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Judicial Creativity at the International Criminal Tribunals$
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Shane Darcy and Joseph Powderly

Print publication date: 2010

Print ISBN-13: 9780199591466

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199591466.001.0001

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Judicial Creativity and Joint Criminal Enterprise

Judicial Creativity and Joint Criminal Enterprise

(p.184) 8 Judicial Creativity and Joint Criminal Enterprise
Judicial Creativity at the International Criminal Tribunals

Mohamed Shahabuddeen

Oxford University Press

This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint criminal enterprise and co-perpetratorship, and considers that neither form of criminal liability can claim the status of customary international law. The chapter looks at the mental element required for the third category of joint criminal enterprise, which can be problematic in the context of specific intent crimes. It justifies the ad hoc Tribunals' reliance on the creativity of the bench, whereby new law is fashioned on the basis of the policy of the law as can be extracted from its roots. It argues that judicial creativity can be used if there is a gap in the law which would prevent a court from dispensing justice under its constituent instrument.

Keywords:   international criminal law, individual criminal responsibility, joint criminal enterprise, co-perpetratorship, judicial creativity, customary international law

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