공동범죄집단; 공동목적책임; 개인의 형사책임원칙; 죄형법정주의; Joint Criminal Enterprise(JCE); common purpose liability; ICTY; principle of individual culpability; principle of un crimen sine lege
법학논총. Vol. 31 No. 2 (2014) pg. 173, 33 p.
In international criminal law, common purpose responsibility is best known as ‘joint criminal enterprise’(JCE) under the ICTY jurisprudence. This article mainly deals with the notion and forms of the JCE concept as well as its objective and subjective elements, which have predominantly been adopted in the case law of the ICTY and presents some criticisms on the concept, which might be raised in the course of applying it. Since the ICTY Statute does not provide for the concept of JCE, the Appeals Chamber based its findings on customary international law and subsumed it within the meaning of ‘committing’ stipulated in Article 7(1) of the ICTY Statute. At the ICTY, an individual criminal responsibility theory was constructed along similar lines to the common design concept, at least in its early jurisprudence. In Furundija case the notion of JCE was relied upon as ‘co-perpetration’ involving a group of persons pursuing a common design to commit crimes where ‘the accused participated in an integral part of the torture and partook of the purpose behind the torture’. It was the Appeals Chamber in Tadi? case that further developed the JCE liability theory and that, on the basis of national and international precedents, formulated the elements of the JCE. To date, Tadi? case is regarded as a leading case on the JCE and its impact on international prosecutions of core crimes has been impressive, although criticism was never far away. The JCE doctrine has been met with some criticisms, particularly from scholars and defence lawyers for its legal basis. In Tadi? case the defence insisted that the JCE doctrine infringed upon the principle of un crimen sine lege. Criticism has further been voiced as to its scope of application. The concept of JCE, especially the extended form of it, has encountered criticisms for its potential to violate the principle of individual culpability. The extended form of JCE could result in guilt by association of criminal liability because the liability might be attributed to low-level members of the JCE for all the crimes perpetrated by the enterprise. Additionally, objections to the JCE doctrine have been prompted by its vague definitions of objective and subjective elements.