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2 J. Int'l Crim. Just. 606 (2004)
Joint Criminal Enterprise - Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity

handle is hein.journals/jicj2 and id is 620 raw text is: Joint Criminal Enterprise Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity? Steven Powles* 1. Introduction There is no specific reference in the International Criminal Tribunal for the Former Yugoslavia (ICTY) Statute to criminal liability pursuant to the joint criminal enterprise doctrine. Article 7(1) ICTYSt. stipulates that: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. Article 7(3) provides for the criminal liability of a superior who fails to 'prevent or punish' the crimes of his subordinates.1 But, neither Article 7(1) nor Article 7(3) makes reference to liability for any crimes as a result of participating in a joint criminal enterprise. Thus, it fell to the Judges of the ICTY, through both Trial Chamber and Appeals Chamber decisions, to identify, articulate and define this 'new' basis of criminal liability. This is not ideal - criminal law, especially international criminal law, requires clear and certain definitions of the various bases of liability, so as to enable the parties, both the prosecution and, perhaps more importantly, the defence, to prepare for and conduct a trial. 2. The Development of the Joint Criminal Enterprise Doctrine The Trial Chamber in Delalid et al. held that where a pre-existing plan to commit crimes exists, or where there is evidence that members of a group are acting with a * Barrister, Doughty Street Chambers, London, UK. Former Associate Legal Officer, Chambers, ICaY. Appeared as Defence Counsel in matters before the ICTY and the Special Court for Sierra Leone. 1 Article 7(3) ICTYSt. provides: The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. Journal of International Criminal Justice 2 (2004), 606-619 Journal of International criminal lustice 2. 2 © Oxford University Press. 2004. All rights reserved

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