Pluralism in Theories of Responsibility: Joint Criminal Enterprise versus Joint Perpetration

This paper scrutinizes the alleged pluralism between JCE and joint perpetration. It illustrates that the ICC and the ICTY in practice establish criminal responsibility under JCE and joint perpetration based on the participants’ cooperation in, and informed contribution to, a (criminal) organization involved in the commission of international crimes. This makes the alleged pluralism between these theories of liability nominal rather than actual. Instead of stressing the differences between JCE and joint perpetration, it is therefore more productive to focus on the similarities. The paper accordingly draws an analogy with domestic theories of criminal responsibility for (co-)perpetration and participation in a criminal organization. It argues that the ICTY and ICC should recognize the kinship between these domestic theories of liability, on the one hand, and JCE and joint perpetration, on the other hand. This can lead to a concept of criminal responsibility for international crimes that is better confined and more intellectually honest.