Forms of responsibility in international criminal law
1. Introduction 2. Joint criminal enterprise 3. Superior responsibility 4. Complicity and aiding and abetting 5. Planning, instigating and ordering 6. Concurrent convictions and sentencing 7. Conclusion 8. Annexes.
Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law
Contemporary international criminal law is largely concerned with holding individual defendants responsible for mass atrocities. Because the crimes usually involve the concerted efforts of many individuals, allocating responsibility among those individuals is of critical importance. This Article examines two liability doctrines - joint criminal enterprise and command responsibility - that play a central role in that allocation of guilt in international criminal tribunals. The Article posits a general model for understanding the development of international criminal law as in outgrowth of three legal traditions: domestic criminal law, international human rights law, and transitional justice. We explore the application of that model to joint criminal enterprise and command responsibility doctrine, and argue that viewing the doctrine through the lens of our model shows the need for certain doctrinal reforms. Finally, we discuss the application of liability doctrines developed in the context of international criminal tribunals to prosecutions for transnational crimes in other forums, such as military tribunal prosecutions for terrorism, that do not share the same roots as international criminal law.
Criminal Conspiracy Law: Time to Turn Back from an Ever Expanding, Ever More Troubling Area
The offense of criminal conspiracy exists because of a deep concern with the danger created by the joint activity of serious and determined criminals. In virtually every jurisdiction in the United States, a conspirator can be held responsible for crimes committed by her co-conspirators as long as such crimes were in furtherance of the agreement and were reasonably foreseeable; the crimes themselves do not have to have been agreed upon, intended, or even discussed. The charge of criminal conspiracy has always been common, but during the past twenty years, remarkable activity in the law concerning criminal conspiracy has occurred: the Supreme Court has restructured the rules of evidence in conspiracy cases, and massive and complex "mega-trials" are now commonplace, especially in prosecuting drug crimes. This article discusses the history and current state of the law of criminal conspiracy and concludes that the modern changes fail to serve the true purpose of conspiracy law. This article also advises that conspiracy law can return to its true purpose – punishing groups of people for joining together to commit crimes – by reducing the use of mega-trials and by prosecuting the conspiracy, and not other related crimes.