| Abstract: | 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. |
