Foreseeable Liability through Joint Criminal Enterprise in International Law

The doctrine of Joint Criminal Enterprise might find its application in international law, however its application in the Government One case particularly in its so called extended form otherwise called JCE 3, suffers serious challenges. In Government One trial, the Tribunal acknowledged the lack of legal provision providing for JCE as a mode of establishing criminal liability and relied on the authority of the ICTY in its decision in the Tadic case. This research has found that a thorough study of the Tadic judgement proves that it was decided on shaky grounds. In its reasoning, the ICTY relied on cases in which JCE was not successfully pleaded or in other instances, the tribunal relied on cases which were rather decided on different legal questions. Furthermore, a review of the jurisprudence of current international criminal courts including the International Criminal Court and the Extraordinary Chamber in the Court of Cambodia did not confirm the position held by the ad-hoc tribunals according to which there was a norm of customary law providing for the doctrine of Joint Criminal Enterprise particularly in its extended form.