Individual criminal responsibility

The feature that sets apart international criminal trials from other international legal proceedings is that they require a determination of whether an individual is guilty beyond reasonable doubt. A trial is ultimately about what the Prosecution can prove one person did. However, international crimes often occur through state or state-like organisations, and are committed in the context of a system, where the government orders, encourages, or tolerates the commission of crimes. ¹ Collective commission requires us to confront the challenge of separating the responsibility of the individual from that of the group. ² It is possible for both an individual and the state to be responsible for the same wrong, ³ and for the actions of an agent of the state to trigger both individual criminal and collective state responsibility. ⁴ Drawing a distinction between the two forms of responsibility is particularly important in the context of the settlements in the West Bank. While much has been written about Israel’s responsibility as a state for the settlements, ⁵ determining whether an individual might be held criminally liable confronts us with different questions about attribution, responsibility, and the operation of the modes of liability in the Rome Statute.