Individuals accused by the International Criminal Tribunal for the Former Yugoslavia (ICTY) are held accountable for their individual criminal responsibility. In this context, such ascribed responsibility focuses on those individuals who participated in the perpetration of crimes, those who were instrumental in inducing others to commit such criminal actions, as well as those who failed to prevent or sanction crimes committed by individuals under their command. However, the potent influence of group dynamics in such criminal involvement poses a serious challenge to the assumption of the primacy of individual agency. People involved in international crimes mostly act within a specific social setting and conform to the normative principles guiding the dynamics of the group to which they identify. Certain forms of liability ascribed at the ICTY were created to address the group dynamics underlying international crimes, but their limitations in accounting for these collective dimensions are widely acknowledged.
Through the analysis of the interviews of 15 accused individuals, we assess subjective understandings of responsibility against the forms of liability attributed at the ICTY. Our findings demonstrate that such forms of responsibility are not acknowledged or understood by the very persons who are the object of such ascriptions: the accused. One explanation could lie in the role of structural dynamics surrounding the involvement of individuals accused of such crimes, as they recount it a posteriori. They construct their accountability along the lines of their subjective positioning with regard to the balance of powers related to the normative setting (collective needs, social identity motives). If power relations and identity-needs determine their sense of accountability, how does the accused make sense of legal forms of liability based on rational criteria such as intent or awareness? These findings are related to the moral legitimacy and restorative potential of international criminal justice.
