Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise
![handle is hein.journals/jicj5 and id is 71 raw text is: Three Conceptual Problems
with the Doctrine of Joint
Criminal Enterprise
lens David Ohlin*
Abstract
This article dissects the Tadi6 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.
1. Introduction
Criminal law is not limited to the actions of isolated individuals. Perpetrators
act in concert by developing joint enterprises and pursuing their criminal
goals together. They pool information, deliberate in common, coordinate tasks
and - distressingly - achieve results. These intra-individual associations are
some of the most complicated in criminal law theory. Any time collective
action is pursued, the conceptual structure of criminal law theory must be
carefully analysed to ensure that criminal liability matches the complex
* Associate-in-Law, Columbia University School of Law. [iohlinl@law.columbia.edu]
Journal of International Criminal Justice 5 (2007), 69-90 doi:10.1093/jicj/mq1044
0 Oxford University Press, 2006. All rights reserved. For permissions please email: journals.permissions@oxfordjournals.org](ViewImageLocal?handle=hein.journals/jicj5&div=13&collection=&method=preview&ext=.png&size=3)
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Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise
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