INTRODUCTION

The end of the first decade of the operation of the International Criminal Court has been met with celebration as well as extreme trepidation. While the celebration reflects the recognition of hard fought victories, the trepidation is related to the Court's critics, many of whom remain ambivalent about the way that the Court has parsed guilt and framed modes of responsibility. These modes of responsibility involve the ways that notions of culpability have been articulated through a language of individualisation – in which guilt is being attributed to those deemed the most criminally responsible, such as commanders and military leaders. However, the challenge is that notions of responsibility are also understood in collective terms, as well as through understandings that go well beyond the domain of the legal.

This essay is concerned with the emergence of new modes of responsibility as they are being unravelled in international criminal law domains. The goal is to explore the way that notions of ‘culpability’ are mediated through a range of formulations. While the Office of the Prosecutor (OTP) for the ICC may base culpability for contemporary violence in a narrow, a historical time frame that places responsibility in the hands of those who gave the orders or encouraged the violence, others assign modes of responsibility in relation to historical actors that they deem responsible for producing deep-seated structural inequality, such as colonial officers. These different assessments for assigning and comprehending guilt are oft en temporally driven and result in divergent ways of attributing culpability. These divergences result in what I have referred to elsewhere as an ‘international criminal law (ICL) impunity gap’. This ICL impunity gap is the gap between the assignments of guilt that draw their meaning from the individualisation of criminal responsibility distinguished from modes of liability for parsing guilt that go beyond the individual.

Though the impunity gap has been invoked traditionally to refer to the gap in adjudication mechanisms between the international, regional, national and/or local mechanisms that shield some individual perpetrators from adjudication and enable the pursuit of adjudication for others, going beyond the individual analyses of guilt allows us to consider how and why collective and continuing crimes may trump new individualised conceptions of guilt in certain situations.