Thoughts on the Notion of Joint Criminal Enterprise in International Criminal Law
24 Pages Posted: 31 Jul 2009
Date Written: July 17, 2009
The article analyses the nature of the three variants of the joint criminal enterprise doctrine (basic, systemic and extended) in international criminal law. Firstly, it looks at the content of the joint criminal enterprise doctrine in the case law of the Nuremberg and Tokyo international military tribunals, as well as in the case law of the tribunals and military commissions that acted after World War II pursuant to Allied Control Council Law Num 10. In the said case law, the doctrine of joint criminal enterprise is portrayed as a theory of partnership in crime (which usually) gives rise to accessorial liability. Its roots can be traced back to the Anglo-American common purpose theories. Secondly, the article analyses how, in line with the said case law that emanated after World War II, article 25 (3)(d) of the Rome Statute of the International Criminal Court provides for a residual form of accessorial liability that is akin to the first and second variants of the joint criminal enterprise doctrine. Subsequently, the article studies the evolution of the joint criminal enterprise doctrine in the case law of the international criminal tribunals for the former Yugoslavia y Rwanda. Particular emphasis is made on how the case law of these two international tribunals has altered, after 2003, the nature of the joint criminal enterprise doctrine. This is due to the attempt to use the joint criminal enterprise doctrine to construe the notion of co-perpetration in international criminal law. Finally, the article sets out the substantial problems posed by the said alteration of the nature of the joint criminal enterprise doctrine, and recommends that such doctrine be confined to its traditional definition as a notion of partnership in crime, which gives normally rise to accessorial liability.
Keywords: joint criminal enterprise, co-perpetration, principals and accessories, international criminal law, international courts
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