The Enabler theory and Atrocity Crimes

Abstract

International criminal law (ICL) practitioners and scholars have observed that individuals convicted of atrocity crimes of similar gravity are sentenced to punishments of vastly different severity.1 This raises questions whether “gravity” is indeed the primary consideration and differential factor in determining the quantum of punishment for atrocity crimes.2 Is gravity of the offence operating as a meaningful differential principle in punishing atrocities? Is there an explanation that might reasonably justify substantially different sentences for persons convicted of crimes of similar gravity? Moreover, from a systemic perspective, has the notion of “gravity” been overplayed as a differential criterion for the purpose of punishing atrocities? And, has this come at the expense of developing sentencing criteria sui generis to atrocity crimes? This article explores these questions and responds with an original claim: the enabler theory.