Description
Establishing liability in international criminal law has long been challenging. The recent Gaza conflict has reignited debates on the extent to which causal links can be stretched. Building on this context, the paper explores the research question: How can causation frameworks in international criminal law be refined to ensure consistency and fairness in establishing liability for collective crimes and overdetermined scenarios?
The establishment of a causal link between acts or omissions and their consequences is fundamental to ensuring accountability in international criminal law. However, the unique complexities of collective crimes, overdetermined scenarios, and indirect perpetration challenge traditional causation theories. This paper critically examines the evolving jurisprudence of international tribunals, including the ICC, ICTY, and ICJ, to assess how causal linkages are defined, applied, and conceptualized across different modes of liability.
The paper explores empirical causation frameworks, such as the sine qua non test and NESS theory, highlighting their limitations in addressing overdetermined cases where multiple actors contribute to a single outcome. Normative causation, which considers foreseeability, unlawful risk creation, and moral blameworthiness, is also analyzed for its potential to bridge gaps in accountability, particularly in aiding and abetting and superior responsibility. The study further examines divergent judicial approaches to causation, such as the ICTY’s expansive "overall control" test in Tadić and the ICC’s essential contribution standard in Lubanga and Katanga.
This research contends that existing causation models inadequately address collective liability and indirect contributions, often leading to inconsistencies in outcomes. Drawing on interdisciplinary insights, the paper proposes a refined framework that integrates probabilistic and normative elements to more effectively establish causal links in complex cases.
This paper aims to contribute to the discourse on improving accountability mechanisms in international criminal law by offering a comprehensive analysis of causation theories and proposing actionable recommendations for future judicial and legislative reforms.
