Wednesday, October 13, 2010
The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the ICTY and the co-perpetration doctrine applied by the ICC, which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls and excesses associated with the JCE doctrine, including vicarious liability for actions that fall outside the scope of the criminal plan, the most expansive version of the JCE doctrine (JCE III). The following Article subjects the control theory, the new darling of the professoriate, to renewed scrutiny and questions whether “control” is the most important criteria for collective crimes. This Article defends the claim that the most essential aspect to ground vicarious liability for members of a criminal gang is the mens rea of its individual members. These individuals share with each other what the philosopher Michael Bratman calls a joint or shared intention -- in this case a joint intention that the group commit a collective crime. Through a series of hypothetical examples, I argue that this fact ought to be the most central aspect of the legal doctrine. The original version of JCE doctrine did little to analyze these joint intentions, though it implicitly relied on them, and the co-perpetration theory has sought to sidestep them by emphasizing “control” instead. But this is an overreaction. The proper course is to return mens rea to the center of the debate and develop a nuanced account of joint intentions that avoids the excesses of the JCE doctrine. Instead of replacing JCE with the control theory of perpetration, international courts should reform JCE by eliminating JCE III because it fails to comply with the underlying theory supporting the doctrine.