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File:Front view of the ICTY.jpg

Building of International Criminal Tribunal for the former Yugoslavia in Hague.

Joint criminal enterprise (JCE) is a legal doctrine used by the International Criminal Tribunal for the former Yugoslavia to prosecute political and military leaders for mass war crimes, including genocide, committed during the Yugoslav wars 1991-1999.

This doctrine considers each member of a organized group individually responsible for crimes committed by group within the common plan or purpose.[1] For example, "if three people commit a bank robbery and one fatally shoots a person in the process, the law considers all guilty of murder."[2]

Definition

Without a certain degree of cooperation and coordination of actions, it is virtually impossible to perpetrate atrocities such as genocide or crimes against humanity.[3]

The first traces of joint criminal enterprise doctrine are identified in the post-World War II cases in which the doctrine was used under the name common purpose (or joint enterprise) or sometimes even without specific name.[4]

The first reference to joint criminal enterprise and its constituent elements was provided in Tadic case 1999.[4]

The Appeals Chamber of the ICTY decided on 21 May 2003 on "The Tribunal's jurisdiction ratione personae 'Joint criminal enterprise and the Tribunal's Statute' The nature of joint criminal enterprise - Joint criminal enterprise and conspiracy - Joint criminal enterprise and membership in a criminal organisation".[5]

The Tribunal's jurisdiction ratione personae: in order to fall within the Tribunal's jurisdiction ratione personae, any form of liability must satisfy four pre-conditions: (i) it must be provided for in the Statute, explicitly or implicitly; (ii) it must have existed under customary international law at the relevant time; (iii) the law providing for that form of liability must have been sufficiently foreseeable at the relevant time to anyone who acted in such a way; and (iv) such person must have been able to foresee that he could be held criminally liable for his actions if apprehended.
Joint criminal enterprise and the Tribunal's Statute: the reference to that crime or to that form of liability does not need to be explicit to come within the purview of the Tribunal's jurisdiction. The Statute of the ICTY is not and does not purport to be a meticulously detailed code providing for every possible scenario and every solution thereto. It sets out in somewhat general terms the jurisdictional framework within which the Tribunal has been mandated to operate. The list in Article 7(1) appears to be non-exhaustive in nature as the use of the phrase 'or otherwise aided and abetted' suggests.
The nature of joint criminal enterprise: insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated. Joint criminal enterprise is a form of 'commission' pursuant to Article 7(1) of the Statute.
Joint criminal enterprise and conspiracy: joint criminal enterprise and 'conspiracy' are two different forms of liability. While mere agreement is sufficient in the case of conspiracy, the liability of a member of a joint criminal enterprise will depend on the commission of criminal acts in furtherance of that enterprise.
Joint criminal enterprise and membership in a criminal organisation: criminal liability pursuant to joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.


Appeals Chamber of the ICTY, 21 May 2003.[5][6]

Writing about this finding in the Journal of International Criminal Justice in 2004 Steven Powles (A barrister who has appeared as a defence council in matters before the ICTY and the Special Court for Sierra Leone) states that the Appeals Chamber was obliged to make this declaration because there was no specific mention of "joint criminal enterprise" in the court's statutes and that "This is not ideal [because] criminal law, especially international criminal law, requires clear and certain definitions of the various bases of liability, so as to enable the parties, both the prosecution and, perhaps more importantly, the defence to prepare for and conduct the trial."[7]

Post World War II trials

In the aftermath of World War II, the courts established by British and United States in Germany applied this doctrine in the trials against Nazis.[4] The Italian Supreme Court applied a similar doctrine in the trials against fascists.[4]

Concentration camp cases

File:Bergen Belsen Liberation 01.jpg

Former guards of Belsen Concentration Camp load the bodies of dead prisoners onto a lorry for burial (April 1945).

Possibly, the most well-known post World War II cases are the Dachau Concentration Camp case, decided by a United States court, and the Belsen case, decided by a British military court, both sitting in Germany.[4] In these cases, the accused held position of authority within the hierarchy of the concentration camps and based on that were found guilty of the charges that they had acted in pursuance of a common plan to kill or mistreat prisoners.[4]

Essen Lynching case

Essen Lynching case, led before a British military court, demonstrates the closest link to the joint criminal enterprise doctrine.[4] In that case three British airmen prisoners of war had been lynched by a mob of Germans in the Essen on 13 December 1944.

Seven persons were charged with committing a war crime, included a German captain, who had placed prisoners under the escort of a German soldier. While the escort with the prisoners was leaving, the captain had ordered to not interfere if German civilians molest the prisoners. This order had been given in a loud voice so that the gathering crowd could hear. When the prisoners of war were marched through one of the main streets of Essen, the crowd grew bigger, started hitting them and throwing stones. When they reached the bridge, the prisoners were thrown over the parapet of the bridge; one of the airmen was killed by the fall; two others were killed by members of the crowd.[4]

Post Yugoslav War trials

The use of the JCE as an actual criminal investigation and prosecution theory first appeared at the ICTY through a written proposal to Chief Prosecutor Carla Del Ponte, which was developed and authored by American prosecutor Dermot Groome, at the time the legal officer for the Bosnia case, and American Investigator John Cencich, head of the Milosevic investigation for crimes alleged to have been committed in Croatia.[8][9]

Indictments to Serb leaders

Slobodan Milosevic

The ICTY prosecutor indicted Slobodan Milosevic on three separate indictments which on appeal they successfully pleaded to the ICTY Appeals Chamber should considered as one indictment. As the prosecution had not used the same language in all three indictments it was left to the Court of Appeal to decide if the alleged criminal enterprises in the three indictments were one of the same and what was common between the allegations. The Appeals count decided that:[10]

A joint criminal enterprise to remove forcibly the majority of the non-Serb population from areas which the Serb authorities wished to establish or to maintain as Serbian controlled areas by the commission of the crimes charged remains the same transaction notwithstanding the fact that it is put into effect from time to time and over a long period of time as required. Despite the misleading allegation in the Kosovo indictment, therefore , the Appeals Chamber is satisfied that the events alleged in all three indictments do form part of the same transaction.

As Slobodan Milosevic died during the trail, the trial court returned no verdict and so made no judgement on whether Milosevic was or was not a member of a joint criminal enterprise or if a joint criminal enterprise existed.

Vojislav Seselj

The ICTY prosecution indicted Šešelj alleging a number of crimes which included being member of a joint criminal enterprise during the Croatian and Bosnian wars. "The purpose of this joint criminal enterprise was the permanent forcible removal, through the commission of crimes in violation of Articles 3 and 5 of the Statute of the Tribunal, of a majority of the Croat, Muslim and other non-Serb populations from approximately one-third of the territory of the Republic of Croatia ('Croatia'), and large parts of Bosnia and Herzegovina" and alleged that the following individuals and groups were involved in a joint criminal enterprise:[11]

Slobodan MILOSEVIC, General Veljko KADIJEVIC, General Blagoje ADZIC, Colonel Ratko MLADIC, Jovica STANISIC, Franko SIMATOVIC also known as "Frenki", Radovan STOJICIC, also known as "Badza", Milan MARTIC, Goran HADZIC, Radovan KARADZIC, Momcilo KRAJISNIK, Biljana PLAVSIC, Zeljko RAZNATOVIC, also known as "Arkan", and other members of the Yugoslav People's Army ("JNA"), later the Yugoslav Army ("VJ"), the newly-formed Serb Territorial Defence ("TO") of Croatia and of Bosnia and Herzegovina, the army of the Republika Srpska Krajina ("SVK") and the army of the Republika Srpska ("VRS"), and the TOs of Serbia and of Montenegro, local Serb, Republic of Serbia and Republika Srpska police forces ("MUP forces"), including the State Security/Drzavna bezbednost/("DB") Branch of the Ministry of Interior of the Republic of Serbia, and Serb special police forces of the SAO Krajina and the RSK commonly referred to as "Martic's Police", Marticevci", "SAO Krajina Police" or "SAO Krajina Milicija" (hereinafter "Martic's Police") and members of Serbian, Montenegrin, Bosnian and Croatian Serb paramilitary forces and volunteer units including "Chetniks", or "Seseljevci" (translated into English as "Seselj’s men") (collectively, "Serb forces"), and other political figures from the (S)FRY, the Republic of Serbia, the Republic of Montenegro and the Bosnian and Croatian Serb leadership.
—ICTY Prosecutor's Vojislav Seselj indictment.[11]

Currently (as of March 2010) Šešelj is still being tried by the ICTY in the Hague.

Kosovo

According to the ICTY prosecutors indictment, Milutinović et al, Nikola Šainović, Nebojša Pavković and Sreten Lukić, along with others, participated in a joint criminal enterprise to modify the ethnic balance in Kosovo in order to ensure continued control by the FRY and Serbian authorities over the province. On 26 February 2009, the court returned a verdicts that:[12][13][14][15]

  • Nikola Šainović, "had substantial de facto powers over both the MUP and the VJ operating in Kosovo, and that he was the political co-ordinator of these forces. It is convinced that he made a significant contribution to the joint criminal enterprise and that, indeed, he was one of the most crucial members of that common enterprise. He was found guilty "of counts 1 to 5 of the Indictment, by commission as a member of a joint pursuant to Article 7(1) of the Statute".[12]
  • Nebojša Pavković "had substantial de jure and de facto command authority over VJ forces in Kosovo in 1998 and 1999, and that he was in a position of influence, including through his participation in the Joint Command. There is no doubt that his contribution to the joint criminal enterprise was significant, as he utilised the VJ forces at his disposal to terrorise and violently expel Kosovo Albanian civilians from their homes." He was found guilty of "counts 1 to 5 of the Indictment, by commission as a member of a joint criminal enterprise pursuant to Article 7(1) of the Statute".[12]
  • Sreten Lukić "had substantial authority over MUP units deployed in Kosovo ... the Chamber finds that Lukić was indeed an important participant in the joint criminal enterprise, and made a significant contribution through his control of the MUP forces involved in its execution." He was found guilty of "counts 1 to 5 of the Indictment, by commission as a member of a joint criminal enterprise pursuant to Article 7(1) of the Statute".[12]

On 27 May 2009, the Prosecution filed its notice of appeal in respect of all of the accused except Milan Milutinovië. On the same day, all Defence teams filed their notices of appeal.[14]

Indictments to Croat leaders

The Court found that the Croatian leaders also participated in a joint criminal enterprise with the goal of anexing parts of Bosnia and Hercegovina and creating Greater Croatia.[16] Croatian General Ante Gotovina's amended indictment accuses him of participating in a Joint Criminal Enterprise featuring Croatian President Franjo Tudjman. The purpose of the conspiracy, the indictment states, was "the forcible and permanent removal of the Serb population from the Krajina region"[17]

File:Former Yugoslavia durning war.svg

Former Yugoslavia durning war.

Among the accused are:

and other Croat leaders from Croatia and Bosnia. The judge noted that some deceased Croatian leaders were also involved in the criminal enterprise:

It is true that Mr. Tudjman was not charged because he is dead, but alive, he would be here on the accused bench. General Bobetko, that he was alive, he would be accused of the bench. It should be borne in mind when talking about a joint criminal enterprise.[16]
—Judge Jean-Claude Antonetti

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Rwandan Genocide trials

File:Rwanda genocide wanted poster 2-20-03.jpg

Wanted poster for the ICTR

The International Criminal Tribunal for Rwanda (ICTR) is an international court established in November 1994 by the United Nations Security Council in order to judge people responsible for the Rwandan genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.[18]

At the Rwanda trials, the Prosecution originally alleged that the genocidal common plan had been drawn up in 1990 but this theory was dismissed in December 2008 when the defendants in the mammoth “Military I” trial were acquitted of conspiracy to commit genocide.[19]

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Criticism

John Laughland, author of Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice, criticized the Joint Criminal Enterprise doctrine. He stated that successive rulings of the ICTY Appeals Chamber have allowed this doctrine "to get wildly out of hand". The judgement in Kvocka ruled that “JCE responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution.” In Brdjanin, it ruled that “the third category of joint criminal enterprise does not require proof of intent to commit a crime.”[19]

The International Criminal Tribunal for the former Yugoslavia...has invented a doctrine of criminal liability known as ‘joint criminal enterprise.’ It uses this concept, which is so contentious that it is unconstitutional in many jurisdictions, in order to convict people of crimes when even the Tribunal accepts that they did not, in fact, commit them or that the proof is lacking to show that they did.

He argues thus that "international tribunals have abolished the very thing which criminal trials are supposed to be about. If you can be convicted of a crime as a primary perpetrator for something which you neither committed nor intended to commit, and if mens rea can be ‘established’ by judicial ruling," this is "introducing into the heart of their systems measures which are the very hallmark of dictatorships." The chapter in Laughland's book Travesty on the subject of the Joint Criminal Enterprise doctrine is titled "Just convict everyone."

See also

References

  1. John Ciorciari, Joint Criminal Enterprise and the Khmer Rouge Prosecutions
  2. Atrocities in Yugoslavia unraveled much later
  3. Gunel Guliyeva, THE CONCEPT OF JOINT CRIMINAL ENTERPRISE AND ICC JURISDICTION (retrieved 29.12.2009.)
  4. 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 Jasmina Pjanic (OKO lawyer), Joint Criminal Enterprise New form of individual criminal responsibility. Retrieved 29 December 2009.
  5. 5.0 5.1 ICTY Appeals Chamber "Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction - Joint Criminal Enterprise", The Prosecutor v. Milutinovic et al. - Case No. IT-99-37-AR72, 21 May 2003
  6. ICTY Statute article 7(1) "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."
  7. Steven Powles,Joint Criminal Enterprise Journal of International Criminal Justice 2004 2(2):606-619; doi:10.1093/jicj/2.2.606
  8. http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/icty/miloseviccroatiaindtmt100801.pdf
  9. http://books.google.com/books?id=jeVby4pR3UQC&dq=carla+madame+prosecutor&cd=1
  10. "Reasons for decision on prosecution interlocutory appeal from refusal to order joinder", Slobodan Milosevic: ICTY Appeal Chamber Decision on case numbers IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, 2002-04-18 see footnote 41 and paragraphs 8 and 21
  11. 11.0 11.1 ICTY, Vojislav Seselj indictment, 15 January 2003
  12. 12.0 12.1 12.2 12.3 ICTY Judgement Summary For Milutinović et al, the Hague, 26 February 2009
  13. Carla del Ponte, ICTY, Prosecutor. Third Amended Indictment of Milutinović et al, The Hague, 19 July 2002
  14. 14.0 14.1 ICTY. Case information sheet: Milutinović et al.
  15. Linda Strite Murnane, Ten Years After the War in Kosovo: International Law, Kosovo and the International Criminal Tribunal for the Former Yugoslavia, The American Society of International Law Insights, Volume 13, Issue 7, June 10, 2009
  16. 16.0 16.1 Maratosnko svjedočenje Slobodana Praljka
  17. Gotovina's indictment
  18. Template:UN document
  19. 19.0 19.1 John Laughland: Conspiracy, joint criminal enterprise and command responsibility in international criminal law

External links

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