The requirement of an 'Express Agreement' for joint criminal enterprise liability

Journal of International Criminal Justice

Volumn 5, Issue 1, 2007, Pages 134-158

  Gustafson, Katrina ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b UNIVERSITY OF BRITISH COLUMBIA   (Canada)

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[No Author keywords available]

Indexed keywords

EID: 33947670416     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqi085     Document Type: Article

References (85)

1. Judgement, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999 (hereinafter Tadić).
2. Judgement, Brdanin (IT-99-36-T), Trial Chamber II, 1 September 2004 (hereinafter Brdanin).
3. 'Violations of international humanitarian law connote "system-criminality" or "collective wrongdoing". Almost by nature, genocide, crimes against humanity and war crimes occur on a mass scale or in the context of systematic violence. This separates them from most "ordinary" crimes. System-criminality invariably connotes a plurality of offenders, particularly in carrying out the crimes. It is therefore hardly surprising that common purpose liability and complicity provide the basis for the bulk of war crimes convictions'. (E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, Cambridge: Cambridge University Press, 2003, at 4-5).
4. Tadić, supra note 1, §190.
5. Ibid., §227.
6. Ibid., §228.
7. Ibid.
8. Ibid.
9. Ibid., §232.
10. Ibid., §229.
11. van Sliedregt, supra note 3, at 79 (emphasis added).
12. Judgement, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, §73 (hereinafter Krnojelac).
13. Decision on Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, Milutinović, Šainović & Ojdanić (IT-99-37-AR72), Appeals Chamber, 21 May 2003, §20 (hereinafter Decision on Ojdanić's Motion Challenging Jurisdiction).
14. Judgement, Vasiljević (IT-98-32-A), Appeals Chamber, 25 February 2004, §102 (hereinafter Vasiljević).
15. Ibid., §111.
16. Ibid., §182.
17. Krnojelac, supra note 12, §75.
18. A.M. Danner and J.S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law, first posted at the eScholarship Repository, University of California, available online at http://repositories.cdli.org/ berkelely.ilw/fall2004/3 (visited 15 September 2005)
19. subsequently printed in 93 California Law Review (2005) 75-169.
20. Ibid., at 76.
21. Ibid., at 8 (citing various sources)
22. van Sliedregt, supra note 3, at 107.
23. Tadić, supra note 1, §186.
24. Decision on Ojdanić's Motion Challenging Jurisdiction, supra note 13, §26.
25. Danner and Martinez, supra note 18, at 51-52.
26. Ibid., at 62-63.
27. van Sliedregt, supra note 3, at 351.
28. Krnojelac, supra note 12, §83.
29. Ibid., §84.
30. Ibid., §116.
31. Tadić, supra note 1, §229.
32. Krnojelac, supra note 12, §81.
33. Tadić, supra note 1, §229
34. Vasiljević, supra note 14, §102.
35. Vasiljević, ibid.
36. As noted above, under JCE III, the accused must share the intent of the principal perpetrator with respect to a particular crime and the commission of the crime charged must be a foreseeable consequence of that initial crime.
37. The prosecution alleged that the crimes in the indictment were either committed pursuant to JCE I liability, or, alternatively, that the crime of deportation was committed under JCE I liability and the other crimes were natural and foreseeable consequences of the deportation. Sixth Amended Indictment, Brdanin (IT-99-36-T), 9 December 2003, §§ 27.1-27.3.
38. Ibid., §10.
39. Ibid.
40. Brdanin, supra note 2, §264.
41. Ibid., §344.
42. Ibid., §347 (emphasis added). Interestingly, the Trial Chamber notes in a footnote that both the prosecution and the defence agreed with this conclusion in their final trial briefs.
43. However, this Trial Chamber holding cannot be said to explicitly contradict previous Appeals Chamber decisions because this specific issue has not been addressed by the Appeals Chamber to date.
44. Brdanin, supra note 2, §354. According to the Trial Chamber, indirect proof of such an agreement would entail proving that the only reasonable inference that could be drawn from the evidence that the accused and the principal perpetrators acted in unison to implement the Strategic Plan was that the necessary agreement must have existed.
45. Ibid., §355.
46. The Appeals Chamber has allowed the prosecution to appeal this holding; however, the prosecution has agreed that the outcome of the appeal will not affect the JCE liability of the accused due to the fact that counsel for the prosecution had previously agreed with this position at trial. Decision on Motion to Dismiss Ground 1 of the Prosecutor's Appeal, Brdanin (IT-99-36-A), Appeals Chamber, 5 May 2005.
47. Separate and Dissenting Opinion of Judge Shahabuddeen, Vasiljević, supra note 14, at §31 (not dissenting on this point).
48. Brdanin, supra note 2, §347.
49. Brdanin, supra note 2, §353 (emphasis in original).
50. Tadić, supra note 1, §227 (emphasis added).
51. A.N. Trainin, Hitlerite Responsibility under International Law (London: Hutchinson, 1944), at 79
52. (cited in van Sliedregt, supra note 3, at 15), (emphasis added).
53. The criminal plans of JCE 1 and JCE 2 could differ in a number of ways. For e.g. while the Strategic Plan formulated by the Bosnian Serb leadership involved the forced removal of all non-Serbs from large areas of Bosnia, a paramilitary unit could have the criminal plan to forcibly remove all non-Serbs from a much smaller region, such as a single town. Such a criminal plan would be subsumed by the Strategic Plan but is obviously much more narrowly drawn. The shared intent of JCE 2 could also be narrower than the shared intent of JCE 1. For example, the members of JCE 2 could perpetrate acts of murder or extermination pursuant to a plan formulated by the members of JCE 1 to commit genocide where each of the members of JCE 1 share the genocidal intent to destroy, in whole or in part, a national, ethnic, racial or religious group in circumstances where the members of JCE 2 do not possess this genocidal intent, but only share the intent to commit the underlying acts of genocide.
54. Brdjanin, supra note 2, §307.
55. Ibid., §305.
56. Ibid., §308.
57. Ibid., §309.
58. Ibid., §193.
59. Ibid., §210.
60. Ibid., §221-223.
61. Ibid., §224-225.
62. Ibid., §227.
63. Ibid., §§ 291-292.
64. Ibid., §294.
65. Ibid., §297.
66. Ibid., §302.
67. Ibid., §319.
68. Ibid., §320 (emphasis added).
69. The Trial Chamber found that the de facto authority of the accused and the ARK Crisis Staff did not meet the requirements of superior responsibility under Art. 7(3) of the Statute (at §370-377).
70. In addition, the Trial chamber dismissed 'planning' as a mode of liability because, although the accused espoused the Strategic Plan and participated in its implementation, it found insufficient evidence to conclude that he was 'involved in the immediate preparation of the concrete crimes' (at §358).
71. The underlying acts for which the accused was found to have instigated the crime of persecution were deportation and forcible transfer.
72. The underlying acts for which the accused was found to have aided and abetted the crime of persecution were wilful killing, torture, destruction of property, physical violence, rape, sexual assault and constant humiliation and degradation.
73. Brdanin, supra note 2, §273.
74. Vasiljević, supra note 14, §102.
75. Ibid., §182.
76. Brdanin, supra note 2, §269.
77. The accused would share the intent of the principal perpetrators by virtue of the fact that each member of the subsidiary JCE, including the dual member of both the senior and subsidiary JCE, would have to possess the shared intent to commit the crimes charged, and each of the members of the senior JCE would in turn have to share the intent of the dual member to commit the crimes charged (Tadić, supra note 1, §228). However, as discussed above, the principal perpetrators, as members of the subsidiary JCE, would only need to share the intent of the members of the senior JCE with respect to those crimes carried out by the subsidiary JCE.
78. Moreover, since JCE is a mode of liability it seems problematic to posit that an individual can be a member of a JCE but not be liable for the crimes carried by that JCE, since the fact of JCE membership is a means of defining a member's liability for the crimes carried out by the JCE.
79. It is not entirely clear whether Danner and Martinez propose to differentiate between the liability of members within a JCE or to use the 'substantial contribution' requirement to actually exclude low-level perpetrators from the scope of the JCE. They appear to adopt the former position; however, if they are in fact taking the latter position, although this would solve the difficulty of having liable and non-liable members within a single JCE, they do not address how liability for crimes would attach to JCE members where none of the principal perpetrators remains within the scope of the JCE.
80. van Sliedregt, supra note 3, at 351.
81. It should be emphasized that this proposal is not necessarily the only way that JCE liability, or some other form of 'committing' crimes, might be appropriate where no principal perpetrators are alleged to come within the membership of the enterprise. There are other potential methods of linking members of a JCE to the principal perpetrators of crimes. It is beyond the scope of this paper to examine any other such proposals; however, as an example of just one other possibility, where a member of a JCE is found to have 'ordered' (within the meaning of Art. 7(1) of the Statute) individuals outside the JCE to commit crimes pursuant to a common plan formulated among the members of the JCE, it might be appropriate to attach liability for those crimes to the other members of the JCE. It should also be pointed out that in their judgment in Stakić (IT-97-24-T), Trial Chamber II, 31 July 2003, the judges (composed of a distinct panel from the Brdanin Trial Chamber)
82. Amended Indictment, Milošević (IT-02-54-T), 21 April 2004, §6.
83. Ibid., §7.
84. Danner and Martinez, supra note 18, at 67-68.
85. Article 25(3) of the Rome Statute reads: 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: ... (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.