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http://ssrn.com/abstract=2026270
 
 

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Second-Order Linking Principles: Combining Vertical and Horizontal Modes of Liability


Jens David Ohlin


Cornell University - School of Law

March 19, 2012

25 Leiden Journal of International Law (2012), pp. 771-797

Abstract:     
Both the ICTY and the ICC have struggled to combine vertical and horizontal modes of liability. At the ICTY, the question has primarily arisen within the context of ‘leadership-level’ JCEs and how to express their relationship with the Relevant Physical Perpetrators of the crimes. The ICC addressed the is-sue by combining indirect perpetration with co-perpetration to form a new mode of liability known as indirect co-perpetration. The following article argues that these novel combinations — vertical and horizontal modes of liability — cannot be simply asserted; they must be defended at the level of criminal law theory. Unfortunately, courts that have applied indirect co-perpetration have generally failed to offer this defense and have simply assumed that modes of liability can be combined at will. In an attempt to offer the needed justification, this article starts with the premise that modes of liability are ‘linking principles’ that link defendants with particular actions, and that combining these underlying linking principles requires a second-order linking principle. The most plausible candidate is the personality principle — a basic principle that recognizes the inherently collective nature of leadership-level groups dedicated to committing international crimes. Like Roxin’s theories describing the collective organizations that can be used as a form of indirect perpetration, the personality principle treats the horizontal leadership group as an organization or group agent whose collective nature potentially justifies the attribution of vertical modes of liability to all members of the horizontal group. Although this article does not defend the doctrine of indirect co-perpetration, it does conclude that combined vertical and horizontal modes of liability, whether at the ICTY or ICC, implicitly or covertly rely on something like the personality principle in order to justify collective attribution to the horizontal collective.

Number of Pages in PDF File: 27

Keywords: ICC, ICTY, JCE, Joint Criminal Enterprise, Co-Perpetration, Indirect Perpetration, Indirect Co-Perpetration, Roxin, Control Theory

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Date posted: March 21, 2012 ; Last revised: July 7, 2014

Suggested Citation

Ohlin, Jens David, Second-Order Linking Principles: Combining Vertical and Horizontal Modes of Liability (March 19, 2012). 25 Leiden Journal of International Law (2012), pp. 771-797. Available at SSRN: http://ssrn.com/abstract=2026270

Contact Information

Jens David Ohlin (Contact Author)
Cornell University - School of Law ( email )
218 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
(607) 255-0479 (Phone)
(607) 255-7193 (Fax)
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