Marina Aksenova publishes new article
Aksenova just published a new article in Oxford Bibliographies titled 'Complicity in International Criminal Law'.
Complicity is a doctrine that attributes criminal responsibility to those who are involved with but do not physically perpetrate a crime. Despite the seeming simplicity of this definition, complicity is a highly complex and contentious concept in domestic and international criminal law alike. Its function is to construct a link between the accomplice and the criminal act of another person. This is not an easy task if one accepts the distinct moral importance of the perpetrator’s role. The matter is further complicated if the crimes are committed in the context of ongoing violence involving many actors at different levels of state hierarchy—international criminal law typically tackles this scenario. Complicity goes to the heart of the discipline’s quest for balance between the accused’s individual contribution and the collective nature of mass offending. The principle of legality demands that there exists a well-defined link between the crime and the person charged with it. This is so even in the context of international offending, which often implies “several degrees of separation” between the direct perpetrator and the person who authorizes the atrocity. How to construct this link without jeopardizing the interests of justice? Different forms of complicity, such as aiding and abetting or instigating, are firmly rooted in domestic legal systems and rather accurately capture the input of each accused. This contrasts with the newly developed concepts of joint criminal enterprise (JCE) and (in)direct co-perpetration, oriented toward joint participation. While complicity has more domestic law grounding than some other modes of liability, its focus on individual contributions to the crime calls for enhanced scrutiny. This feature of complicity also creates inevitable evidentiary challenges for international prosecutors.