Bringing the Bosses to International Criminal Trials: The Problems with Joint Criminal Enterprise and the "Contorl over the Crime" Approach as a Better Alternative
Article by Juan Pablo Pérez León Acevedo in Pace International Law Review.
Similar to most international and hybrid criminal tribunals, the International Criminal Tribunal for the former Yugoslavia used the doctrine or theory of Joint Criminal Enterprise (JCE) as a mode of liability when prosecuting and convicting those most responsible, namely, state and non-state political and military leaders, in cases of international crimes. Against such background, the main research questions of this article are whether JCE should be applied in cases of those most responsible for international crimes and whether JCE should be replaced by the “control over the crime” approach. Overall, this article argues and finds two main points. First, JCE presents major issues when applied to cases involving senior leaders. Second, as done by the International Criminal Court, JCE should be replaced by the “control over the crime” approach since this approach is an overall more coherent alternative in the above-mentioned types of cases at international and hybrid criminal tribunals. Compared to JCE, the “control over the crime” approach as applied to cases involving senior perpetrators of international crimes: i) allows a clearer differentiation between principals and accessories to the crimes; and, ii) in its manifestation as perpetration through another person using an organized structure of power, is more suitable to appropriately determine criminal liability of those most responsible in large criminal enterprises.