Abstract
The scope and nature of conspiracy liability under international criminal law have long provoked controversy among scholars and practitioners alike. The questions whether this notion is a crime, or a form of criminal participation, or both, and what is its relation to the theory of joint criminal enterprise, have been at the core of these debates. The UN ad hoc Tribunals have routinely held that conspiracy is strictly an inchoate crime and is, therefore, fundamentally different from joint criminal enterprise responsibility. This line of reasoning, however, has been challenged by many in the commentariat who continue to argue that the international legislative origins of conspiracy in post-World War II documents and jurisprudence also defined this notion as a mode of liability. Far from being merely theoretical, this debate has been fuelled by a very practical consideration: the argument that since the concept of conspiracy has been shunned in international criminal law ever since the Nuremberg process, the joint criminal enterprise theory should also be repudiated. This article will thoroughly review the Nuremberg-era law on conspiracy in order to evaluate the conflicting interpretations of its legal nature. It will demonstrate that although this notion was originally construed to have a bifurcated function, it was then gradually refined and distinguished already back in those days from the underlying principles of the joint criminal enterprise theory.
Highlights
Conspiracy is a legal construct which has been widely eschewed in contemporary international criminal law
The scope and nature of conspiracy liability under international criminal law have long provoked controversy among scholars and practitioners alike. The questions whether this notion is a crime, or a form of criminal participation, or both, and what is its relation to the theory of joint criminal enterprise, have been at the core of these debates
It is nowadays well known that JCE is a mode of liability that was first introduced in the field of modern international criminal law by the ICTY Tadic Appeals Chamber.[6]
Summary
Conspiracy is a legal construct which has been widely eschewed in contemporary international criminal law. The present article submits that the continuing debates on this topic are largely caused by the ambiguous manner in which conspiracy was construed in World War II-era documents and jurisprudence It is still questionable whether this construct was defined and applied strictly as an independent crime, and as such is inherently different from JCE, which is a mode of liability, or whether it was used to impute responsibility for substantive crimes. If the latter is true, does this mean that a sign of equality could be put between the two notions and, respectively, that the asserted IMT’s rejection of such a sweeping use of conspiracy constitutes a tacit rejection of the present-day JCE theory? This systematic review will serve to: (i) explain the opposing views that continue to be expressed on the nature and scope of conspiracy liability; (ii) assess the merits of either proposition; and (iii) conclude on the questioned relationship between conspiracy and JCE liability
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