Ohlin: The Co-Perpetrator Model of Joint Criminal Enterprise

Jens David Ohlin (Cornell Univ. - Law) has posted The Co-Perpetrator Model of Joint Criminal Enterprise (Annotated Leading Cases of International Criminal Tribunals, forthcoming). Here's the abstract:

The doctrine of Joint Criminal Enterprise has provoked scholarly debate among international criminal lawyers falling into two camps. The first camp argues that the doctrine should be abandoned as fundamentally incompatible with basic principles of individualized criminal law, while a second camp defends the doctrine as first elucidated in the ICTY's Tadic case with few or only minor amendments. The following commentary on the ICTY Trial Chamber's decision in Prosecutor v. Stakic takes a third route: fundamental alterations to the doctrine are required to bring it in line with the culpability principle. Specifically, by invoking the control theory of participation, this commentary argues that international tribunals should adopt a "co-perpetrator model of joint criminal enterprise". This new model differentiates between different levels of participation in criminal plans by creating two entirely new modes of liability: (i) co-perpetrating a joint criminal enterprise, and (ii) aiding and abetting a joint criminal enterprise. The former mode of liability would be reserved for individuals at the top of the hierarchy in a joint criminal plan whose participation is essential to the plan's fruition and intend to further the criminal purpose of the group, while the later liability would be reserved for lower-rung individuals who knowingly make a contribution to the plan but do not necessarily share the intent of furthering the criminal purpose of the overall conspiracy.