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The Katanga Case: Joint Criminal Enterprise versus Joint Perpetration under the Rome Statute

Pilviö, Mari

Artikkelit 26.6.2019, Referee-artikkeli


The article will analyse the relationship between the ICTY’s JCE and the ICC’s joint perpetration, in order to answer the question of whether an adoption of JCE at the ICC would also have led to Germain Katanga’s acquittal for a principal form of liability. This will be done firstly, by outlining the two modes of liability. The article will then discuss the objective and subjective elements of the modes of liability, with conclusions drawn on whether the application of the JCE doctrine could have led to the conviction of Katanga under a principal form of liability. Joint perpetration and joint criminal enterprise (JCE) arose as a response to the culpability of individuals who were responsible as principal perpetrators, but who did not physically commit the crime. These perpetrators would have been prosecuted as accessories, instead of principal perpetrators, which would not accurately portray the weight of their contribution and the major role played by the individual. JCE provides liability for individuals who participate in a common plan to commit crimes. The International Criminal Tribunal for the Former Yugoslavia (ICTY) adopted JCE in order to deal with different levels of culpability of participants in a criminal enterprise with a common purpose, since other modes of liability were insufficient to cover such situations. This makes sure that all responsible individuals in an enterprise will be held accountable, whether they plan, prepare or execute crimes within the ICTY statute. The relationship between joint perpetration and JCE needs to be defined in order to find out whether there is a distinct difference between the two concepts, and whether the International Criminal Court (ICC) could or should apply JCE instead of joint perpetration in future cases. (Edilex-toimitus)

  • Edilex-sarja 2019/25

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