Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise

Abstract

This article dissects the Tadi court's argument for finding the doctrine of joint criminal enterprise in the ICTY Statute. The key arguments are identified and each are found to be either problematic or insufficient to deduce the doctrine from the statute: the object and purpose of the statute to punish major war criminals, the inherently collective nature of war crimes and genocide and the conviction of war criminals for joint enterprises in World War II cases. The author criticizes this over-reliance on international case law and the insufficient attention to the language of criminal statutes when interpreting conspiracy doctrines. The result of these mistakes is a doctrine of joint criminal enterprise that fails to offer a sufficiently nuanced treatment of intentionality, foreseeability and culpability. Specifically, the doctrine in its current form suffers from three conceptual deficiencies: (1) the mistaken attribution of criminal liability for contributors who do not intend to further the criminal purpose of the enterprise, (2) the imposition of criminal liability for the foreseeable acts of one's co-conspirators and (3) the mistaken claim that all members of a joint enterprise are equally culpable for the actions of its members. The author concludes by briefly suggesting amendments to the Rome Statute to rectify these deficiencies.