The leaders of organized offender groups and networks usually act in the background, avoiding any direct participation in criminal activities. This project examines how 43 legal systems handle the accountability and evidentiary problems that typically arise in such cases. In the process, new methodological approaches to comparative criminal law are tested. The goal is to support the development in this area of common legal principles of international criminal law and to contribute to the development of an international criminal law doctrine.

This pro­ject ad­dresses the de­vel­op­ment of gen­er­al prin­ciples of in­ter­na­tion­al law for sev­er­al es­pe­cially im­port­ant case con­stel­la­tions in­volving more than one par­ti­cip­at­ing of­fend­er. Of­fenses that are com­mit­ted with a di­vi­sion of labor and dir­ec­ted by well-con­cealed, be­hind-the-scenes act­ors in the con­text of com­plex or­gan­iz­a­tion­al struc­tures can lead to con­sid­er­able at­tri­bu­tion and evid­en­tiary prob­lems. Hence, they pose spe­cial chal­lenges for crim­in­al law re­search and law en­force­ment.

The cent­ral fo­cus of this pro­ject is wheth­er crim­in­al mas­ter­minds who dir­ect events to their ad­vant­age without dirty­ing their own fin­gers can be pun­ished com­men­sur­ate with their lead­er­ship roles. An ad­di­tion­al ques­tion with­in this fo­cus has to do with the ex­tent to which and the leg­al in­stru­ments by means of which one act­or’s per­son­al char­ac­ter­ist­ics, ac­tus re­us, and/or mens rea can be at­trib­uted – vir­tu­ally – to an­oth­er.

The first goal of this pro­ject is to fa­cil­it­ate the iden­ti­fic­a­tion of pos­sible gen­er­al leg­al prin­ciples of in­ter­na­tion­al law on com­pli­city. To this end, the vari­ous sys­tems of com­pli­city must be presen­ted and the func­tion­al lim­its of crim­in­al law re­gard­ing the at­tri­bu­tion of par­tic­u­lar con­tri­bu­tions to an of­fense iden­ti­fied. This pro­ject ul­ti­mately is con­cerned with the re­fine­ment of sys­tem­at­ic, func­tion­al com­par­at­ive crim­in­al law meth­od­o­logy – es­pe­cially with re­spect to com­par­at­ive case ana­lyses as a re­search meth­od – as well as with the ac­quis­i­tion of in­sights in­to the de­vel­op­ment of an in­ter­na­tion­al crim­in­al law doc­trine.

On the basis of a uni­form out­line, In­sti­tute staff and ex­tern­al ex­perts pre­pared coun­try re­ports for 43 leg­al sys­tems from around the globe on the ba­sic rules of com­pli­city as well as on the rules that ap­ply in the con­text of com­plex, or­gan­ized crime in­volving a di­vi­sion of labor. Through the ana­lys­is of two hy­po­thet­ic­al case scen­ari­os in­volving vari­ous types of or­gan­iz­a­tion­al struc­tures, of­fense con­tri­bu­tions, and sub­ject­ive of­fend­er at­trib­utes, the re­ports stud­ied and sub­stan­ti­ated the ap­plic­a­tion of gen­er­al rules. On this basis, char­ac­ter­ist­ic sim­il­ar­it­ies and dif­fer­ences among the ap­proaches ad­op­ted by the vari­ous leg­al sys­tems can be iden­ti­fied, clas­si­fied, and sub­stan­ti­ated by means of a sys­tem­at­ic, func­tion­al com­par­is­on, and gen­er­al struc­tur­al prin­ciples and as­sess­ments tran­scend­ing all the leg­al sys­tems can be de­rived.

A res­ult of this com­par­is­on of the vari­ous rules of com­pli­city is that struc­tur­ally dif­fer­ing con­cepts of the doc­trine of com­pli­city yield res­ults that are, to a large ex­tent, func­tion­ally equi­val­ent. This find­ing is con­firmed by the com­par­at­ive ana­lys­is of the hy­po­thet­ic­al case scen­ari­os. Vary­ing con­cepts of com­pli­city may in­deed lead to dif­fer­ent solu­tions at the of­fense level; however, they are con­sist­ent in the re­l­at­ive weight­ing of char­ac­ter­ist­ic con­tri­bu­tions to the of­fense. For ex­ample, prac­tic­ally all the leg­al sys­tems un­der study agree that evid­ence con­cern­ing the iden­tity of the con­crete of­fend­er is not ne­ces­sary in or­der to hold the ringlead­er crim­in­ally re­spons­ible as a per­pet­rat­or for a crime com­mit­ted by “his people” ac­cord­ing to plan. In a like man­ner, the clas­si­fic­a­tion of the or­gan­izer of a net­work who dir­ects the activ­it­ies from the back­ground as the primar­ily re­spons­ible of­fend­er of a crime does not fail due to the fact that the per­son who dir­ectly com­mits the crime, a "little cog in the big wheel," has no know­ledge of the crime’s over­rid­ing goals or of its spe­cif­ic char­ac­ter and mag­nitude. In con­trast, the vari­ous leg­al sys­tems treat very dif­fer­ently the is­sue of the at­trib­ut­ab­il­ity to oth­er (equally ranked) mem­bers or to hier­arch­ic­ally su­per­i­or par­ti­cipants of ac­tions by in­di­vidu­al group mem­bers that are not (ex­pressly) en­com­passed by the com­mon crime plan. To this ex­tent, clear dif­fer­ences ex­ist as far as the is­sue of min­im­um re­quire­ments re­gard­ing the mens rea of those who them­selves re­main in­act­ive is con­cerned.