Imputation and Complicity in Common Law States: A (Partial) View from England and Wales

Abstract

This article seeks to investigate the question of imputation as it is understood in the law of England and Wales, and what insights it may have for international criminal law. It begins with some reflections on the (perhaps stereotyped) approach to criminal law in England and Wales, and the common law more generally, emphasizing the result-oriented, inductive approach. This way of seeing things can be seen as eschewing theory, but actually reflects unidentified theoretical commitments. From there this contribution moves on to explain the law of complicity in England and Wales, comparing it to how international criminal law, especially in the International Criminal Tribunal for the former Yugoslavia, treats general principles of liability. It then briefly mentions the other relevant crimes that exist in the law of England and Wales. The work then concludes with a plea for international criminal lawyers to overcome their national backgrounds and training, and develop reflexive principles of liability that are appropriate to, and reflect, the nature of offending in the context of international crimes. To further this it is suggested that those who are interested in international criminal law engage in a process where a series of situations are proposed, and lawyers and ethicists from across the spectrum discuss the appropriate results. From there some foundational principles may be developed that could form the basis of a more sophisticated approach to liability for international crimes.