7. Objectivity Reflected in the Civil Law Tradition

This chapter undertakes the second part of the comparative study in this book, focusing on collective and leadership liability in the civil law tradition. Systemic consistency is prioritized over individual balance of fairness, and the role of scholars in defining and developing a coherent system is highly influential. These factors influence the way in which liability has developed as a more technical, hierarchically ordered system. This is is one of the reasons why a normatively differentiated system has typically emerged in the civil law tradition. As a corollary of this, there is a heavy emphasis on objectivity, or the exact contribution of a party to a crime to its fulfilment, as an expression of his or her blameworthiness. Illustrative of this are the comparisons made between the systems of liability in Germany and Argentina. In Germany, objectivity has developed over time from a pure objective approach to an approach where control over the act is the paramount test. The theory of control over a crime by way of control over an organisation, developed by Claus Roxin, is given particular attention due to its recent impact in ICL. In Argentina, the German model has been developed further in specific response to domestic crimes of mass atrocity during the ’Dirty War’ of the 1970 s and 1980s. There are lessons to be learned from both these jurisdictions in terms of leadership liability for mass atrocity, especially when comparing the specific policy reasons behind the development of domestic modes of liability.