PLURALISM IN INTERNATIONAL CRIMINAL LAW, edited by Elies van Sliedregt (Oxford University Press, Forthcoming)
21 Pages Posted: 29 Sep 2012 Last revised: 1 Jul 2014
Date Written: September 28, 2012
The recent international criminal law jurisprudence on collective action has swung back and forth between two approaches to perpetration, neither of which can lay sole claim to being fully representative of the world’s legal cultures. Courts, as well as drafters of tribunal statutes, are tasked with a painful decision of choosing sides, and must give up any pretense to harmonizing international criminal law with its domestic analogues. If international criminal law selects the civil law approach of co-perpetration, it thereby turns its back on the rich common-law tradition of conspiracy and its functional analogue of JCE; if, on the other hand, international criminal law selects the common law approach, it replicates a series of criminal law principles that are anathema to civil lawyers. In a sense, this is the Nuremberg dilemma about conspiracy all over again, with a choice to be made between legal cultures. It is also, however, a fundamental precept of international criminal law that it ought to respect general principles of criminal law. But when the general principles of criminal law in domestic systems are in a state of radical pluralism, harmonization at the international level is not so easy to accomplish. This short Essay for an edited volume on pluralism and harmonization in international law explores a different approach to these issues, although without laying claim to resolving the dilemma represented by this pendulum. I advocate for the centrality of the organization itself within the doctrine, though not in the sense of Roxin’s Organisationsherrschaft, which is perpetration through an organization, but rather in the sense of perpetration by an organization. The following Essay will explain how this approach seeks to escape the pendulum swing and also what it would mean for international criminal law to adopt a more organization-centric approach to modes of liability. I conclude that a greater attention to the role of horizontal organizations will help ensure fidelity to the principle of individual culpability, rather than violate it.
Keywords: Organizational Liability, Roxin, Control Theory, JCE, Joint Criminal Enterprise, Conspiracy, Indirect Perpetration, Co-Perpetration, Organisationsherrschaft
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