Joint Criminal Enterprise in International Criminal Law

Sammanfattning: JCE is a mode of liability that comprises of three categories of case. This thesis focuses on the third category, namely extended JCE. Extended JCE applies to cases where a group have a common criminal aim, but a crime occurs that was not a part of this common aim. If this crime was a foreseeable consequence of the common aim, and the participants were indifferent to this risk, all are liable for this crime. The ICTY established extended JCE by finding its existence in customary international law, and thereby implicitly in its Statute. An analysis of the sources of law cited shows that no basis existed to find that extended JCE was a part of customary international law. By applying extended JCE without a basis in law, the ICTY has violated the principles of legality. The actus reus requirement for extended JCE is substantial participation in a group with a criminal aim. An analysis of the ''substantial contribution'' needed reveals that it includes a wide range of participation, very vaguely defined. The mens rea requirement of extended JCE is advertent recklessness. This is far lower than the requirements of any other mode of liability, which all require at least knowledge. Even the modes of liability that most closely resemble extended JCE, have a substantially higher criterion for mens rea. Extended JCE does not live up to the mens rea requirements established generally for different levels of involvement. The mens rea criterion for extended JCE does not fit with the context of international criminal law. In sum, the level of proof for extended JCE is so vague and low, that it resembles guilt by association. In modern armed conflicts many crimes may be foreseeable, without being desirable. Extended JCE risks encompassing individuals with very little responsibility for the crimes committed, who simply adhere to their own ethnic groups for survival. The flexibility of extended JCE creates an extremely potent tool for prosecuting group-based crimes. This flexibility also entails numerous risks to international criminal law, mainly by damaging its legitimacy and making a mockery of the level of proof. There is little to do about the establishment of extended JCE today but actions can be taken to elevate the level of proof, especially in the future case law of the ICC. This is a necessity to uphold respect for international criminal law.