PROSECUTING LARGE-SCALE ATROCITIES IN INTERNATIONAL CRIMINAL COURTS BETWEEN COLLECTIVE FORMS OF IMPUTATION AND INDIVIDUAL CRIMINAL LIABILITY: THE STRANGE CASE OF 'JOINT CRIMINAL ENTERPRISE'

The thesis discusses a particularly problematic mode of liability for international crimes: the doctrine of ‘joint criminal enterprise’ (JCE) created by the International Criminal Tribunal for the former Yugoslavia. The core issue is the suitability of this mechanism of attribution to turn into a vehicle of collective criminal responsibility. In order to discuss its points of friction with the principle of individual culpability, the author designs a broader theoretical framework. The point of departure is a polarization between two opposing forces: a macro-dimension of collectivizing factors (historical, contextual and teleological) and a micro-dimension that strives to contain liability into the strict boundaries of individual guilt. Placed within the “strain” between these two opposing forces, JCE reveals its highly problematic features, especially in relation to the requirements of an indirect causal nexus and a very weak mens rea. Finally, by venturing into a comparative analysis of common law/civil law domestic systems, the author proposes to the international interpreter several arguments and correctives in order to apply JCE liability in a manner that is more consistent with the fundamental principle of individual culpability.