An argument in favour of a more normative distinction between principals and accomplices in International Criminal Law

While International Criminal Law ‘in action’ is recognized today as primarily criminal law, the rules of attribution are still underdeveloped. This article explores the reasons why the attribution of penalties in international criminal law requires a priori a differentiated approach depending on the degree of each person’s participation in the criminal act. Whatever the causes of the absence of a normative distinction regarding accomplice liability as far as penalties are concerned, this article proposes that International Criminal Law should provide that persons belonging to different categories of criminal conduct (perpetrators and participants) must be punished in different ways. The legal rules for this differentiated approach should be provided in the General Part of International criminal law, so that the principle of nullum crimen and nulla poena sine lege is fully upheld. From a practical point of view, the normative distinction might serve as a point of departure and guideline for the sentencing.