Lords of the Ring: Assigning Liability in Criminal Networks

Criminologists tell us that collective criminality is increasingly assuming network formations, broadly defined in the relevant literature as a fluid set of individuals engaged in reciprocal, preferential, and mutually supportive actions to commit crime. Yet, current criminal law doctrines designed to deal with collective perpetration of crime are not suited to tackle network criminality. The Palermo Convention against International Organized Crime, 2000 instructs states to combat complex collective criminality through the criminalization of “organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group” (article 5). This solution is not applicable in a decentralized network, devoid of “organization” or “direction”. Unlike criminal organizations, networks lack a formal hierarchy or a recognized organizational authority to enforce order in the criminal activity. Ironically, according to the convention’s drafters, the main trades which the convention aimed to curtail were transnational human trafficking, drug trafficking, political corruption, money laundering, and cyber-crime, yet a growing body of literature suggests that it is particularly in these areas that criminal activity is undertaken by unstructured networks. This suggests that the doctrine proposed by the convention, and subsequently adopted in local legislation in over a hundred states around the globe, may be ill-suited to achieve its ends. Network criminality poses a new and pressing challenge to substantive criminal law. The paper defines the nature and scope of this challenge and proposes a viable way for meeting it.