Is the Doctrine of Joint Criminal Enterprise a Legitimate Mode of Individual Criminal Liability? − A Study of the Khmer Rouge Trials

This article considers the suitability of employing particular modes of imputed criminal liability in trials before international criminal tribunals. It focuses specifically on the doctrines of joint criminal enterprise and superior responsibility, two forms of liability which are central to many contemporary international criminal proceedings. Both doctrines can involve a broad form of criminal liability which may not be entirely appropriate when one considers the context in which such trials take place and the significance which often attaches to them. Proponents of international justice have contended that the contribution of these trials goes beyond basic accountability and providing justice for victims, extending also to peacemaking, reconciliation, deterrence, and the creation of a historical record. This article queries whether aspects of joint criminal enterprise liability and superior responsibility are appropriate when international justice is viewed in this light.

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Point of No Return: Joint Criminal Enterprise in Brđanin

Leiden Journal of International Law ◽

10.1017/s0922156509990367 ◽

2010 ◽

Vol 23 (1) ◽

pp. 137-164 ◽

Cited By ~ 1

Author(s):

CLIFF FARHANG

Keyword(s):

International Law ◽

Criminal Responsibility ◽

Criminal Liability ◽

Criminal Enterprise ◽

Precise Nature ◽

Joint Criminal Enterprise ◽

Point Of No Return ◽

The Common ◽

Individual Criminal Responsibility ◽

Traditional Doctrine

AbstractIn the Brđanin and Krajišnik judgments, the ICTY Appeals Chamber found that the accused may incur criminal liability for crimes carried out by low-level non-joint criminal enterprise (JCE) physical perpetrators who are used as tools or are otherwise instrumentalized by JCE members other than the accused to carry out the crimes of the common plan. Similarly, the Appeals Chamber held that the accused may also incur liability for crimes of excess committed by non-JCE perpetrators. However, as for the precise nature of liability in such cases, no clarification was provided. From this ambiguity the author detects an inclination on the part of the Appeals Chamber to construe JCE not only as an expression of commission but also of complicity. The author then identifies and elaborates the theoretical difficulties that this construction would instil in the traditional doctrine of JCE as formulated by the Tadić Appeals Chamber and the international law of individual criminal responsibility. He suggests that awareness of these very problems of theory is the reason behind the conspicuous ambiguity in Brđanin and Krajišnik as to the nature of JCE liability.

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Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?

Journal of International Criminal Justice ◽

10.1093/jicj/2.2.606 ◽

2004 ◽

Vol 2 (2) ◽

pp. 606-619 ◽

Cited By ~ 10

Author(s):

S. Powles

Keyword(s):

Criminal Liability ◽

Criminal Enterprise ◽

Joint Criminal Enterprise

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The Doctrine of “Joint Criminal Enterprise”: Criminal Liability of the Military-Political Leadership of the Armed Conflict Opposing Party for Committing War Crimes

wisdom ◽

10.24234/wisdom.v15i2.345 ◽

2020 ◽

Vol 15 (2) ◽

pp. 140-146

Author(s):

Hayk GRIGORYAN

Keyword(s):

Armed Conflict ◽

International Criminal ◽

Criminal Liability ◽

Political Leadership ◽

International Criminal Law ◽

Criminal Enterprise ◽

Joint Criminal Enterprise ◽

International Criminal Tribunals ◽

Opposing Party ◽

The Military

The article analyzes the mechanisms of bringing the military and political leadership of the opposing party of the armed conflict to criminal liability through the doctrine of "joint criminal enterprise", which is used in International criminal law, considering that the acts committed by this category of individuals, as a rule, are subject to investigation by international criminal tribunals on the basis of definitions developed by international practice. The analysis carried out by the Author also enables to propose scientifically substantiated recommendations on the qualification of the acts conducted by the military and political leadership of the opposing party, which form corpus delicti of various military and international crimes according to the rules of complicity provided for by the national legislation of the Republic of Armenia.

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