Journal Article

Joint Criminal Enterprise

Harmen van der Wilt

in Journal of International Criminal Justice

Volume 5, issue 1, pages 91-108
Published in print March 2007 | ISSN: 1478-1387
Published online March 2007 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mql043
Joint Criminal Enterprise

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The Joint Criminal Enterprise (JCE) doctrine has made an impressive appearance on the stage of the International Criminal Tribunal for the former Yugoslavia. However, the initial enthusiasm has faded somewhat recently as doubts about the doctrine's broad applicability have started to dominate the discussion. In this article, the author argues that we should not deplore the partial demise of the doctrine. The simple truth is that the doctrine does not entirely dovetail with the gloomy reality of the modern bureaucracies that engage in systematic crime. Rather than trying to curb reality in order to fit our legal concepts, we might instead search for alternative modes of criminal responsibility. Functional perpetration may be such an alternative as it takes the function of the accused as point of reference for an inquiry into his responsibility and forges more direct links between the perpetrator and the crime. The JCE doctrine still has a useful function to serve in (modestly) extending the responsibility of participants in mob violence and in portraying the collective efforts of those who can properly be qualified as the auctores intellectuales of system criminality.

Journal Article.  8478 words. 

Subjects: Criminal Law ; International Law

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