Research Discussion: The Meaning of 'greatest responsibility'

The question that arose during the trials was whether this statement of personal jurisdiction constituted a jurisdictional requirement or whether it was merely a guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. While Trial Chamber I held that it was a jurisdictional requirement, Trial Chamber II determined that it was solely guidance for the Prosecutor in choosing who to prosecute. The Appeals Chamber sided with Trial Chamber II.

The paper critically assesses the interpretation of the SCSL’s personal jurisdiction given by the Appeals Chamber. Its contribution to the literature lies in the three conclusions that it draws. First, based on the drafting history, it demonstrates that the Appeals Chamber reached the wrong conclusion when it adopted the interpretation of Article 1(1) offered by Trial Chamber II instead of Trial Chamber I. Second, it demonstrates that the appeals court’s decision was driven by the ultimately unnecessary fear that holding that greatest responsibility is a jurisdictional requirement would require the acquittal of the accused. Third, the paper shows that while the phrase to prosecute those who bear the greatest responsibility was never intended to be an element of the crimes before the SCSL, it is a germane factor that should have been taken into account during the sentencing stage of the trials.