Stretching the Joint Criminal Enterprise Doctrine to the Extreme: When Culpability and Liability Do Not Match

Abstract

Joint criminal enterprise (JCE) has caused a lot of concern amongst international criminal law practitioners and academics since its first appearance at the ad hoc Tribunals. A recent landmark decision, by the UK Supreme Court in Jogee, that overruled 30 years of common law development on joint enterprise, stimulates further discussions on whether JCE in its current form fairly reflects the balance between culpability and corresponding liability of the defendant. This article explores this issue by suggesting that the level of culpability of defendants does not match the degree of liability they incur under JCE III. The article dissects the JCE III mode of liability by considering it a ‘two-crime liability’: a common purpose crime and a foreseeable crime, and compares it with aiding/abetting. This article argues that the level of culpability of defendants under JCE III is much lower than their liability for the crimes they are convicted of.