Joint Criminal Enterprise: Searching for an Appropriate Description for the Liability of International Criminals beyond Physical Perpetration

International crimes are usually the result of the criminal plans of those who, abusing their authority in a State or a non-State group, use other individuals as tools to pursue their ambitions. Therefore, while in domestic criminal law, the main liability rests on those who carry out the physical act constituting the mens rea, and those who have otherwise contributed to the criminal activity are generally considered merely as accomplices and accessories, such an approach would not be satisfactory in international criminal law. The international ad hoc tribunals (the ICTY and the ICTR) have applied the doctrine of Joint Criminal Enterprise (JCE) in order to hold liable as principals to the crime all individuals who, even if not directly involved in the physical execution of the crimes, have nevertheless had a significant role contributing to the general activity of the group. Accordingly, when groups acting with a common purpose cooperate to execute a plan involving international crimes, each member contributing to the plan may be held liable for all of the crimes falling within such plan perpetrated by other members. It is however observed that due to the controversial status of the doctrine in international customary law as well as its failure to distinguish between different levels of contribution, its application cannot be considered a good solution. Hence, the Judges at the International Criminal Court (ICC) have used the Control Theory of Perpetration distinguishing between participants with an essential role on the one hand and other contributors on the other.