Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?

Abstract

This article addresses the well-known problem of establishing individual criminal responsibility for the commission of international crimes. In particular, attention is devoted to an analysis of the modes of liability that are best suited to dealing with the individual criminal responsibility of high-level perpetrators. In recent years, efforts have been made at the international level to bring to justice several high-level perpetrators, including incumbent Heads of State. In this context, the modes of participation of ‘joint criminal enterprise’ and ‘indirect perpetration’ have emerged as two possible alternatives for qualifying the participation of such persons in the commission of international crimes. Whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) has almost exclusively utilized the former mode of participation, most notably in the Milošević case, by contrast, the International Criminal Court (ICC) in its earliest decisions has rejected this doctrine, and it has resorted instead to a complex form of co-perpetration and indirect perpetration, based on the concept of ‘control over the crime’. Whilst the establishment of the latter mode of participation in the case law of the ICC represents a positive development in terms of advancing general principles of criminal law, this article also highlights some of the possible weaknesses and difficulties that could emerge in the application of this theory at the international level, which has its roots in the German Dogmatik.