Bringing the Bosses to International Criminal Trials: The Problems with Joint Criminal Enterprise and the “Control over the Crime” Approach As a Better Alternative

Similar to most international and hybrid criminal tribunals, the International Criminal Tribunal for the former Yugoslavia used the doctrine or theory of Joint Criminal Enterprise (JCE) as a mode of liability when prosecuting and convicting those most responsible, namely, state and non-state political and military leaders, in cases of international crimes. Against such background, the main research questions of this article are whether JCE should be applied in cases of those most responsible for international crimes and whether JCE should be replaced by the “control over the crime” approach. Overall, this article argues and finds two main points. First, JCE presents major issues when applied to cases involving senior leaders. Second, as done by the International Criminal Court, JCE 1 * Dr. Juan-Pablo Pérez-León-Acevedo is a researcher at PluriCourts: The Legitimacy of the International Judiciary (Research Council of Norway Project Number 223274), Faculty of Law, University of Oslo where he has also lectured in international law courses and supervises master’s degree theses. He holds a doctoral degree in social sciences (international law) (Åbo Akademi University, Finland); a LLM degree (Columbia University, USA); a professional title of lawyer and an LLB degree (Catholic University of Peru). E-mail: j.p.p.l.acevedo@jus.uio.no A part of this article was done during the author’s research stay at the Department of Criminal Law of the Max Planck Institute for Foreign and International Criminal Law (Freiburg, Germany). He served in different capacities at the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, etc. The opinions expressed in this article are the author’s own and do not necessarily reflect the views of the above-mentioned institutions.