The Organized Crime Convention aims at meeting the need for a global response and at ensuring the effective criminalization of acts of participation in criminal groups. Article 5 of the Convention recognizes the two main approaches to such criminalization that are cited above as equivalent. The two alternative options of article 5, paragraph 1 (a) (i) and paragraph 1 (a) (ii) were thus created to reflect the fact that some countries have conspiracy laws, while others have criminal association laws. The Convention requires States parties to criminalize at least one such offence as distinct from the attempted or completed criminal activity.
Recognizing the legal differences among Member States, States parties to the Convention are permitted to use either the conspiracy approach, or the criminal association approach, as a legal method to punish participation in criminal organizations, or participation in the offences of criminal enterprises.
The two criminal offences considered thus far - conspiracy and criminal association - perform an analogous function in jurisdictions with different legal traditions. Nonetheless, they are inherently different. As detailed in previous sections of this Module, conspiracy is a crime that creates criminal responsibility for the mere fact of agreeing to commit a criminal offence, irrespective of whether the objective is carried out or even attempted (Okoth, 2014). It is distinct and separate from the substantive crime that the conspirators plan to commit. Therefore, in principle, a defendant may be convicted for both conspiracy and its underlying crime. On the contrary, the crime of participation in a criminal association (or organization, or group) in many jurisdictions merges into the substantive offence once the underlying crime is carried out.