Joint Criminal Enterprise and Command Responsibility

Abstract

AbstractThe joint criminal enterprise doctrine appears more and more as the ‘magic weapon’ in the prosecution of international crimes. Yet, the doctrine not only gives rise to conceptual confusion and conflicts with some fundamental principles of (international) criminal law but also invades the traditional ambit of command responsibility liability. This becomes obvious if both doctrines are applied simultaneously in cases against accused with some kind of superior position. After a short introduction on both doctrines, as interpreted in modern case law, the article gives some examples of their simultaneous application and tries to develop distinguishing criteria in light of the case law and a ‘dogmatic’ analysis of both the doctrines. A reference to the theory of ‘Organisationsherrschaft’ shows that there is yet another option to impute international crimes to top perpetrators.