature on international criminal justice and presents the research aims of the book. Chapter 1 highlights a gap in the existing literature: international criminal law norms are generally treated either as objective and static standards that are independent from states’ political interests (the ‘liberal-legalist’ thesis), or, conversely, as inevitably indeterminate concepts that enable the perpetuation of global structural inequalities (the ‘critical’ thesis). While both perspectives provide important insights into the operation of international criminal justice, they fail to examine the dynamic nature of legal norms as vehicles for both continuity and change in the field and the implications of those dynamics for the assessment of individual criminal responsibility for mass atrocities. To address this gap, Chapter 1 borrows insights from the work of Shklar and Kirchheimer and proposes building an ‘intersubjective’ framework of analysis that recognizes law’s inherent normativity not as an objective fact but as a form of social practice.

Chapter 4 argues that the nascent community of international criminal law practice coalesced around the judgments issued by the International Military Tribunal (IMT) in Nuremberg and International Military Tribunal for the Far East (IMTFE) in Tokyo after the end of the Second World War. The United Nations (UN) tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), established in the 1990s, significantly developed the legal rules regulating the attribution of individual criminal responsibility for mass atrocities, further consolidating the international criminal justice field. Chapter 4 argues that, from the perspective of intersubjective legalism, both the post-Second World War tribunals and the UN tribunals displayed sound legal reasoning in the assessment of criminal responsibility for two reasons: Firstly, they followed a consistent normative logic, namely that morality was the animating force behind legality. Secondly, many judges and outside legal commentators shared that normative logic. Nevertheless, over time the UN tribunals polarized the international criminal justice community of practice on questions concerning the scope and requirements of criminal responsibility rules.

Chapter 8 explores the legal and political dilemmas arising from the assessment of individual criminal responsibility in two ICC cases, which ended in acquittals: Bemba and Gbagbo and Blé Goudé. The analysis focuses on the battles of ideas inside the legal field, situating those dynamics within the broader international political context of the Bemba and Gbagbo and Blé Goudé trials. This chapter offers an illustration of the distinctive and predominant line of legal reasoning at the ICC, a line of legal reasoning that prioritizes the quality of the process through the narrow application of the modes of liability and the meticulous assessment of evidence, all regardless of the trial outcome. The chapter concludes that the Bemba Appeals Chamber Majority and Gbagbo and Blé Goudé Trial Chamber Majority have adopted an internal shared understanding about the role of the court in the international society, according to which procedural excellence upholds the integrity of the liberal system of criminal justice and provides an antidote to the false information dominating the modern political world. Nevertheless, the restrained approach to the assessment of criminal responsibility has been contested by dissenting judges, non-governmental organizations, and legal experts.

Chapter 5 offers new insights into the drafting of the criminal responsibility rules in the Rome Statute. Specifically, the chapter argues that it would be simplistic to present the restrained approach to the assessment of criminal responsibility exhibited in the Rome Statute as the triumph of sovereign states, seeking to shield their nationals from convictions, over non-state actors, such as legal scholars, and non-governmental organizations, aiming to expand the scope of criminal responsibility provisions to enable easier convictions for the perpetrators of mass atrocities. In fact, authoritative legal experts were among the most ardent proponents of the proposal to codify in detail the general principles of criminal responsibility in the RS, instead of granting discretion to the future judges at the Court to develop the rules of criminal responsibility. From the perspective of those legal experts, the inclusion of a ‘General Part’ in the Statute marked the progress that ICL had made since its early days towards a coherent penal system. Thus, the politics of the legal field, that is, the promotion and contestations of different understandings of the law, are crucial for understanding how the principled approach to criminal responsibility became influential in Rome.

Chapter 9 explores the legal and political dilemmas arising from the assessment of individual criminal responsibility in two ICC cases, which ended in convictions: Ntaganda and Ongwen. This chapter observes that in those two cases the ICC judges have followed the same line of legal reasoning, premised on a restrained application of the modes of liability, as in the Bemba and Gbagbo and Blé Goudé cases discussed in Chapter 8. However, unlike the Bemba and Gbagbo and Blé Goudé cases, which ended in acquittal, the persons standing trial in Ntaganda and Ongwen had been actively involved in the hostilities, which have resulted in the commission of numerous crimes. The accused’s proximity to the crimes and their willingness to engage in criminal conducts convinced the judges in their criminal responsibility for the crimes, which they had committed personally, as well as the crimes, which they had committed ‘indirectly’, through their troops. Apart from two appeals judges, who expressed some concern with the reliance on the ‘control over the crime’ theory in Ntaganda, the meticulous assessment of the facts in the judgments left little room for contestation of the trial outcomes within the ICL field.

Chapter 10 discusses the main findings of this book concerning the politics of international criminal law practice and explores the question whether the norms and practices associated with the assessment of individual criminal responsibility are likely to continue changing in the future. This chapter presents a pluralist understanding of ‘legalism’, as a concept that entertains a range of different visions of international criminal justice. Next, this chapter highlights the importance of understanding the normative dynamics taking place inside the international criminal justice field, namely the battle of different visions of legalism over the construction of criminal responsibility rules, for analysing trial outcomes at the Court. Finally, Chapter 10 observes that it is possible that the restrained approach to criminal responsibility, displayed at the Bemba Appeals Chamber Majority and the Gbagbo and Blé Goudé Trial Chamber Majority, can create a backlash within the international criminal justice community, even if that backlash does not end up prompting reform at the ICC in the short term.