Non-participation in Criminal Conduct and Imposing Criminal Liability: Joint Criminal Enterprise in Iranian and International Criminal Law

Yekrangi, Mohammad; Khademi Shoormasti, Yasaman; Sha`bani Hamidabadi, Faezeh

doi:10.29252/jlr.2021.185186.1681

Non-participation in Criminal Conduct and Imposing Criminal Liability: Joint Criminal Enterprise in Iranian and International Criminal Law

Document Type : Original Article

Authors

Mohammad Yekrangi ¹

Yasaman Khademi Shoormasti ²

Faezeh Sha`bani Hamidabadi ³

¹ Assistant Professor of Law, University of Tehran

² )Ph.D. Candidate of Criminal Law and Criminology, University of Tehran

³ Ph.D. Candidate of Criminal Law and Criminology, University of Tehran

10.29252/jlr.2021.185186.1681

Abstract

Abstract
The "Joint Criminal Enterprise"(JCE) doctrine is a special form of liability that innovates in the International Criminal Court for the Former Yugoslavia (ICTY). According to this form of liability, all the members of a criminal group that try to reach a criminal enterprise, have the same liability as to the accomplice. However, the JCE has faced different legal dilemmas since its introduction in the ICTY Judgments both in respect of actus reus and mens rea of the persons who are found liable based on JCE. How a court can convict a person who doesn’t commit the actus reus of a crime like a perpetrator and more important how it can convict a person who has no actus reus and mens rea related to committed crime, at all. This paper will scrutinize these issues and if this kind of liability recognizes in Iranian criminal law. Finally, this paper concludes that this form of liability has no conflict with criminal law principles and Iranian criminal law recognizes JCE in some crimes such as Baghy

Keywords

Joint Criminal Enterprise

Criminal Liability

Accomplice

Ad-hoc Tribunals

Baghy

Subjects

Criminology and Criminal Law

1. Cryer, R. et al. An introduction to international criminal law and procedure. Cambridge University Press, 2010.
2. Evans, E. P. The criminal prosecution and capital punishment of animals. William Heinemann, 1906.
Thesis
1. Jayangakula, K. Is the Doctrine of Joint Criminal Enterprise a Legitimate Mode of Individual Criminal Liability? − A Study of the Khmer Rouge Trials. Master of International Human Riths Law, Lund University, 2010.
2. Moyo, U. The development of indirect co-perpetration by the International Criminal Court and the extent to which its development accords with the principle of legality and the principle of individual culpability. Master of International and European Public Law Thesis, Tilburg University, 2013.
Articles
1. Cassese, A. “Amicus Curiae Brief of Professor Antonio Cassese and Members of the Journal of International Criminal Justice on Joint Criminal Enterprise Doctrine.” Criminal Law Forum, 20, No. 2-3, 2009, Springer Netherlands.
2. Cassese, A. “The proper limits of individual responsibility under the doctrine of joint criminal enterprise.” Journal of International Criminal Justice, 5(1), 2007.
3. Manacorda, S., & Meloni, C. “Indirect perpetration versus joint criminal enterprise: Concurring approaches in the practice of international criminal law?” Journal of international criminal justice, 9(1), 2011.
4. Ohlin, J. D. “Three conceptual problems with the doctrine of joint criminal enterprise.” Journal of International Criminal Justice, 5(1), 2007.
5. Olasolo, H. “Joint criminal enterprise and its extended form: A theory of co-perpetration giving rise to principal liability, a notion of accessorial liability, or a form of partnership in crime?. Criminal Law Forum, 20, No. 2-3, 2009, Springer Netherlands.
Case Law
1. Prosecutor v. Dusko Tadic, IT-94-1-A, Appeal Judgment. (Int’l Crim. Trib. for the Former Yugoslavia July. 15, 1999).
2. Prosecutor v. Miroslav Kvocka, et al, IT-98-30/1-A, Appeal Judgment. (Int’l Crim. Trib. for the Former Yugoslavia Feb. 2, 2005).
3. Prosecutor v. Radoslav Brdanin, IT-99-36-A, Appeal Judgment. (Int’l Crim. Trib. for the Former Yugoslavia Apr. 3, 2007).