JCE이론의 주요 내용과 그에 대한 비판

Abstract

In international criminal law, common purpose responsibility is best known as ‘joint criminal enterprise’(JCE) under the ICTY jurisprudence. This article mainly deals with the notion and forms of the JCE concept as well as its objective and subjective elements, which have predominantly been adopted in the case law of the ICTY and presents some criticisms on the concept, which might be raised in the course of applying it. Since the ICTY Statute does not provide for the concept of JCE, the Appeals Chamber based its findings on customary international law and subsumed it within the meaning of ‘committing’ stipulated in Article 7(1) of the ICTY Statute. At the ICTY, an individual criminal responsibility theory was constructed along similar lines to the common design concept, at least in its early jurisprudence. In Furundžija case the notion of JCE was relied upon as ‘co-perpetration’ involving a group of persons pursuing a common design to commit crimes where ‘the accused participated in an integral part of the torture and partook of the purpose behind the torture’. It was the Appeals Chamber in Tadić case that further developed the JCE liability theory and that, on the basis of national and international precedents, formulated the elements of the JCE. To date, Tadić case is regarded as a leading case on the JCE and its impact on international prosecutions of core crimes has been impressive, although criticism was never far away. The JCE doctrine has been met with some criticisms, particularly from scholars and defence lawyers for its legal basis. In Tadić case the defence insisted that the JCE doctrine infringed upon the principle of nullun crimen sine lege. Criticism has furtherbeen voiced as to its scope of application. The concept of JCE, especially the extended form of it, has encountered criticisms for its potential to violate the principle of individual culpability. The extended form of JCE could result in guilt by association of criminal liability because the liability might be attributed to low-level members of the JCE for all the crimes perpetrated by the enterprise. Additionally, objections to the JCE doctrine have been prompted by its vague definitions of objective and subjective elements.