Mr Shahram Dana
International criminal law (ICL) posits “gravity” as the key determinant of punishment for perpetrators of genocide, crimes against humanity, and war crimes. International judges proclaim that “gravity” is the “litmus test” for sentencing allocations. Judicial narratives describe atrocity crimes as among the worst crimes known to humanity - crimes of the utmost gravity that shock the conscience of humanity. Yet, sentencing allocations do not match the “gravity” narrative. For example, the average sentence at the ICTY is 16 years. There is a disconnect between the judicial narrative and sentencing outcomes. This dissonance has negative impacts on perceptions of the court.
In this paper, I argue that “gravity” is not the dominant factor in ICL punishment. It is not a differential principle in sentencing allocations and the distribution of punishment among perpetrators. It is a “colourless litmus test” to borrow the court’s metaphor. I advance a new theory - enabler responsibility - which I argue better explains ICL punishment and sentencing allocations. Moreover, when viewed through the prism of the enabler responsibility theory, judicial narratives find congruence with sentencing outcomes.