The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?

This chapter concerns one of the most extensively used, yet also one of the most controversial modes of liability in international criminal law today, the mode of liability labelled the ‘common purpose doctrine’ or the ‘joint criminal enterprise doctrine. The doctrine, in general terms, provides that where a pre-existing plan to commit core international crimes exists, or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and contribute to, the realisation of this purpose may be held individually criminally responsible. In accordance with this doctrine, a person can be convicted for crimes which he not only committed/participated in with intent, but also for crimes which he did not intend nor actually personally commit, but which were a ‘natural and foreseeable consequence’ of the common purpose or purpose of the joint criminal enterprise.

The doctrine is considered to be one of the most effective tools which can be employed to convict individuals of core international crimes, where there is no direct evidence of the actual participation of the accused in the crime in question. It appears to have become the principal charging preference at the ICTY.3 Cassese has described it as the “darling notion” of the Prosecution.4 Gustafson posits that the joint criminal enterprise doctrine can “enhance the truth-telling function of international criminal law trials by portraying, more accurately than other theories of liability, how crimes are conceived of, planned and executed in a system-criminality context”, whereas Haffajee argues that the doctrine may be particularly useful in addressing some of the evidentiary barriers which prosecutors face in relation to the prosecution of crimes of rape and sexual violence.