Symposium on Prosecuting Heads of State for International Crimes: Punishing the powerful – The allure and limits of the penal accountability paradigm

[Natasa Mavronicola is a Professor of Human Rights Law at Birmingham Law School, University of Birmingham; co-editor of Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR (Hart 2020); author of Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart 2021).

Mattia Pinto is a lecturer at York Law School and Deputy Director of the Centre for Applied Human Rights, University of York. Forthcoming book: Human Rights as Sources of Penality (OUP).]

‘Justice demands that the accused be prosecuted, defended, and judged, and that all the other questions of seemingly greater import – of “How could it happen?” and “Why did it happen?”… – be left in abeyance’.

Hannah Arendt, Eichmann in Jerusalem

4 March 2009 and 12 July 2010: the International Criminal Court (ICC) Pre-Trial Chamber I issues arrest warrants for Omar al-Bashir, then president of Sudan. 17 March 2023: the ICC Pre-Trial Chamber II issues an arrest warrant for Vladimir Putin, president of Russia. 21 November 2024: the ICC Pre-Trial Chamber I issues an arrest warrant for Israeli Prime Minister Benjamin Netanyahu. 

Al-Bashir, Putin, and Netanyahu all remain at large, with the latter two firmly in power in their respective states. And yet, for many, the moments when these warrants were issued were experienced as triumphs of international law: a first breach in the wall of impunity, suggesting that even the most powerful Heads of State are not above the law. This sentiment persists even amidst long-standing critiques regarding the ICC’s selectivity in terms of West/Rest and North/South lines.

The allure of such prosecutions is undeniable. In the face of atrocities that “deeply shock the conscience of humanity”, (international) criminal law promises a mechanism to identify and sanction villains, vindicate victims and reaffirm shared moral commitments to human rights. It offers what Durkheim might describe as a ritual of solidarity: a way to channel moral outrage into a collective condemnation of those who violate fundamental norms. Arrest warrants against sitting Heads of State may also have some concrete consequences, at the very least “disrupt[ing] political calculations” and impacting diplomatic leverage (the legal complexities arising in relation to the prospect of their prosecution and punishment are addressed by other contributors to this symposium).

However, as we argue in our recent article in the Leiden Journal of International Law, there are significant pitfalls to what we identify as a disproportionate reliance on, and channeling of collective efforts towards, penal accountability for atrocities – which we refer to as the “penal accountability paradigm”. Without denying the symbolic and concrete significance of indicting heads of state committing atrocities in real time, we maintain that the penal accountability paradigm can be limited, limiting and indeed harmful. Its primacy in the international legal arena actively shapes a discourse that: (1) obscures and potentially dilutes State responsibility; (2) decontextualizes and individualizes systemic violence and its ecosystem(s); (3) monopolizes the discourse on justice to the detriment of emancipatory politics; and (4) validates retaliatory impulses within wider international law.

The idea of punishing the powerful appears counter-hegemonic, offering the promise of redistributing protection and recalibrating profound asymmetries of power that contribute to atrocities. However, the redistribution it actually provides is at worst illusory (as the cases of Milošević, Kambanda, and Duterte illustrate, by the time the powerful are prosecuted by international criminal tribunals, they are effectively no longer in power), and at best thin or hollow: a redistribution of punishment. To truly uphold the promise of “never again”, we must recognize the limits of a paradigm that foregrounds punishing the powerful and reorient our energy toward more transformative visions of justice and solidarity.

Conflating State and Criminal Responsibility

One of the most pernicious effects of the penal accountability paradigm is the way it creates a tendency to conflate State responsibility for violations of international law and individual criminal responsibility for (international) criminal wrongs. This conflation enables States as collective political entities to hide behind a presumption of innocence that affords them the benefit of the doubt, and to be shielded by the demanding substantive and evidentiary standards of criminal law. 

The primacy of penal accountability for serious violations of international law has led to a tendency to equate the State wrong of a serious violation of international law with criminal wrongs, thereby demanding a level of culpability – a strictly defined mens rea and actus reus – that States can easily disavow. This (mis)alignment between State responsibility and individual culpability is notably exemplified in the way that the State wrong of genocide is delineated in international law (see the critical analysis by Philippe Sands).

Criminal law imposes a high burden of proof (“beyond reasonable doubt”) to protect individual defendants from wrongful convictions. However, when this standard is transposed onto the legal or political assessment of State conduct, it can serve to insulate particular States from criticism and sanction, while simultaneously sanctifying inaction toward, or active facilitation of, ongoing atrocities. Notably, in the face of Israel’s systematic destruction of Gaza, political leaders and commentators have frequently argued that we must “reserve judgment” until a court definitively establishes crimes such as war crimes or genocide. Seen through a penal lens that purports to reflect the gravity of the wrongs being committed, State wrongdoing thereby becomes unduly shielded from scrutiny.

The conflation of individual criminal responsibility and State responsibility for atrocity obscures the distinct logic of State responsibility, which does not and should not depend on the level of culpability or forensic certainty required for a criminal conviction. As things stand, the penal accountability paradigm allows third States to defer their obligations to prevent atrocities by buttressing the “plausible legality” of ongoing mass violence.

Decontextualizing and Individualizing Systemic Violence

The criminal trial is, by design, a narrow aperture. It seeks to link specific acts to specific individuals. When criminal justice becomes our primary frame for understanding mass violence, we inevitably decontextualize and individualize the violence. There are at least two problematic ramifications of this. One is that it offers an unduly limited and limiting account of the violation and its causes, and shapes a thin response to it. The second (more pernicious) implication of tis narrow aperture is its capacity to not merely obscure wider wrongdoing, but to absolve it. 

In particular, as Hannah Arendt memorably warned, the penal paradigm encourages a narrative of aberrant or monstrous evil committed by a “few bad apples”, and misses the banality of evil. Atrocities in Sudan, Ukraine and Gaza are recast as exceptional deviations driven by the malevolence of figures such as al-Bashir, Putin or Netanyahu. This focus obscures the “poisoned orchard”, namely the structural and ideological conditions that produce and sustain the violence. In the case of Palestine, for instance, a narrow focus on the monstrosity and criminal culpability of specific leaders risks sidelining the decades-long context of occupation, apartheid and settler-colonialism that form the backdrop to the present violations. By singling out the “bad apple”, the penal accountability paradigm can serve to absolve the broader system and render the slow, structural harm of dispossession largely invisible.

Monopolizing the Discourse on Justice

When punishment becomes the synonym for justice, it tends to crowd out alternative forms of accountability and condemnation. The penal accountability paradigm juridifies the political: it turns urgent ethical and political questions about oppression into technical disagreements over legal definitions. At the very least, it may mean that too many of us expend more time and energy debating whether particular acts satisfy the dolus specialis of genocide than mobilizing against the material reality of mass death.

The monopolization of visions of justice and accountability by a punitive, legalistic framework must be situated within a broader context of expanding penal suppression of political dissent and resistance. We have witnessed this starkly on university campuses. Non-violent student protests against atrocities committed by Israel and calls for divestment from Israeli institutions have often been met with arrests, expulsions, and even deportation orders. At the same time, the violence of the State and its law enforcement apparatus is approached with deferential legal caution. The penal accountability paradigm thus creates a paradox: States are insulated from conclusive judgements about their violence, while dissenting voices seeking to hold States and other powerful institutions to account and end the violence are enthusiastically and even pre-emptively penalized.

Validating Retaliatory Impulses

Perhaps most disturbingly, the penal accountability paradigm within international law creates a penal mindset that can lend legitimacy to retaliatory violence.

International law unequivocally prohibits the use of force for any purpose other than self-defense. It also strictly prohibits collective punishment. Yet in the aftermath of the October 7 attacks, dominant discourse rapidly shifted from “self-defense” to overt appeals to “retaliation”. Political leaders employed punitive, biblical language to galvanize support for the offensive in Gaza, framing the destruction as a necessary form of punishment-as-justice. 

While the specific invocations of biblical language have been condemned and indeed cited in support of a possible genocidal intent in South Africa v Israel, they formed part of a wider punitive rationalization of an offensive that has now cemented itself in mainstream discourse. We continue to observe widespread references to penal justice to characterize or justify the use of force in the international arena (see, for example, here and here). Most recently, we have seen the invocation of penal accountability as the primary basis for the US invasion of Venezuela and capture of Nicolás Maduro. We tentatively suggest that the penal accountability paradigm’s growing centrality in international law plays a not-insignificant part in legitimizing such discourses. If punishment is accepted as the highest expression of justice, punitive instinct is readily projected onto States’ uses of force, lending normative cover to violence that international law is meant to restrain.

Beyond the Penal Accountability Paradigm

We do not reject the symbolic or concrete significance of indicting Heads of State as they commit atrocities. We do, however, take issue with a penal accountability paradigm that captures, limits and distorts the way accountability for atrocity is framed and pursued. We argue for a reorientation of attention and energy toward new words, new tools and new visions of justice.

New words: We must acknowledge the limitations of penal language and embrace frameworks that capture the continuity and totality of violence, recognizing it not just as a historical event, but as an ongoing structure of fragmentation and domination, as the concept of the Nakba illustrates in the Palestinian context. We need language that captures the totality of these structural conditions, rather than just the specific infractions that fit a criminal indictment. Postcolonial and decolonial literatures and grassroots struggles, indigenous justice, and other fundamentally counter-hegemonic practices and utterances across the world offer a wealth of insight into the limitations of dominant language norms and the possibilities of (old) new vocabulary for addressing harm.

New tools: To avoid the pitfalls of the penal accountability paradigm, we must reassert the plurality of pathways to accountability and revitalize frameworks of state responsibility. The International Court of Justice’s July 2024 Advisory Opinion, for example, offers a starting point in reasserting and recontextualising State responsibility, in establishing that Israel’s occupation of the Occupied Palestinian Territories, and its associated policies and practices, violate multiple norms of international law and require withdrawal. This moves the conversation from individual criminal culpability – with its unduly high substantive and evidentiary standards – to state obligations and internationally wrongful acts. Crucially, attending to State responsibility must involve the clarification of the obligations for third States in respect of serious ongoing violations of international law (see the illuminating discussion of this, with emphasis on the concept of jus cogens, by Judge Dire Tladi). As the ICJ’s Advisory Opinion illustrates, these can include a duty not to recognize the illegal situation and, more importantly, not to provide any aid or assistance. Besides the legal arena, a more collective and systemic lens enables the “tools” of accountability to shift from the courtroom to the cabinet office and the supply chain. Accountability can mean arms embargoes, diplomatic isolation, and the cessation of trade that sustains domination.

New visions of justice and solidarity: Finally, we must move from “hostile solidarity”, which unites us only in condemning a perpetrator, to transformative solidarity. In recent mobilizations against atrocities, we have seen millions mobilize globally, not merely to demand arrests, but to demand an end to structural violence, and to call for liberation and equality. This solidarity acknowledges complicity and seeks to repair the structures that enable violence. It is generative, not punitive. It reflects Judith Butler’s call for a commitment to non-violence rooted in the “desire for the other’s desire to live”.

The recent ICC arrest warrants do mark symbolic milestones. But they do little to halt ongoing atrocities, and in this respect may deepen the perceived or actual crisis facing international criminal justice. They also risk entrenching a discourse that can serve to condone or even facilitate violence rather than curb it. Genuine accountability requires abandoning the habit of waiting for a verdict to name violence and assign blame, and rejecting the notion that prosecuting a powerful few can absolve the complicity (in moral, and not just legal terms) of the many.