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Ordering individual criminal responsibility: proposing a hierarchy of the modes of liability

Melissa Conway

Keywords: modes of liability; sentencing; hierarchy; fair trial; ‘control over the crime theory’; Article 25(3); Rome Statute

This paper proposes a hierarchy of the modes of liability as a solution to the problem of inconsistency in international criminal law sentencing. By assessing the blameworthiness of each mode of liability and ordering them accordingly, the hierarchy makes it possible to individualise sentences within a standardised framework. This will improve adherence to the fair trial principles of legal certainty and proportionality. The paper also sets to one side the issue of principal/accessorial liability. In doing so, it avoids rigid distinctions and allows a plain text evaluation of the modes of liability. As a result, liability for ‘masterminds’ under the hierarchy is attributed using Article 25(3)(d) Rome Statute, rather than the textually unsupported ‘control over the crime’ theory.

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