Joint Criminal Enterprise

The doctrine of joint criminal enterprise is in disarray. Despite repeated judicial scrutiny at the highest level, the doctrine's scope, proper doctrinal basis and function in relation to other modes of complicity remain uncertain. This article examines the doctrine's elements and underlying principles. It argues that while joint criminal enterprise is largely used to make individuals liable for offences committed by their associates in excess of the common criminal purpose, its proper function is to police the limits of associate liability and thus to exculpate rather than inculpate. The doctrine governs not only instances of accessorial liability; it also applies where the parties involved are joint principal offenders. As this puts into question the prevalent view that joint criminal enterprise is a form of secondary participation that results in accessorial liability, the article concludes that it is best seen as a doctrine sui generis.     

Joint Criminal Enterprise: Possibilities and Limitations

The Joint Criminal Enterprise (JCE) doctrine has made an impressiveappearance on the stage of the International Criminal Tribunalfor the former Yugoslavia. However, the initial enthusiasm hasfaded somewhat recently as doubts about the doctrine's broadapplicability have started to dominate the discussion. In thisarticle, the author argues that we should not deplore the partialdemise of the doctrine. The simple truth is that the doctrinedoes not entirely dovetail with the gloomy reality of the modernbureaucracies that engage in systematic crime. Rather than tryingto curb reality in order to fit our legal concepts, we mightinstead search for alternative modes of criminal responsibility.Functional perpetration may be such an alternative as it takesthe function of the accused as point of reference for an inquiryinto his responsibility and forges more direct links betweenthe perpetrator and the crime. The JCE doctrine still has auseful function to serve in (modestly) extending the responsibilityof participants in mob violence and in portraying the collectiveefforts of those who can properly be qualified as the auctoresintellectuales of system criminality.     

The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law

The concept of a Joint Criminal Enterprise (JCE) has becomea useful tool in international criminal law. It allows courtsto hold individuals criminally liable for group activities towhich they have contributed in a criminally relevant way. Theconcept allows for an attribution of criminal responsibilityof unforeseen consequences of such group activities, and itseems to enable the prosecution and the courts to extend criminalliability to high-level perpetrators that use subordinated personsfor their criminal aims. The advantages of such a tool are obvioussince the crimes under international criminal law are mostlyof a systematic, large-scale and collective character, whiledomestic criminal law mainly deals with less complex crimesthat are normally committed by individuals who can easily belinked to the crime. Due to this empirical or criminologicalfact, it seems logical that the normal modes of liability forparties to a crime used in domestic criminal law need to beadapted, and that a rather extensive assignment of criminalliability for secondary parties is justified in internationalcriminal law. This article seeks to question this assumptionby undertaking a comparative analysis of domestic modes of liability.The author aims to show, on the one hand, to what extent theconcept of JCE is in line with the general concept of partiesto a crime in domestic criminal law. On the other hand, theauthor argues that abandoning the idea of JCE as an independentmode of liability may lead to better compliance with the principlesof legality and individual criminal responsibility and therebyincrease the legitimacy of international criminal law.     

Joint Criminal Enterprise and Command Responsibility

The joint criminal enterprise doctrine appears more and moreas the ‘magic weapon’ in the prosecution of internationalcrimes. Yet, the doctrine not only gives rise to conceptualconfusion and conflicts with some fundamental principles of(international) criminal law but also invades the traditionalambit of command responsibility liability. This becomes obviousif both doctrines are applied simultaneously in cases againstaccused with some kind of superior position. After a short introductionon both doctrines, as interpreted in modern case law, the articlegives some examples of their simultaneous application and triesto develop distinguishing criteria in light of the case lawand a ‘dogmatic’ analysis of both the doctrines.A reference to the theory of ‘Organisationsherrschaft’shows that there is yet another option to impute internationalcrimes to top perpetrators.     

过错原则的批判与坚守

在构建中国的侵权责任法及其理论体系的时候,必须对立法文本中的规范进行理论阐述,并形成一个圆满自足的体系,首要的工作便是确立必须信守的价值,进而以价值倡导体系,围绕核心价值进行体系构建。过错责任的归责原则虽然遭遇了前所未有的挑战,但其在侵权责任法中仍然是居于核心地位的价值判断。     

Enterprise Liability: Justifying Vicarious Liability

In Lister v Hesley Hall [2002] 1 AC 215 the House of Lords reformedthe law on vicarious liability, in the context of a claim arisingover the intentional infliction of harm, by introducing the‘close connection’ test. The immediate catalystwas the desire to facilitate recovery of damages on the partof victims of child abuse. The precise form the revision assumedwas derived from two Canadian Supreme Court cases: Bazley vCurry [1999] 174 DLR (4th) 45 and Jacobi v Griffiths [1999]174 DLR (4th) 7. The Canadian jurisprudence contains a detailedreview of the policy factors underpinning the law of vicariousliability and expresses the view that the most significant ofthese is ‘enterprise liability’. This article attemptsto establish whether enterprise liability holds the same significancein the UK. And, on the assumption that it does, the articlegoes on to consider any difficulties that may ensue and anyfurther common law reforms that may result. In particular itconsiders whether the law on vicarious liability for independentcontractors is likely to change.     

Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide

This article discusses one of the most controversial yet importantmodes of liability in international criminal law: joint criminalenterprise (JCE). One such controversy is whether Third CategoryJCE can serve as a basis for genocide convictions. To answerthis question one needs to uncover the nature and origins ofJCE. It is submitted that convictions for genocide based uponthe application of Third Category JCE are justifiable. Thiscontention stems from the premise that JCE is a form of criminalparticipation to which principles of derivative liability apply.However, such an approach is only valid when JCE is strippedto its core and applied as a small-scale group crime, whichrequires proof of a direct link between co-perpetrators. Moreover,in the case of Third Category JCE, a participant should be convictedof participating in genocide, which would carry a lower sentencethan committing genocide as a participant in a First or SecondCategory JCE.     

我国刑事责任年龄之检视

刑事责任年龄在中外刑事立法中均有明文规定,由于各国的刑事政策和少年儿童的生长发育情况不同,故刑事责任的起始年龄也有较大差异。我国刑法规定该年龄的起点为14周岁,为了适应犯罪低龄化及未成年人身心发育成熟提前等客观形势,有必要将该年龄适当下调至13周岁。     

爱滋病病毒携带者的刑事责任能力探析

当某人得知他/她携带爱滋病病毒(阳性)并与他人/她人进行亲密性行为,他/她是否应当对自己的行为承担刑事责任?争论的焦点是对该行为能否犯罪化?由于我国并没有针对该行为进行专门立法,引用我国《刑法》的有关规定对该行为进行处理可能会带来一些认定上的分歧,特别是在被害人同意的情形下,能否要求行为人承担刑事责任?根据我国《刑法》以及《刑法修正案》的相关规定,仍然可以对该行为进行刑事追究并处以刑罚,该行为符合投放危险物质罪或者过失投放危险物质罪的犯罪构成。     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

论犯罪集团首要分子的刑事责任

犯罪集团首要分子的刑事责任认定及归责根据是刑法理论和司法实践的难点问题,"张任行、张国忠等黑社会性质组织犯罪案"中两名首要分子行为表现方式多样,归责情况复杂,该案是研讨犯罪集团首要分子刑事责任的典型判例。其中,对犯罪集团中"知而不为"型首要分子的刑事责任可以基于首要分子"概括的犯意"进行认定;对"不知不为"型首要分子的刑事责任可以借鉴国际刑法中的"归咎责任"进行认定;根据罪责自负原则,首要分子对超过其控制力或支配力的犯罪行为不承担刑事责任。精确区分犯罪集团首要分子刑事责任的目的是构建开放型的犯罪集团首要分子归责体系。     

The Historical Development of Corporate Criminal Liability

The application of criminal liability to corporations grew out of a minor common law doctrine that masters were criminally liable if their servants created a public nuisance by throwing something out of the house onto the street. The expansion of that doctrine to full corporate criminal liability was primarily the result of judicial interpretation of common law and existing statutory laws, rather than the result of any-deliberate legislative action Civil law countries, lacking the tradition of judicial interpretation, have never developed the concept of corporate criminality. Corporate criminal liability will probably continue to expand in common law countries, regardless of its merits.     

注册会计师的过失责任:连带责任抑或比例责任

对于注册会计师的过失责任应适用连带责任还是比例责任,目前理论界存在争议,而这一问题对于注册会计师的法律风险具有相当大的影响。从西方来看,更多地采用连带责任,但近年来,以美国为代表,正表现出逐渐从连带责任向比例责任的转变的趋势。我国目前有关法律亦采用连带责任,但从我国注册会计师的执业环境来看,连带责任将使注册会计师承担过高的法律风险,因此,对于注册会计师的过失责任采用比例责任可能更为合适。     

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.     

刑事替代责任制度研究

刑事替代责任是一种特殊的刑罚制度 ,它从原始社会的血缘连带责任演变发展为比较健全的替代责任制度 ,今天 ,它表现为英美法系的刑事代理责任制度和大陆法系的转嫁刑罚制度。作者认为 ,研究刑事替代责任制度 ,可以指导我国的刑罚制度 ,以完善刑罚的社会保护机能     

Liberal Values in International Criminal Law: A Critique of Erdemovic

Using the Erdemovi decision as its starting point, the articleexamines the philosophical foundations of international criminallaw. It asserts that international criminal law, properly understood,represents a liberal legal system, emphasizing the rights ofthe accused over the interests of the prosecution or the goalsof international peace and security. Using the work of RonaldDworkin, it argues that international jurists should apply principlesthat invoke a respect for human rights and individual autonomyover ‘policy’. Thus, it argues that the reasoningof the Appeals Chamber of the International Criminal Tribunalfor the former Yugoslavia was flawed when it determined thatduress did not constitute a complete defence in Erdemovi.     

犯罪心理学研究的核心问题——刑事责任的心理基础

在“刑事一体化”背景下 ,犯罪心理学的研究应以行为人承担刑事责任的心理基础为核心。对故意犯罪而言 ,刑事责任的心理基础主要表现为行为人恶劣的犯罪动机和对法律的蔑视态度 ;就过失犯罪而言 ,刑事责任的心理基础主要表现为行为人人格的缺陷和对法律的轻视态度。因此 ,犯罪动机和犯罪人格是行为人承担刑事责任的主要主观依据 ,也是犯罪心理的具体表现和核心内容。