Complicity in international criminal law: A fragmented law in need of a new approach

Abstract

Since the advent of the concept of complicity in international crimes in the years following the end of World War 2, the international jurisprudence has had difficulties in conclusively establishing the content of this concept. To that effect, the ICTY, ICTR, SCSL, STL, and the ICC’s jurisprudence contain complicated, unresolved issues that need to be addressed in order to safeguard coherence in ICL. An example of the results of these issues is the discrepancy between the outcome in the cases of Charles Taylor and of Momcilo Perisic where, for essentially the same conduct, the former was convicted and sentenced to 50 years in prison while the latter was acquitted of all charges. In the current situation of on-going legitimacy deficit of international criminal law, this problem must be tackled efficiently. To do so, in this paper, I identified the issues of complicity in ICL and tried to find solutions for them through a proposed definition of the concept of complicity which could be incorporated in the statutes of international criminal tribunals or in the international jurisprudence. According to my proposition, an aid, assistance, or support that has a substantial effect on the commission of the crime by the perpetrator given while the accomplice knew or was wilfully blind that the crime was being committed or that the perpetrator wanted to commit the crime and that, in the normal course of events, it was almost inevitable that the crime would be committed would be the new legal standard for complicity in ICL. I argue that this definition would settle many grave problems currently afflicting complicity such as the lack of legal certainty and the discrepancies in the outcomes among ICL judgments. I conclude the thesis by observing that, given that we are at the outset of a new world order, the international community should take this opportunity to set out clearly the content of complicity, a concept which is likely to receive increasingly widespread application in the future.