Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise

This article dissects the Tadi court's argument for findingthe doctrine of joint criminal enterprise in the ICTY Statute.The key arguments are identified and each are found to be eitherproblematic or insufficient to deduce the doctrine from thestatute: the object and purpose of the statute to punish majorwar criminals, the inherently collective nature of war crimesand genocide and the conviction of war criminals for joint enterprisesin World War II cases. The author criticizes this over-relianceon international case law and the insufficient attention tothe language of criminal statutes when interpreting conspiracydoctrines. The result of these mistakes is a doctrine of jointcriminal enterprise that fails to offer a sufficiently nuancedtreatment of intentionality, foreseeability and culpability.Specifically, the doctrine in its current form suffers fromthree conceptual deficiencies: (1) the mistaken attributionof criminal liability for contributors who do not intend tofurther the criminal purpose of the enterprise, (2) the impositionof criminal liability for the foreseeable acts of one's co-conspiratorsand (3) the mistaken claim that all members of a joint enterpriseare equally culpable for the actions of its members. The authorconcludes by briefly suggesting amendments to the Rome Statuteto rectify these deficiencies.     

Reclaiming Fundamental Principles of Criminal Law in the Darfur Case

According to the authors, the Report of the UN Commission ofInquiry on Darfur and the Security Council referral of the situationin Darfur to the International Criminal Court (ICC) bring tolight two serious deficiencies of the ICC Statute and, moregenerally, international criminal law: (i) the systematic ambiguitybetween collective responsibility (i.e. the responsibility ofthe whole state) and criminal liability of individuals, on whichcurrent international criminal law is grounded, and (ii) thefailure of the ICC Statute fully to comply with the principleof legality. The first deficiency is illustrated by highlightingthe notions of genocide and genocidal intent, as well as thatof joint criminal enterprise. The second is exposed by drawingattention to the uncertainties and ambiguities surrounding suchnotions as recklessness and dolus eventualis, and in additionto the frequent reliance in both international case law andthe legal literature on customary international law and looseconcepts such as proportionality. The authors finally pointout that if the ICC tries to operate as a real criminal courtunder the rule of law and shows sensitivity to the rights andinterests of the accused, US fears of politicized prosecutionwill diminish.