‘TO BE OR NOT TO BE’: A SHORT NOTE ON JOINT CRIMINAL ENTERPRISE BEFORE THE INTERNATIONAL CRIMINAL COURT

Abstract

One of the legacies of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) is the catch-all doctrine of Joint Criminal Enterprise (‘JCE’).1 However, the future of this doctrine embraced and applied by other ad hoc and hybrid criminal tribunals appears precarious and bleak as the International Criminal Court (‘ICC’), the only permanent international criminal tribunal, seems to have rejected and abandoned the doctrine. Notably, the Trial Chamber in Prosecutor v Katanga2 concluded that the new mode of criminal responsibility – ‘control over the crime’ is the sole inculpatory theory consonant with Article 25 of the Rome Statute of the International Criminal Court (‘the Statute’ or ‘the Rome Statute’) on individual criminal responsibility. This paper seeks to argue that the application of Joint Criminal Enterprise is not inconsistent with the provisions of the Rome Statute. Mindful of the demise of the ICTY3 and the importance of labelling in international criminal trials, the work makes a case for the application of Joint Criminal Enterprise before the ICC. This projection is particularly important in view of the limitations inherent in the new inculpatory approach (‘control over the crime’) and the controversy surrounding the interpretation of Article 25 of the Statute.