Joint Criminal Enterprise, the “Magic Bullet” of Prosecutor: Has the ICTY gone too far?

Abstract

This paper deals with one of the most controversial issues in the field of international criminal law, the concept of Joint Criminal Enterprise (JCE). JCE is a legal doctrine that was developed by the International Criminal Tribunal for the former Yugoslavia (ICTY) to convict participants of mass war crimes. JCE itself is not a crime, but a mode of criminal responsibility. The wide application of the JCE allows the conviction of remote participants of a criminal group and has earned a lot of criticism from legal scholars. The author gives an overview on the historic development of the doctrine and also examines the most important legal restraints and problems about the issue. He shows that at least the widest form of JCE, the extended form, leads to uncertain and sometimes even unjust results and should therefore not be applied by international tribunals. The last part of the paper gives an outlook on the future development of JCE in light of the establishment of the International Criminal Court (ICC). The Rome Statute of the ICC contains a detailed catalogue of modes of participation in crime and will change the scope of the doctrine, as it provides for a better system to deal with the complex situation of group criminality.