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47 Harv. Int'l L.J. 307 (2006)
Joint Criminal Enterprise and Brdanin: Misguided Over-correction

handle is hein.journals/hilj47 and id is 315 raw text is: VOLUME 47, NUMBER 1, WINTER 2006 Recent Development JOINT CRIMINAL ENTERPRISE AND BRDANIN: MISGUIDED OVER- CORRECTION The doctrine of Joint Criminal Enterprise (JCE) has become an essential tool of international criminal prosecution,1 but a recent trial judgment by the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) jeopardizes its future.2 JCE developed within international criminal law to address the challenge of attaching liability to individuals who helped perpe- trate or further mass crimes or atrocities, which often involve numerous per- petrators performing discrete, interrelated pieces of the larger crime. Re- sponding to concerns about JCE's broad scope, the ICTY Trial Chamber in Prosecutor v. Brdanin reversed the trend toward interpreting JCE broadly and narrowed JCE to resemble traditional criminal conspiracy. This undermined JCE's unique ability to describe criminal arrangements too complex to fit within traditional theories of criminal liability. Part I of this Recent Development describes JCE's origins and elements, providing the background necessary to understand Brdanin. Part II discusses Brdanin and explains the Chamber's controversial position regarding JCE. Part III criticizes the Brdanin approach and offers an alternative that would address Brdanin's concerns about JCE's potentially broad application without sacrificing the unique ability of JCE to describe mass criminal activity. I. ORIGINS AND ELEMENTS OF JCE A. Origins and Development Modern international criminal law aims to assign individual responsibil- ity for mass crimes whose scope and severity transcend domestic criminal law.3 Mass crimes are committed against large masses of people, often stretch across large geographical areas, and may include crimes against humanity, 1. See Nicola Piacente, Importance of the Joint Criminal Enterprise Doctrine for the ICTY Prosecutorial Policy, 2 J. INT'L CRIM. JUST. 446 (2004). 2. Prosecutor v. Brdanin, Case No. IT-99-36-T, Judgment (Sept. 1, 2004). 3. The commentary to the International Law Commission's art. 2(1) of the 1996 Draft Code of Crimes against the Peace and Security of Mankind suggests: The principle of individual responsibility and punishment for crimes under international law recog- nized at Niirnberg is the cornerstone of international criminal law. This principle is the enduring legacy of the Niirnberg Charter and Judgement which gives [sic] meaning to the prohibition of crimes under international law by ensuring that the individuals who commit such crimes incur re- sponsibility and are liable to punishment. International Law Commission, Report of the International Law Commission on the Work of Its Forty-Eight Session, May 6-July 26, 1996, U.N. GAOR, 48th Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996).

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