A Different Approach to mens rea in Joint Criminal Enterprises

The theory of joint criminal enterprise has been developed and applied in international proceedings for the realization of the goals of international criminal law including the prevention of criminal activities and punishing the perpetrators. According to this theory, if an individual has the necessary mental element, his not being directly involved in committing the material element of the crime does not lead to exculpation. International criminal courts have adopted different approaches in realizing the mental element of crimes and have suggested different concepts. Hence, in some approaches (basic approaches) the concept of “common intention” has been considered as a fundamental basis for constituting the mental element". In a second approach (a systematic approach), the intention of developing a criminal system" has been regarded as the fundamental element of responsibility; in a third approach, the ability to predict the crime has been seen as the main building block of the mental element. Although development of these approaches has helped international criminal law fulfill its objectives, they are seen as the emergence of challenges and questions in relation to the limitations and framework of the aforementioned concepts and the possibility of accommodating them with crimes with specific mens rea. These challenges represent the necessity of further investigation of mens rea in joint criminal enterprise with specific attention to principles of law and the foundations and nature of the theory.