چکیده:
AbstractThe "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
خلاصه ماشینی:
Despite the recognition of this specific type of liability, Joint Criminal Enterprise faces significant issues regarding its material and mental elements; including how one can impose liability equal to that of a principal perpetrator and punish an individual from a criminal perspective who had no involvement in the material element of the crime and, furthermore, lacked the necessary mental and psychological state.
Therefore, the present research aims to clarify the above issues using a descriptive-analytical approach and finally concludes that despite the apparent conflict of the "Joint Criminal Enterprise" doctrine with the principles of criminal law, the justification of this type of liability is possible and, in Iranian law, it can be applied to a certain extent to crimes such as Baghy (rebellion).
2 One of the most important criticisms raised against liability within the framework of joint criminal enterprise at the time of its creation was the incompatibility of this concept with an important principle of criminal law, namely the principle of legality (nullum crimen sine lege); because this doctrine was created for the first time during the proceedings of the former International Criminal Tribunal for the former Yugoslavia, through the interpretation of Article 7 of the Statute of this court, and by referring to customary law and international judicial practice, especially the trials after World War II.
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