Recent Development: Joint Criminal Enterprise and Brđanin: Misguided Over-correction

by: Allen O'Rourke

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The author is a J.D. Candidate, Harvard Law School, Class of 2007

Volume 47, Number 1 (Winter 2006)

The doctrine of Joint Criminal Enterprise (“JCE”) has become an essential tool of international criminal prosecution, but a recent trial judgment by the ad hoc International Criminal Tribunal for the former Yugoslavia (“ICTY”) jeopardizes its future. JCE developed within international criminal law to address the challenge of attaching liability to individuals who helped perpetrate or further mass crimes or atrocities, which often involve numerous perpetrators performing discrete, interrelated pieces of the larger crime. Responding to concerns about JCE’s broad scope, the ICTY Trial Chamber in Prosecutor v. Brđanin reversed the trend toward interpreting JCE broadly and narrowed JCE to resemble traditional criminal conspiracy. This undermined JCE’s unique ability to describe criminal arrangements too complex to at within traditional theories of criminal liability.

Part I of this Recent Development describes JCE’s origins and elements, providing the background necessary to understand Brđanin. Part II discusses Brđanin and explains the Chamber’s controversial position regarding JCE. Part III criticizes the Brđanin approach and offers an alternative that would address Brđanin’s concerns about JCE’s potentially broad application without sacriacing the unique ability of JCE to describe mass criminal activity.

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