Genocidio, La Cosa Nostra: Uncovering Theories of Individual Responsibility for Collective International Crimes
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The purpose of this study is to examine the dilemma of how individual criminal responsibility can be attributed, in a principled manner, for crimes that have been perpetrated through collective conduct within the context of international criminal law. International crimes are inherently collective, and raise issues of complexity and gravity that do not commonly arise in domestic law, but which share similarities with domestic law’s treatment of organized crime. The traditional foundation for attributing individual criminal responsibility, being causation, is examined and found to be problematic in the case of collective crimes, such as genocide, crimes against humanity, war crimes, and the crime of aggression. It is suggested that non-causal justifications for attributing criminal liability are consistent with societal concepts of blame, responsibility, and harm, and should be considered in the interests of generating a more comprehensive and predictable theory for personal guilt in collective crimes. Four approaches to individual criminal responsibility for collective conduct that have emerged in international criminal law are reviewed, and found to be problematic. However, as opposed to discovering a fifth approach, it is suggested that a return to the founding theory of Anglo-American common law conspiracy may offer a viable solution. A historical review of conspiracy theory demonstrates that when the theory is applied with integrity it presents a non-causal justification for individual criminal responsibility based an augmented form of agency theory, supported by concepts of risk creation. Its elements, when properly applied, present predictable and comprehensive limits on liability.