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.
Department: Criminal Law (Prof. Sieber) Project category: Research project Status of project: Completed Country Sections: Europe, Middle East, Asia, USA & Canada Project languages: German, English, Spanish Organizational status: Institute project Project duration: Project start: 2005
Project end: 2012
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.