The Problem of Risk in International Criminal Law

There is a lack of clarity in international criminal law regarding the standard that should be applied in attributing liability for risky conduct. An approach that is too lax can result in overly expansive liability that exceeds culpability. An approach that is too restrictive can produce impunity for conduct that is worthy of punishment. This Article will explore the causes of this lack of clarity beginning with the Tadić case and the post-Tadić decisions of the ICTY.

Then it will analyze the nascent case law of the ICC to see how the Court has dealt with this problem so far. Finally, this Article will suggest a solution, based on the Model Penal Code approach to recklessness, which strikes the proper balance between over attribution and under punishment.