Inchoate Crimes and Criminal Responsibility Under International Law

Introduction

It is often hard to prosecute crimes that involve international law as a result of the complex process that is involved. Many nations across the globe usually prosecute inchoate offences locally.However, there are certain circumstances where prosecuting inchoate offences locally is not possible and so, the international community is involved in prosecuting inchoate offences. The international countries punish the inchoate acts in their local courts. The other means that the international community uses in punishing these acts is by establishing tribunals.

The following research paper is concerned with Inchoate Crimes and Criminal Responsibility under International law. The paper specifically compares and contrasts how international countries treat inchoate crimes different than the United States. The term inchoate crimes refer to prohibited acts that have just started which they can result into another crime if they are continued. Inchoate crimes are usually distinct in the substantive criminal law. The criminal law is concerned with offenses which are related to illegal acts that are committed whereas inchoate crimes concerns itself with those offences which have not yet amounted to a social harm. Inchoate crimes thus aims at punishing behaviors which if allowed to continue would amount to illegal behaviors and social harm. Despite the fact that there is less or no social harm that is yet to occur, the society deems it right to step in to halt the consequences of inchoate offenses such as robbery. There are three offences of inchoate crimes which include; attempt, solicitation and conspiracy. These offences are not criminal acts in themselves but they represent an attempt to commit a crime. They are however distinct and separate offenses and they are defined by American jurisdictions by statute. The courts have played an important role of developing the law in inchoate crimes.However; they have found it hard to determine when an offense can be regarded as a criminal conduct. The law allows the state authority to arrest those people who are deemed as dangerous and have not yet carried out their criminal activities in order to terminate the conduct of criminal activities early. Of the three inchoate crimes, attempt offence is the most often charged. According to the Supreme Court of Tennessee, attempt refers failure by a person to achieve his or her given objective. With regards to solicitation, one should not incite another to commit a crime. Conspiracy refers to an agreement that is made by one or two individuals to act unlawfully to achieve a given non-criminal objective.

Comparison of how international countries treat inchoate crimes different than the United States

Both the United States and international countries adopts a common approach in treating conspiracy. Conspiracy is one of the oldest forms of inchoate crimes. The US as well as the international states has enacted statutes that make conspiracy to be deemed as a crime. The main reason why the United States and other states around the world have enacted statutes relating to conspiracy to commit a crime is due to the fact that, when two or more individuals intend to commit a crime, the extent of societal harm is increased (Samaha, 2010). Other reasons include the following; the possibility that there will be abandonment of committing a crime is greatly reduced, the possibility of succeeding in criminal activities is greater as compared to a situation where only one person was involved and also, the actions of two or more individuals cannot be detected easily as compared in a case where only a single person was prepared to commit a particular crime. The main purpose of the principle conspiracy to commit a crime in both the US criminal law and the international law is to halt and also punish criminal combinations in crime.

Both the US and international countries adopts a similar approach with regards to attempt inchoate crimes. In both the US and international countries, attempt law usually poses unique challenges such as distinction between actual attempt and mere preparation. In both, mere preparation does not amount to liability whereas, actual attempt certainly does. Jurisdictions in both the US and international countries is based on two main approaches in distinguishing an actual attempt form a mere preparation; the first approach is the substantial step and the proximity approach. The substantial approach requires that the criminal purpose of an individual must be strongly supported by an act. Some of the acts that constitute an attempt under this approach include the following; lying in wait, unauthorized entry of a structure, possession of objects to be used in committing a crime among others. The proximity approach usually focuses on whether one has an intention of committing a particular crime. Under the substantial approach, an attempt is regarded as an actual when the acts of a defendant are adequate to set up a criminal intent.

Both the United States and the international countries adopt a similar approach with regards to solicitation. According to both the United States and international countries one is being deemed to have committed a solicitation offence if he or she facilitates or promotes its commission or if he or she encourages others to commit the offence. In both sets of criminal laws, solicitation arises following soliciting and thus, the defendant can be prosecuted once intent to engage in a criminal behavior is proved. In both the United States and international countries, there are specific solicitation statutes e.g. solicitation relating to bribery or prostitution. In order for a person to be convicted under solicitation, there should be enough evidence that shows that he or she has done more than just a suggestion that an offence was committed.In many instances, the intent of defendants is evidenced by bringing forth statements that are eavesdropped by law enforcers. The following are usually considered in determining the preliminary offences i.e. the time when a noncriminal behavior became a criminal conduct, the preliminary offences that the suspect is accused of committing and the time when the suspect began to commit the offence.

Both the United States and international countries faces challenges in adopting a territorial jurisdiction approach in punishing inchoate crimes. Jurisdiction on criminal proceedings includes physical jurisdiction, local jurisdiction and statutory jurisdiction. With regards to physical jurisdiction, the territoriality and extra-territoriality principles are considered. Territoriality principle is concerned with criminal matters within a country whereas extra-territoriality principle focuses on matters outside the boundaries.However, both the United States and international faces challenges with regards to extra-territorial jurisdiction to try inchoate crimes that are committed outside their boundaries.Usually, the scope of jurisdiction of a state is difficult to define as far as the extra-territorial exercise of state powers is concerned. The sovereignty and interests of various states requires to be considered. According to the famous Lotus decision of 1927, states are only allowed to exercise extra jurisdiction to exercise inchoate crimes as long as their jurisdiction does not conflict the international law. The Lotus decision restricted the extraterritorial jurisdiction among states stating that a state can exercise extraterritorial jurisdiction on the basis of a special entitlement. A special entitlement can only be established by a customary international law or treaty or through a mutual agreement of the state upon which territory jurisdiction is exercised. The only courts that have jurisdiction to try an individual irrespective of his or her nationality are the court in Wales and England.

In both the United States and international countries, there are however certain statutory provisions that allow a court to try an inchoate criminal offence committed outside Wales and England. Globalization coupled with the emergence of international criminal organizations has brought about an increase in the number of inchoate crimes across national boundaries. This phenomenon is significant as far as inchoate offences are concerned and therefore, there is a need of ensuring that there is a coherent set of rules that administers when extra-territorial jurisdiction can be exercised.The introduction of statutory provisions thus have enabled both the federal court and international countries to pursue extra-territorial jurisdiction.

The inchoate crimes usually pose substantive challenges for courts,agencies and legislative bodies in both the United States and the international counries.Usually,courts and police finds it difficult to determine the at which an act qualifies to be regarded as an inchoate offnce.Moreover,the courts in both the United States and internatioinal countries finds it difficult to make a distinction between what is factuall;y impossible and what is legally impossible.

Differences of how international countries treat inchoate crimes different than the United States

Most of international countries across the globe use common law rules in order to have sufficient evidence of finding out whether one is guilty or innocent whereas the United States uses statutes in punishing the offenders of inchoate acts. The common law requires that there should be a consensus between the persons involved in accomplishing a particular crime. In State vs. Carbone 1952, it was held that the consensus itself can be ambiguous and as a result of conspiracy’s secret nature, guilt can be proved on circumstantial as well as direct evidence. The United States Supreme Court states that consensus requires not to be proved in order to be deemed as being explicit. An overt act is also required in order to provide a proof that the persons involved in committing a particular crime have progressed from the talk stage to action stage. It is through this basis that the co-conspirators become equally liable for substantive conspiracy crimes. In the United States, the individual state contains statutes on conspiracy.However; the statutes differ as some states have opted to adopt their origins common laws whereas others have adopted a unique expansionist approach.

The international countries adopt a different approach with that of the United States with regards to the legality principle. Usually, the principle of legality is deemed as the most crucial element of international law. Most of the international countries including Germany have adopted the principle compulsory protection in an effort to abolish the role of security forces and the discretion of prosecutors. The role of security forces is thus to safeguard the citizens’ rights and also to ensure that peace is maintained throughout the country. In United States, the secretion of the police is deemed to be having no constraints and instead, it is regarded as a crucial ingredient of the entire legal system so protect the individual’s freedom and rights in the face of complex abstract legal system. The compulsory prosecution has enhanced the independence of the prosecutors. Unlike the case of the United States, compulsory prosecution enables the judiciary to effectively prosecute the offenders of inchoate crimes.However, they approach lacks substantive controls as far as the prosecutorial activity is concerned. It has the effect of making the prosecution to be virtually unaccountable with regards to the choices that are to be inevitably made. The principle of compulsory prosecution is associated with decentralization due to the fact that the prosecutorial offices are independent (Yeager, 2006). As a result of the lack of accountability on the part of public prosecutors, the principle accords the prosecutors with much power. In the United States, an overlap occurs between the role of the police in dealing with dissent and inchoate crime. Conflicts thus arise regarding the overlap that exists between these roles.

The international countries does not include capital punishment whereas the United States uses capital punishment in punishing the inchoate crimes such as drug trafficking. The United States does not have legislation that legislation that provides for capital offences on inchoate crimes. Most of international countries across the globe have created national commissions that have seen the abolition of death penalty relating to inchoate crimes. For istance, the Council of Europe’s Parliamentary Assembly agreed to pass a resolution that abolished death penalty on all crimes including inchoate crimes in 1994.This resolution was aimed at total abolition of death penalty on al countries across the Europe. In most Asian countries including Hong Kong and Macau, capital punishment on inchoate crimes is not practiced unlike in the United States.

United States adopts a stricter approach in punishing inchoate crimes. Whereas the International countries set minimum conviction thresholds, United States uses aggravation thresholds i.e. it set minimum requirement for higher penalties. The United States laws regarding inchoate crimes evoke the principle of empathy and compassion. The United States holds the view that inchoate offenders deserve to be executed. It also does not wish peace upon the inchoate crime offenders. As much as this policy discourages harmful behavior, the approach loses sight of a more appropriate and compassion solution of treating inchoate crimes. The international countries have dropped minimum penalties relating to inchoate crimes. This has indeed resulted in substantial changes as far as disposition of inchoate cases is concerned. The international countries have brought about parole, conditional release and probation in an effort to enhance the work of administrative agencies and courts and to ensure that sentences are adjusted to fit specific inchoate case. The international countries have also consistently used of the term intent so as to avoid the problems that are associated with criminal law. The rights of both the plaintiff and the defendant are well articulated in the international countries. The rights of defendants have been extended on numerous occasions which are different from the situation in the United States where strict punitive measures are imposed on inchoate crime offenders.

In the United States, the conspiracy to commit a felony offence does not have a dual criminality. On the other hand, international countries do not require dual criminality that the United States has. A conspiracy offence is usually directed towards a specific offence. The United States deems it to be volatile and vague due process of charging conspiracy to commit a felony.Thus the US holds the view that a conspiracy should be specific intent offence. On the other hand, international countries do not treat conspiracy to commit a felony as a specific intent offence. In the United States the dual criminality requirement is often treaty based. The United States position regarding dual criminality has been in existence for more than hundred years. The position has evolved as a result of an increase in the level of inchoate crimes in the United States.

International countries adopts common law complicity whereas, the United States adopts a Model Penal Code Complicity in dealing with inchoate crimes. Complicity is itself not an offence but a theory of liability whereby an accomplice is punished as a result of offence which were committed by a perpetrator (Heller & Dubber, 2010). At common law, the compliance liability requires the accomplice to aid the perpetrator in executing a criminal offense. Although the accomplice does not involve himself or herself in committing the required act, he or she is liable under law for the actual conduct of the perpetrator. According to common law, encouragement is sufficient prove to hold the accomplice legally liable and thus the accomplice basically does not require to assist the perpetrator physically. On the other hand, the Model Penal Code is concerned with those situations whereby one attempts or agrees to aid another one in committing a crime. Actual assistance such as physiological assistance is however not required.

Conclusion

Inchoate crimes represent a major security concern which should be addressed fully. Inchoate crimes and criminal responsibility cannot be treated with isolation and so, there is need for all nations to be involved in addressing the situation. By criminalizing solicitation, conspiracy and attempt, both the international countries and the United States attempt to prevent the incidences of criminal acts which in turn pose potential harm to citizens. Both the United States and international countries has major comparisons and differences as far as treating inchoate crimes is concerned. The major similarities between the United States and the international countries in treating inchoate crimes includes the following; both the United States and international countries adopts a common approach in treating conspiracy, attempt and solicitation.In both the United States and international countries, adopting a territorial jurisdiction approach in punishing inchoate crimes is often challenging.However, there are certain statutory provisions that allow a court to try an inchoate criminal offence committed outside Wales and England in both the United States and international countries. The main contrasts that exist between the United States and international countries in treating inchoate crimes are that; the US uses statutes in punishing the inchoate crime offenders whereas the international countries uses common law rules. The international countries adopt a different approach with that of the United States with regards to the legality principle. Others include the fact that the US adopts stricter punitive measures including capital punishment among others.

Reference List

Heller, Keller & Dubber, Marcus. The Handbook of Comparative Criminal Law. (Stanford: Stanford University Press, 2010,P.3).

Samaha, Joel. Criminal Law. (London: Cengage Learning,10th ed 2010 p.46).

Yeager, Daniel. Austin and the law: exculpation and the explication of Responsibility. (Pennsylvania: Bucknell University Press, 2006).